USCA1 Opinion
May 11, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-2259
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
HECTOR RODRIGUEZ-PENA,
Defendant, Appellant.
____________________
No. 93-2260
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ANGEL GALINDEZ-RODRIGUEZ,
Defendant, Appellant.
_____________________
No. 93-2261
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
GONZALO VELAZQUEZ-ROTGER,
Defendant, Appellant.
_____________________
_____________________
No. 93-2262
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
VICTOR RIVERA a/k/a QUIQUE,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Aldrich, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Rafael F. Castro-Lang for appellants Angel Galindez-Rodriguez and
_____________________
Victor Rivera.
Rafael Anglada-Lopez for appellant Gonzalo Velazquez-Rotger.
____________________
Harry R. Segarra for appellant Hector Rodriguez-Pena.
________________
Antonio R. Bazan, Assistant United States Attorney, with whom
_________________
Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa,
_____________ _______________________ ________________________
Senior Litigation Counsel, were on brief for appellee.
____________________
____________________
ALDRICH, Senior Circuit Judge. Appellants
________________________
Rodriguez Pe a (Pe a), Velazquez Rotger (Velazquez), Galindez
Rodriguez (Galindez) and Rivera, co-defendants in a single
criminal trial on multiple narcotics-related charges, jointly
or severally advance assignments of error on appeal of their
convictions: (1) the court erroneously instructed the jury on
the meaning of "beyond a reasonable doubt"; (2) motions for
severance should have been granted; (3) a motion to suppress
pretrial photospread identifications should have been
granted; (4) the court abused its discretion in allowing the
government to present evidence which it withheld in violation
of Federal Rule of Evidence 16; (5) the evidence was
insufficient to convict; (6) the prosecutor committed
reversible errors in his opening and closing arguments; and
(7) the court should have instructed the jury on the defenses
of entrapment and duress. We sustain one, and reject the
rest.
I. Background
I. Background
____________________
Relating the essential facts most favorably to the
verdict, United States v. DeMasi, 40 F.3d 1306, 1310 (1st
______________ ______
Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 947, 130
_____ ______
L.Ed.2d 890 (1995), in late December, 1991, a confidential
informant of the United States Customs Service, known as
"Gordo," responded to a shortwave radio request by a
Colombian national, identified as Cabeza, to contact certain
-3-
individuals in Puerto Rico. This led to meetings and
telephone conversations over the next several months with
various individuals, including Velazquez and Pe a, during
which a narcotics smuggling venture with Cabeza and his
suppliers in Colombia was hatched. Both Velazquez and Pe a
worked closely on the planning and preparation with various
undercover agents who became involved to facilitate Customs'
monitoring of the plot. The evidence contains numerous
photographs and over one hundred recordings of their
discussions up until the moment it finally unravelled and
several of the players were arrested. Gordo agreed to
arrange the transport of the drugs to Puerto Rico and
proposed utilizing a Customs undercover vessel to meet and
receive the cargo from a Colombian ship at sea. Initially
the conspirators contemplated bringing in 2,000 pounds of
marijuana; subsequent discussions with Velazquez and Pe a
increased the amount to 5,000 to 6,000 pounds, or more. A
shipment of up to 300 kilograms of cocaine was discussed as
well.
On March 27, 1992 Gordo was scheduled to pick up
10,000 pounds of marijuana, and two kilograms of cocaine
specifically intended for Velazquez, from the Colombian ship
at sea. However, the latter had sailed off course, broken
down, and after Pe a provided Gordo with some equipment for
an attempt at repair, was eventually forced to jettison its
-4-
load and return to Colombia.
The conspirators were monitored as they continued
to arrange for a successful importation throughout the month
of April. Velazquez mailed a navigational device to Cabeza
to facilitate the meeting of the two vessels at sea, and
provided a second code sheet to Gordo. On April 30, however,
Velazquez was arrested by local authorities on drug related
charges, and Gordo suddenly left Puerto Rico, apparently
because he thought the deal was dead. Customs agent Juan
Dania, posing as Gordo's boss, communicated to Pe a that the
deal was still on and, after some hesitation, Pe a agreed to
continue. Pe a thereafter met with agent Polo Diaz, who
replaced Gordo, to discuss importing around 6,500 pounds of
marijuana and 5 kilograms of cocaine, and was photographed.
In subsequent discussions he spoke of another shipment of
several hundred kilograms of cocaine. At a later meeting
Pe a provided Diaz with another new code sheet from the
Colombians, and, a week later, with a number of emergency
lamps for the ship. He remained in close contact with Diaz
as they finalized plans to meet the shipment of a second
load.
On May 30, 1992, five undercover Customs agents
picked up 153 bales of marijuana and two Colombian
participants from a Colombian ship at sea and transported
them aboard their undercover vessel to Puerto Rico, as
-5-
arranged. Cabeza contacted Diaz to inquire about the
shipment and to discuss another shipment of 300 kilograms of
cocaine. On or about June 1st they arrived in Puerto Rico,
and Diaz telephoned Pe a to obtain keys to a truck onto which
Diaz was supposed to load the narcotics for delivery to Pe a.
Pe a had obtained a red dump truck from his friend Victor
Rivera, who had rented it from an acquaintance named Martin
Salgado. Around the beginning of June, Rivera instructed
Salgado to leave the truck at the Plaza Carolina. When it
proved unusable, Pe a enlisted Rivera to help obtain a second
one, which Rivera partially financed together with another
friend. On June 2, Rivera and the friend together delivered
a white enclosed truck to Plaza Carolina.1
Pe a and Diaz arranged that June 4th would be the
date of delivery. The agents retrieved the truck from the
Plaza Carolina, loaded it up, and delivered it back to the
Plaza Carolina, as arranged. On June 4th Diaz phoned Pe a to
inform him the truck was ready and he would be waiting in his
car at a nearby Burger King parking lot for Pe a to deliver
the money he owed for the shipment in exchange for the keys
to the marijuana- laden truck. At around noon Diaz received
a call on his car phone from Pe a, who informed him that his
____________________
1. The red dump truck was never returned to Salgado, who
eventually reported it stolen after Rivera proved unable to
provide any information on its whereabouts and advised him to
make out a stolen vehicle report using a false name and phone
number to describe the person to whom he had rented it.
-6-
nephew was on his way over to exchange the money for the
keys. As they were talking a young black man approached,
exchanged $30,000 cash with Diaz for the truck keys, and ran
off.
Shortly thereafter the truck, followed by Pe a
driving a gray Volvo, followed by a burgundy silhouette van
with tinted windows, were tailed by several surveillance
teams from various federal agencies. The three vehicles
pulled aside briefly on 65th Infantry Avenue, and several
surveillance vehicles had to pass ahead in order not to blow
their cover. When the convoy resumed, it made a left turn
down Monte Carlo Avenue, heading toward the Monte Hatillo
housing complex. Several surveillance vehicles made u-turns
on 65th Infantry Avenue in order to head back toward the
Monte Hatillo.
When the first of these, occupied by three federal
agents, turned right onto Monte Carlo Avenue in pursuit of
the convoy, the burgundy van suddenly pulled diagonally in
front of their vehicle and raked it with machine gun fire.
The ambush severely wounded the three agents. A second
undercover car pulled up and several agents emerged to return
fire. Shooting was also coming from elsewhere, apparently
from within or around the housing complex. A third
surveillance vehicle, driven by agent Montalvo and carrying
two other federal agents, pulled up and observed the van and
-7-
truck fleeing the scene. Pe a's Volvo was nowhere in sight.
Montalvo pursued the van and truck, but was slowed by
automatic weapons fire from several individuals on foot.
They lost sight of the two vehicles and stopped to pull on
bullet-proof vests. As they were doing so, three individuals
approached firing automatic or semi-automatic weapons. After
some exchange of fire, Montalvo managed to hit one of them
and the others retreated carrying the wounded man. Montalvo
and his fellow agents then returned to the site of the first
shooting incident to assist the injured agents.
