# Motion — Perez v. Puerto Rico

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 1013

## Text

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-

:
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0453%3A2. Public record. Not legal advice.