Motion — Perez v. Puerto Rico

No. 86-654

IN THE _

Supreme Court of the Gnited States

OCTOBER TERM, 1986

NELSON GONZALEZ PEREZ, et al.,

Appellants,

VS.

THE PEOPLE OF PUERTO RICO,

Appellees.

MOTION TO DISMISS

ALEJANDRO SALGADO RIVERA

Independent Special Prosecutor

Commonwealth of Puerto Rico

Baldorioty 703

Hato Rey, P.R. 00918

Marcos A. RAMIREZ IRIZARRY

(Counsel of Record)

Marcos A. RAMIREZ LAVANDERO

Ramirez & Ramfrez

Tres Rfos Building

117 Eleanor Roosevelt Ave.

Hato Rey, Puerto Rico 00918

Attorneys for Appellees

November 19, 1986

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

Whether this Honorable Court has jurisdiction, to

review the judgment of the Supreme Court of Puerto

Rico issued in this case, either on appeal or certiorari,

when:

1. The alleged federal question raised by appellants

was not properly or timely presented before the

Supreme Court of Puerto Rico and was not addressed

by that court, since it was raised for the first time

in the Jurisdictional Statement filed in this Court.

2. The judgment appealed from is not a “‘final judg-

ment” under 28 U.S.C. 1258 since it is an interloc-

utory decision on a question of Puerto Rican law

which requires the further proceedings in the case,

including a trial on the merits, to go forward.

3. The question presented by appellants that the

construction by the Supreme Court of Puerto Rico of

the local perjury statute to include “‘legislative bod-

ies’ in the word ‘‘body”’ contained in the text, violates

the Due Process and Ex Post Facto Clauses of the

Constitution is not a substantial federal question.

ii

PARTIES TO PROCEEDINGS BELOW

The parties before the Supreme Court of Puerto

Rico: (1) Nelson Gonzdlez Pérez, Angel Pérez Casillas,

Jaime Quiles Hernandez, Rafael Moreno Morales, Juan

Bruno Gonzalez, Rafael Torres Marrero, José Rfos

Polanco, Nazario Mateo Espada, Carlos Santiago Bor-

rero and William Colén Berrfos, appellants herein (2)

the People of Puerto Rico, represented by the office

of the Independent Special Prosecutor, appellee

herein.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED .........ccsccssssrcssseseesseeesseseeees

PARTIES TO PROCEEDINGS BELOW .........:ccccceeseeeeeees

TAMER CP ROTMOMETIES o.ccseccicceccescscccapscosecccccseseseees

I I oi cccccehovsonancsencachocsvenceseoabaseese

COMMONWEALTH STATUTORY PROVISIONS

a agubdbeasennmnes

I. Argument

1. This Court has no jurisdiction on ooam

under 28 U.S.C. 1258 (2) when the validity

of a Commonwealth Statute has not been

“drawn in question” as being repugnant

to the constitution or Laws of the United

States and there has been no decision “‘in

I TE I sik cceenccninsssicscccnserces

. This Court has no jurisdiction to review

the judgment of the Supreme Court of

Puerto Rico, either on appeal or certiorari,

for the following reasSOMs: ...........cccceeeeeees

a) The alleged federal question raised by

appellants was not properly or timely

proneiee before the Supreme Court of

erto Rico and was not addressed by

SN IE cs chiataaventcnctsscosscsencevsccresencnece

b) The judgment appealed from is not a

“final judgment” under 28 U.S.C.

i aaiteidincihsalinatiainctemnininanesnacncces

c) Appellants ex post facto—due process

argument does not present a substan-

tial federal question. ............:ccssseereees

I eas cdahinabdesantoénees

ii

iv

iv

TABLE OF AUTHORITIES

CASES: Page

Arcenaux v. Louisiana, 376 U.S. 336 (1964) ...... 10

Berman v.. United States, 302 U.S. 211 (1987)... 10

Black v. Romano, 105 S. Ct. 2254 (1985) oo... 21

Bowie v. City of Columbia, 378 U.S. 347

GND ited a ae 14,15,16,18,19,21

Calder v. Bull, 3 U.S. (8 Dall.) 886 (1798) ......... 14

Cardinale v. Louisiana, 394 U.S. 487 (1969) _..... 7,9

Collins v. Miller, 252 U.S. 364 (1920) ee. 10

Colén Berrios v. Herndndez Agosto, 716 F.2d 85

SU SG SINE heer icecic Aeaescambdedtiansdinnnintegtv gins ics 3,4

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

RINE ei sadh-tebidnitir tos sicnasitidaickiiacaaicidinibaamsnns 10,11,12,13

Esso Standard Oil Corp. v. A.P.P.R., 95 P.R.R. 754

haiti iniekshwintaiasckiheticajaieaginiaatinithencsGiubiinetuh axes 20

Estate of Wilson v. Aiken Industries, Inc., 439 U.S.

gL eg OOP ERR RL) betecee Sw mith ALY, oR 9

Ex parte Ramos, 63 P.R.R. 356, 359 (1938) ....... 20

Flynt v. Ohio, 451 U.S. 619 (1981) oo... 10,13,14

Great Northern R. Co., v. Sunburst Oil and Refin-

tug Co., 260 U.S. SEB CURE) cvcvscicccecicccccicess: 7

Hernandez Agosto v. Romero Barcelé, 748 F.2d 1

CRONE Fame, I ahiccesaeccceteeen et dsdciccnsecene 3

Herndon v. Georgia, 295 U.S. 44 (1985) ee. 7

Illinois v. Gate, 462 U.S. 218 (1983) ou... 7

In Re San Juan Star, 662 F 2d 108 (1st Cir.

