USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1864
UNITED STATES,
Appellee,
v.
JUAN FERNANDEZ,
Defendant - Appellant.
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No. 95-2067
UNITED STATES,
Appellant,
v.
JUAN FERNANDEZ,
Defendant - Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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John Wall, with whom David Shaughnessy and Wall &
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Shaughnessy were on brief for appellant Juan Fern ndez.
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Lena Watkins, Attorney, Criminal Division, Narcotic and
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Dangerous Drug Section, U.S. Department of Justice, with whom
John C. Keeney, Acting Assistant Attorney General, Theresa M.B.
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Van Vliet, Chief, Criminal Division, Narcotic and Dangerous Drug
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Section, U.S. Department of Justice, and Guillermo Gil, Acting
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United States Attorney, were on brief for appellee United States.
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AUGUST 20, 1996
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TORRUELLA, Chief Judge. A jury found appellant-
TORRUELLA, Chief Judge.
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defendant Juan Fern ndez ("Fern ndez") guilty of conspiracy to
possess with intent to distribute cocaine, and the United States
District Court, District of Puerto Rico, denied his motion for a
new trial. Fern ndez now raises a series of challenges to his
conviction, and the government cross-appeals his sentence. For
the reasons stated herein, we affirm.
BACKGROUND
BACKGROUND
We begin with a basic outline of the case, and address
the particulars in more detail as they arise, as the specific
issues Fern ndez raises require that we examine the facts from
differing perspectives. Fern ndez was one of 20 co-defendants
charged in Count One of a September 1993 superseding indictment
of conspiring to possess with intent to distribute more than
1,000 kilograms of cocaine and more than 1,000 kilograms of
marijuana in violation of 21 U.S.C. 841(a)(1) & 846. Count
One alleged 56 overt acts in furtherance of the conspiracy (the
"Sardinas operation"), beginning in 1981 and continuing over
twelve years.
The central allegation regarding Fern ndez was that in
or about the month of April 1991, he entered into an association
with co-defendants Jorge Loredo-Alonso ("Loredo") and Horacio
Sardinas-Albo ("Sardinas") to use Carrier Transportation Company
("Carrier"), a transportation company which Fern ndez owned, to
ship loads of cocaine from Puerto Rico to the continental United
States. The indictment alleged that some nine loads of cocaine
-3-
had been shipped through Carrier by early 1993.
Fern ndez was tried with co-defendant Antonio
Contreras. The evidence against Fern ndez at the jury trial was
primarily made up of the testimony of four alleged co-
conspirators: Jos Bruno ("Bruno"), Elmo De Jes s ("De Jes s"),
Michael Frame ("Frame"), and Lambert Aloisi ("Aloisi"). Bruno
testified that nine loads of cocaine were shipped through
Carrier, the first seven between April and August of 1991, and
that he visited Carrier's warehouse in New Jersey several times
in connection with those loads. Fern ndez' counsel offered
evidence indicating that Carrier did not in fact exist in April
1991, but rather was incorporated in August 1991, and began its
occupation of the warehouse Bruno identified in October of that
year. The prosecution in turn questioned defense witnesses about
Gulf Transportation1 ("Gulf"); according to the testimony, Gulf
was a shipping company at which Fern ndez had worked before he
owned Carrier. In its closing argument, the government argued
that Fern ndez had used Gulf to transport cocaine prior to using
Carrier. Fern ndez was found guilty and was sentenced to 151
months.
DISCUSSION
DISCUSSION
A. Variance
A. Variance
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Fern ndez argues on appeal that there was a material
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1 The defendant refers to Gulf as "Gulf Transportation," while
the government uses "Gulf Carrier Transportation." We express no
opinion as to which name is more accurate, and use "Gulf" for
convenience.
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variance between the superseding indictment and the evidence on
which the government relied at trial.2 We find a variance "when
the proof differs from the allegations in the indictment."
United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir. 1993). Not
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every variance mandates a new trial: reversal is only required
if the variance proves both material and prejudicial. See Fed.
___
R. Crim. P. 52(a); United States v. Arcadipane, 41 F.3d 1, 6 (1st
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Cir. 1994). Thus, where, as here, "the government charges a
defendant with a crime . . . but the facts proven at trial vary
somewhat from those charged in the indictment . . . it is settled
law that a conviction for the crime charged will be affirmed
unless the variance as to the facts is shown to have prejudiced
the defendant." United States v. Moran, 984 F.2d 1299, 1304 (1st
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Cir. 1993). Our review of whether a retrial is required is
plenary. Arcadipane, 41 F.3d at 6.
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The superseding indictment specifically stated that
Fern ndez used Carrier to transport cocaine.3 The government's
case was consistent with this theory. Thus, Fern ndez maintains,
while Carrier was neither a defendant nor an object of the
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2 Fern ndez' motion for a bill of particulars, which included a
request for discovery of other transportation companies utilized
by Sardinas, was denied by the court.
3 Paragraph 28 of the superseding indictment charged that "[o]n
or about the month of April, 1991, HORACIO SARDINAS-ALBO, a/k/a/
HIPPIE, and JORGE ALONSO-LOREDO [sic] associated with JUAN
FERNANDEZ to use the services of Carrier Transportation Company,
a transportation company owned by JUAN FERNANDEZ, to transport
large amounts of cocaine from Puerto Rico to the continental
United States using containers." The following paragraphs
detailed the nine alleged shipments of cocaine.
