USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-1350
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
RODRIGO BRAND,
Defendant, Appellant.
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No. 94-1351
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
FELIX APONTE-VELAZQUEZ,
Defendant, Appellant.
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No. 94-1352
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
CARMELO PULLIZA-DELGADO,
Defendant, Appellant.
____________________
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
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Aldrich and Coffin, Senior Circuit Judges.
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____________________
Peter Goldberger with whom James H. Feldman, Jr., Pamela A. Wilk,
________________ ______________________ ______________
Alan Ellis and Law Offices of Alan Ellis, P.C. were on brief for
___________ _________________________________
appellant Felix Aponte-Velazquez.
Graham A. Castillo Pagan with whom Luis Rafael Rivera was on
__________________________ ___________________
brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.
Luis Rafael Rivera with whom Graham A. Castillo Pagan was on
___________________ __________________________
brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom
________________________
Guillermo Gil, United States Attorney, Juan A. Pedrosa, Assistant
______________ ________________________ ________________
United States Attorney, and Nelson Perez-Sosa, Assistant United States
_________________
Attorney, were on brief for appellee.
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March 26, 1996
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ALDRICH, Senior Circuit Judge. Appellants Aponte,
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Pulliza, and Brand raise several claims of error on appeal of
their convictions for various substantive offenses in
connection with a cocaine importation and distribution
scheme. Finding none meritorious, we affirm.
I. Reconstruction of Trial Record
__________________________________
After persistent efforts by appellate counsel to
obtain a complete trial transcript, the trial court
determined that certain portions -- closing arguments and the
court's jury charge -- had been permanently lost. Appellants
then moved this court for summary reversal, which we denied
without prejudice in an order requesting the court to attempt
a recreation adequate for appeal, or, if unable, to determine
whether appellants were prejudiced as a result of remaining
gaps. The court recreated its jury charge, and located a
transcript containing the complete closing argument on behalf
of Pulliza and a "substantial portion" of the closing
argument for Aponte. It received from Brand's trial attorney
some incomplete notes prepared for his closing, along with
assurances that it would be impossible to recreate the actual
argument. The government filed what the parties agreed is a
"reasonable recreation" of its main closing argument, as well
as a recreation of its rebuttal, which appellants view as
inadequate. All agreed that no contemporaneous objections
had
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been raised during these segments of the trial. The court
then certified that the record had been reconstructed
as best as the court and the parties
could. The defendants have not shown any
specific prejudice arising from the
absence of the trial transcript other
than the inconvenience of not having the
precise text . . . for purposes of
developing argument on appeal on the
basis of clear error.1
Appellants contend adequate appellate review of
their convictions is impossible because the court did not
produce a reasonable recreation of the missing transcripts,2
entitling them to reversal and a new trial. They concede
that due process does not automatically require reversal when
a defendant is denied a full verbatim trial transcript, see,
___
e.g., Bundy v. Wilson, 815 F.2d 125, 135 (1st Cir. 1987) (an
____ _____ ______
"adequate substitute" may suffice) (citing cases), but
contend that non-compliance with the Court Reporter Act, 28
U.S.C. 753(b)(1), alone requires reversal and a new trial.
We disagree.
The Act provides, inter alia, that all open court
__________
proceedings in criminal cases "shall be recorded verbatim."
28 U.S.C. 753(b)(1) (1982). This provision is mandatory,
United States v. Andiarena, 823 F.2d 673, 676 (1st Cir.
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1. Appellants concede plain error is their sole recourse
with respect to the incomplete portions of the transcript.
2. We limit our consideration to the closing arguments and
jury charge, as any other alleged breaches in the record were
not brought to the attention of the district court.
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1987), and concededly not complied with in this case, yet
nothing prescribes automatic reversal of a defendant's
convictions for non-compliance, and we are aware of no cases
which so hold. Appellants cite Hardy v. United States, 375
_____ ______________
U.S. 277 (1964), for the proposition that new counsel on
appeal3 cannot properly represent their clients without an
"entire transcript." Id. at 279-80. Hardy held that an
___ _____
indigent federal defendant is entitled to a trial transcript
free of charge in order to perfect an appeal; we do not read
it to have created a rule mandating reversal for less than a
verbatim account.