UD |; Sinaia aialsaaeiaass ba dlanaiaiai i cuwideseccee 3

Market Street R. Co. v. Railroad Commission, 324

Rs PR kine cleccibersaeineal ition aaetadedicg cree 10

Mercado e Hijos v. Junta Azucarera, 95 P.R.R. 831

STUN saiditcibileatpaiaiuijicessstint etka MAM a So pa xin 20

O’Dell v. Espinosa, 456 U.S. 430 (1982) 0.0... 10

Parr v. United States, 351 U.S. 513 (1956) _....... 10

Table of Authorities Continued

Page

Pena Clos v. Cartagena, 114 D.P.R. 576

(DID iseccsesssnicssnatisesiennckanteianaennbsaianuenanssanss 3

Polakow’s Realty Experts, Inc. v. Alabama, 319 U.S.

BD TREE wosncccsssetssnseainiasnticcssscsnssnsineraansecsonce 10

Pueblo de Puerto Rico v. Bou Nevérez, 111 D.P.R.

VFR CRO) icceaccncasiccncsesscspssnseionpitenaeptosiauinonenns 20

Pueblo v. Lopez Pérez, 106 D.P.R. 584 (1977) _.... 20

Raley v. Ohio, 360 U.S. 423 (1959) .......eeeeeeeeeeees 7

Romero Barcelé v. Herndndez Agosto, 115 D.P.R.

SOB CG vacencncscissssssenccsencnnancsvscnsahscesexansenises 3

Rose v. Locke, 423 U.S. 48 (1975) ........cceceeeeeees 16,18,19

Saunders v. Shaw, 244 U.S. 317 (1917) _ ...........00 7

Soto v. Srio. de Justicia, 112 D.P.R. 477 (1982) .. 3

White River Lumber Co. v. Arkansas ex rel appeal

gate, 279 U.S. 692 (1929) ......ssceeresreeereeeeees

Whitney v. California, 274 U.S. 357 (1927) _ ....... 7

CONSTITUTIONAL PROVISIONS:

U.S. Gomek: Bre. 0 BW GB scctcscsesiicidcicsetence passim

UB. Comat, Ammets BEV, 92 ccccccscscnsecaccssccsscssccseses 13

STATUTES:

SE TEC, TI hsiciitkscsctii eee i,10,22

98 TUB, TEE): . cisimicninioniiinamncam 7

SR TL. TIE CR) cnccncnnicnsinntinssctcsnsensssrercneisenrene 6,7

2B UBC. TAD) wncicwwssnnstatstasstsincerparienticcnacess 7

P.R. Political Code, Art. 34 (2 L.P.R.A. § 154)

CRIB) | sivrcireacecinntantnatesecstihimniabgigeiiinsnneninsaaniioyiien 1,8,18,20

P.R. Political Code, Art. 34 (2) — ............ccsseccccceeees 2

P.R. Penal Code § 225 (83 L.P.R.A. § 4421

CRF acccsicssveisnacesedscsnentiacionsansonsaios 2,5,8,15,16,17,18

Table of Authorities Continued

" Page

Law #1 of January 18, 1985 creating the office of

the Independent Special Prosecutor ............. 5

MISCELLANEOUS:

1. Model Penal Code and Commentaries, Part II,

see. 241.1 (the American Law Institute, Phila-

GUGEEE, Ti, WOOO ini ee 18,19

2. Note, 43 Harv. L. Rev. 117 SUE Sinks dcbitncine 18

3. R. Perkins, Criminal Law, (2nd Edition 1969) 18

4. Singer, Southerland Statutory Construction, sec.

CED, VOR TIL, mssiccstssssnuaecdausaen es, 20

IN THE

Supreme Court of the @nited States

OCTOBER TERM, 1986

No. 86-654

NELSON GONZALEZ PEREZ, et al., —

Appellants,

vs.

THE PEOPI.E OF PUERTO RICO,

Appellees.

MOTION TO DISMISS

Pursuant to Rule 16.1 the appellee, the People of

Puerto Rico moves to dismiss the appeal filed by

appellants for lack of jurisdiction of this Court to

review the judgment of the Supreme Court of Puerto

Rico.

COMMONWEALTH STATUTORY PROVISIONS

INVOLVED

Articles 33 and 34 of the Political Code, 2 L.P.R.A.

153 and 154, as amended in 1955, provide that in

case any person fails to appear or testify before a

Committee of the Commonwealth Legislature he shall

be guilty of a misdemeanor entailing a penalty of not

more than one thousand ($1,000) dollars or impris-

onment in jail for not more than twelve (12) months.

When such an event occurs Article 34 requires that

‘

the President of the Senate or the Speaker of the

House certify the facts to the Secretary of Justice

“whose duty it shall be to file the pertinent charges

before the Superior Court of Puerto Rico.”’ Article

34(2) declares that the “‘same procedure shall be fol-

lowed”’ in case of a perjured witness before the Leg-

islature or its Committees and that upon conviction

shall be subject to the penalties specified in article

33.