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indictment, it was nonetheless a key part of the government's
case. However, Fern ndez continues, when he offered evidence in
his defense which refuted the charges concerning Carrier by
proving that it could not have been used as alleged in the
superseding indictment, the government abruptly switched gears
and argued that Fern ndez used Gulf. The prejudice against him,
Fern ndez contends, was obvious: his trial preparations, which
had centered around Carrier, were no longer adequate, since Gulf
became the focus of the trial and the jury's deliberations.
We do not find such "obvious" prejudice; nor do we
agree that Gulf became the focus of the trial and deliberations.
We recognize that there was a variance, but do not believe it
"work[ed] a substantial interference with the defendant's right
to be informed of the charges laid at his doorstep." Arcadipane,
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41 F.3d at 6. Simply put, although Carrier was repeatedly
mentioned in the indictment, the charge was against Fern ndez,
not his company. Regardless of whether Carrier or Gulf is
discussed, the charge is the same: that Fern ndez associated
with Sardinas and Loredo to transport cocaine. Fern ndez cannot
now claim that he was misinformed of the charges against him, or
that his substantial rights were somehow affected. See id. at 7.
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A new trial is not required.
B. Admission of the Evidence
B. Admission of the Evidence
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1. Gulf
1. Gulf
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Fern ndez contends that the district court erred in
allowing evidence and argument regarding Gulf. We review a lower
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court's admission of evidence for abuse of discretion. See,
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e.g., United States v. Disanto, 1996 WL 312368, *11 (1st Cir.
____ _____________ _______
1996); United States v. Rivera-G mez, 67 F.3d 993, 997 (1st Cir.
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1995).
Testimony regarding Gulf was elicited by the
government, over Fern ndez' objection, during its cross-
examination of defense witness Rosa Sanjurjo, an employee in
Carrier's collection department. She stated that she began
working for Carrier in January of 1992, prior to which she worked
for Gulf until 1990. She acknowledged that Fern ndez had also
worked for Gulf, that it did the same type of business as
Carrier, and that it closed before Carrier was created. She also
stated that Gulf did not become Carrier. On redirect, Fern ndez'
counsel elicited her testimony that Gulf was a corporation
controlled by Fern ndez and two other individuals, including
Sanjurjo's stepson. She stated on recross that Carrier and Gulf
had different offices and used different warehouses. George
Wyle, a salesman for Carrier for part of 1992, testified on cross
that he knew Fern ndez through the shipping business prior to
1992, that Fern ndez was involved with Gulf, that Gulf did
essentially the same kind of business that Carrier did, and that
Gulf's full name was Gulf Carrier.
After the first few questions to Sanjurjo about Gulf,
defense counsel objected to the cross-examination on Gulf as
being outside the scope of examination; the court allowed the
prosecution to continue, but asking questions on direct, instead
-7-
of on cross. After a few more questions, defense counsel asked
for a sidebar, and objected that the questioning was outside the
scope of the testimony and the entire case. The prosecutor
argued that the evidence was being used for impeachment, pointing
out that since Fern ndez was arguing that it was impossible that
Carrier could have been used, the evidence on Gulf would show
that even before Carrier started Fern ndez was in the same line
of business, at a company which operated in essentially the same
fashion, offering Fern ndez access to shipping services, albeit
under a different name. The court denied Fern ndez' objection.
Before closing arguments, Fern ndez' counsel raised the
issue of whether the government should be allowed to make
reference to Gulf in its closing argument. Defense counsel
protested that the government was trying to make an inference not
based on the evidence, since there was no evidence regarding
whether Gulf and Carrier had a similar identity, or when
Fern ndez was involved with Gulf. Indeed, counsel noted, the
testimony indicated no continuity of ownership between the
companies, and that they used different facilities. The court,
however, rejected the defense's argument and allowed the
government to discuss Gulf in its closing argument.
Fern ndez now argues that the district court erred in
allowing evidence and argument regarding Gulf. He does not
specify his reasons, however. Rather, he simply refers us to the
reasons stated in his additional arguments, leaving us to
speculate as to which reasons would apply in this context, and
-8-
running the risk of waiver. As we address those contentions
where they are made, we add only a few comments here.
Briefly stated, while it could have decided the issue
several different ways, we find that the district court did not
abuse its discretion in choosing to allow the government to
elicit and use the evidence regarding Gulf. While not detailed,
the evidence was certainly relevant, for the very reasons the
government outlined. See Fed. R. Evid. 401; United States v.
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Griffin, 818 F.2d 97, 101-02 (1st Cir.), cert. denied, 484 U.S.
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844 (1987) (noting the broad discretion district courts enjoy in
determining relevance). Allowing the line of questioning and
argument was neither unfairly prejudicial, see Fed. R. Evid. 403,
___
nor constituted an unfair surprise: Fern ndez' defense was that
it was impossible for him to have used Carrier to ship cocaine
because Carrier was not in operation -- a line of reasoning
fairly inviting the question of what other companies Fern ndez
had access to during the relevant time period, and whether he
could have used them in a similar manner.
2. Sixth Amendment Claims
2. Sixth Amendment Claims
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Fern ndez contends that his Sixth Amendment right of
confrontation has been violated, in that he did not have a full
and effective opportunity to cross-examine the witnesses. See
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Olden v. Kentucky, 488 U.S. 227, 231 (1988) (per curiam) (noting
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that the right of confrontation "includes the right to conduct
reasonable cross-examination"). As we find no error on the part
of the district court, we need not enter into a harmless error
-9-
analysis. See id. at 232; Delaware v. Van Arsdall, 475 U.S. 673,
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680-81 (1986).
First, Bruno and two other witnesses testified that a
Puerto Rico senator was implicated in the conspiracy: they
alleged that in 1990, when other members of the conspiracy were
arrested in Tortola, the senator attempted to gain their release.
