United States v. Luis Ramirez Ferrer, 613 F.2d 1188, 1st Cir. (1980)

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613 F.

2d 1188

UNITED STATES of America, Appellee,


v.
Luis Ramirez FERRER, Defendant, Appellant.
No. 79-1247.

United States Court of Appeals,


First Circuit.
Argued Nov. 5, 1979.
Decided Jan. 23, 1980.
1

Raul Gonzalez Torrents, Rio Piedras, P. R., for defendant, appellant.

Alberto Tellechea, Asst. U. S. Atty., San Juan, P. R., with whom Jose A.
Quiles, U. S. Atty., San Juan, P. R., was on brief, for appellee.

Before CAMPBELL and BOWNES, Circuit Judges, and CLARKE, * District


Judge.

CLARKE, District Judge.

The defendant-appellant, Luis Ramirez Ferrer, was convicted by a jury in the


United States District Court for the District of Puerto Rico on two counts of
unlawfully erecting a building on navigable waters of the United States without
securing a permit from the United States Army Corps of Engineers (hereinafter
"the Corps") in violation of 33 U.S.C. 403, 406. Briefly, the facts giving rise
to these violations are that appellant commenced rebuilding over the water a
house on stilts and a ramp, previously burned by vandals, after obtaining the
necessary permit from the Department of Natural Resources of the
Commonwealth of Puerto Rico but without obtaining a permit from the Corps.
Prior to rebuilding, appellant had applied for a permit from the Corps but had
received no answer.

Appellant appeals his conviction on the basis that the district court erred in not
instructing the jury about the defense of mistake of fact and in not ordering the
entry of a judgment of acquittal. Appellant bases these allegations of error on
his contention that he lacked the requisite criminal intent because he

commenced construction of the dwelling in good faith, believing that the permit
he received from the Department of Natural Resources satisfied his obligation
to obtain permits from both local and federal governments. Appellant also
asserts on appeal that the United States lacks jurisdiction over the navigable
waters of Puerto Rico; alternatively, if the United States has concurrent
jurisdiction with Puerto Rico over the navigable waters in question, the permit
issued by the Puerto Rican authority is still fully valid, thereby relieving him of
any further permit requirements. According to the foregoing jurisdictional
contentions, then, the information against appellant should have been
dismissed.
7

Before addressing the errors alleged by appellant, the Court must first address
plaintiff-appellee's contention that appellate jurisdiction is lacking because the
filing of the notice of appeal was not timely.

I.
8

The fact that the ten-day appeal period granted by Rule 4(b), Fed.R.App.P.,
expired is clear. The verdict was returned on February 4, 1979, and sentencing
occurred on March 30, 1979, with judgment being entered on that latter date.
Defendant did not file a notice of appeal within ten days of March 30, 1979;1
rather, on April 11, 1979, defendant filed a "Motion to Extend the Final Period
of Appeal." The request to extend the time to docket an appeal was framed both
as a motion in arrest of judgment (para. 1) and as a petition for the court to
make a determination of excusable neglect (para. 6). Defendant asserted two
grounds for establishing excusable neglect: "(t)hat due to the fact the
petitioner's lawyer practice (sic) the profession in San German and attorney
Monserrate Matienzo, the other lawyer of the case practice (sic) in San Juan,
they were not able to meet to discuss the propriety of the appeal," and "(t)hat
besides, that reason the wife of the petitioner's attorney was submitted to an
emergency surgery on April 6, 1979." (para. 4 & 5).

Under Rule 4(b), Fed.R.App.P., the determination of what constitutes excusable


neglect is within the discretion of the trial court: "Upon a showing of excusable
neglect the district court may, before or after the time has expired, . . . extend
the time for filing the notice of appeal for a period not to exceed 30 days from
the expiration of time otherwise prescribed by this subdivision." Therefore, this
Court may reverse the district court's determination of excusable neglect2 only
if there was an abuse of discretion.