Section 225 of the Puerto Rico Penal Code of 1974,

33 L.P.R.A. 4421 defines the offense of perjury and

establishes the penalties. It provides that ‘‘every per-

son who having taken an oath that he will testify,

declare, depose or certify truly before any competent

court, body, official or person, in any of the cases or

proceedings in which such an oath may be adminis-

tered by law, states as true any essential fact which

he knows to be false or makes an unqualified state-

ment of an essential fact which he does not know to

be true, shall be punished by imprisonment for a fixed

term of six (6) years. Perjury shall also be incurred,

by any person who, under the circumstances estab-

lished in the preceding paragraph, gives two or more

testimonies, declarations, depositions or certifications

which are irreconcilable with each other. In this case,

it shall be unnecessary to establish the truth or false-

hood of the facts involved.”’

The Supreme Court of Puerto Rico interpreted the

word “‘body” in the quoted text to include “‘legisla-

tives bodies” thereby making possible appellants pros-

ecution under Section 225 of the Penal Code.

STATEMENT OF THE CASE

The appeal docketed herein is the latest salvo in a

prolonged legal battle, stemming from the assassi-

nation by Puerto Rican “police on July 25, 1978 of

two young advocates of independence for Puerto

Rico.! The events occurred on a remote mountain in

rural Puerto Rico, Cerro Maravilla, where the de-

ceased were led by an undercover agent of the Puerto

Rico police, presumably, to commit acts of terrorism.

The Governor of Puerto Rico in 1978, Carlos Ro-

mero Barcelé promptly labeled the policemen present

at Cerro Maravilla ‘heroes’ and two quick, successive

“probes” by the Puerto Rico Department of Justice

absolved them of all responsibility and held that they

acted in self-defense. Two equally incomplete inves-

tigations by the United States Department of Justice

reached the same results.

Unconvinced by the results of these probes and

alarmed by their unprofessionalism and by the egre-

gious contradictions in the testimonies of ocular wit-

nesses, the Puerto Rico Senate decided to launch its

own investigation of the matter. The Judiciary Com-

mittee of the Senate promptly hired an experienced

| See e.g. In Re San Juan Star 662 F.2d 108 (1st Cir. 1981);

Colén Berrios v. Herndndez Agosto, 716 F.2d 85 (1st Cir. 1983);

Herndéndez Agosto v. Carlos Romero Barcelé, 748 F.2d 1 (1st

Cir. 1984).-The opinions of the Supreme Court of Puerto Rico

related to the so-called Cerro Maravilla case, apart from the

judgment herein appealed from include the following: Soto v.

Srio. de Justicia, 112 D.P.R. 477 (1982); Pera Clos v. Cartagena,

- 114 D.P.R. 576 (1983); Romero Barcelé v. Herndndez Agosto,

115 D.P.R. 368 (1984).

Also, this is the third time that this Court has been asked

to review or stay a decision of a lower court related to the

Cerro Maravilla: See, Corchado Juarbe v. Aponte Pérez, No. 84-

373, cert. denied 105 S.Ct. 331 (1984); Romero Barcelé v. Her-

nindez Agosto, No. A-316 application for a Stay denied 105 S.Ct.

318 (1984).

iad

investigator, who for more than a year labored quietly

but tenaciously, interviewing witnesses, gathering evi-

dence and reviewing the reports of the four previous

local and federal probes. Thereafter, the results of

his investigation were presented to the Committee,

via televised hearings. For a judicial recognition of

the impact of these hearings on the Puerto Rico public

opinion, see Colén Berrios v. Hernandez Agosto, 716

F.2d 85, 86 (1st Cir. 1988).

The Senate investigation completely destroyed the

conclusions of the four official probes. Relying on the »

testimony of ocular witnesses whom the previous local

and federal investigators had slighted or disbelieved,

of expert witnesses and of three policemen who par-

ticipated in the Cerro Maravilla stake-out and testified

under immunity, the Senate proved to all who wanted

to see and hear that the policemen in Cerro Maravilla

had apprehended the young men, beat them up and

executed them by firing squad while the victims knelt,

handcuffed. The investigation, moreover, showed con-

clusively that there had been a cover-up at the local

level and raised the distinct possibility of cooperation

by federal personnel in the cover-up. All of the

appellants herein testified before the Judiciary Com-

mittee during the course of the Senate investigation.

The Senate investigation was so successful that the

federal government launched a third investigation

which culminated in criminal indictments against ten

policemen who were active participants in the Cerro

Maravilla operation. These policemen have been con-

victed of perjury in depositions taken in federal pro-

ceedings and most are at, present serving jail

sentences. The following federally convicted felons:

Rafael Marrero Morales, Nelson Gonzalez Pérez, An-

1 oe

gel Pérez Casillas, Jaime Quiles Hernandez, Rafael

Torres Marrero, Juan Bruno Gonzalez, William Colén

Berrfos, José Rios Polanco and Nazario Mateo Espada

are all appellants in this case.