Bruno testified that the senator received close to two hundred
fifty thousand dollars in order to bribe the magistrate handling
the case in the British Virgin Islands, as well as other
individuals. Another witness testified that he believed the
senator had met with representatives of the Sardinas operation in
the Puerto Rico Senate -- the witness claimed that he waited in
the car outside while they met.
At trial, the court ruled in limine that counsel could
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not mention the senator's name. Fern ndez argues that this
constituted error requiring a new trial. First, he contends that
identification of the senator's name could have "tipped the
balance" in the impeachment of Bruno by showing that he would go
to any lengths to obstruct justice, and thus should not be
believed in his testimony at trial. Second, he posits that
identification could have led the jury to believe that the
account of the senator's involvement in the Tortola events was
fabricated by witnesses in order to gain leniency from the
government, because of the prominence and importance of the
particular senator. Thus, the argument goes, the identification
would have added to the evidence that the witnesses were
-10-
fabricating stories in a desperate attempt to obtain leniency.
Finally, Fern ndez maintains that members of the jury could have
felt that the failure to prosecute the senator was unfair
selective prosecution.
We do not find any of these arguments convincing.
There can be no question that the Sixth Amendment entails a right
to cross examine a witness; nonetheless, "trial judges retain
wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination [regarding
potential bias] based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally
relevant." Van Arsdall, 475 U.S. at 679; see Delaware v.
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Fensterer, 474 U.S. 15, 20 (1985) (per curiam) ("Generally
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speaking, the Confrontation Clause guarantees an opportunity for
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effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish."). The court informed the jury that it had ruled
that the name of the senator "would not be mentioned in order to
protect an ongoing investigation with respect to activities that
he may have been engaged in." Tr. at 515. The jury was also
informed that the parties stipulated that the senator was
"prominent." Further, as noted above, the scope of the senator's
alleged actions was explored through testimony from several
witnesses: the sole element the court ordered be left out was
the senator's name. Certainly the jury had enough information in
-11-
front of it to be able to weigh the impeachment value of the
alleged plot: it had "the facts from which jurors, as the sole
triers of fact and credibility, could appropriately draw
inferences relating to the reliability of the witness." Davis v.
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Alaska, 415 U.S. 308, 318 (1974). As for the selective
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prosecution claim, we note that the court told the jury there was
an ongoing investigation: the implication that the senator had
not been charged is clear. We do not find any error in the
district court's ruling.
The second claim focuses on the De Jes s cross-
examination. He testified that he assisted in the transportation
of more than 1,000 kilograms of cocaine, yet his plea agreement
stated that he was responsible for only 3.5 to 5 kilograms. The
prosecution objected to defense's questioning on this
discrepancy, and the court sustained the objection. The court
ruled that the defense could not cross-examine De Jes s regarding
the quantity of cocaine for which he was held accountable in his
plea agreement, but could question him on the difference the
agreement made in his sentence. De Jes s duly testified that
without the plea he faced from thirty years to life, and that
with it, he was facing seven years. He agreed that by testifying
in this case, he was hoping to have the sentence further reduced
so as to not have to spend any time in jail.
Fern ndez argues that the court erred, since any proof
of false, self-serving statements by a government witness -- such
as the plea agreement figure -- would aid the defense in showing
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the witnesses' untrustworthiness. Thus, Fern ndez contends, his
Sixth Amendment right of confrontation was violated. See Olden,
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488 U.S. at 231. We disagree. First, defense counsel was able
to impeach De Jes s through eliciting his testimony on the impact
the plea agreement had on his sentence and his hopes for a
reduced sentence based on his participation in this trial.
Second, the court's ruling seems to have been based on the
concern that the jury understand that De Jes s was not actually
lying in his plea agreement, but rather that the figure used was
a mechanism of convenience in order to get to a specific
sentence: "I think the whole concept is to show . . . [that it
was a] deal, a wow deal, but not to show that he's a liar because
that's not the real facts." Tr. at 1879. We do not find that
the district court erred in striking a balance between this
concern and the importance of impeachment through limiting the
testimony to the sentence obtained. Indeed, we agree with the
court's comment to the effect that to do otherwise would run the
risk of having defense counsel impeach the government, not De
Jes s.
Fern ndez' reliance on United States v. Lynn, 856 F.2d
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430 (1st Cir. 1988), is misplaced. There, we found that the
trial court erred in restricting cross-examination into the
circumstances underlying a witness' plea bargain. The witness'
agreement with the government required that he take and
"successfully complete" a polygraph examination. He took the
test, twice, and the examiner labeled some of his answers as
-13-
"inconclusive." The defense sought to impeach the witness by
implying that the witness had not "successfully completed" the
test, and so had motive to lie on the stand to please the
government. The court cut off all questioning about the test,
and informed the jury that such tests yielded inherently
unreliable results. Id. at 432. We held that the district court
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abused its discretion by cutting off all cross-examination into a
"relevant and not fully explored area." Id. at 434. The same is
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not true here. The district court did not cut off all
examination in the area of De Jes s' credibility: rather, it set
limits on the examination so as to permit the introduction of the
information in a manner which would not mislead the jury yet
provide it "with 'sufficient information concerning formative
events to make a "discriminating appraisal" of [De Jes s']
motives and bias.'" Id. at 433 (quoting United States v. Twomey,
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806 F.2d 1136, 1140 (1st Cir. 1986) (quoting United States v.
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Campbell, 426 F.2d 547, 550 (2d Cir. 1970))).