10

In reviewing this discretionary determination of excusable neglect, we are


mindful of the history of this provision in Rule 4(b), Fed.R.App.P. Although the

Rules of Civil Procedure had a provision prior to 1966 for extending the time
for appeal based on excusable neglect due to a party's failure to learn of the
entry of judgment, the Rules of Criminal Procedure had no corresponding
provision and the Rules of Civil Procedure were limited to that one
circumstance. When the 1966 Amendments changed former Rule 37(a)(2) of
the Fed.R.Crim.P., now Rule 4(b) of the Fed.R.App.P., to authorize, for the
first time, the district court to extend the time for appeal in a criminal case, the
Advisory Committee Note gave some indication of the circumstances under
which a discretionary extension of time could be granted by the district court in
citing certain cases which showed the "desirability of a provision permitting an
extension in appropriate cases." 9 Moore's Fed.Prac. P 204.13(1), at 971 n.12 &
accompanying text (2d ed. 1975); See Stern, Changes in the Federal Appellate
Rules, 41 F.R.D. 297, 298-99 (1966).
11

Among the cases cited by the Advisory Committee, Berman v. United States,
378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964); Fallen v. United States,
306 F.2d 697 (5th Cir. 1962), Rev'd, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d
760 (1964); United States v. Isabella, 251 F.2d 223 (2d Cir. 1958), the Isabella
case is particularly applicable to the current case before this Court. In Isabella,
the failure to file a timely written notice of appeal resulted from the oversight
and neglect of defendant's attorney, and such neglect was recognized as a
possible basis for a determination of excusable neglect had the Federal Rules so
permitted at that time. 251 F.2d at 226. The court did not feel that defendant
should be made to suffer because of his attorney's neglect. See id. In the case of
civil appeals, we have adhered to the rule that extensions of time for excusable
neglect should not be granted absent unique or extraordinary circumstances.
See, e. g., USM Corp. v. GKN Fasteners Ltd., 578 F.2d 21, 22 (1st Cir. 1978);
Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir. 1978);
Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir.), Cert. denied,
429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (1976); Pasquale v. Finch, 418
F.2d 627, 629-30 (1st Cir. 1969).

12

While the present facts would not warrant a finding of excusable neglect in a
civil case under Rule 4(a), we are not persuaded that the district court here
abused its discretion under Rule 4(b), where the criminal defendant's special
interest in his appeal and the shorter initial period for appeal present different
issues. See 9 Moore's Federal Practice P 204.13(1), at 971-72 & n.15 (2d ed.
1975). We do not mean to suggest that the district court was bound to find
excusable neglect here, only that in a criminal setting "we accord 'great
deference' to the district court's ruling on 'excusable neglect'." Pasquale v.
Finch, supra at 630.

13

While this Court may not agree with a determination of excusable neglect based
upon the inability of counsel to discuss the propriety of an appeal, particularly
since this discussion could have been conducted over the telephone, we cannot
say that the district court abused its discretion when it granted defendant's
motion for an extension of time to file an appeal, presumably because it
determined that there was excusable neglect.3

II.
14

The district court did not err in not ordering entry of a judgment of acquittal for
lack of criminal intent. Rule 29(a), Fed.R.Crim.P., allows entry of a judgment
of acquittal to protect a defendant "if the evidence is insufficient to sustain a
conviction." As this Court has stated, however, "(i)n evaluating an appeal from
a defendant's motion for a directed verdict of acquittal, we must evaluate the
evidence in the light most favorable to the prosecution, with all inferences that
may legitimately be drawn." United States v. Gabriner, 571 F.2d 48, 50 (1st
Cir. 1978), Citing, United States v. Scibelli, 549 F.2d 222, 229 (1st Cir. 1977);
United States v. Klein, 522 F.2d 296, 302 (1st Cir. 1975); United States v.
Doran, 483 F.2d 369, 372 (1st Cir. 1973).

15

In the present case, defendant-appellant was charged and convicted of two


counts of violating 33 U.S.C. 403, which reads in pertinent part:

16

The creation of any obstruction not affirmatively authorized by Congress, to the


navigable capacity of any of the waters of the United States is prohibited; and it
shall not be lawful to build or commence the building of any wharf, pier,
dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port,
roadstead, haven, harbor, canal, navigable river, or other water of the United
States, outside established harbor lines, or where no harbor lines have been
established, except on plans recommended by the Chief of Engineers and
authorized by the Secretary of the Army . . . .

17

Violation of section 403 is deemed a misdemeanor under 33 U.S.C. 406,


which latter section then gives the district court discretion to impose a fine,
imprisonment, and/or removal of the structure.4

18

The Government's evidence established that appellant did not obtain a permit
from the Corps, but that he did build a wooden house on stilts and a wooden
ramp or catwalk in the navigable waters of the United States where no harbor
lines had been established. That he did this unlawful construction knowingly
can be inferred from the evidence before the trial court.