In 1985 the Puerto Rican Legislature passed a Bill,

Law No. 1 of January 18, 1985, creating the office

of Independent Special Prosecutor and granting it

full, exclusive and absolutely independent authority to

prosecute any person who has committed any crime

related to the events of Cerro Maravilla. Appellants

herein had been charged with murder and perjury

before the office of the Special Prosecutor was cre-

ated. Subsequently the Special Prosecutor amended

the murder and perjury charges. See Appellants Ap-

pendix 14. The perjury was allegedly committed by

appellants in testimony given before the Judiciary

Committee of the Senate of Puerto Rico. A motion

to dismiss the charge for perjury, based on the ar-

gument that the applicable statute was article 4 and

5 of the Political Code instead of Section 225 of the

Penal Code, was granted by the trial court and finally

denied by the Supreme Court of Puerto Rico in the

Judgment appealed from.

These are the facts which gave rise to the instant

suit. As we can see, appellant’s statement that ‘‘on

July 25, 1978 two young men... members of a ter-

rorist group died in a confrontation with police as

they were about to carry terrorists acts. . .”” is wholly

- misleading. See Jurisdictional Statement p.4. Al-

though appellants presumably have their own version

of what happened at Cerro Maravilla and could pre-

sumably prevail at trial, the Commonwealth of Puerto

Rico through the office of Independent Special Pros-

!

ecutor has instituted criminal charges of perjury

against appellants.

ARGUMENT

1. This Court has no jurisdiction on appeal under 28

U.S.C. 1258(2) when the validity of a Commonwealth

statute has not been “drawn in question’’ as being

repugnant to the Constitution or Laws of the United

States and there has been no decision “‘in favor of

its validity.”’

Under 28 U.S.C. 1258(2) final judgments of the

Supreme Court of the Commonwealth of Puerto Rico

may be reviewed by this Court on appeal where “‘is

drawn in question the validity of a statute of the

Commonwealth of Puerto Rico on the ground of its

being repugnant to the Constitution, treaties, or laws

of the United States and the decision is in favor of

its validity.”” As appellants themselves admit, the al-

leged federal question presented in this case was not

presented before the trial court or the Supreme Court

of Puerto Rico, but was raised for the first time in

the Jurisdictional Statement. See Jurisdictional State-

ment, p. 6. In these circumstances it is impossible to

comply with the requirements of 28 U.S.C. 1258(2).

Since no federal question was presented to the

Supreme Court of Puerto Rico, no statute of the Com-

monwealth could have been drawn in question as re-

pugnant to the Constitution or laws of the United

States and there could be no decision in favor of its

validity.

2. This Court has no jurisdiction to review the judg-

ment of the Supreme Court of Puerto Rico, either

on appeal or certiorari, for the following reasons:

a) The alleged federal question raised by appellants was

not properly or timely presented before the Supreme

Court of Puerto Rico and was not addressed by that

Court.

In order for this Court to have jurisdiction over a

federal question raised on appeal or certiorari, the

question must have been properly presented in the

state court proceedings. Cardinale v. Lowisiana, 394

U.S. 487, 439 (1969); Illinois v. Gates, 462 U.S. 2138,

218-20 (1983); 28 U.S.C. 1258(1) and (2) (on appeal a

statute must have ‘been drawn in question’’); 28

U.S.C. 1258(8) (on certiorari a right must have been

“specially set up or claimed’’). As we have pointed

out appellants alleged federal question was first raised

in the jurisdictional statement before this Court. This

is, of course, too late. See, Raley v. Ohio, 360 U.S.

423, 434-36, (1959); White River Lumber Co. v. Ar-

kansas ex rel appeal gate, 279 U.S. 692, 700 (1929);

Whitney v. California, 274 U.S. 357, 362-63 (1927).

Appellants attempt to characterize the judgment be-

low as a “‘surprise’’ decision is ludicrous. This Court

has held that when the federal issue arises or is born

from an unexpected or “‘surprise’’ decision of the state

court and a petition for rehearing presenting the fed-

eral question is denied, the federal claims have been

adequately presented and there is jurisdiction on

appeal or certiorari. Herndon v. Georgia, 295 U.S.

441, 443-44 (1935); Great Northern R. Co. v. Sunburst

Oil & Refining Co., 287 U.S. 358, 366-67 (1932);

Saunders v. Shaw, 244 U.S. 317, 320 (1917). The

decision of the Supreme Court of Puerto Rico in this

case was not at all unexpected and the federal issue

was not born in that judgment. Appellants had been

charged with a violation of Section 225 of the Penal

Code for allegedly lying in testimony before the Sen-

ate Judiciary Committee. Appellants Appendix p. 14.

The defense requested the dismissal of the charges

on the ground that the applicable statutes were ar-

ticles 38 and 34 of the Political Code. The office of

the Independent Special Prosecutor countered with

the argument that Section 225 was controlling be-

cause the text included perjury committed before leg-

islative ‘‘bodies’’. Furthermore, argued _ the

prosecution, articles 33 and 34 of the Political Code

had been repealed by Section 225 of the Penal Code.

The Supreme Court, in the judgment appealed from,

merely adopted some of the constructions of the stat-

utes urged by the Special Prosecutor. Therefore, from

the very beginning appellants were on notice of the

possible interpretation which was eventually adopted

by the Supreme Court of Puerto Rico and of which

they now complain. Appellants statements that no one

“could have previously foreseen’’ the judgment of the

court below or that the court “engaged in a con-

struction of the state (sic) statute in an unforeseeable

fashion”’ are patently unfounded.