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C. The Sufficiency and Weight of the Evidence
C. The Sufficiency and Weight of the Evidence
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1. Sufficiency of the Evidence
1. Sufficiency of the Evidence
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At the end of the presentation of evidence, Fern ndez
moved for a judgment of acquittal, which motion the trial court
denied. Fern ndez now argues anew that the evidence was
insufficient to support his conspiracy conviction.
We are cognizant of the government's burden in this
case: "In order to win a conspiracy conviction the government
was required to establish, by direct or circumstantial evidence
-14-
and beyond a reasonable doubt, that the defendant and one or more
coconspirators 'intended to agree and . . . to commit the
substantive criminal offense which was the object of their
unlawful agreement.'" United States v. L pez, 944 F.2d 33, 39
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(1st Cir. 1991) (quoting United States v. S nchez, 917 F.2d 607,
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610 (1st Cir. 1990), cert. denied, 499 U.S. 977 (1991)). In our
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review, we evaluate the sufficiency of the evidence as a whole,
and "resolve credibility issues and draw inferences in the
government's favor, since the issue is whether a jury could
reasonably have arrived at the verdict." United States v.
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Morrow, 39 F.3d 1228, 1233 (1st Cir. 1994), cert. denied, __ U.S.
______ ____________
__, 115 S. Ct. 1421 (1995).
Fern ndez contends that the evidence in this case was
insufficient to prove his guilt, since there was no direct
testimony of any agreement. However, the government need not
prove a formal agreement existed: as it points out, "the illegal
agreement may be either 'express or tacit.'" United States v.
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S nchez, 917 F.2d 607, 610 (1st Cir. 1990). Indeed, "'[t]he
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evidence may be entirely circumstantial and need not exclude
every reasonable hypothesis of innocence; that is, the factfinder
may decide among reasonable interpretations of the evidence.'"
L pez, 944 F.2d at 39 (quoting United States v. Batista-Polanco,
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927 F.2d 14, 17 (1st Cir. 1991)).
We agree with the government that, under our standard
of review, Bruno's testimony, and that of other government
witnesses, suffices to show that a tacit agreement existed.
-15-
Bruno testified that Sardinas and Loredo each paid $80,000 to buy
into Carrier in order to ship cocaine; he stated that he saw them
collect the money to make a payment to Fern ndez, and heard them
discussing the use of Carrier. Bruno testified about sending the
nine shipments of cocaine, and about Fern ndez' personal
participation in the operation, including telephone calls and
meetings. He stated that he went to the Carrier warehouse in New
Jersey, his first visit being in July 1991, and that Fern ndez
was there on at least one occasion. Aloisi's testimony generally
corroborated Bruno's statements. De Jes s testified that he
participated in at least four shipments of cocaine, including
deliveries of cocaine to Fern ndez at a warehouse in Carolina,
Puerto Rico, and retrieval from the New Jersey warehouse. His
testimony contradicted Bruno's on several points, regarding the
amount of cocaine in particular loads and who participated in
specific meetings and loads.4 Our review of this record leads us
to conclude that, "having heard the evidence, including nuances
and intimations that a cold record cannot capture, a rational
jury could find beyond a reasonable doubt that [Fern ndez] was
guilty of conspiracy." Mor n, 984 F.2d at 1301-02.
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Fern ndez also argues that this court must reverse the
verdict below because it was physically impossible that Carrier
was the company used to transport cocaine in 1991: he presented
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4 Frame testified that Fern ndez was already active in the
operation in 1989 or 1990 and that he was instructed to
communicate with Fern ndez whenever he needed to contact
Sardinas, which he did several times. These allegations were not
in the superseding indictment.
-16-
evidence that Carrier did not exist until after April 1991, and
that it did not occupy the New Jersey warehouse until October of
that year. Since the chief government witnesses testified that
Carrier was used, the argument continues, there is no reason to
credit the witnesses' testimony as to this point, or any other.
Thus, Fern ndez concludes that the trial court erred in not
granting his motion for acquittal.
While there were inconsistencies in the witnesses'
testimony, and while they all had an incentive to please the
government, these aspects of the evidence were pointed out to the
jury by defense counsel. As the government notes, Bruno and De
Jes s did not go to any warehouse for the first loads -- indeed,
Bruno testified that Carrier had previously had a different
address -- and the evidence regarding Gulf suggests that
Fern ndez had knowledge of and access to shipping facilities
during the relevant time frame. It was within the province of
the jury to disregard some of the inconsistencies and to accept
aspects of the witnesses' testimony as credible. "The force of
the evidence as a whole, including all reasonable inferences
favorable to the verdict, was sufficient to support a rational
jury finding: that defendant was guilty." L pez, 944 F.2d at
_____
40.
2. Weight of the Evidence
2. Weight of the Evidence
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Fern ndez also contends that the jury verdict was
against the weight of the evidence, and that the district court
erred in denying his motion for a new trial. Fern ndez argues
-17-
that the government's case here was wholly circumstantial and
rested solely on the testimony of blatantly untrustworthy
witnesses, as demonstrated by the many contradictions between
their stories and Fern ndez' evidence that Carrier had not
occupied a warehouse until October 1991. The evidence regarding
Gulf, he continues, is insufficient to support the eleventh-hour
claim that Fern ndez used it.
We review for abuse of discretion, see, e.g., United
___ ____ ______
States v. Rogers, 41 F.3d 25, 34 (1st Cir. 1994), cert. denied,
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__ U.S. __, 115 S. Ct. 2287 (1995), and reject Fern ndez'
argument. The evidence against Fern ndez, briefly outlined
above, was neither unbelievable nor implausible, as he contends.
Simply put, the witnesses' testimony was not "so inherently
implausible that it could not be believed by a reasonable juror."
