ANGEL S. PEREZ-MORALES, PETITIONER V. UNITED STATES OF AMERICA No. 90-5959 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. I) is reported at 905 F.2d 483. JURISDICTION The judgment of the court of appeals was entered on May 23, 1990. A petition for rehearing was denied on July 10, 1990 (Pet. App. III). The petition for a writ of certiorari was filed on October 15, 1990, and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the suppression of evidence by a local Puerto Rican judge was binding on a federal court in a subsequent trial. 2. Whether petitioner was denied grand and petit juries who were proficient in the English language. STATEMENT After a jury trial, petitioner was convicted in the United States District Court for the District of Puerto Rico on four counts charging conspiracy to import marijuana and cocaine, attempted importation of marijuana, and importation and possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 963, 952 and 841(a)(1). He was sentenced to consecutive five-year terms of imprisonment on each count, fined $10,000 on the conspiracy count, and given a three-year special parole term on the attempted importation count. The court of appeals reversed petitioner's conviction on the cocaine-importation count, but otherwise affirmed. 1. On his release from prison in March 1985, Luis Viera began planning to import marijuana from Colombia. In May, Viera discussed his plan with petitioner. Later that same month petitioner introduced Viera to co-defendant Aponte-Suarez, who had access to an airplane and a pilot. Pet. App. 5. Petitioner later attended a third meeting with Viera and others to discuss various offloading sites for the marijuana in Puerto Rico. In August 1985, petitioner flew to Columbia, while others went to the airstrips in Puerto Rico where the drugs were to arrive. But the plan was foiled by the Columbian officials' arrest of petitioner and two others. Viera thereafter made arrangements to seek petitioner's release. Pet. App. 5-6. After his release, petitioner participated in a successful effort to import cocaine from Columbia. After a plane flew to Columbia, petitioner boarded a return flight to Puerto Rico, which was carrying a cargo of four suitcases containing 96 kilograms of cocaine. On arrival in Puerto Rico, the suitcases were offloaded and stored in a stash location. The next day petitioner attended a meeting at Viera's apartment to discuss apportioning the cocaine among various salesmen. After the meeting Viera and petitioner drove to the stash house and picked up two of the suitcases, which contained 46 kilograms of cocaine. Petitioner helped deliver the suitcases to Aponte. Other conspirators sold the remaining 50 kilograms. Pet. App. 7-8; Gov't C.A. Br. 11. 2. The court of appeals affirmed petitioner's convictions, but for the importation-of-cocaine count. /1/ The court rejected petitioner's contention that the district court erred in refusing to follow a local judge's order suppressing evidence (the 96 kilograms of cocaine, and other items seized from petitioner), and by refusing to allow the local judge and prosecutor to testify at the suppression hearing. The court concluded that "(t)he local judge's findings were not binding on the district court," and that the court had "acted lawfully" in reaching its own conclusion on the admissibility of the evidence. The court also noted that the government did not introduce evidence at trial of the seizure of cocaine from petitioner, although it did present evidence that a notebook seized from petitioner linked him to various co-conspirators. Pet. App. 29-30. The court also rejected petitioner's contention that the indictment was defective because the grand jurors had inadequate command of English, and that the petit jury that served at trial similarly lacked proficiency in English. The court explained that petitioner pointed to no testimony from the grand jury proceedings suggesting a lack of English language skills. Nor did the trial record indicate that any juror had experienced difficulty in following the proceedings. Rather, the record indicated that jurors had responded correctly in English to questions during jury selection, and no defense lawyer brought any perceived language problems to the judge's attention. The court concluded that "(n)ews reports" indicating a lack of English language skills in the general population "are too thin a basis to challenge jury competence." Pet. App. 20. /2/ ARGUMENT 1. Petitioner contends that the district court erred in failing to follow a local judge's order suppressing evidence. He also claims that the court erred in refusing his requests to subpoena the local judge and prosecutor for the suppression hearing. Petitioner's arguments, which raise no claim of conflict with any other court of appeals or with any decision of this Court, are without merit. The Fourth Amendment applies in Puerto Rico. Torres v. Puerto Rico, 442 U.S. 465, 471 (1979). But a suppression ruling by a coordinate court in the federal system does not foreclose a federal court from making its own determination in federal criminal proceedings. In Elkins v. United States, 364 U.S. 206, 223-224 (1960), the Court explained: In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed. Petitioner offers no reason why the Elkins rule is inapplicable here. Although petitioner refers to "res judicata" principles being "ignored," Pet. App. 20, and questions why a federal judge should have the authority to disregard the findings of the Puerto Rican court, at bottom he offers no reason why a local court of Puerto Rico should receive any more deference in its suppression decisions than a state court receives under the rule announced in Elkins. Cf. Posadas de Puerto Rico Ass. v. Tourism Co., 478 U.S. 328, 339 (1986); Examining Bd. v. Flores de Otero, 426 U.S. 572, 594 (1976). Elkins is not inconsistent with the principle of res judicata. Rather, it is mindful of the notion that federal and state courts (including for this purpose the local courts of Puerto Rico, see United States v. Lopez Andino, 831 F.2d 1164, 1168 (1st Cir. 1987)), administer independent systems of criminal justice. Even the completion of criminal proceedings in a state court does not bar pursuit of similar criminal proceedings. Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959). It would be curious indeed if a different principle applied to evidentiary rulings reached before the trial even begins. Accordingly, the trial judge below was correct in determining that the suppression order issued by a Puerto Rican court did not bind him. United States v. Bonilla Romero, 836 F.2d 39, 41-44 (1st Cir. 1987); United States v. Fossler, 597 F.2d 478, 481 (5th Cir. 1979); United States v. Garrett, 565 F.2d 1065, 1068 (9th Cir. 1977), cert. denied, 435 U.S. 974 (1978); United States v. Bedford, 519 F.2d 650, 654 (3d Cir. 1975), cert. denied, 424 U.S. 917 (1976). Petitioner also contends that the district court erred in refusing to hear testimony from the local judge and prosecutor involved in the suppression hearing in the Puerto Rican court. Petitioner intended to use these witnesses, not to testify to facts surrounding the arrest and seizure, but to discuss matters of law. But the ultimate legal issue was for the federal judge alone to resolve. The purpose of the suppression hearing was to adduce facts material to the legal issues and not irrelevant legal opinions from another jurisdiction. Petitioner's attempt to pit the reputation of the local judge against that of the federal trial judge was properly foreclosed by the quashing of the subpoena. Cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). /3/ 2. Petitioner also renews his contention (Pet. 7-8) that the grand and petit jury was composed of, or included, individuals lacking adequate command of English. By statute, all federal grand and petit jurors must have the ability to speak English and to read, write, and understand English sufficiently to fill out a juror qualification form. 28 U.S.C. 1865(b)(2) & (3). Petitioner does not allege systemic noncompliance with that statute in Puerto Rico. Instead, relying primarily upon a newspaper report claiming a decline in English proficiency among the general population in Puerto Rico, petitioner evidently contends that 91% of all Puerto Rican residents are unable to read English proficiently, and that no federal grand jury or petit jury can be impanelled there with a guarantee that the jurors can understand the proceedings. The court of appeals correctly rejected petitioner's conjecture about the jurors' competence. A generalized report that a large percentage of the population in Puerto Rico lacks English language fluency does not establish that any particular juror who considered petitioner's case lacked such fluency. The grand jurors who returned petitioner's indictment and the petit jurors who deliberated on his guilt or innocence were chosen routinely with no indication of a deviation from the overall selection plan. Nothing in the record suggests that the grand or petit jurors failed to meet the English language proficiency requirements. On the contrary, as the court of appeals noted, the jurors affirmatively demonstrated their knowledge of English by properly answering questions posed to them by the judge during the selection process. Pet. App. 20. Petitioner identifies nothing that happened in the trial that undermines the conclusion that the jurors were competent to understand the trial proceedings and to reach a fair verdict. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General MERVYN HAMBURG Attorney JANUARY 1991 /1/ That count was set aside on grounds of insufficiency of the evidence. Pet. App. 13. /2/ The court also rejected petitioner's seemingly contradictory argument that Puerto Ricans were discriminatorily excluded from grand and petit jury venires through the application of an English-language-proficiency requirement. Pet. App. 18-19. /3/ Petitioner also appears to allege that the suppression hearing was conducted in violation of his right under the Jencks Act, 18 U.S.C. 3500, to the production of prior out-of-court statements made by the two local officers who testified at the hearing. In fact, the government had no statements to produce, and petitioner acknowledges that the trial judge granted him the right of access to the witnesses' testimony in the Puerto Rican court. The Jencks Act did not require the government to acquire those statements for petitioner. The statute requires production only of certain statements "in the possession of the United States," i.e., statements possessed by the prosecutor. United States v. Polizzi, 801 F.2d 1543, 1552 (9th Cir. 1986); United States v. Cagnina, 697 F.2d 915, 922-923 (11th Cir.), cert. denied, 464 U.S. 856 (1983). In any event, although petitioner certainly has had ample time and opportunity since the suppression hearing to examine the prior testimony, he fails to demonstrate how he was harmed by the absence of the witnesses' prior testimony.