If the alleged inconsistency of the construction

adopted by the Commonwealth Supreme Court with

federal constitutional principles had been presented

to the Courts, it would have had the opportunity to

consider such questions in construing the statute. In-

deed one of the most powerful reasons for the ex-

istence of the jurisdictional requirement of timely and

proper presentation of the federal question is that “‘it

is important that state courts be given the first op-

ot piece,

portunity to consider the applicability of state statutes

in light of [federal] constitutional challenge, since the

statutes may be construed in a way which saves their

constitutionality” Cardinale v. Lowisiana, 394 U.S.

437, 439 (1969). To argue that in the circumstances

of this case the federal issue need not be presented

in Commonwealth courts is completely frivolous and

would stand the “‘surprise’”’ exception on its head.

Even if the judgment below could be considered as

a surprise or unexpected decision, appellants failed to

present the federal question in a petition for rehear-

ing before the Supreme Court of Puerto Rico. If a

litigant is surprised by a decision of a State Supreme

Court the exception requires that the opportunity of

presenting the federal issue before the State Supreme

Court on a motion for rehearing be used by the ag-

grieved party. As Justice Blackmun wrote in concur-

ring in the denial of certiorari in Estate of Wilson v.

Aiken Industries, Inc. 489 U.S. 877, at 879:

“It is well established that Certiorari will not |

be granted where a federal constitutional is-

sue is raised here for the first time on review

of a State Court decision. ... There appears

to be an exception to that rule, however,

whenever the federal issue arose from an un-

anticipated ruling of the state Court, the

petition for rehearing presented the first op-

portunity to raise it, and that opportunity

was seized.”’

In this case appellants did not even file a petition

for rehearing before the Supreme Court of the Com-

monwealth of Puerto Rico. It is clear, therefore, that

the alleged federal issue in this case, was not timely

10

and properly presented before the Commonwealth

courts and this Court lacks jurisdiction over such

question.

b. The judgment appealed from is not a “final judgment’”’

under 28 U.S.C. 1258

Under section 1258 this Court has jurisdiction to

review ‘final judgments or decrees’ of the Supreme

Court of the Commonwealth of Puerto Rico. In stress-

ing the finality requirement this Court has repeatedly

held that to be appealable or reviewable a judgment

must “‘be final as an effective termination of the lit-

igation and not of merely interlocutory or interme-

diate steps therein’. Market St. R. Co. v. Ratlroad

Commission, 324 U.S. 548, 551 (1945). To comply

with the finality requirement a judgment has to be

final not “‘only as to all the parties, but as to the

whole subject matter and as to all the causes of action

involved’’. Collins v. Miller, 252 U.S. 364, 370 (1920).

If there are further proceedings contemplated gen-

erally the judgment has been held to be non final.

Coz Broadcasting Corp. v. Cohn, 420 U.S. 469, 477

(1975); Flynt v. Ohio, 451 U.S. 619 (1981); O’Dell v.

Espinosa, 456 U.S. 430 (1982).

In the case of criminal proceedings the final judg-

ment against a defendant is generally the sentence.

Berman v. United States, 302 U.S. 211, 212 (19387);

Parr v. United States, 351 U.S. 5138, 518 (1956).

Hence, a state court judgment that merely overrules

a dismissal or demurrer to an indictment, or denies

a preliminary hearing, lacks the necessary finality to

be reviewable by this Court. Flynt v. Ohio, supra,

Polakow’s Realty Experts, Inc. v. Alabama, 319 U.S.

336 (1943); Arcenaux v. Louisiana, 376 U.S. 336

(1964). Under these principles the judgment below is

11

clearly non final and non reviewable. The judgment

by the Supreme Court of Puerto Rico merely over-

rules a dismissal of the indictment or complaint

granted by the trial court. The judgment now permits

the criminal proceedings against defendants, herein

appellants, to go forward. Such proceedings include,

at least, a trial on the merits, sentencing and appel-

late procedures at the Commonwealth courts.

This Court has determined, however, that there are

certain circumstances in which finality should be rec-

ognized even though ‘‘there are further proceedings

in the lower state courts yet to come’”’. Cox Broad-

casting Corp. v. Cohen, supra, at 477. The circum-

stances which justified a finding of finality were

divided into four categories in Cox Broadcasting Corp.,

supra, and each category was defined.