United States v. Garc a, 978 F.2d 746, 748 (1st Cir. 1992) (per
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curiam). We accordingly find that the district court did not
______
abuse its discretion in denying Fern ndez' motion for a new
trial, and refuse to take the issue of the witnesses' credibility
out of the jury's hands. The jurors were entitled to weigh the
witnesses' contradictions and incentives and still accept the
substance of their testimony. See id.
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D. Prosecutorial Misconduct
D. Prosecutorial Misconduct
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1. The Legal Framework
1. The Legal Framework
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Fern ndez' primary argument is that the prosecutor
violated his due process rights by making improper statements to
the jury during the government's closing argument and rebuttal.
-18-
See Berger v. United States, 295 U.S. 78, 88-89 (1935). He
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contends that any one of the statements he now points to as
improper could have prejudiced the jury so as to have prevented a
fair trial, and that the cumulative effect of the statements was
to deny him a fair trial under the Fifth Amendment. See United
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States v. Santana-Camacho, 833 F.2d 371, 373 (1st Cir. 1987)
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(noting that, while a statement on its own may not have been
harmful, it is "more troublesome" when viewed in conjunction with
other prosecutorial statements). For the reasons we discuss
below, we disagree.
When faced with a claim of prosecutorial misconduct, we
first weigh whether a statement was improper. If it was, we then
determine "whether prosecutorial misconduct has '"so poisoned the
well"' that a new trial is required." United States v. Manning,
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23 F.3d 570, 574 (1st Cir. 1994) (quoting United States v. Hodge-
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Balwing, 952 F.2d 607, 610 (1st Cir. 1991) (quoting United States
_______ _____________
v. Capone, 683 F.2d 582, 586-87 (1st Cir. 1982))). This circuit
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has laid out a series of factors for guidance in making that
determination:
(1) the severity of the misconduct; (2)
the context in which it occurred; (3)
whether the judge gave any curative
instructions and the likely effect of
such instructions; and (4) the strength
of the evidence against the defendant.
Id.; see, e.g., United States v. Hardy, 37 F.3d 753, 757-58 (1st
___ ___ ____ _____________ _____
Cir. 1994). In this analysis,
[w]e do not . . . take the evidence in
the light most favorable to the
government or assume that credibility
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issues were resolved in its favor. The
jury may well have decided the issues in
favor of the government, but that jury
decision may itself be tainted by the
improper remarks. Thus we will look at
the evidence as a whole . . . .
Arrieta-Agressot v. United States, 3 F.3d 525, 528 (1st Cir.
________________ ______________
1993); see Hardy, 37 F.3d at 755.
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We review the sole statement Fern ndez objected to at
trial de novo. Hardy, 37 F.3d at 756. He did not object to the
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majority of statements he now points to as violating his due
process rights: we review those for plain error, as "[r]eviewing
courts are very reluctant to reverse for unobjected-to errors
that could have been corrected or ameliorated by timely
objection." United States v. Procopio, Nos. 95-1549, -1559, -
_____________ ________
1550, slip op. at 25 (1st Cir. July 9, 1996); see Arrieta-
___ ________
Agressot, 3 F.3d at 528 (explaining rationale behind applying
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plain error review). "[T]he plain-error exception is to be 'used
sparingly, solely in those circumstances in which a miscarriage
of justice would otherwise result.'" United States v. Young, 470
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U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152,
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163 n.14 (1982), reh'g denied, 456 U.S. 1001 (1982)).
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With our test and standard of review thus established,
we turn to Fern ndez' specific contentions.
2. Statements Objected to at Trial
2. Statements Objected to at Trial
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(1) During trial, a lease application filled out by
Loredo in November, 1991, which stated that he had worked for
Carrier for six years -- well before the time the defense argued
Carrier began to exist -- was admitted for the limited purpose of
-20-
showing that Loredo claimed he worked for Carrier, not for the
truth of the matters in the document. Fern ndez now contends
that the prosecutor went beyond that limited purpose in his
closing argument. Referring to the application, the prosecutor
stated:
You remember, as you look at it here,
there is a part . . . where he's supposed
to or he has to list his employer. His
list what [sic]? Carrier Transportation.
Just Carrier Transportation as his
employer. . . .
And most importantly, he said he was
working for that company for six years.
Six years. The phone numbers are right.
The address is right. Working for the
company, he says, for six years. This is
proof that there was a Carrier
Transportation that operated before the
date that counsel --
Tr. at 2472. The prosecutor was cut off by the defense's
objection.
We agree with Fern ndez that the prosecutor was moving
beyond the stipulation to assert that the lease application was
"proof that there was a Carrier Transportation that operated
before the date" the defense alleged it began business. Thus, we
turn to our four-factor test. We note that the misconduct,
though disingenuous, was not severe, and occurred only once, in
relative isolation. More importantly, the court gave immediate
curative instructions, admonishing the jury that the lease did
not come in as anything more than a claim by Loredo to have
worked for Carrier, and reminding them of its earlier
instruction, made when the lease application was entered.
-21-
Indeed, in its closing, the defense also reminded the jury of the
limited use of the lease. On balance, we find that "the curative
instruction sufficed to dispel any prejudice from the improper
comment." United States v. Boldt, 929 F.2d 35, 41 (1st Cir.
______________ _____
1991); see United States v. Savarese, 649 F.2d 83, 88 (1st Cir.
___ ______________ ________
1981).