19

The Department of Natural Resources and the Corps held a series of meetings
in June and July of 1977 with the residents of La Paraguera to explain the
authority of each agency and the permit requirements of each. During these
meetings, it was emphasized that no new illegal construction would be allowed,
and applications for a Corps permit, a Form 4345, were distributed. The
evidence showed that appellant was at the 1977 June and July meetings at La
Paraguera, and that he did, in fact, file a Form 4345 with the Corps on July 13,
1977. In September 1977, before receiving approval from the Corps, appellant
began construction of the house and catwalk. The foregoing evidence before
the trial court clearly was sufficient to support a conviction under 33 U.S.C.
403, 406, in that it can be inferred that defendant-appellant knowingly and
unlawfully constructed the house and catwalk without a Corps permit knowing
that one was required.

III.
20

Appellant now asserts that the district judge erred in not instructing the jury
about the defense of mistake of fact because there was evidence to support a
conclusion that he could have in good faith believed that the permit from the
Puerto Rican authority was sufficient. Even if the Court agreed with defendant's
contention, which it does not in light of the Court's previous review of the
evidence in regard to criminal intent, the record shows neither a request by
defendant for such an instruction nor an objection to the judge's failure to give a
mistake of fact instruction. Since the defendant failed to raise properly the
instruction or objection in the district court, he may not raise the issue on
appeal, absent "plain error" on the part of the trial judge. See Henderson v.
Kibbe, 431 U.S. 145, 154-57, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Singer v.
United States, 380 U.S. 24, 38, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); Screws v.
United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

21

There is no allegation of "plain error" such as the jury not being instructed
properly on the essential ingredients of the offense upon which the conviction
rested as in Screws v. United States, supra. Here, the alleged error was that a
mistake of fact instruction was not given, and the Supreme Court's assessment
of the situation in Henderson v. Kibbe, supra, is particularly applicable to the
case at bar:

22

In this case, the respondent's burden is especially heavy because no erroneous


instruction was given; his claim of prejudice is based on the failure to give any
explanation beyond the reading of the statutory language itself of the causation
element. An omission, or an incomplete instruction, is less likely to be
prejudicial than a misstatement of the law.

23

431 U.S. at 155, 97 S.Ct. at 1737. Accordingly, we find no merit to this


allegation of error because appellant did not raise the issue at trial, and the
omission cannot be classified as "plain error."

IV.
24

Finally, appellant asserts that the United States lacks jurisdiction over the
navigable waters of Puerto Rico;5 consequently, the information against him
should have been dismissed. In Guerrido v. Alcoa Steamship Co., 234 F.2d 349
(1st Cir. 1956), this Court addressed at length the question of the applicability
of United States' admiralty and maritime law to the navigable waters of Puerto
Rico.6 Therefore, rather than again detail the history of the federal and Puerto
Rican legislation involved in our decision in Guerrido, we will focus on the key
provision in the federal legislation Section 8 of the Jones Act, 48 U.S.C. 749.

25

While section 8 of the Jones Act places all harbor areas, navigable streams, and
bodies of water in Puerto Rico in the control of that Commonwealth, it
specifically provides that:

26 laws of the United States for the protection and improvement of the navigable
All
waters of the United States and the preservation of the interests of navigation and
commerce, Except so far as the same may be locally inapplicable shall apply to said
island and waters and to its adjacent islands and waters.
27

48 U.S.C. 749 (emphasis added).

28

Relying on the above provision of the Jones Act, we concluded in Guerrido


that:

.29. . the rules of the admiralty and maritime law of the United States are presently in
force in the navigable waters of the United States in and around the island of Puerto
Rico To the extent that they are not locally inapplicable either because they were not
designed to apply to Puerto Rican waters or Because they have been rendered
inapplicable to these waters by inconsistent Puerto Rico legislation. This is not to
say, of course, that Puerto Rican legislation could thus supplant a rule of maritime
law which Congress in the exercise of its constitutional power has expressly made
applicable to Puerto Rican waters.
30

234 F.2d at 355 (emphasis added). See also Garcia v. Friesecke, 597 F.2d 284
(1st Cir. 1979), Petition for cert. filed, --- U.S. ----, 100 S.Ct. 292, 62 L.Ed.2d
306; Fonseca v. Prann, 282 F.2d 153, 156-57 (1st Cir. 1960) (Puerto Rico has
authority "to enact legislation inconsistent with the Jones Act").7