The truck was later found parked in the housing
complex. The owner of the van reported it stolen some hours
later. The friend with whom Rivera had purchased the white
truck reported it stolen around 3:30 that afternoon. Pe a
was arrested later that day when he went to local police to
report that he had been kidnapped and handcuffed at gunpoint,
and his car had been stolen, a story he later recanted in
favor of cooperating with the government. Velazquez was
already in custody, and was indicted on information gleaned
from surveillance of his activities before his arrest.
Rivera was arrested some months later on information provided
by Salgado. Galindez was arrested in December of 1992 on
other charges and was indicted in February, 1993 on charges
in connection with this case after being identified in a
photospread by agents Montalvo and Diaz.
-8-
II. Jury Instruction on Reasonable Doubt
II. Jury Instruction on Reasonable Doubt
_______________________________________________
Appellants allege the court gave erroneous
definitions of reasonable doubt in its preliminary remarks to
the jury at the outset of the case, and in its final charge.
At the outset, after defining reasonable doubt briefly and
correctly, the court added,
-9-
It doesn't mean beyond all possible doubt
or to an absolute certainty. Simply more
___________
evidence.
________
(Emphasis supplied). In its final instructions, it said,
It all boils down to an impartial
consideration of all the evidence, and
the evidence must leave you firmly
___________________
convinced that a particular defendant in
_________
a given context of a particular charge is
guilty.
(Emphasis supplied). Defendants took no exceptions, but
claim these particular statements to be plain error under
Federal Rule of Criminal Procedure 52(b). We may find plain
error only where there is a "clear" or "obvious" error that
affects "substantial rights." United States v. Olano, ___
_____________ _____
U.S. ___, ___, 113 S.Ct 1770, 1776-78, 123 L. Ed. 2d 508
(1993); United States v. Romero, 32 F.3d 641, 651 (1st Cir.
_____________ ______
1994). Granted that an erroneous charge on reasonable doubt
is plain error, Sullivan v. Louisiana, 113 S. Ct. 2078, 124
________ _________
L.Ed.2d 182 (1993), there is a scope of language that is
acceptable. On the charge as a whole, we hold the words here
fell within that scope.
Defendants rely principally on United States v.
_____________
Colon-Pagan, 1 F.3d 80 (1st Cir. 1993). In Colon the trial
___________ _____
court had defined reasonable doubt to mean, among other
things, "proof of such a convincing character that a person
. . . would be willing to rely and act upon it." Id. at 81.
___
Rely on it under what circumstances? A small matter? We
found this particular language clearly erroneous, since it
-10-
may have created the "incorrect impression that [the jury]
can convict a defendant in a criminal case upon the basis of
evidence no stronger than might reasonably support a decision
to go shopping or to a movie or to take a vacation." Id. at
___
81. However, we declined to hold the same language, with the
addition that the proof should be of such convincing
character that the jury should be willing to act on it "in
the most important decisions that you have to make in your
own lives and for yourselves," constituted plain error.
United States v. Gordon, 634 F.2d 639, 644 (1st Cir. 1980).
_____________ ______
Although the charge in Gordon was by no means ideal, the
______
"convincing" was sufficiently defined to signal to the jury
the gravity of its task; in Colon it was meaningless.
_____
We readily distinguish our case from Colon. First,
_____
the preliminary charge here was not affirmatively wrong, it
was merely incomplete. The court made that clear, and
indicated it would further explain reasonable doubt at the
end of the case. The vague "simply more evidence" language
the court used to distinguish beyond a reasonable doubt from
the preponderance standard is not automatically fatal here,
as the court completed and amplified its remarks on the
subject in its final charge.
Our only question is whether, as a whole, the
instructions left the jury with the correct understanding of
its responsibility. Romero, 32 F.3d at 651-52 (while
______
-11-
preliminary statements that proof beyond a reasonable doubt
required "scale" to "tip more to the government's side,"
taken alone, may suggest diluted burden of proof,
instructions as a whole did not create obvious likelihood
jury would be misled).
In its final charge the court said,
Remember what I said at the
beginning . . . . [T]he defendants . . .
are presumed innocent until proven guilty
beyond a reasonable doubt. They had no
burden to testify or to present any
evidence or prove that they are innocent.
The government has the burden of proving
every element of the charge or each
charge, I guess, against each defendant
beyond a reasonable doubt. And, of
course, if the government fails to do so,
. . . you must return a verdict of not
guilty to the particular defendant or
charge that the government failed to
prove beyond a reasonable doubt.
And what is this business of
"reasonable doubt"? I gave you, at the
beginning, a limited instruction on
reasonable doubt; and I compared the
standard of the civil case with the
standard of a criminal case.
Now let me tell you more about it. .
. . [R]easonable doubt is a doubt based
upon reason and common sense and may
arise from a careful, impartial
consideration of all the evidence in the
case, or from lack of evidence. Proof
beyond a reasonable doubt is proof that
leaves you firmly convinced that a given
_____________________________
defendant is guilty of a given charge.
_____________________________________
If after a careful and impartial
consideration with your fellow jurors of
all the evidence, you are not convinced
beyond a reasonable doubt that a
particular defendant is guilty of a
-12-
particular charge, it is your duty to
find that particular defendant not
guilty.
-13-
On the other hand, if after a
careful and impartial consideration with
your fellow jurors of all the evidence,
you are convinced, beyond a reasonable
doubt, that the defendant is guilty, it
is your duty to find the particular
defendant related to that particular
charge guilty.
It all boils down to an impartial
consideration of all the evidence, and
the evidence must leave you firmly
______
convinced that a particular defendant in
_________________________________________
a given context of a particular charge is
_________________________________________
guilty. (Emphasis supplied.)
_______
The court expressed the government's burden of
proof beyond a reasonable doubt, neat, seven times. Did
summing it up by saying that "it all boils down to" the
evidence must leave the jury "firmly convinced" of the guilt
of each defendant dilute its well-hammered instruction? The
court did not leave the impression, as it did in Colon, that
_____
members of the jury could convict on the basis of evidence no
stronger than might convince them to go shopping. Colon-
______
Pagan, 1 F.3d at 81. The jury had to be "firmly convinced"
_____
that each defendant "is guilty," a matter of ultimate
importance. We attach weight also to the word "firmly." The
common meaning of "firm" is "fixed." We do not consider this
summation of the court's repeated articulation of the
government's burden to have improperly diminished that
burden. Cf. United States v. DeMasi, 40 F.3d 1306 (1st Cir.
___ _____________ ______
1994); Romero, 32 F.3d 641; United States v. Glenn, 828 F.2d
______ _____________ _____
855 (1st Cir. 1987).
-14-
We strongly observe, as we have before, that
lengthy explanations of reasonable doubt offer little gain,
and much risk. See, e.g., United States v. Olmstead, 832
___ ____ _____________ ________
F.2d 642, 645 (1st Cir. 1987), cert. denied, 486 U.S. 1009,
_____ ______
108 S. Ct. 1739, 100 L. Ed. 2d 202 (1988). Solicitude for the
jury is understandable, but there is no duty to explain that
phrase, let alone to embellish. Victor v. Nebraska, 114
______ ________
S.Ct. 1239 (1994).
III. Severance
III. Severance
___________________
Velazquez, Galindez and Rivera contend the court
committed reversible error in denying their motions for
severance.2 They claim as ground for reversal a highly
prejudicial spillover effect stemming from the prosecutor's
relentless emphasis on the shoot-out, for which none of them
stood charged.3
Severance is warranted only when there is a
manifest and serious risk that a "specific trial right" will
____________________
2. If it appears that a defendant . . . is
prejudiced by a joinder . . . of
defendants . . . for trial together, the
court may . . . grant a severance of
defendants, or provide whatever other
relief justice requires.
Fed.R.Crim.P. 14.
3. Velazquez also contends that joinder was not proper to
begin with because he had nothing to do with the shoot-out.
As he was not charged with any offense arising from the
shoot-out, and does not contend he was improperly joined for
trial on the offenses for which he was charged, we find this
argument without merit.