(2) Fern ndez objects to other references the
prosecution made to Gulf on the basis that they encouraged
speculation and attempted to argue facts not presented in the
evidence.5 First, the prosecutor stated:
we had to wait for cross-examination by
[co-counsel for the government] to find
out that there was a previous company
before 1992, in fact from 1986 it had
started, which did the exact same type of
job. It had -- it was a shipping company
that did transportation in the same
manner, through the containers and
Mr. Juan Fern ndez was also one of the
owners or partners in the operation.
Tr. at 2475. Like Fern ndez, we can find no evidence in the
record stating that Gulf began in 1986. The offer of this fact
is harmless, however, since the pertinent time period is 1991,
and Sanjurjo testified that Gulf was in operation in 1990. The
reference leaves open the crucial question, which is, when Gulf
____________________
5 Fern ndez objected to the prosecution's being allowed to use
Gulf in its closing. However, his counsel did not object when
the court held that the prosecution could "tell it to the jury."
Tr. at 2438. The government points out that Fern ndez did not
make specific objections to these references to Gulf during
closing
argument, presumably asking us to review them under the more
lenient plain error standard. As we find no error under either
standard, we need not determine here whether the objection was
preserved.
-22-
ceased operation. As for the form in which the prosecutor made
______
his statement, it is consistent with the framework the government
used for its argument, discussed in (1), above.
Fern ndez objects to the cited passage and four others
for asserting that Carrier and Gulf were essentially the same
thing, doing the exact same job:
[O]ur argument is that before, when the
company was operating as Gulf Carrier
Transportation he used another warehouse
in New Jersey.
. . . [It] was known as Gulf Carrier,
also. Gulf Carrier just like -- the same
name, just slightly different wording and
same owners, same business, same thing.
Tr. at 2476. These statements, he contends, urged the jury to
speculate in a manner unsupported and contradicted by the actual
evidence regarding Gulf. There was evidence that they were both
transportation companies, but not that they did the exact same
job. Indeed, the owners were not the same: Fern ndez was part
owner of Gulf, and the sole owner of Carrier. Finally, there was
no evidence that Gulf was actually in business in 1991.
On balance, we cannot find that this line of argument
so poisoned the trial well that a new trial is required. See
___
Manning, 23 F.3d at 574. The government made an argument based
_______
on the limited evidence regarding Gulf. The defense was able to
argue the counter position, pointing out the lack of evidence,
and did so.
3. Statements Not Objected to at Trial
3. Statements Not Objected to at Trial
___________________________________
We examine the statements which Fern ndez did not
-23-
object to at trial in the order in which he raised them. We find
that most are not improper; of the few that are, none of them
prove so serious that the district court plainly erred in
allowing them.
(1) Fern ndez first argues that the prosecutor erred
by trying to "secure the empathy of the jury" through asking it
to step into the government's shoes and align itself with the
prosecution team through statements like the following.
Now, the way I would like to discuss the
evidence with you is in the order that we
received it. Okay. The way we were
interviewing these witnesses, in that
order, to give you a feel for what we
went through as you determine whether we
have proven, as we submit to you we have,
beyond a reasonable doubt the existence
of the conspiracy and their participation
. . . .
Tr. at 2443. The prosecutor made a series of comments such as
"[w]e seek [co-conspirators or drug traffickers] out and we go
out and corroborate them." Tr. at 2442. We agree with the
government, however, that, read in context, the statements
Fern ndez points to were simply establishing a framework for the
presentation of the government's argument. They also served to
point out that even though the government's witnesses were drug
traffickers with a motive to fabricate evidence -- as defense
counsel had emphasized in opening argument -- their testimony was
corroborated. Indeed, in the first passage quoted above, the
prosecution reminded the jury that it carried the duty of
determining whether the government proved its case. While we do
not necessarily recommend this framework for argument as an ideal
-24-
one, we do not find that the statements were improper.
(2) Fern ndez' second argument is that the prosecutor
misstated the law on proof of conspiracy in making the following
statements:
the only way we can prove a conspiracy is
through the testimony of the very co-
conspirators who were members of that
conspiracy.
Tr. at 2441.
you're always going to need the testimony
of the co-conspirator to prove a
conspiracy because of the secrecy of the
conspiracy.
Tr. at 2442.
You're never going to find a decent
person testifying to a drug deal. That's
what we got to deal with. That's what we
got to do.
Tr. 2571-72. Contrary to appellant's assertion, these are
arguments, not statements of fact, and are thus permissible.
Even if they were improper, they would not require a
new trial. For, viewed in context, it is clear that they did not
poison the trial proceeding. In his opening statement,
Fern ndez' counsel had emphasized the fact that no actual drugs
were offered in evidence: the challenged comments were
apparently designed to counter those statements with an
explanation of why the government relied so heavily on witness
testimony. The first two statements are addressed to the
practical difficulties of proving a conspiracy. The prosecutor
followed the first with an explanation of why the government did
not introduce any actual drugs. Further, the prosecutor followed
-25-
up these comments with a discussion of the importance of
documentary evidence in corroborating witnesses' testimony,
belying his own comments. As for the "decent person" comment,
its logical flaws are obvious. Moreover, defense counsel had
emphasized the witnesses' dishonesty in his opening,6 to which
this is apparently a response. These statements do not warrant a
new trial.
(3) The prosecutor made two statements to the jury to
the effect that "[t]o acquit, you would have to find that
everybody was lying in this case." Tr. at 2590-91. Fern ndez
argues, and the government seems to agree, that these were
improper. To the contrary, we feel they amounted to nothing more
than argument, and were not improper.
(4) Fern ndez' fourth contention is that the
prosecutor made statements without evidentiary support. See
___
Santana-Camacho, 833 F.2d at 373 (reversing conviction on basis
_______________
____________________
6 For example, in his opening statement, Fern ndez' counsel
stated:
And the evidence is that these drug
pushers have consistently taken the easy
way out of everything that is meaningful
in life. . . .