In the first category defined in Coz, ‘‘are those

cases in which there are further proceedings, even

entire trials, yet to occur in the state courts but where

for one reason or another the federal issue is con-

clusive or the outcome of further proceedings preor-

dained.’”’ Cox Broadcasting Corp. v. Cohn, supra, at

479. Such is not the case here since further proceed-

ings at the trial court include a trial on the merits

in which appellants could prevail. The second category

includes the cases ‘‘in which the federal issue finally

decided by the highest court in the State, will survive

and require decision regardless of the outcome of fu-

ture state court proceedings.” Jd., at 480. This cat-

egory is obviously not applicable to this case for the

same reason that the first is not. The third category

are those cases “‘where the federal claim has been

finally decided with further proceedings on the merits

in the state courts to come, but in which later review

|

12

of the federal issue can not be had, whatever the

ultimate outcome of the case’’. Jd., at 481. Obviously,

it is not even arguable that the judgment involved

here falls within this category. There is no rule of

law or procedure in Puerto Rico which would prevent

appellants herein from presenting their federal claims

for review before this Court if they finally are con-

victed and sentenced in the criminal proceedings be-

low. |

Finally the fourth category includes those cases

‘“‘where the federal issue has beer: ‘inally decided in

the state courts with further procec dings pending in

which the parties seeking review ,in the Supreme

Court] might prevail on the merits on non federal

grounds, thus rendering unnecessary review of the

federal issue by this court, and where reversal of the

state court on the federal issue will be preclusive of

any further litigation on the relevant cause of action

rather than merely controlling the nature and char-

acter of, or determining the admissibility of evidence

in the state proceedings due to come.” In these cir-

cumstances, ‘if a refusal wmmediately to review the

state court decision might seriously erode federal pol-

icy, the court has entertained and decided the federal

issue...’ Id., at 482-83. It is clear that this category

is also inapplicable to the judgment below, since there

is no federal policy which should be eroded by denying

immediate review. In Cox Broadcasting Corn. v. Cohn,

supra, the court found the finality requirement sat-

isfied, despite the fact that there were further pro-

ceedings, including a trial on merits, to be had in the

state courts, because delay of review until after trial,

‘“‘will leave the press in Georgia operating in the

shadow of the civil and criminal sanctions of a rule

13

of law and a statute the constitutionality in which is

in serious doubt’’. Id., at 485-86.

On the other hand, in Flynt v. Ohio, supra, this

Court refused immediate review of the judgment by

the Court of Appeals of Ohio denying a motion to

dismiss the criminal complaints against defendants on

the ground that they had been subjected to selective

and discriminatory prosecution in violation of the

Equal Protection Clause of the Fourteenth Amend-

ment. Although there was, as Justice Stevens put it,

an “interest in protecting magazine publishers from

being prosecuted criminally because state officials or

their constituents are offended by the content of an

admittedly nonobscene political cartoon’, Flynt v.

Ohio, supra, (Justice Stevens, dissenting) at 623-24,

the Court found ‘“‘no identifiable federal policy that

will suffer if the state criminal proceeding goes for-

ward’’. Id., at 622. If in Flynt the Court found no

identifiable federal policy that would suffer by de-

nying immediate review, then no such policy exists

here a fortiori. Unlike Cox, and even Flynt, where

activities arguably protected by the First Amendment

could be subjected to criminal sanctions and the chill-

ing effect that such possibility necessarily implies, the

temporary validity of the judgment below not even

remotely implies any such consequences. There is no

discernable activity protected by the First Amend-

ment that may be affected by denying interlocutory

review in this case. The alleged federal issue in this

case, by its own terms, is not operative prospectively.

In other words, the argument that the construction

given by the Supreme Court of Puerto Rico to the

perjury statutes violates the Ex Post Facto—Due

Process Clause of the Federal Constitution, is rele-

14

vant only to those defendants accused of perjury com-

mitted before the judgment of the Supreme Court of

Puerto Rico. Thus, there is no state statute or doc-

trine that would subject future activity protected by

the Federal Constitution to the shadow of civil or

criminal sanctions. Therefore, there can be no federal

policy that is eroded by denying interlocutory review.

An application of the fourth category exception in

this case would really ‘swallow the rule’. Flynt v.

' Ohio, 451 U.S. at 622.

In conclusion there is no final judgment in this case

and this Court lacks jurisdiction on appeal or

certiorari.

C. Appellants ex post facto-due process argument does not

present a substantial federal question.

Appellants have quoted correctly a number of de-

cisions of this Court. It is true, for example, that an

ex post facto law has been defined by this Court as

one ‘‘that makes an action done before the passing

of the law, and which was innocent when done, crim-

inal; and punishes such action, or that aggravates a

crime or makes it greater than it was when com-

mitted.’’ Bouie v. City of Columbia, 378 U.S. 347,

353 (1973); Calder v. Bull, 3 U.S. (8 Dall.) 386, 390

(1798). It is also true that a State Supreme Court is

barred by the Due Process Clause of the Federal

Constitution from achieving precisely the same result

by judicial construction. If a State Court construction

of a criminal statute applied retroactively is unfore-

seeable and unexpected ‘‘the effect is to deprive [the

defendant] of due process of law in the sense of fair

warning that his contemplated conduct constitutes a

crime’. Boute v. City of Columbia, supra, 378 U.S.

15

at 354-55. Unfortunately for appellants these princi-

ples have nothing to do with the case at bar.

As to the ex post facto argument it must be under-

stood that Section 225 of the Penal Code, under which

appellants were charged with perjury, was enacted by

the Puerto Rico Legislature in 1974 more than eight

years prior to appellants testimony before the Senate

Judiciary Committee. Furthermore, the attempt by

appellants to categorize this case as within the Boute

v. City of Columbia doctrine, is completely misplaced

and misleading. In Bouie this Court held that a crim-

inal trespass statute in South Carolina, which by its

terms prohibited only “entry upon the lands of an-

other ... after notice from the owner .. . prohibiting

such entry...’’, could not be interpreted as prohib-

iting also ‘‘the different act of remaining on the prem-

- ises after being asked to leave”. 378 US at 355. Some

negroes ‘“‘sit in’ demonstrators had entered a drug-

store which extended service to negroes at all de-

partments except the restaurant department and took

seats in the restaurant without having received any

notice that that department was barred to negroes.