-15-
be compromised, or that the jury will be unable to make "a
reliable judgment about guilt or innocence." Zafiro v.
______
United States, 113 S.Ct 933, 938 (1993). District courts
_____________
have wide discretion to decide severance motions, that we are
"reluctant to secondguess." United States v. Boylan, 898
______________ ______
F.2d 230, 246 (1st Cir.), cert. denied, 498 U.S. 849, 111
_____ ______
S.Ct. 139, 112 L. Ed. 2d 106 (1990); United States v. O'Bryant,
_____________ ________
998 F.2d 21, 25 (1st Cir. 1993). We will interfere only if
it is "plainly abused." United States v. Natanel, 938 F.2d
_____________ _______
302, 308 (1st Cir. 1991), cert. denied, 502 U.S. 1079, 112
_____ ______
S.Ct. 986, 117 L. Ed. 2d 149 (1992).
Appellants do not allege that any specific trial
right was violated, but rather that the prosecutor's
overdramatization of the "bloodbath" prejudicially affected
the jury's ability to make a reliable judgment. They point
to the acquittal of two original codefendants whose motions
for severance were successful as evidence of prejudice. But
prejudice in this context "means more than just a better
chance of acquittal at a separate trial." United States v.
______________
Pierro, 32 F.3d 611, 615 (1st Cir. 1994) (quoting Boylan, 898
______ ______
F.2d at 246); Zafiro, 113 S. Ct. at 938.
______
While in a trial of multiple defendants the risk of
prejudice is magnified, for example, "when evidence that the
jury should not consider against a defendant and that would
not be admissible if a defendant were tried alone is admitted
-16-
against a codefendant," Zafiro, 113 S.Ct at 938, severance is
______
not automatically required. Id.; Boylan, 898 F.2d at 246.
___ ______
Though none of the evidence relating to the shoot-out would
have been admissible had appellants been tried separately, it
was not offered to prove any charges they faced, and there is
no indication the jury considered it against them. We
presume juries capable of disregarding evidence where it is
irrelevant to the charges against certain defendants.
Pierro, 32 F.3d at 616.
______
Rule 14 leaves the granting of any relief to the
sound discretion of the district court. Zafiro, 113 S.Ct at
______
938. Limiting instructions will often suffice. Id. In
___
denying the motions, the district court promised to take care
of any potential prejudice through appropriate instructions
and, although appellants urge otherwise, we find it
adequately did so.4 We are particularly loathe to second
____________________
4. The court's instructions were as follows:
A separate crime is charged against
one or more of the defendants in each
count. The charges have been joined for
trial. You must decide the case for each
defendant on each crime charged against
that defendant separately. Your verdict
on any count as to any defendant should
not control your verdict on any other
count or as to any other defendant.
In other words, the rule to be
followed is a separate consideration of
each person that is named as a defendant
and of each charge that appears in the
indictment.
-17-
guess the district court here, given that the jury manifested
its ability
-18-
to differentiate the defendants, and the evidence against
each, by returning several acquittals.5 Boylan, 898 F.2d at
______
246.
IV. Pretrial Photo Identifications
IV. Pretrial Photo Identifications
________________________________________
Galindez assigns as error the admission of two
pretrial photospread identifications, as well as the in-court
identifications based on them. He argues that the
circumstances surrounding the identifications were unduly
suggestive, and unreliable.
Galindez was first named in February 1993 as the
person who exchanged payment with agent Diaz for keys to the
marijuana-laden truck on June 4, 1992. He was indicted after
agents Montalvo and Diaz separately identified him in a
photospread. Galindez moved to suppress the identifications
and a hearing was held before a magistrate. The district
court adopted the magistrate's recommendation for denial.
Galindez now appeals.
A. Standard of Review
_______________________
We "uphold a district court's denial of a motion to
suppress if any reasonable view of the evidence supports it."
United States v. De Jesus-Rios, 990 F.2d 672, 677 (1st Cir.
_____________ ______________
1993). See, also, United States v. McLaughlin, 957 F.2d 12,
___ ____ _____________ __________
16 (1st Cir. 1992) (collecting cases). The district court's
____________________
5. Both Rivera and Galindez were acquitted of the main
conspiracy charge.
-19-
findings relating to a motion to suppress are binding on
appeal unless clearly erroneous. De Jesus-Rios, 990 F.2d at
_____________
677. See McLaughlin, 957 F.2d at 17 (collecting cases). A
___ __________
finding may be clearly erroneous, however, even where there
is evidence to support it if "the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed." Id. (quoting United
___ ______
States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525,
______ _______________
542, 92 L. Ed. 746 (1948)).
We employ a two-part inquiry: (1) whether the
identification was "impermissibly suggestive," and, if so,
(2) whether the totality of the circumstances indicates it
was nonetheless reliable. De Jesus-Rios, 990 F.2d at 677
_____________
(collecting cases). Unreliability is found only where there
is "a very substantial likelihood of irreparable
misidentification." Id. (citations omitted). See, e.g.,
___ ___ ____
United States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990)
_____________ _______
("it is only in extraordinary cases that identification
evidence should be withheld from the jury"), cert. denied,
_____ ______
501 U.S. 1234, 111 S. Ct. 2861, 115 L. Ed. 2d 1027 (1991). The
magistrate purported to apply this test, and found neither
suggestiveness nor unreliability. Based on the analysis
below, we disagree.
1. Suggestiveness
____________________
On February 8, 1993, agent Diaz inspected a
-20-
photospread built around a photograph of Galindez which an
uninvolved informant had identified as the person he heard
had made the money for keys exchange. Diaz identified
Galindez as the one with whom he had made the exchange.
Agent Montalvo was shown the photospread the next day and
also identified Galindez. Diaz testified that he was ordered
not to talk to anyone about the photospread or his
identification, and that he did not do so. Although Diaz
continued to deny it at trial, Montalvo admitted both at the
suppression hearing and at trial to speaking with Diaz about
the photospread after Diaz had viewed it, but prior to
examining it himself. The magistrate's ruling, although
detailed, inexplicably fails to note and consider this strong
hint of collusion between the identifying agents. We believe
it raises the possibility of suggestiveness, requiring
examination of the circumstances6 in order to determine
whether the ruling can nonetheless stand.
On June 4, 1992 Montalvo, along with two other
agents, was surveilling the parking lot where Diaz was
waiting for the exchange. He could not see Diaz's car, but
could see as close as five feet surrounding it from about 6'-
8' higher up and 35 feet away. It was around noon, and
raining heavily, when Montalvo observed a young black male
____________________
6. Galindez does not suggest, nor is there any evidence,
that the procedure used was faulty. We therefore address
only the circumstances surrounding the identifications.
-21-
running toward Diaz's car. He disappeared from Montalvo's
view in the vicinity of the car for about 30 to 60 seconds
before re-emerging on the other side running toward the
shopping mall. Montalvo concluded that this person had made
the exchange, even though he could not observe it, because
immediately afterward a radio report confirmed that the
exchange had been completed, and because the suspect remained
within the small radius surrounding Diaz's car for much
longer than he would have had he simply continued running by.
On June 7 Montalvo prepared a report of his
observations. He described this suspect as a young, black,
Hispanic male, about 13-15 years old, wearing a multi-colored
tee-shirt. The next day, during a preliminary hearing
regarding co-defendant Pe a, Montalvo repeated this
description. He added that he saw the same youth a short
time later riding as passenger in the marijuana-laden truck
as the truck-Volvo-van convoy progressed toward the Monte
Hatillo housing complex.