Alternatively, appellants suggest we follow the
Fifth Circuit's view that new counsel on appeal may obtain
reversal for lack of a verbatim transcript under 753(b)(1)
merely by showing the missing portion is "substantial and
significant," United States v. Selva, 559 F.2d 1303, 1306
_____________ _____
(5th Cir. 1977), and that any reconstruction thereof is less
than "substantially verbatim." United States v. Pace, 10
______________ ____
F.3d 1106, 1124-25 (5th Cir. 1993), cert. denied, ___ U.S.
____________
___, 114 S. Ct. 2180, 128 L. Ed. 2d 899 (1994). True, in Hardy
_____
the Court observed that the right established by Federal Rule
of Criminal Procedure 52(b) to have "plain errors or defects"
noticed by the court "is illusory if no transcript is
available at least to one whose lawyer on appeal enters the
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3. Appellants have all obtained new counsel for this appeal.
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case after the trial is ended." 375 U.S. at 280. Yet this
was in the context of deciding whether or not appellant
should be afforded a transcript at all. We do not take this
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statement to mean that if no verbatim transcript is available
________
that an effective appeal is not possible.
The majority of circuits construing 753(b)(1)
have held that to obtain reversal and a new trial, whether or
not there is new appellate counsel, defendant must show
specific prejudice to his ability to perfect an appeal,
beyond mere non-compliance with the act. See United States
___ _____________
v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985), cert. denied,
_____ ____________
474 U.S. 1068, and cert. denied, 474 U.S. 1069 (1986)
____________
(disagreeing with Selva); United States v. Sierra, 981 F.2d
_____ _____________ ______
123, 126-27 (3rd Cir. 1992), cert. denied, ___ U.S. ___, 113
____________
S.Ct. 2949, 124 L. Ed. 2d 696 (1993) (same); United States v.
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Antoine, 906 F.2d 1379, 1381 (9th Cir.), cert. denied, 498
_______ ____________
U.S. 963 (1990) (same). But see United States v. Preciado-
___ ___ _____________ _________
Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993) (as successor
________
court to former Fifth Circuit, bound by Selva). We have
_____
indicated preference for the majority view, see Sabatier v.
___ ________
Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978) (holding that if
_________
753(b)(1) applied to extradition proceedings, reversal on
account of non-compliance would require showing specific
prejudice), and explicitly adopt it today.
Appellants conceded to the trial court that the
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government's reconstruction of its main closing argument is
substantially accurate. This should enable effective review
for plain error, yet appellants make no particularized claim
that such error occurred. Nor do they make any claim that
plain error could have occurred during the closing arguments
of one of their own attorneys. With respect to the
government's rebuttal, we are hard-pressed to conceive what
sort of illegitimate argument could have been made during
these few moments that might have "so poisoned the well that
the trial's outcome was likely affected," Arrieta-Agressot v.
________________
United States, 3 F.3d 525, 528 (1st Cir. 1993) (quoting
_____________
United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.
_____________ ____________
1987)), nor do appellants suggest any based on the
reconstruction that was submitted. In any event, given the
quantity and strength of the evidence against all three
appellants from the testimony of several co-conspirators --
eye-witnesses to their involvement in the various
preparations, possessions and transactions amounting to the
offenses charged -- we are not persuaded that any deficiency
could have risen to a miscarriage of justice; i.e., even if
the rebuttal was tainted by some imaginable error, we would
not find "a substantial chance that absent the error the jury
would have acquitted." Id. We therefore uphold the district
___
court's conclusion that appellants' ability to perfect an
appeal was not prejudiced, and turn now to the merits of
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their claims.
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II. Motion for Continuance
___________________________
On the morning of trial the defense made a final
request for continuance based on the last minute decision of
Jorge Hernandez Miller, the lead co-conspirator, to plead
guilty and become the government's chief witness. Remaining
defendants argued this necessitated more time to adjust trial
strategy and gather information to impeach him. After
thorough exploration, the court, though sympathetic, saw no
justification for delay:
[Y]ou had the opportunity to interview
him . . . as you told me in chambers that
this has been done and now that all the
Jencks Act [material] has been turned
over . . . the latest bits of information
that were generated like the interviews
[of the witness] with the agents . . .
are going to be turned over to you
including rough notes, . . . I will not
continue this case.