. . . [T]he evidence will show that
they have no conscious [sic] that will
prevent them -- the kind of consciousness
that would prevent most people from
accusing an innocent man. They simply
only care about themselves . . . . They
always have and they always will.
Leopards don't change their spots.
Tr. at 105-06.
-26-
of major and prejudicial misstatement of evidence in closing
argument). The prosecutor erroneously stated that the testifying
drug traffickers were "either in jail or go to [sic] jail," Tr.
at 2442, and that Bruno specifically would be going to jail when,
in fact, Aloisi had a non-prosecution agreement, and Bruno was
not incarcerated at the time of trial. Again, the government
acknowledges that the statements were not factually true. We
agree with the government, however, that any error in admitting
these statements does not rise to the level of plain error. The
agreements between the government and the witnesses were in
evidence, each of the four witnesses against Fern ndez testified
about his agreement with the government, defense counsel reminded
the jury of their agreements in his closing argument, and the
judge instructed the jurors that counsel's argument did not
constitute evidence, but that their recollection of the facts
controlled. Cf. United States v. Innamorati, 996 F.2d 456, 482
___ ______________ __________
(1st Cir.) (finding no clear error where prosecution stated "that
the trial judge alone would determine the sentences for each of
the cooperating witnesses, and that the jury therefore should not
think that the witnesses were getting 'a walk'" where, in fact,
the government had dismissed charges against many of the
witnesses and had promised to make motions for downward
departures), cert. denied sub nom. DeMarco v. United States, 510
_____________________ _______ _____________
U.S. 955 (1993).
(5) Fern ndez points out that the government made a
second misstatement of the evidence by arguing that the payment
-27-
which the two lead conspirators were alleged to have given
Fern ndez in order to buy into Carrier was "not an over the
counter deal" but rather "a criminal association. It [was] a
paper bag with eighty thousand dollars." Tr. at 2575. The
government acknowledges that the paper bag details pertain to a
different transaction, not involving Fern ndez. The misstatement
is troublesome in its characterization of the transaction, the
details of which were not in evidence. However, between the
brevity and isolation of the misstatement, the court's later
instruction to the jury that their memory controlled, and defense
counsel's failure to make a timely objection, Fern ndez cannot
clear the plain error hurdle.
(6) Next, Fern ndez alleges that in his rebuttal
argument the prosecutor provided information to contradict the
testimony of a witness at trial. Without specifying what that
information is, he cites the following passage discussing the
testimony of Enrique Nieves ("Nieves"), Special Agent with the
Drug Enforcement Administration.
Now, the other thing with Mr. Nieves.
He said that there was a search warrant
served on or about the time Mr. Fern ndez
was indicted. And that's false. You
recall the testimony, that was the search
warrant was at an unrelated warehouse of
Mr. Velasco before we had any knowledge
of the fact that they were using Carrier
Transportation at the time of the first
indictment. That's when that search
warrant was served and that's when we
were going after Mr. Velasco who was in
the first indictment. So the fact that
that search warrant was served and
nothing was found, we were not after Mr.
Juan Fern ndez's business at the time
-28-
because we didn't know about it.
Tr. at 2578.
Examination of the record sheds some light on the
passage. First, the depiction of Nieves' testimony is correct:
the warrant was for an unrelated warehouse, prior to any
suspicion that the warehouse Carrier used was involved, and was
served following the first indictment, which did not name
Fern ndez. Second, the "he" of "he said that there was a search
warrant served" seems to refer not to Nieves, but to Fern ndez'
counsel. The latter had stated in his closing that Nieves
testified that in September 1993 -- the time of the first
indictment -- he had testified at a bond hearing that a specific
warehouse used by Carrier was not involved with the Sardinas
operation. Defense counsel also referred to the search warrant
for a different warehouse. It would seem that the prosecution
blurred the line between the reference to the bond hearing and
the search warrant and attributed the date given for the first to
the second. While perhaps an error, it does not constitute the
presentation of information to contradict the testimony of a
witness at trial. Since Fern ndez did not see fit to actually
specify what element of the passage presented new information,
and we see none ourselves, we find no plain error on the part of
the district court in allowing the statement.
(7) The prosecutor's statement that "[t]hey could be
doing additional loads besides the ones that Mr. Bruno was
aware," Tr. at 2465-66, was not improper speculation, since it
-29-
was made in the context of the prosecutor noting that De Jes s'
testimony was that Bruno was not always involved in the
transportation of loads of cocaine, and so the government was not
always sure what number a load was: "they probably skipped the
fifth and this is the sixth load, or it could be a totally
different load. We don't know." Tr. at 2465. Even if the
statement could be construed as improper speculation, Fern ndez
again fails to clear the hurdle of the four factors and prove
that there was plain error on the part of the district court.
(8) Similarly, Fern ndez contends that the prosecutor
improperly generalized about his experiences in stating that
even on some minor details there is a lot
of corroboration in this case, which is
unusual. You will usually have little
corroboration in that aspect, but even on
details, as I go through the evidence
I'll mention them, there is
corroboration.
Tr. at 2444. See United States v. Rosa, 705 F.2d 1375, 1379 (1st
___ _____________ ____
Cir. 1983) ("It is settled law in this circuit that a prosecutor
may not inject into his jury argument his personal opinions about
conclusions to be drawn from the evidence."). The prosecutor
made this statement in the context of encouraging the jury to
recognize that the presence of some inconsistencies in witness
testimony does not preclude granting them credence. This
statement falls somewhere on the spectrum between proper and
improper argument. However, even assuming it was improper, we
cannot find that it is so severe as to warrant a mistrial. In
truth, the prosecutor was telling the jury what it probably
-30-
already knows: that there will likely be differences in the
stories told by two people recounting an event that occurred
years earlier.