Before a grand jury convened to indict Galindez on
February 10, 1993, the day after identifying Galindez in the
photospread, Montalvo described him for the first time as
having a long neck. At the suppression hearing held in April
1993, Montalvo testified that what caught his attention when
observing the suspect running toward Diaz's car was his long
neck. Montalvo then testified at trial that what caught his
-22-
eye at the time was the suspect's long neck and "very
protruding Adam's apple." When confronted with the fact that
he had never mentioned the long neck and Adam's apple in the
report he prepared just three days after the incident nor any
time prior to seeing Galindez' photograph, Montalvo said that
it was because the photo "refreshed" his memory. Both
Montalvo and the agent who administered the identification
procedure testified that all six photos in the spread were
covered up to the chin -- to assure that labels identifying
the persons depicted could not be seen and that the photos
appeared uniform -- thus no necks would be observable.
Montalvo said he removed the paper covering the neck of
Galindez's photograph after he selected it but before
initialling it.
Evidence tending to strengthen agent Diaz's
identification of Galindez also materializes only after his
viewing of the photospread. Shortly after the crime, Diaz
was interviewed by an investigating case agent who prepared a
report, dated July 20, 1992. This report contains no
physical description of this suspect other than that he was
black and wearing a black tee shirt with printed letters and
jeans. Diaz, a Customs agent for seven years and trained in
identification techniques, testified that he did not recall
whether he had provided the investigating agent with more
than this general description, but admitted that had he done
-23-
so the agent would have reported it.7
Two days after he identified Galindez, Diaz
testified before a grand jury that the feature he recalled
specifically was a long neck. At the suppression hearing two
months later Diaz testified that at the time of the incident
he had specifically noted the suspect's long neck, recessed
eyes, big lips and age between 18 and 22, and that when he
identified Galindez he was certain because he would "never
forget" the eyes, nose and mouth. It then emerged on cross
examination that Diaz, who was not required to write a report
himself, had taken contemporaneous "rough notes" of his
participation in the undercover operation. These had not
been provided to defense counsel and, despite his request,
the magistrate refused to hold up the hearing to obtain them.
Defense counsel proceeded without, and managed to establish
that (1) Diaz had reviewed them before being interviewed by
the case agent, and (2) they contained some description of
the suspect but Diaz could not recall any details other than
that he was black and wearing a black printed tee shirt,
precisely the description contained in the agent's report.
The prosecutor produced Diaz's notes on the first
day of trial, revealing a detailed description of the suspect
as black, with brown eyes, short hair, long neck, heavy
____________________
7. The agent, Juan Dania, a six year veteran, testified that
it would have been his practice to report all descriptions
provided by the agents he interviewed.
-24-
eyebrows and recessed eyes, 5' 6-8" and age 18-22. Diaz
admitted on cross examination that he had thoroughly reviewed
these notes before the suppression hearing, yet had been
unable to recall anything about them when questioned by the
defense at that time. It stretches credulity to believe that
Diaz wrote contemporaneous notes describing the suspect as,
among other things, having a long neck and recessed eyes, and
that several weeks later when interviewed by the
investigating agent, and after reviewing those notes, he
provided none of that detail; that after again reviewing the
notes for the express purpose of testifying about his
identification at the suppression hearing, he was again
unable to recall any of their detail; and that when they were
finally revealed at trial those notes turned out to contain
the very details tending to confirm the description Diaz gave
for the first time at the suppression hearing, and describe
the very features he claimed both at the hearing and at trial
had most impressed him at the time of the incident.
Viewed in totality, the circumstances indicate a
possibility that Montalvo was influenced by Diaz prior to his
identification of Galindez, and thereafter both he and Diaz
supplemented their descriptions to include features prominent
in the photograph. Although law enforcement experience is a
factor that mitigates susceptibility to suggestiveness,
Maguire, 918 F.2d at 263, the pre-viewing conversation
_______
-25-
between the two agents, and the apparent post hoc doctoring
of both their descriptions, destroys that presumption here.
The finding below, which did not consider the improper
conversation, is clearly erroneous.
2. Reliability
__________________
A finding of suggestiveness, however, only requires
exclusion when it creates a "very substantial likelihood of
irreparable misidentification." De Jesus-Rios, 990 F.2d at
_____________
677 (citations omitted). This prong of the test questions
"whether under the 'totality of the circumstances' the
identification was reliable even though the confrontation
procedure was suggestive." Neil v. Biggers, 409 U.S. 188,
____ _______
199 (1972). The following factors are probative:
(1) the opportunity of the witness to
view the criminal at the time of the
crime; (2) the witness' degree of
attention; (3) the accuracy of the
witness' prior description of the
criminal; (4) the level of certainty
demonstrated by the witness at the
confrontation; and (5) the length of time
between the crime and the confrontation.
De Jesus-Rios, 909 F.2d at 677 (citing Neil v. Biggers, 409
_____________ ____ _______
U.S. at 199-200 (other citations omitted)). Applying these
factors, we note, first, that the record indicates Montalvo
had but 25 seconds to view the suspect, in heavy rain, at a
distance of, at best, 35 feet, and 6-8 feet elevated. He
admitted his subsequent viewing of the same person in the
passenger seat of the truck was somewhat obstructed --
-26-
although he claims he recognized the tee shirt and general
appearance -- and fleeting, as it occurred while he was
driving his own vehicle past the stopped truck. This may
have been adequate to observe and note a long neck. Second,
since Montalvo was assigned to surveillance, we may assume he
was attentive. Third, his reported description just days
after the events contains none of the detail that begins to
appear in his descriptions subsequent to speaking with Diaz
and then viewing the photospread. Fourth, although it only
took Montalvo several minutes to pick out Galindez's
photograph, he testified that he was confused because he
remembered the hair of the person he saw as "coming straight
down," whereas the photo depicted Galindez with very short
hair.
Finally, eight months elapsed between the crime and
the identification. This Court has allowed photospread
identifications that have occurred as much as five years
after the crime, but this has been where other factors
strengthened considerably the reliability of the
identification. See, e.g., United States v. Drougas, 748
___ ____ ______________ _______
F.2d 8, 28 (1st Cir. 1984) (five-year gap was "very much
greater than would ordinarily be permissible," but unlike
most cases, "the witness was not identifying an assailant . .
. he viewed only once under stressful circumstances;" he was
co-conspirator who had spent considerable time with
-27-
defendant). In Biggers itself, the Supreme Court noted that
_______
a seven month delay would "be a seriously negative factor in
most cases," 409 U.S. at 201, but since the witness, a rape
victim, had spent up to half an hour with her assailant,
under artificial light, and at least twice
-28-
"faced him directly and intimately," the identification was
allowed. Id. at 200.
___
In light of the conversation between Diaz and
Montalvo prior to Montalvo's viewing the photospread, the
alterations in both of their subsequent descriptions, the
suspicion that Diaz's "contemporaneous" notes were composed
after the fact (and the ease with which the prosecutor could
have cleared up that problem by promptly providing the notes
to defense counsel), and the negative weight of the third,
fourth and fifth Biggers factors compels the conclusion that
_______
at least Montalvo's identification was unreliable, and the
district court was clearly erroneous in allowing it to go to
the jury.
B. Was the Error Harmless Beyond a Reasonable
___________________________________________________
Doubt?
______
Next, we assess whether the district court's error
was harmless beyond a reasonable doubt. De Jesus-Rios, 990
_____________
F.2d at 678 (citation omitted). In overturning a district
court's finding that a pretrial identification, though
impermissibly suggestive, was nonetheless reliable, this
court has focussed on the inevitable uncertainty concerning
what role the impermissible identification played in the
jury's decision to convict. De Jesus-Rios, 990 F.2d at 679.
_____________
In De Jesus-Rios, as here, there were two pretrial
_____________
identifications, and no other evidence linking defendant to
-29-
the crime.8 The court found only one identification
unreliable. In ruling nonetheless that the district court's
error in admitting both was not harmless beyond a reasonable
doubt, the court noted that it was possible that the jury had
relied significantly upon the unreliable identification. The
court was "concerned that the jury may have been persuaded to
convict by the very fact that there were two witnesses who
___
identified [the defendant]." Id. Here, too, it is possible
___
that the jury rested its decision to convict on the fact that
there were two identifications. We cannot conclude beyond a
reasonable doubt that the district court's error was
harmless.