A trial court has wide discretion to grant or deny
a request for continuance. United States v. Saccoccia, 58
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F.3d 754, 770 (1st Cir. 1995). "Only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the
assistance of counsel," and would amount to an abuse of that
discretion. Morris v. Slappy, 461 U.S. 1, 11-12 (1983)
______ ______
(internal quotations omitted). We assess appellants' special
reasons, plus relevant factors such as the amount of time
needed for effective preparation and the amount actually
available, diligence in preparing for trial and whether the
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defense contributed to its perceived predicament, the likely
utility of a continuance, inconvenience to the court,
opposing party, and witnesses, and any unfair prejudice
caused by the denial. Saccoccia, 58 F.3d at 770 (citations
_________
omitted).
Appellants allege the court failed to address
"special circumstances of an emergent nature beyond their
control." They claim that after Miller's change of plea they
suddenly faced an unexpected need to gather impeachment
material and to do additional preparation, as they had
divided responsibilities among themselves due to the
considerable volume of trial material involved,4 and
Miller's defection overburdened the remaining defendants.
They contend they "could not have been more diligent," would
have found valuable impeachment material if granted
additional time, and were prejudiced in cross-examining
Miller because of the denial; inconvenience to others, by
comparison, was minimal.
Appellants' accusations against the court are
unfounded. As the court pointed out, the defense had had
ample time and substantial assistance from the court to
prepare for trial, and although more might have helped, that
is always true. Defense counsel could have anticipated that
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4. Aponte points out that discovery involved "some 1453
documents totaling over 5000 pages."
-10-
a division of labor strategy might leave them in a bind if
one dropped out, especially since the original indictment
included some 31 co-defendants who had been pleading out on a
regular basis up to and even during trial. The court was
very careful to elicit from counsel precisely what more they
thought they needed and hoped to find to impeach Miller, and
why. It gave a thoroughly reasoned response, observing that
the defense had been given unlimited access to the witness
for four days prior to the start of trial and at least
several more afterward until he took the stand, a "dream for
a defense attorney," as well as notes government agents had
taken during their interviews of the witness. There was no
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abuse of discretion in ruling this was sufficient.
We add only that we do not see, even with
hindsight, what more a continuance would have achieved. The
defense had apparently hoped to discredit Miller by
implicating him in the uncharged murders of several
accomplices in the cocaine conspiracy, and wished more time
to locate, interview and subpoena witnesses who could tie
Miller to these crimes. The court, however, in a pre-trial
ruling, had strictly prohibited introduction of extrinsic
evidence of Miller's involvement in the murders and limited
cross-examination in reference to these crimes strictly to
questioning his motivation to enter the plea agreement,5 in
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5. This ruling has not been appealed.
-11-
accordance with Federal Rule of Evidence 608(b).6 See
___
Tigges v. Cataldo, 611 F.2d 936, 938 (1st Cir. 1979). As to
______ _______
this, post.
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III. Prosecutorial Misconduct
______________________________
Before trial government counsel had informed the
defense and the court that Miller had stated during plea
negotiations that he had decided to plead guilty because "he
thought that he was going to be imputed with some murders to
which he denies, and . . . the reason that motivated him is
because he wanted to clear the record that in fact he did not
participate in those murders." During a pre-trial interview
Miller had told defense counsel roughly the same -- that he
was afraid "the government . . . [was] going to bring a
massacre against him, a murder against him, but he also
stated to us that in fact he did not do that." The plea
agreement was admitted in evidence. It made no mention, of
course, of murders.
During cross-examination defense counsel sought
vigorously to impeach Miller's testimony linking their
clients to the drug venture by attempting to solicit an
____________________
6. (b) Specific instances of conduct.
Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting the witness' credibility,
other than conviction of crime . . . may
not be proved by extrinsic evidence.
Fed.R.Evid. 608(b).
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admission from Miller that he was motivated to cooperate with
the government by a desire to "minimize the severity of the
accusations against himself," specifically by avoiding being
implicated in, or charged with, the murders. Miller
repeatedly denied such motivation, professing only a desire
to "repent" and "tell the truth."
Appellants now contend this was an outright lie
that due process required the government to correct.7 They
rely principally upon Napue v. Illinois, 360 U.S. 264 (1959),
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which held that a defendant's due process rights under the
Fourteenth Amendment required reversal of his conviction
where the prosecutor failed to correct a witness' denial of
receiving promises of leniency in exchange for his testimony,
knowing it was false, even though the prosecutor had not
himself solicited the falsity. 360 U.S. at 269. The Court
said this principle, "implicit in any concept of ordered
liberty, does not cease to apply merely because the false
testimony goes only to the credibility of the witness." Id.