31

The relevant question, then, is whether the Puerto Rican permit requirement
was inconsistent with the permit required by 33 U.S.C. 403, and so
superseded 403. It is not inconsistent merely because two permits are
required; concurrent state and federal jurisdiction is acceptable under 403. See
North Shore Boom & Driving Co. v. Nicomen Boom Co., 212 U.S. 406, 29
S.Ct. 355, 53 L.Ed. 574 (1909). Thus, appellant must establish that the Puerto
Rican permit requirement was inconsistent with, and so superseded, the federal
law. Appellant has not pointed out any inconsistency between the two permit
requirements, and, therefore, his allegation that federal jurisdiction is lacking is
without merit.

32

Appellant further argues that even if the United States and Puerto Rico have
concurrent jurisdiction over the navigable waters of Puerto Rico, his permit
from the Commonwealth's Department of Natural Resources is fully valid and
that the information should be dismissed on this basis. Appellee does not
contest the validity of the Puerto Rican permit; the issue is whether appellant
unlawfully failed to obtain a permit from the Corps. The fact the concurrent
jurisdiction exists implies that compliance with both the federal statute and the
local regulations are required, absent an inconsistency in the two requirements.
Appellant's own expert admitted that a permit from the Department of Natural
Resources does not free an individual from complying with other applicable
federal or Commonwealth law. Excerpt of Trial at 13. Therefore, the fact that
appellant secured a valid Puerto Rican permit is not a basis to dismiss the
information charging a violation of federal law.

33

For the reasons set forth in this Opinion, we find all of appellant's contentions
without merit. The judgment of the district court is affirmed.

Of the Eastern District of Virginia, sitting by designation

Rule 4(b), Fed.R.App.P., specifically states: "In a criminal case the notice of
appeal by defendant shall be filed in the district court within 10 days after the
entry of the judgment or order appealed from." Rule 32, Fed.R.Crim.P.,
delineates a judgment of conviction to include "the plea, the verdict or findings,
and the adjudication and sentence." Therefore, in the present case, the 10-day
period ran from March 30, 1979, the date on which judgment was entered by
the district court

Under Rule 4(b), Fed.R.App.P., a Timely motion in arrest of judgment stops the
10-day appeal time from running, with a new 10-day appeal period beginning
on the date of the entry of an order denying the motion. Rule 34,

Fed.R.Crim.P., specifically states: "The motion in arrest of judgment shall be


made within 7 days after verdict or finding of guilty, . . . or within such further
time as the court may fix during the 7-day period." Therefore, in order to
comply with the timely requirement for a motion in arrest of judgment under
Rule 4(b), appellant had until February 21, 1979, to file that particular motion,
since the verdict was returned on February 14, 1979. Appellant filed the
motion, however, on April 11, 1979. Accordingly, the district court could not
have correctly considered the motion as one for an arrest of judgment, leaving a
determination of excusable neglect as the only other basis for granting an
extension to file the notice of appeal under these factual circumstances and Rule
4(b), Fed.R.App.P
3

Although the record does not indicate the reason for the district court's granting
of an extension of time for filing the notice of appeal, this Court has proceeded
on the basis that the extension was granted because of excusable neglect. See
note 2 Supra

Defendant-appellant was placed on probation for one year, fined $500.00 on


each count, and ordered to remove the dwelling from the navigable waters

There is no argument on appeal over the fact that the water in question is a
navigable portion of the Caribbean Sea

This Court further notes that in Commonwealth v. Alexander, 438 F.Supp. 90


(D.D.C.1977), a case in which Judge Waddy held that the Federal Water
Pollution Control Act Amendments of 1972 were not locally inapplicable and
therefore applied to the non-navigable waters of Puerto Rico, the
Commonwealth in argument conceded that the United States has jurisdiction
over the navigable waters of Puerto Rico; the only point of contention was
jurisdiction over the non-navigable waters. See also P. F. Z. Properties, Inc. v.
Train, 393 F.Supp. 1370 (D.D.C.1975)

For a more recent discussion of the "locally inapplicable" standard, see


Caribtow Corp. v. Occupational Safety & Health Review Comm'n, 493 F.2d
1064 (1st Cir.), Cert. denied, 419 U.S. 830, 95 S.Ct. 52, 42 L.Ed.2d 55 (1974)

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