V. Delayed Discovery
V. Delayed Discovery
____________________________
Rivera challenges the admission into evidence
certain telephone records revealing calls between his line
and those belonging to others involved in the conspiracy that
the government did not provide until the first day of trial.
The government admitted to possessing some of them as much as
one year before trial. Rivera reasserts his argument below
that the government's late disclosure violated Rule 16 of the
____________________
8. The only other evidence linking Galindez to the crime are
Diaz's notes containing a description to which Galindez can
be matched. The notes cannot be credited.
-30-
Federal Rules of Criminal Procedure9 and prejudiced his
defense by depriving him of the opportunity to investigate
the calls.
We review a district court's ruling on the
prejudicial effect of a failure to provide pre-trial
discovery for abuse of discretion. United States v. Alvarez,
_____________ _______
987 F.2d 77, 85 (1st Cir.), cert. denied, ___ U.S. ___, 114
_____ ______
S.Ct. 147, 126 L. Ed. 2d 109 (1993); see Fed.R.Crim.P.
___
16(d)(2). Prejudice must be proven to obtain reversal on
appeal. Alvarez, 987 F.2d at 85.
_______
The court allowed the evidence, finding that the
government did not act in bad faith and that no prejudice
resulted. See, e.g., United States v. Nickens, 955 F.2d 112,
___ ____ _____________ _______
126 (1st Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 108,
_____ ______
121 L. Ed. 2d 66 (1992) (citations omitted). We agree. The
prejudice Rivera alleged below related entirely to linking
____________________
9. Rule 16 provides, in pertinent part:
Upon request of the defendant the
government shall permit the defendant to
inspect and copy or photograph books,
papers, documents, . . . which are within
the possession, custody or control of the
government and which are material to the
preparation of the defendant's defense or
are intended for use by the government as
evidence in chief at the trial . . .
Fed.R.Crim. P. 16(a)(1)(C). Rule 16 imposes a continuing
duty to disclose such requested material. Fed.R.Crim.P.
16(c). See, e.g., United States v. Tajeddini, 996 F.2d 1278,
___ ____ _____________ _________
1287 (1st Cir. 1993).
-31-
him to the conspiracy, for which he was acquitted, and he
proffers no additional proof of prejudice on appeal. This
verdict itself verifies the court's ruling.
Rivera also challenges the admission of this
evidence on relevancy grounds. This contention was not made
to the district court.
VI. Sufficiency of the Evidence
VI. Sufficiency of the Evidence
_____________________________________
All appellants challenge the sufficiency of the
evidence by which they were convicted, having made timely
motions for acquittal to the trial court. On appeal, we
assess the evidence as a whole, taking "all reasonable
inferences, in the light most favorable to the verdict, with
a view to whether a rational trier of fact could have found
the defendant guilty beyond a reasonable doubt." United
______
States v. Vargas, 945 F.2d 426, 427 (1st Cir. 1991) (internal
______ ______
quotations omitted); United States v. Montas, 41 F.3d 775,
_____________ ______
778 (1st Cir. 1994), petition for cert. filed, (April 4,
__________________________
1995) (No. 94-8798). We resolve all credibility issues in
favor of the verdict. United States v. De Jesus Rios, 990
_____________ _____________
F.2d at 680.
A. Galindez
_____________
Although we are awarding Galindez a new trial
because of an erroneously admitted identification, it is
still necessary to consider whether his motion for acquittal
should have been allowed. Our evidentiary ruling leaves a
-32-
viable identification. A jury might reasonably conclude that
this identification alone, made by the agent who dealt
directly and closely, if briefly, with the suspect,
establishes Galindez's guilt beyond a reasonable doubt.
B. Pe a
_________
Pe a was convicted of conspiring to import,
importing, and possessing with the intent to distribute
controlled substances in violation of 21 U.S.C. 952(a) and
841 (a)(1) (Counts One, Two and Three), using a telephone in
violation of 21 U.S.C. 843(b) (Count Four), possessing a
firearm during commission of a drug trafficking offense in
violation of 18 U.S.C. 924(c)(1) (Count Six), and aiding
and abetting an attempt to kill three federal agents in the
line of duty in violation of 18 U.S.C. 1114 and 2 (Counts
Seven through Nine). Although he states a flat challenge to
the evidence on all counts, we discern questions only with
respect to the evidence for importation, possession of
firearms, and the attempt to kill the agents.
1. Importation
__________________
Pe a attempts to place sole responsibility for
importing the drugs on the undercover agents involved in the
scheme, alleging that it was they, not he, who actually
brought the marijuana across the border. Pe a misinterprets
the scope of the crime of importation. Importation of a
controlled substance is a "continuous crime" that is not
-33-
complete until the drugs reach their intended destination.
United States v. Leal, 831 F.2d 7, 9 (1st Cir. 1987) (citing
_____________ ____
cases). Thus the fact that Pe a was not present and
physically involved at the point of entry into the United
States does not absolve him. While the outermost limits of
importation have never been defined by this Court, we are
satisfied that the crime was ongoing when Pe a took custody
of the marijuana, the evidence of which is ample.
2. Use of Firearms During Drug Trafficking
______________________________________________
Offense
_______
Section 924(c)(1) requires the government to show
that the defendant "used one or more firearms during a drug
trafficking offense." United States v. Reyes-Mercado, 22
_____________ _____________
F.3d 363, 367 (1st Cir. 1994).10 There being no question
that firearms were thus used, Pe a claims the record lacks
evidence that he used or possessed a firearm, actually or
__
constructively, or aided anyone in procuring them, asserting
____________________
10. Whoever, during and in relation to any
crime of violence or drug trafficking
crime . . . uses or carries a firearm,
shall, in addition to the punishment
provided for such crime . . . be
sentenced to imprisonment for five years,
and if the firearm is a short-barreled
rifle, short-barreled shotgun . . . to
imprisonment for ten years, and if the
firearm is a machine-gun, or a
destructive device, or is equipped with a
firearm silencer or firearm muffler, to
imprisonment for thirty years. . . .
18 U.S.C. 924(c)(1).
-34-
he did not even know of their presence in the silhouette van
that
-35-
escorted the drug-laden truck after he and his co-
conspirators took possession of it.
The government contends Pe a's conviction can be
upheld on either of two theories: first, Pe a aided and
abetted the occupants of the van in their possession of the
weapons; second, he can be held criminally accountable for
the reasonably foreseeable substantive offenses committed by
others in furtherance of their joint criminal venture.
Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90
_________ _____________
L.Ed. 1489 (1946).11
One who aids and abets a crime is punishable as a
principal. 18 U.S.C. 2; Nye & Nissen v. United States, 336
____________ _____________
U.S. 613, 618-619, 69 S.Ct 766, 769-770, 93 L. Ed. 919 (1949)
("one who aids, abets, counsels, commands, induces, or
procures the commission of an act is as responsible for that
act as if he committed it directly"); United States v.
______________
Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (acts of principal are
________
those of aider and abetter "as a matter of law"). To prove
liability as an accomplice the government must show the
____________________
11. The court instructed the jury as follows:
If one member of a conspiracy commits a
crime in furtherance of a conspiracy, the
other members have also, under the law,
committed that crime.