___
Nor did the fact that the jury was presented with other
grounds for questioning the witness' credibility "turn[] what
was otherwise a tainted trial into a fair one." Id. at 270.
___
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7. Defense counsel made no indication to the court at the
time that the defense believed the government was under an
obligation to clarify Miller's statements about his
motivation to plead, and, indeed, indicated satisfaction with
coverage of the issue when the court inquired prior to
allowing examination of Miller to proceed into another area.
-13-
Appellants contend defense counsels' equal knowledge of
Miller's pre-trial admissions cannot alleviate the government
of its duty in this case to bring this impeachment "evidence"
before the jury.
There are two answers to this. The first is that
the court had already ruled that testimony of murders was too
prejudicial to be admitted. But, more important, although
defendant refused this specific characterization of his
motives, he did concede to believing the plea agreement meant
that "if I speak about things of which I have knowledge or in
which I have taken part, I wouldn't be indicted for them,"
and "would be sentenced to fewer years." This was a
sufficient acknowledgment that his claim of rebirth was less
than genuine; there could be no question the government had
no duty to go further.
IV. Jury Instructions
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Having raised no objections to any aspect of the
jury instructions at trial, Aponte now claims plain error
both in the court's explanation of reasonable doubt and in
its failure to give a requested instruction on the
defendant's exercise of his right to remain silent. The
following instructions (emphasis ours) contain the alleged
errors:
A reasonable doubt is a doubt based
upon reason and common sense, and may
arise from a careful and impartial
consideration of all the evidence, or
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from lack of evidence. Proof beyond a
reasonable doubt is proof that leaves you
firmly convinced that the defendant is
guilty.
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If after a careful and impartial
__
consideration with your fellow jurors of
all the evidence, you are not convinced
______________________
beyond a reasonable doubt that the
_________________________________________
defendant is guilty, it is your duty to
_________________________________________
find the defendant not guilty. 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 defendant guilty.
_____________________________
. . . Each defendant is presumed to
be innocent and does not have to testify
or present any evidence to prove
innocence. The government has the burden
_____________________________
of proving every element of the charge
_________________________________________
beyond a reasonable doubt. If it fails
_________________________________________
to do so, you must return a not-guilty
_________________________________________
verdict.
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A.
Aponte contends that by the first paragraph the
court permitted the jury to convict by a degree of proof
lower than constitutionally required. He argues that "firmly
convinced" suggests a burden of proof akin to the civil
"clear and convincing" standard, use of which is
impermissible in a criminal case. See Addington v. Texas,
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441 U.S. 418, 425 (1979) (clear and convincing is an
"intermediate standard" between preponderance of the evidence
and proof beyond a reasonable doubt); In re Winship, 397 U.S.
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358, 363-64 (1970) (guilt in a criminal case must be proved
by no less a standard than "beyond a reasonable doubt").
According to Aponte, it is linguistically impossible to
conceive how "firmly convinced"
-16-
could equate with "beyond a reasonable doubt," when "clear
and convincing" does not.
Assessing the instructions as a whole, Victor v.
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Nebraska, ___ U.S. ___, ___, 114 S. Ct. 1239, 1243, 127
________
L.Ed.2d 583 (1994), we conclude that the emphasized portions
adequately and ultimately conveyed an accurate, unambiguous
and comprehensible description of the government's burden and
the standard for acquittal. Whether or not the "firmly
convinced" definition alone would be constitutionally
sufficient to convey the meaning of proof beyond a reasonable
doubt, the court's further exposition here left no doubt that
the jury's duty was to convict only upon reaching consensus
as to guilt beyond a reasonable doubt.8 Nothing further is
required. United States v. Andujar, 49 F.3d 16, 23 (1st Cir.
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1995).
B.
As was his right, Aponte elected not to testify,
and requested the following instruction be given to the jury:
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8. The "firmly convinced" language has withstood similar
attack in a variety of contexts. See United States v.
___ ______________
Velazquez, 980 F.2d 1275, 1278 (9th Cir. 1992), cert. denied,
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___ U.S. ___, 113 S. Ct. 2979, 125 L. Ed. 2d 677 (1993)
(upholding same pattern instruction used here); United States
_____________
v. Hunt, 794 F.2d 1095, 1100-1101 (5th Cir. 1986) ("firmly
____
convinced" adequately conveys "beyond a reasonable doubt"
standard); United States v. Taylor, 997 F.2d 1551, 1557 (D.C.
