USCA1 Opinion
November 4, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1669
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
DAVID SUSTACHE RIVERA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Benny Frankie Cerezo, by Appointment of the Court, and Law
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Offices of Benny Frankie Cerezo on brief for appellant.
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Miguel A. Pereira, Assistant United States Attorney, Guillermo
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Gil, United States Attorney, and Jose A. Quiles-Espinosa, Senior
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Litigation Counsel, on brief for the United States.
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Per Curiam. In December 1992, David Sustache Rivera was
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indicted for armed car jacking in violation of 18 U.S.C.
2119(1). In January 1993, Sustache was indicted separately
for two additional car jackings in violation of the same
statute. In one of these two, serious injury had resulted to
a victim, and the government also invoked 18 U.S.C. 2119(2)
providing for an additional penalty in such cases.
On March 9, 1993, Sustache appeared to enter a guilty
plea in all three cases which had been consolidated for
trial. By then Sustache had been examined by a psychologist
who reported that he was competent to stand trial.
Nevertheless, when defense counsel expressed some reservation
about Sustache's "thorough understanding of all the
proceedings," the court asked Sustache why he wanted to plead
guilty, and Sustache replied: "I don't remember."
The district court then said that it was satisfied based
on the psychologist's report that Sustache was competent to
stand trial. The court said that it was unwilling to accept
a guilty plea from a defendant who said that he could not
remember why he was pleading guilty. When defense counsel
again urged the court to inquire about a guilty plea, the
court questioned the defendant further. Ultimately defendant
asserted that he had not committed the crimes charged in the
indictments.
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The court then ordered the jury to be summoned and,
without any objection from defense counsel, the trial
commenced. There was extensive testimony as to each of the
three car jackings including an eye witness identification of
Sustache by a different witness in each of the three cases.
On March 11, 1993, the jury found Sustache guilty on all
counts. In May 1993, the district court sentenced him to 444
months' imprisonment.
On this appeal, Sustache's appellate counsel, who also
represented Sustache at trial, makes two main arguments. The
first is that two of the three identifications of Sustache at
trial were flawed. The flaws, according to the counsel, were
violations of provisions of Puerto Rico's Rules of Criminal
Procedure. The provisions in question are designed to
prevent suggestive identifications and preserve records of
the identification process.
The government responds that none of these objections to
the identifications were made in advance of trial as required
by Fed. R. Crim. P. 12(b)(3), which specifies that motions to
suppress evidence be raised prior to trial. Among other
reasons, this requirement protects the government's right to
appeal the grant of the suppression motion before jeopardy
has attached. Consonantly, the failure to raise such an
issue by pre-trial motion waives the claim. See United
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States v. Gomez-Benabe, 985 F.2d 607 (1st Cir. 1993).
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In a reply brief, Sustache's counsel argues "that
defendant was not granted the opportunity to file a motion to
suppress"; the gist of the argument is that Sustache and his
counsel came to court on March 9, 1993, expecting to plead
guilty and were surprised to find the case was proceeding to
trial at once. Defense counsel refers us to Fed. R. Crim. P.
12(f)'s provision allowing the district court "for cause
shown" to relieve any defendant from waiver.
Rule 12(f) gives authority to the district court, and
there is no indication that defendant ever sought to invoke
it there. Further, when the district court ordered the case
to trial forthwith, defense counsel did not object that he
was unprepared or needed additional time to file motions.
Nothing in the reply brief in this court even attempts to
describe the deadlines for pre-trial motions that were
applicable to this case. So far as we can tell from the
record, the claimed "lack of opportunity" to move to suppress
is an afterthought.
Nor is there any basis for asserting plain error. The
provisions invoked by counsel related to identifications
under local law, and identifications in federal court are
governed by federal law. United States v. Sutherland, 929
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F.2d 765 (1st Cir.), cert. denied, 112 S. Ct. 83 (1991). In
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this case the identifications were carried out by local
officials before the case was transferred to federal
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authorities. There is no indication that federal officials
were seeking to circumvent local protections or take
advantage of any flagrant abuse. See United States v. Pratt,
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913 F.2d 982 (1st Cir. 1990), cert. denied, 111 S. Ct. 681
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(1991).
The identifications may or may not have been somewhat
suggestive; the defense version of what happened is not based
on any district court findings since the lack of a
suppression motion meant no ruling on the issues was ever
required. The fact that there were three separate
identifications, one of which is not even claimed to be
tainted, strongly suggests that this is not a case that can
be described as a miscarriage of justice. See United States
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v. Olano, 113 S. Ct. 1770 (1993).
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Sustache's other independent claim of error requires
less discussion. In his opening brief, Sustache's counsel
says that the district court committed reversible error by
instructing the jury that reasonable doubt meant "proof of
such convincing character that a person would be willing to
rely and act upon it." Although no objection was taken to
any part of the reasonable doubt instruction given at trial,
counsel correctly asserts that the quoted language is akin to
an instruction found to constitute plain error. See United
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States v. Colon Pagan, 1 F.3d 80 (1st Cir. 1993).
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The difficulty is that we cannot find the quoted
language in any portion of the court's two sets of
instructions on reasonable doubt; one was given in
preliminary instructions prior to testimony, and the other
was delivered in a somewhat different form at the close of
the evidence. Although counsel's brief uses the language
just quoted and later paraphrases the alleged instruction,
neither reference is accompanied by any record citation. The
government's brief asserts that the alleged language was not
used, and we have no reason to disagree.
Sustache's brief also draws our attention to the
district court's statement that "[a] reasonable doubt is a
doubt based upon reason and common sense." The statement
that a reasonable doubt is a doubt based upon reason and
common sense is widely used in pattern instructions, see 1 L.
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Sand, J. Siffert, W. Loughlin & S. Reiss, Modern Federal Jury
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Instructions 4.01, at 4-8 (1994), and Sustache offers no
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basis for thinking that this reference was error, let alone
plain error.
The trial judge also said that "[p]roof beyond a
reasonable doubt is proof that leaves you firmly convinced
that the defendant is guilty." But the fact that one form of
"convince" was used both in the Colon-Pagan instruction and
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in this case does not assist defense counsel, although it may
explain the mistaken claim that the instruction here is the
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one condemned in Colon-Pagan. As that case makes clear, the
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problem in Colon-Pagan was not with the word "convincing" but
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with the suggestion that a reasonable doubt would not exist
so long as "a person . . . would be willing to rely and act
upon" the proof presented. See 1 F.3d at 81.
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The "firmly convinced" phrasing has been used in a Ninth
Circuit pattern instruction and in the Federal Judicial
Center's pattern instructions, see Sand, supra, 4.01, at 4-
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15 & n.33; and while its use may be limited, we have
ourselves upheld a somewhat similar statement that equates a
reasonable doubt with jurors' inability to "say that they
have a settled conviction of the truth of the charge." E.g.,
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United States v. O'Brien, 972 F.2d 12, 15-16 (1st Cir. 1992).
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See also Victor v. Nebraska, 114 S. Ct. 1239, 1253 (1994)
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(Ginsburg, J., concurring). We certainly have no occasion to
revisit the issue here where no direct criticism is offered
of the "firmly convinced" language.
Finally, we note that Sustache's counsel, having moved
to dispense with oral argument on the ground that there was
no need for it, thereafter submitted to the court a
"supplemental brief in lieu of oral argument." This brief
elaborates a number of the points previously argued in the
opening and reply briefs. Since no motion for leave to file
this additional brief was submitted, we cannot deny the
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motion, but we do decline either to docket or consider this
impermissible filing.
Affirmed.
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