This was sufficient. United States v. Alvarado, 898 F.2d
______________ ________
987, 993 (5th Cir. 1990); United States v. Gallo, 763 F.2d
_____________ _____
1504, 1520 n.23 (6th Cir. 1985), cert. denied, 474 U.S. 1069,
_____ ______
106 S. Ct. 828, 88 L. Ed. 2d 800 (1986).
-36-
defendant associated himself with a criminal scheme in some
way, acted so as to demonstrate his wish to bring it about,
and sought by his actions to make it succeed. Nye & Nissen,
____________
336 U.S. at 619; United States v. Loder, 23 F.3d 586, 590-91
_____________ _____
(1st Cir. 1994). Criminal intent may be inferred from
surrounding facts and circumstances. United States v. Campa,
_____________ _____
679 F.2d 1006, 1010 (1st Cir. 1982). It is settled that for
an accomplice to be convicted under 924(c)(1) the
government must prove that he knew "to a practical certainty"
that a firearm would be used or carried during a qualified
offense, United States v. DeMasi, 40 F.3d 1306, 1316 (1st
______________ ______
Cir. 1994); United States v. Torres-Maldonado, 14 F.3d 95,
_____________ ________________
103 (1st Cir.) (citing cases), cert. denied, ___ U.S. ___,
_____ ______
115 S. Ct. 193, 130 L. Ed. 2d 125 (1994).
The evidence establishing Pe a's involvement in the
drug importation conspiracy, as well as its size, aim and
scope supports the conclusion that Pe a aided and abetted the
use of firearms in connection with the transfer of the
narcotics into his custody. Pe a himself directed the
exchange of $30,000 in cash for keys to a truck containing
over 9,000 pounds of marijuana. He then rode in the van to
the Monte Hatillo complex to pick up his car. A coordinated
convoy consisting of the truck, a Volvo driven by Pe a,
followed by the van, was later observed heading back toward
the Monte Hatillo. The three vehicles pulled to the side of
-37-
the road together, and turned together into the housing
complex moments later. Both Pe a and the truck's passenger
were observed talking on cellular telephones. There was
evidence suggesting that the van was also equipped with a
cellular phone antenna, although activities within could not
be seen due to its darkened windows. Finally, the convoy
broke up just before the occupants of the van began shooting,
and the truck and Pe a's car rapidly disappeared.
A rational jury could conclude that the van was
connected to and provided security for the operation, and
that Pe a must at least have known that the transaction would
be secured with arms, and could expect that they would be
used in the event of trouble. Further, the evidence supports
a conclusion that the barrage of automatic weapons fire was
designed to provide cover for Pe a and the truck to escape,
and that Pe a both knew of and benefitted from it. It is
immaterial that Pe a did not carry or himself use a firearm,
if he was aware that firearms were available for use during
or in relation to the transaction, DeMasi, 40 F.3d at 1316,
______
or if the firearms facilitated the crime or lent him courage
to see it through. Reyes-Mercado, 22 F.3d at 367.
_____________
Because the evidence is sufficient to support the
conclusion that, at the very least, Pe a knew to a practical
certainty that the transaction would be secured with
firearms, his conviction on count six is affirmed.
-38-
-39-
3. Aiding and Abetting the Attempt to Kill
______________________________________________
the Agents
__________
The government contends the same theories of
liability support Pe a's convictions for the attempt to kill
the agents; and Pe a again seeks to avoid responsibility by
claiming innocence of the identities, actions and intent of
the occupants of the van. There is no question that an
attempt was made to kill the agents during the drug
operation; our only concern is whether Pe a aided and abetted
this attempt, or whether it was reasonably foreseeable to
Pe a that such an offense might be committed in furtherance
of the conspiracy. Pinkerton, 328 U.S. at 648.
_________
We hold that the jury could have inferred that Pe a
knew there were automatic weapons in the van for protecting
the transfer of the narcotics, that Pe a was in telephonic
contact with the occupants of the van up until moments before
the shooting began, and that the ambush of the agents was
undertaken with his knowledge, if not pursuant to his orders,
and that he benefitted by being able to flee the scene. A
rational jury therefore could have found that the evidence
indicated Pe a was associated with the ambush, acted in a way
that showed his desire that it succeed, and shared the
requisite criminal intent to bear responsibility. The record
also supports the conclusion that it was reasonably
foreseeable to Pe a that the firearms would be used in the
-40-
event that the successful completion of the drug deal was
threatened. United States v. Bruno, 873 F.2d 555, 560 (2nd
_____________ _____
Cir.), cert. denied, 493 U.S. 840, 110 S. Ct. 125, 107 L.Ed.2d
_____ ______
86 (1989). Pe a's conviction on counts seven through nine
are therefore affirmed.
C. Rivera
___________
Rivera was convicted for possession of a controlled
substance with intent to distribute. He claims he is but a
legitimate businessman whose tangential involvement in the
scheme was innocent and unknowing, and that the evidence does
not support the verdict.
Proof of criminal intent or guilty knowledge is
essential under 18 U.S.C. 2,12 Campa, 679 F.2d at 1010,
_____
otherwise anyone who brushed a criminal en route to his deed
could be swept within the statute. See United States v.
___ ______________
O'Campo, 973 F.2d 1015, 1020 (1st Cir. 1992). Rivera's
_______
knowledge and furtherance of the conspirators' plan can be
inferred from his providing a truck to the conspirators,
suggesting to its owner that he report it stolen, loaning his
own money to help obtain a second truck, and the fact that
this truck ended up reported stolen shortly after the
incident. Although Rivera claims that all of this could be
____________________
12. It is immaterial that the indictment neither alleged
aiding and abetting nor referred to 18 U.S.C 2. United
______
States v. Sanchez, 917 F.2d 607, 611 (1st Cir. 1990), cert.
______ _______ _____
denied, 499 U.S. 977, 111 S. Ct. 1625, 113 L. Ed. 2d 722 (1991).
______
-41-
seen as the innocent pursuit of his trucking business, the
jury acted within its province in resolving this credibility
issue against him. Viewed in the light most favorable to the
verdict, the evidence is sufficient to sustain Rivera's
conviction.
D. Velazquez
_______________
Velazquez challenges the sufficiency of evidence
for all counts for which he was convicted: conspiracy to
import marijuana and cocaine in violation of 21 U.S.C.
952(a) (count one); importation of 9,540 pounds of marijuana
in violation of 21 U.S.C. 952(a) (count two); possession
with intent to distribute marijuana in violation of 21 U.S.C.
841(a)(1) (count three); and use of a telephone in
violation of 21 U.S.C. 843(b) (count five).
1. Conspiracy
_________________
Velazquez attacks his conviction on counts one and
five by claiming the evidence showed two distinct
conspiracies, one failed effort before his arrest and
incarceration on April 30, 1992, and another conceived only
afterwards. He concedes the evidence supports his
participation in the first,13 but argues that the second,
____________________
13. Such evidence included taped meetings with a
confidential informant in which he participated in price
negotiations, discussions of secret code sheets, and made an
agreement to pay a certain sum for transportation of the
drugs, as well as evidence that he personally inspected a
U.S. Customs undercover vessel for its suitability for
shipment and provided marine charts and code sheets to others
-42-
ultimately successful one, was formed and carried out only
after his arrest by local authorities on April 30, 1992, and
since he was still incarcerated on June 4, when this second
scheme was consummated, it was impossible for him to have
participated in it. He promotes his two conspiracy theory by
claiming there were "new players" and new secret "codes" in
the second plot, and that about four times as much marijuana
was ultimately imported than he and the original conspirators
contemplated.
Velazquez makes this argument for the first time,
having conceded the sufficiency of evidence to convict on
count one to the trial court. "It has long been the practice
in this circuit that an issue not presented in the district
court will not be addressed for the first time on appeal."
United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989). We
_____________ _____
discuss it only because he makes an essentially similar
argument regarding counts two and three, which he did not
concede, and it bears on the question concerning those
counts.
Whether multiple conspiracies existed is a question
of fact for the jury. United States v. Bello-Perez, 977 F.2d
_____________ ___________
664, 667 (1st Cir. 1992); United States v. Drougas, 748 F.2d
_____________ _______
8, 17 (1st Cir. 1984). To have proceeded on the assumption
that a single conspiracy existed in this case, the jury need
____________________
to assist their planning and execution of the deal.
-43-
only have found that the evidence as a whole adequately
showed that all the co-conspirators "knowingly and
intentionally 'directed their efforts towards the
accomplishment of a common goal or overall plan' to commit
the substantive offense charged." Bello-Perez, 977 F.2d at
___________
667-668 (quoting Drougas, 748 F.2d at 17). The jury need not
_______
have found that they joined the conspiracy together,
participated at the same time, nor even that they all knew
each other. Bello-Perez, 977 F.2d at 668 (citing cases).