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Cir. 1993) (same); see also United States v. Williams, 20
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F.3d 125, 131 (5th Cir.), cert. denied, ___ U.S. ___, 115
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S.Ct. 239, 130 L. Ed. 2d 162 (1994); United States v. Barrera-
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Gonzales, 952 F.2d 1269, 1272-73 (10th Cir. 1992); United
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States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995).
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Under the law, a defendants [sic] does
not need to testify, since it is the
Government who must prove her [sic]9
guilty beyond a reasonable doubt. No
presumption or inference of guilt may be
made or drawn.
The court declined, instructing instead as quoted above.
While he did not object, Aponte now claims violation of his
constitutional rights.
The Fifth Amendment guarantees a criminal defendant
both the right to remain silent and that no adverse
inferences may be drawn from his exercise of this right.
Carter v. Kentucky, 450 U.S. 288, 305 (1981). Further, "when
______ ________
the defendant makes a timely request that a prophylactic
instruction be given . . . [the court] has the constitutional
obligation . . . to minimize the danger that the jury will
give evidentiary weight to a defendant's failure to testify."
Id.10 We have not read Carter to require use of the exact
___ ______
wording requested, however, so long as the trial court's
instructions complied with this obligation. United States v.
_____________
Ladd, 877 F.2d 1083, 1089 (1st Cir. 1989).
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9. The district court apparently accepted from Aponte's
appellate counsel a set of proposed jury instructions that
counsel believed had been submitted to the court but were
inexplicably absent from the record. We note that these
instructions were not prepared for Aponte, but for a Sonia
Berrios Rodriguez, but since the government did not object to
their inclusion in the appellate record as Aponte's requested
instructions, we will treat them as such.
10. This obligation is also imposed by statute. 18 U.S.C.
3481 (formerly designated as 28 U.S.C. 632). See United
___ ______
States v. Bruno, 308 U.S. 287 (1939).
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Our question is whether instructing that the
government has the burden of proof and that defendant does
not have to testify or present evidence adequately
communicates that no adverse inferences may be drawn from the
fact that he does not testify. The government urges that we
answered this affirmatively in Ladd, where we approved an
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instruction that the defendant's silence "cannot even be
considered by you in arriving at your verdict." Id. Not so.
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A jury might well think that a defendant's right not to
testify means merely that he cannot be called as a witness,
leaving it to draw such conclusions from his silence as it
felt warranted. An instruction not to consider his failure
to testify precisely forbids drawing inferences. Ladd, 877
____
F.2d at 1089. Here, however, the court mentioned nothing
beyond the defendant's right not to testify or present
evidence. Carter v. Kentucky makes clear that, once request
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for a no-adverse-presumption instruction has been made, the
"full and free exercise" of the constitutionally guaranteed
privilege against self-incrimination requires more than
instruction on the right not to testify and to be presumed
innocent until proven guilty. 450 U.S. at 305. See also
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United States v. Eiland, 741 F.2d 738, 743 (5th Cir. 1984)
______________ ______
(holding instructions similar to those given here
constitutionally deficient under Carter).
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We also find, per United States v. Olano, 507 U.S.
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725, ___, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508 (1993), that
the forfeited error was "plain," and "affect[ed] substantial
rights" within the meaning of Fed.R.Civ.P. 52(b). See Bruno
___ _____
v. United States, 308 U.S. 287, 293-94 (1939) (failure to
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give requested instruction cautioning against drawing
presumptions from defendant's failure to testify was not a
mere "technical erro[r] . . . which do[es] not affect . . .
substantial rights . . . ."). We therefore perceive
discretion to reverse, but no obligation to do so.
Fed.R.Civ.P. 52(b); Olano, 113 S. Ct. at 1778. See also
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Chapman v. California, 386 U.S. 18, 23 (1967) (not every
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constitutional error automatically requires reversal).