4 After they refused to leave upon being asked to do

so they were convicted of violating the South Carolina

criminal trespass statute mentioned above. Since there

was nothing in the statute to indicate that it also

prohibited the act of remaining on the premises after

being asked to leave, the construction by the South

Carolina Supreme Court, which included such conduct

within the ambit of the statute and affirmed their

convictions, deprived petitioners of rights guaranteed

to them by the Due Process Clause. Jd, at 355 and

362. The doctrine of Boute and its progeny is totally

me

16

inapplicable to the facts of this case for various rea-

sons.

First, the text of the statute herein involved, gave

“fair notice’ to appellants that their conduct was

clearly prohibited. In Bowie, the statute specifically

prohibited an act and failed to include the conduct

which was later construed to be included within the

statute. In other words, it prohibited only entry after

notice prohibiting such entry but it did not prohibit

the different act of remaining on the premises after

being asked to leave. Here, Section 225 of the Puerto

Rico Penal Code stated clearly that ‘‘any person hav-

ing taken an oath to testify, declare, depose or certify

truly before any competent Court, body, official or

person in any of the cases in which such an oath may

be administered by law,’’ can commit perjury if he

states as true and essential fact which he knows to

be false. Any reasonable person should interpret the

word body in the text to include “‘legislative bodies’

since they are universally recognized as having the

power to require testimony by oath.

In fact the phrase ‘“‘crimes against nature’ is in-

herently more ambiguous than the phrase “body...

in any of the eases in which such an oath may be

administered by law’’. Rose v. Locke, 423 US 48

(1975). Yet in Rose v. Locke, supra, this Court re-

jected a constitutional] challenge to a State Court def-

inition of “crimes against nature’’ which included

forced cunnilingus, even though courts had “differed

widely in construing the reach of crimes against na-

ture to cunnilingus’. Jd, at 52 to 54. This Court also

held Bowie v. City of Columbia inapposite stating that

in Rose ‘‘there was nothing to indicate, clearly or

otherwise, that respondents acts were outside the

17

scope” of the penal statute. In light of the above it

is clear that there is nothing surprising or unex-

pected, from a textual standpoint, about an interpre-

tation of the word “body” in a perjury statute which

includes in the definition of such word, “‘legislative

bodies’”’ such as a Senate and a House of Represen-

tatives. |

Second, the legislative history of Section 225 of the

Penal Code clearly requires the construction that the

Supreme Court of Puerto Rico adopted. The Penal

Reform in Puerto Rico started in 1967. The original

Bill for the Penal Code defined perjury in exactly the

same terms as Section 225 does today, except that

it did not include the word ‘‘body’’ in its list of ‘‘court,

official, or person’, before whom perjury could be

committed. It was in the Bill of 1974, which was

finally passed by the Puerto Rican Legislature, that

the word “body” was included in the statute. As the

Supreme Court of Puerto Rico points out in the judg-

ment below, the Executive Director of the Counsel

for the Justice Reform, Mr. Antonio Negrén Garcia

(now an Associate Justice of the Supreme Court of

Puerto Rico), upon appearing before the Judiciary

Committee of the House of Representatives at public

hearings stated that the new statute extended the

possibility of perjury to any body which he interpreted

to mean ‘‘any type of institutions’’ which has “leg-

islative, cuasi-legislative or quasi adjudicatory func-

tions.”” So the Supreme Court of Puerto Rico rightly

concluded that the legislative intention was that Sec-

tion 225 of the Penal Code penalized perjury com-

mitted before the Legislative Assembly.

Third, there are no prior decisions or opinions of

the Supreme Court of Puerto Rico interpreting Sec-

:

tf

:

Rt

oH

2

18

tion 225 of the Penal Code of Puerto Rico or articles

33 and 34 of the Political Code. Therefore, appellants

cannot point out to any precedent of the Supreme

Court of Puerto Rico in particular which could have

prompted them to believe that perjury before the Sen-

ate of Puerto Rico was not covered by Section 225

of the Penal Code. See, Rose v. Locke, supra, at 58.

On the contrary, besides the text and the legislative

history already discussed, and sufficient in their own

right to dismiss appellants contrived argument, there

are other factors that prevent any claim of lack of

fair notice.

Fourth, the history of perjury in the United States,

affords no relief to appellants. Perjury has been con-

sistently recognized as the most serious of several

offenses designed to protect the integrity of the in-

_formation on which the government will rely. Thus,

it has been the pattern in the United States to grade

perjury as a felony, sometimes with penalties out of

proportion to the offense. See, R. Perkins, Criminal

Law, 455 (2nd Edition 1969); Model Penal Code and

Commentaries (Official Draft and Revised Comments)

Section 241.1, part II (The American Law Institute,

Philadelphia, PA., 1980), P.94. Indeed, the penalty for

perjury has generally exceeded those provided by Sec-

tion 225 of the Penal Code of Puerto Rico. See, Model

Penal Code... supra, at page 141-42. Thus, perjury

has been almost unanimously classified as a crime

involving moral turpitude or malun in se. See Note,

43 Harvard Law Review 117 (1929). Therefore, the

circumstances of this case are a far cry from those

in Boute v. City of Columbia, supra, where this Court

recognized that the restaurant “‘sit-in’’ was not con-

duct that could “be deemed improper or immoral.”’