___________
Save for his own removal by arrest, the only change
of players was the replacement of one of the government's
agents after a first botched attempt in March 1992. The
other players remained and continued with the original plot.
Nor does the fact that much more marijuana was imported than
the original negotiations contemplated necessarily cleave the
conspiracy in two. The jury could have readily found that
new codes were issued for security reasons. There is no
reason it could not have found beyond a reasonable doubt that
there was a single conspiracy in which Velazquez clearly
played a part.
2. Use of Telephone to Facilitate the Crime
______________________________________________
Section 843(b) makes it a crime to use a
communication facility, such as a telephone, to facilitate
the commission of a crime such as importation of controlled
substances. Velazquez was convicted of one count of
-44-
violating 843(b) on the basis of unrefuted evidence of a
telephone conversation on March 9, 1992, in which he
discussed details of the importation plans with a
confidential informant who recorded the call. He employs the
same two conspiracy theory
-45-
to attack this conviction. We find the evidence more than
sufficient to uphold it.
3. Importation
__________________
Velazquez attacks his convictions for counts two
and three by claiming his imprisonment by local authorities
as of April 30, 1992 made it impossible for him to have
participated after that time, and that evidence of his
participation in the conspiracy before then was insufficient
to prove his guilt beyond a reasonable doubt for the
substantive counts.
The trial court was initially inclined to grant
Velazquez's motion for acquittal for these two counts, but
reconsidered. The government contends that the evidence is
sufficient to support his convictions "at least as an aider
and abetter." Velazquez contends that all the unlawful
actions comprising counts two and three were committed by
others after his incarceration, and therefore the government
failed to prove his involvement in any of the elements of
either offense.
With respect to his importation conviction,
Velazquez fails to understand the scope of the law of
conspiracy. The jury was properly instructed that a member
of a conspiracy is criminally responsible for any illegal
acts of co-conspirators committed in furtherance of it.
Pinkerton, 328 U.S. 640; United States v. Munoz, 36 F.3d
_________ ______________ _____
-46-
1229, 1234 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115
_____ ______
S.Ct. 1164, 130 L. Ed. 2d 1120 (1995). Thus courts have held
that the same evidence that supports a defendant's conviction
for conspiracy to commit a crime may support his conviction
for the substantive count, even where he did not commit it
himself. See, e.g., United States v. Salazar, 958 F.2d 1285,
___ ____ _____________ _______
1292 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 185,
_____ ______
121 L. Ed. 2d 129 (1992). As we found the evidence sufficient
to uphold both the jury's finding of a single conspiracy to
import illicit narcotics in which both Velazquez and Pe a
were at various times involved, and Pe a's conviction on the
substantive count of importation, Velazquez's conviction for
the substantive count may also stand.14
4. Possession
________________
We cannot make the same simple assertion with
respect to Velazquez's conviction for possession of narcotics
with intent to distribute, given that he was not convicted
for conspiracy to commit this offense. Velazquez again
____________________
14. Velazquez seems to make an argument that his arrest and
incarceration effectively removed him from the conspiracy.
Where membership in a conspiracy is proven, evidence of
simply ceasing one's activities in connection with it, for
whatever reason, is insufficient to constitute withdrawal.
Munoz, 36 F.3d at 1234. An affirmative step, such as a full
_____
confession to authorities or communicating to co-conspirators
abandonment of the enterprise and its goals, is required to
avoid responsibility for the continuing crimes of co-
conspirators. Id. Velazquez presented no such evidence, and
___
the jury was entitled to surmise that but for his involuntary
removal by arrest, he would have continued.
-47-
contends that because he was incarcerated at the time his co-
conspirators possessed the drugs, it was impossible for him
to have been in possession himself, even constructively,
within the meaning of 21 U.S.C. 841(a)(1), nor could he
have aided and abetted their possession within the meaning of
18 U.S.C. 2.
Evidence of Velazquez's association, participation,
and active promotion of others' possession of the drugs is
sufficient to sustain his conviction as an aider and abetter.
Nye & Nissen, 336 U.S. at 619. Velazquez actively associated
____________
himself with a scheme that was specifically designed to
result in his possession and distribution of a substantial
amount of narcotics by participating in initial negotiations
over price and amounts and subsequent meetings and telephone
conversations to refine details of the plan, attempting to
travel to St. Maarten to pick up one of the suppliers,
supplying a marine chart, inspecting an undercover Customs
vessel for its suitability for the smuggle, providing a new
set of secret codes and a navigational device after an
initial attempt at shipment failed when the Colombian vessel
carrying the narcotics got lost en route to Puerto Rico,
broke down, and had to jettison its cargo, and bringing
others into the scheme. There was no evidence he was acting
merely as a facilitator for others with no intent to
participate in possession and distribution himself. On the
-48-
contrary, there was evidence that 2 kilograms of cocaine
contained in the first, failed shipment
-49-
were included specifically per his request and intended
exclusively for him.
From this evidence the jury could have concluded
that possession and distribution of the drugs were the
obvious intended consequences of the plot to import, and that
Velazquez promoted and facilitated that goal.
The only case of which we are aware that addressed
a conviction for possession by an inmate on the basis of
possession by his at-large co-conspirators involved a
defendant who, while incarcerated, made numerous phone calls
from prison to his cohorts between the time of his arrest and
their apprehension with a cache of cocaine and directions to
his apartment. United States v. Disla, 805 F.2d 1340 (9th
_____________ _____
Cir. 1986). Although Disla's conviction for conspiracy to
possess cocaine with intent to distribute was upheld, the
court reversed his conviction for the substantive count,
holding that evidence he was involved as a conspirator before
his incarceration could not support either an aiding and
abetting or a constructive possession theory of guilt, given
that there was no evidence Disla did anything to "effect" or
"assist" the actual crime.15 Id. at 1350-52.
___
____________________
15. The court held that an inference that he assisted the
possession of his cohorts based on the telephone calls could
not be drawn because there was no evidence as to the content
of those calls.
-50-
The Disla court was foreclosed from considering
_____
Disla liable under Pinkerton, because the jury had not been
_________
given the requisite instruction. Id. at 1350. Here, as
___
previously noted, the jury was properly instructed,
consistent with Pinkerton, that a defendant is liable for the
_________
reasonably foreseeable substantive offenses committed by co-
conspirators in furtherance of their joint criminal venture.
We may therefore also affirm if possession of the drugs by
Pe a and the other conspirators was an act committed in
furtherance of their unlawful agreement to import, such that
Velazquez can be held accountable as a party to the plot.
As discussed above in relation to Pe a, importation
is a continuous crime that does not cease until the
contraband reaches its destination. United States v. Leal,
______________ ____
831 F.2d 7, 9 (1st Cir. 1987) (citing cases). Whatever its
final destination in this case, we are satisfied that upon
the conspirators' taking possession of the marijuana-laden
truck the crime of importation was still on-going. See ante.
___ ____
Thus, in this particular case, possession with intent to
distribute a large cache of marijuana was committed by
Velazquez's co-conspirators in furtherance of the crime they
conspired to commit, and although it is agreed that he was
incapable of possessing the drugs himself while imprisoned,
his conviction for the substantive count can nonetheless
stand.
-51-
VII. Prosecutor's Conduct
VII. Prosecutor's Conduct
______________________________
A. Opening Statement and Presentation of the
___________________________________________________
Evidence
________
Appellants Rivera and Galindez contend that, by
creating the impression of a "planned," "ambush type
situation" designed to kill the federal agents, and painting
a graphic picture of "raining bullets" that produced a "blood
bath," the prosecutor aimed to raise the passions of the
jury. The crux of their argument is that by stating "the
only possible verdict is that of guilty, because of an
attempt to kill the agents," the prosecutor improperly urged
the jury to do justice to the severely wounded agents. They
further point to the prosecutor's emphasis throughout the
trial on the culmination of the drug scam in the attempt on
the agents' lives, tending to suggest it was an element of
the conspiracy for which they stood charged. Neither was
charged with the attempt to kill the agents. They claim the
prosecutor so inflamed and confused the jury as to seriously
prejudice their right to a fair trial.