Olano contemplates that we guide our discretion
_____
under Rule 52(b) by further determining whether the error
"seriously affect[ed] the fairness, integrity or public
reputation of the judicial proceedings." 113 S. Ct. at 1779
(internal quotations omitted). We have long realized that
among the things we may consider is the weight of the
evidence of guilt or innocence, without casting it favorably
to the government or presuming that credibility issues were
resolved in its favor, Arrieta-Agressot, 3 F.3d at 528, to
________________
determine whether the error could have made any difference to
the verdict.11 We do not view Olano as having removed or
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11. At this stage of review for forfeited error the
assessment is whether the error was "harmless beyond a
reasonable doubt," and differs from so-called "harmless
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limited such an assessment from our discretionary
consideration as a general matter. However, the Court has
deemed a small number of "structural defects" not amenable to
"quantitative[] assess[ment]," Arizona v. Fulminante, 499
_______ __________
U.S. 279, 308 (1991), including total deprivation of the
right to counsel at trial (Gideon v. Wainwright, 372 U.S. 335
______ __________
(1963)), and lack of an impartial judge (Tumey v. Ohio, 273
_____ ____
U.S. 510 (1927)). Id. at 309. See also id. at 310 (citing
___ ________ ___
additional cases); Sullivan v. Louisiana, 508 U.S. 275, ___,
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113 S. Ct. 2078, 2082, 124 L. Ed. 2d 182 (1993)
(constitutionally deficient reasonable doubt instruction).
The distinction these special errors share is that they are
"structural defects in the trial mechanism" which affect "the
entire conduct of the trial from beginning to end" and
"without [which] a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or
innocence," rather than being simply "error[s] in the trial
process itself." Fulminante, 499 U.S. at 309-10 (internal
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quotations omitted). We think failure to give a requested
Carter instruction falls comfortably in the latter category.
______
It is not the sort of error for which an assessment of the
evidence is unsuitable precisely because it concerns the
evidentiary value the jury may give to a defendant's election
____________________
error" review only in that the defendant bears the burden of
persuasion. Olano, 113 S. Ct. at 1778.
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not to testify on his own behalf. Carter, 450 U.S. at 305.
______
On this basis we are confident in saying that the
uncontradicted evidence against appellants Aponte and
Pulliza, from the testimony of several co-conspirators
involved in various aspects of the scheme, was overwhelming,
and the verdict rendered would have ensued regardless of the
error. In sum, although "the failure to limit the jurors'
speculation on the meaning of [the defendant's] silence, when
the defendant makes a timely request that a prophylactic
instruction be given, exacts an impermissible toll on the
full and free exercise of [defendant's Fifth Amendment
privileges]," id., we do not believe it could have seriously
___
affected the fairness of the proceedings.
V. Double Jeopardy
___________________
Aponte maintains that because the same offenses
underlying his convictions also formed the basis of a civil
forfeiture of some personal assets, pursuant to the
Controlled Substances and Money Laundering Acts, 21 U.S.C.
881(a)(6) and (7) and 18 U.S.C. 981, respectively, his
criminal sentence constitutes a prohibited second punishment,
for the same offenses, in violation of the Double Jeopardy
Clause of the Fifth Amendment. See, e.g., United States v.
___ ____ ______________
Dixon, ___ U.S. ___, ___, 113 S. Ct. 2849, 2855-56, 125
_____
L.Ed.2d 556 (1993). The Clause only becomes relevant,
however, once a defendant has first been placed in jeopardy,
-23-
and "even then, it is only the second proceeding that is
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constitutionally endangered." United States v. Pierce, 60
______________ ______
F.3d 886, 889 (1st Cir. 1995), pet. for cert. filed, Oct. 19,
____________________
1995 (No. 95-6474). Aponte contends, against all authority,
that jeopardy in the criminal case did not attach until his
sentencing, well after imposition of the civil penalty.12
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We regard it as beyond question that "jeopardy attaches when
the jury is empaneled and sworn." Crist v. Bretz, 437 U.S.
_____ _____
28, 35 (1978). Pierce, 60 F.3d at 889. A glance at the
______
sequence of events in this case, supra note 12, reveals that
_____
the criminal sanction therefore cannot have been second to
the forfeiture, and thus whether or not civil sanctions under
21 U.S.C. 881(a)(6) and (7) and 18 U.S.C. 981 even
constitute punishment for the purposes of the Double Jeopardy
Clause is a question we need not reach.
The convictions of appellants are therefore
affirmed.
_________
____________________
12. The following chronology is pertinent:
Jury empaneled: September 21, 1993
Criminal trial began: September 22, 1993
Verdicts read: October 1, 1993
Civil action commenced: Nov. 4, 1993
Forfeiture stipulated: March 9, 1994
Forfeiture order: March 10, 1994
Criminal sentencing: March 21, 1994
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