19

378 U.S. at 362. After all, the application of the rule

against surprising construction of statutes of Bowie

v. City of Columbia, should depend to a certain extent

‘“‘on the moral quality of the conduct’. Jd.

Fifth, the statutes of the States have been unani-

mous in condemning perjury before legislative assem-

blies. We have not been able to find a single instance

of a state where perjury before legislative assemblies

has not been punishable, in most instances as a felony.

See, Model Penal Code..., supra, at 126-127. The

statutes have referred to false statements in “‘official

proceedings” or ‘“‘where testimony is taken’, or

“where making a statement is required or authorized

by law” or “‘where an oath or affirmation is or may

be required or authorized by law’’; but these broad

terms or phrases have never been interpreted tu ex-

clude legislative assemblies. Jd. In Rose v. Locke, su-

pra, at 53 this Court held that the doctrine of Bowie,

was inapplicable on the grounds, inter alia, that

“other jurisdictions had already reasonably construed

identical statutory language’’ in the same manner as

the Supreme Court of Tennessee. This Court rejected

Bowie even though there were, indeed, interpretations

of state supreme courts which had interpreted the

same identical language in a different manner. It was

sufficient that some jurisdictions had interpreted the

statute in the same way as the Supreme Court of

Tennessee. In this case no court, that we know of,

has construed a general perjury penal statute to ex-

clude false statements made before legislative assem-

blies.

Lastly, in light of the above, appellants argument

is reduced to complaining that the Supreme Court of

Puerto Rico refused to apply the canon of construc-

20

tion which states that special statutes prevail over

general statutes, i.e. that since articles 33 and 34 of

the Political Code deal with the legislature it is a

special statute which should prevail over Section 225

which is the general perjury penal statute. But the

canons of constructions have never been absolute

rules. In particular, the canon that a special statute

will prevail over a general statute when they are in

conflict is valid “‘unless it appears that the legislature

intended to make the general act controlling’’. See,

Singer, Sutherland Statutory Construction, Section

51.05, Volume 2A, page 499. In other words the leg-

islative intent has always been paramount. The rule

of special acts v. general acts, has never been thought

to override the intent of the legislature. The Supreme

Court of Puerto Rico has long recognized the principle

stated above. Ex parte Ramos, 63 P.R.R. 356, 359

(1938); Pueblo v. Lépez Pérez, 106-D.P.R. 584 (1977).

Further, there are other canons of construction which

require that whenever two laws are contradictory the

duty of the Court is to examine the circumstances to

determine the real legislative purpose, Pueblo de

Puerto Rico v. Bou Nevdrez, 111 D.P.R. 179 (1981),

and that the Court has the duty to interpret a statute

in a manner that will not result in absurd or unrea-

sonable consequences. Mercado e Hijos v. Junta Azu-

carera, 95 P.R.R. 831 (1968); Esso Standard Oil v.

A.P.P.R., 95 P.R.R. 754 (1968). In this case the

Supreme Court of Puerto Rico rightly recognized that

it would be absurd to exclude the legislature from

the term “‘body”’ in the perjury statute. “Instead of

recognizing the legislative powers, we would be ser-

iously curtailing and limiting its power if we gave a

different treatment to witnesses who testify under

oath before a legislative body and to those who testify

ee

21

in a judicial proceeding or at the hearing before an

administrative agency. There is no valid or logical

reason for such classification.”’ Appellants appendix

21. On top of the clear text of the statute and the

clear legislative intent, the absurdity of construing the

statutes in such a way that perjury before a legislative

assembly is a misdemeanor while perjury before a

court or an administrative agency is a felony, is sim-

ply too much.

In sum, the text, legislative history and common

sense require the construction given to the perjury

statute by the Supreme Court of Puerto Rico; the

history of perjury in the United States classifies it

as a crime involving moral turpitude or malun in se;

all these states have statutes penalizing perjury before

legislative assemblies, most as a felony, and there

were no prior decisions by the Supreme Court of

Puerto Rico overruled by the judgment below. In these

circumstances it is plainly frivolous to argue that the

construction of the statute made by the judgment

below is ‘‘so unforeseeable and surprising an inter-

pretation” of the perjury statute as to violate the due

process rule announced in the Bowie case. Black v.

Romano, 105 S. Ct. 2254, 2268, n. 17 (1985) (Justice

Marshall concurring). Appellants conduct is particu-

larly evil and their arguments are just a pretext for

evading the law.

22

CONCLUSION

Appellants due process claim is not a substantial

federal question, the question was not timely and

properly presented before the Supreme Court of

Puerto Rico, and the judgment below is not a ‘‘final

judgment”’ under the terms of 28 USC 1258.

For the reasons stated the Court should dismiss the

appeal for lack of jurisdiction.

Respectfully Submitted.

Marcos A. RAMIREZ IRIZARRY

(Counsel of Record)

Marcos A. RAMIREZ LAVANDERO

RAMIREZ & RAMIREZ

November 1986