We begin by restating that it is improper to
suggest to the jury that it "act in any capacity other than
as the impartial arbiter of the facts." United States v.
_____________
Manning, 23 F.3d 570, 573 (1st Cir. 1994). Appealing to the
_______
jury's emotions or suggesting in any way that it feel a duty
to convict is error. Id. (telling jury, "take responsibility
___
-52-
for yourselves," "take responsibility for your community" and
"convict the defendant because justice compels conviction" is
error); United States v. Young, 470 U.S. 1, 17, 105 S.Ct.
_____________ _____
1038, 1047, 84 L. Ed. 2d 1 (1985) (error to urge jury to "do
its job"); United States v. Mandelbaum, 803 F.2d 42, 44 (1st
_____________ __________
Cir. 1986) (error to urge jury to "do its duty"). While the
line separating improper from acceptable behavior in our
adversary system is "not easily drawn," Young, 470 U.S. at 7,
_____
we assume without deciding that to the extent the
prosecutor's comments could be understood to urge the jury to
avenge the injured agents, they were improper.
Whether those comments warrant a new trial,
however, turns on whether they likely affected the outcome.
Manning, 23 F.3d at 574 (citing cases).16 We look to the
_______
severity of the misconduct, the context in which it occurred,
the curative effect of the judge's admonitions, if any, and
the strength of the evidence against the defendant. Id.
___
(citing cases).
We do not find the factors in this case compel a
new trial. An objection to the statement was sustained and
the prosecutor did not repeat it. No remedial action was
____________________
16. Although this line of authority derives from cases
recognizing deterrence of prosecutorial misconduct as an
additional basis for reversal, see United States v. Capone,
___ ________________________
683 F.2d 582, 586 (1st Cir.1982), the Supreme Court
eliminated this option where the error is harmless. United
______
States v. Hasting, 461 U.S. 499, 506, 103 S. Ct. 1974, 1979,
_________________
76 L. Ed. 2d 96 (1983).
-53-
requested, nor was any offered -- perhaps a decision not to
draw attention to the remark. See Mandelbaum, 803 F.2d at
___ __________
44 (although urging jury to "do its duty" was error, it was
not reversible error). It was made during opening statements
wherein it was unlikely to have had a lasting effect.
Moreover, that Rivera was acquitted of the conspiracy charge
demonstrates that the jury was not so confused or inflamed
that it could not rationally evaluate the charges and the
evidence.
B. Misstatement of the Evidence in Closing
_____________________________________________
Galindez and Rivera allege the prosecutor
materially misstated the evidence in his closing argument.
Because we find Galindez deserves a new trial on another
ground, we address only Rivera's claim here.
Rivera objects to the prosecutor's summation of the
evidence in which he suggested that Rivera called the owner
of one of the two trucks that he had obtained for Mr. Pe a
and advised him to report it stolen, and that these acts show
knowledge. Rivera's attorney did not object. On appeal,
Rivera points to the record which reveals that the owner
repeatedly called Rivera about his truck, and only after
repeated assurances that he would return it as soon as it
turned up did Rivera suggest that if the owner wasn't
satisfied he should report it stolen.
Absent objection, we review for plain error.
-54-
United States v. Arrieta-Agressot, 3 F.3d 525, 528 (1st Cir.
_____________ ________________
1993). Except on rare occasions, a defendant "who believes
that a prosecutor's closing argument goes too far must
usually object to the offending statements when and as they
are uttered." United States v. Sepulveda, 15 F.3d 1161, 1186
_____________ _________
(1st Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 2714,
_____ ______
129 L. Ed. 2d 840 (1994). Absent objection it seems fair to
give the arguer the benefit of every plausible interpretation
of her words." Id. at 1187.
___
The evidence is unequivocal, regardless of who
called whom, that Rivera told the owner he should report his
truck stolen. Further, Rivera provided him with a false name
and telephone number to use in the stolen vehicle report.
The evidence also showed Rivera was involved in obtaining a
second truck, the one that was ultimately used, and on the
day of the incident he gave this owner the same advice, and
shortly after the shooting this truck was reported stolen.
Although we do not condone prosecutorial
distortions of evidence, United States v. Carrasquillo-Plaza,
_____________ __________________
873 F.2d 10, 14 (1st Cir. 1989), the misstatement here did
not prejudice Rivera's right to a fair trial. See, id.;
___ ___
United States v. Pasarell, 727 F.2d 13, 16 (1st Cir.), cert.
______________ ________ _____
denied, 469 U.S. 826, 105 S. Ct. 107, 83 L. Ed. 2d 51 (1984).
______
Suggesting that a truck be reported stolen, whether after
pestering or on his own initiative, could amount to an
-55-
attempt to hide guilt, and the jury was entitled to so infer.
The conclusion that Rivera was knowingly involved can readily
be drawn even from the facts as he would present them.
VIII. Requested Jury Instructions on Entrapment and
VIII. Requested Jury Instructions on Entrapment and
_____________________________________________________________
Coercion
Coercion
________
Pe a assigns as error the district court's refusal
to instruct the jury on his defenses of entrapment and
coercion or duress. A defendant is entitled to instruction
on his theories of defense so long as "any probative material
in the record" supports them. United States v. Rodriguez,
_____________ _________
858 F.2d 809, 814 (1st Cir. 1988). This is a question of law
for the court and review is plenary. Id. at 812, 814.
___
A. Entrapment
_______________
The entrapment defense, like any other, "is
measured by the time-honored sufficiency of-the-evidence
yardstick." Id. at 814. Entrapment has two essential
___
elements: (1) government inducement to engage in criminal
activity, and (2) the defendant's lack of predisposition to
___
engage in such conduct. Id. at 812, 814 (citing Mathews v.
___ __________
United States, 485 U.S. 58, 63, 108 S.Ct 883, 886, 99 L.Ed.2d
_____________
54 (1988)). Defendant must produce sufficient evidence to
support both elements. When viewed in the light most
favorable to the accused, there must be some evidence which,
"if believed by a rational juror, would suffice to create a
reasonable doubt as to whether government actors induced the
-56-
defendant to perform a criminal act that he was not
predisposed to commit," in order for defendant to be entitled
to the instruction.17 Rodriguez, 858 F.2d at 814.
_________
Pe a claims he repeatedly refused to go on with the
scheme after Velazquez was arrested on April 10, 1992 and the
original undercover agent was replaced by another, but that
the latter urged him to continue. The evidence was ample
that Pe a willingly participated in the conspiracy at least
until then. He therefore could not have sustained the lack
of predisposition element and was not entitled to the
instruction.
B. Coercion or Duress
_______________________
The district court also denied instruction on
Pe a's alternative defense that he acted under duress,
coerced by government agents into continuing a criminal
venture which he wished to abandon. For this defense, a
defendant must adduce evidence sufficient, if believed, to
convince a rational juror that (1) he acted under an
immediate threat of serious bodily injury or death, (2) he
had a well founded belief that the threat would be carried
out, and (3) he had no reasonable opportunity to escape or
___
avoid the threat. United States v. Amparo, 961 F.2d 288, 291
_____________ ______
____________________
17. Of course once defendant meets this entry-level burden,
the government must prove beyond a reasonable doubt that no
entrapment occurred. Rodriguez, 858 F.2d at 815 (collecting
_________
cases).
-57-
(1st Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 224, 121
_____ ______
L.Ed.2d 161 (1992).
-58-
Pe a presented his own uncorroborated testimony
that he refused to continue negotiations to consummate the
drug deal once Velazquez had been incarcerated and that the
undercover agent threatened his parents with "the
consequences" if he did not. A threat to injure some other
person in the future is neither immediate nor unavoidable.
The conviction of Galindez is vacated and his case
___________________________________________________
is remanded for a new trial; the remaining convictions are
_____________________________________________________________
affirmed.
________
-59-