Fern ndez makes the similar contention that the
prosecution twice vouched for the credibility of prosecution
witnesses by telling the jury that the witnesses were telling the
truth because they did not get together to concoct a totally
consistent story; the fact that their story was not totally
consistent, the prosecution argued, reveals that "the only other
alternative is that . . . they were telling the truth and that
the impeachment that they have been able to make to you is, I
submit, as to details." Tr. at 2591. We agree with the
government that these remarks amount to asking the jury to make
common sense conclusions from the evidence.
The line between the legitimate argument
that a witness's testimony is credible
and improper "vouching" is often a hazy
one, to be policed by the trial court in
the first instance. . . . Here, at worst
the challenged remarks . . . fell in the
grey area. [Defendant] did not object to
the remarks at trial when a curative
instruction might have been given, and we
think that is the end of the matter.
Innamorati, 996 F.2d at 483 (dismissing challenge to prosecution
__________
statements that the testimony was well corroborated and "as a
result, you know that the witness's testimony is true").
(9) There, is, however, no question that the
prosecutor improperly injected himself into the argument in the
next statement Fern ndez challenges:
And who wrote the statement of facts? We
-31-
wrote the statements of facts. So, the
big mistake about Panama. You know who
made it? I made it. Does that mean that
they're not guilty? Does that mean that
it wasn't from Venezuela that the SEA
SEARCH came[?] No, it's a mistake I
made. So, I should carry it.
Tr. at 2576. The prosecutor apparently made this statement in
direct rebuttal to co-defendant's counsel, who highlighted --
literally -- a statement in De Jes s' plea agreement which
indicated that the shipload of cocaine with which the co-
defendant was allegedly involved came from Panama, while the
indictment maintained it was Venezuela, without mentioning
Panama. Given this context, the relative isolation of the
statement, and the judge's instructions to the jury that their
memory of the testimony controlled, this misconduct does not
require a new trial, especially in light of our standard of
review. See Young, 470 U.S. at 11-14 (discussing the "invited
___ _____
response" rule).
(10) We also dismiss Fern ndez' contention that four
statements made by the prosecution were generalizing about drug
traffickers without evidentiary support. Each of these
statements was to the effect of "that's the way drug dealers
think." The statements were argument, and did not rise to plain
error.
(11) Fern ndez next challenges the prosecutor's
reference to Fern ndez' purported motive -- greed and need for
money -- and argues that there was no evidence in the case on
this point. Nonetheless, the statement is clearly proper: as
-32-
the government notes, it is essentially a viable interpretation
of the evidence. Indeed, the prosecutor followed the statements
Fern ndez now challenges by pointing to the testimony that, at
least initially, Fern ndez received two hundred dollars for each
kilogram of cocaine transported -- a clear financial incentive.
Cf. United States v. Tajeddini, 996 F.2d 1278, 1285-86 (1st Cir.
___ _____________ _________
1993) (finding that, where the prosecutor did not deliberately
misrepresent defendant's financial situation, where there was a
financial incentive, and where defendant did not object at trial,
prosecution statement that crime was motivated by payment was
proper).
(12) Fern ndez points to two references to the lease
application discussed in section (2), above, as error. The
first, when read in context, appears to be citing to other
evidence to support the conclusion that Fern ndez sought to
conceal the earlier existence of Carrier:
I submit to [sic] as a fact that
[Sanjurjo] should have known [whether
Loredo started working after she started
working] and the fact that she did not
want to answer to you should be proof
that Mr. Loredo was in fact working
before that, as he claimed on his
application.
Tr. at 2475. The prosecutor is offering Sanjurjo's testimony as
proof, not the application.
The prosecution also referred to the application in its
rebuttal.
[Defense Counsel] tells you that Jorge
Loredo was looking for a part time job
with Carrier Transportation Services.
-33-
Well, look at the lease agreement. Look
at the cars he list[s] as his property.
In 1991 red Ferrari . . . [and] a 1990
Range Rover. Black one. Is that a car
of somebody who needs a second job to
make ends meet [?] No, ladies and
gentlemen of the jury, he wasn't looking
for any part time job. He had a full
time job and that was trafficking drugs,
trafficking cocaine. With who? With his
partner Juan Fern ndez.
Tr. at 2575. On balance, we do not find that the lease
application was submitted for the proposition that Carrier
existed prior to when the defense asserted it began. Rather, the
cited passage suggests that Loredo had no need for a part-time
job, but that he already had one with Carrier. The evidence
indicated that in November, 1991, the date of the lease
agreement, Carrier had already been incorporated and had leased a
warehouse in New Jersey. The reference to Carrier seems to have
been to the November 1991 status, not Loredo's claim to have held
a position there for 6 years.7 Even if this reading is
incorrect, however, and this was an improper reference, its
admission was simply not plain error.
(13) Fern ndez contends that on three occasions the
government improperly alluded to the fact that he did not
testify. "A prosecutor's comment is improper where, under the
circumstances of the case, 'the language used was manifestly
____________________
7 Indeed, the lease application may have been cited for a reason
wholly unrelated to the Carrier employment claim: in it, Loredo
reported that he owned a home in Puerto Rico, which would support
the prosecution's contention that Loredo's material possessions -
- a house, two expensive cars -- did not indicate that he needed
a second job to make ends meet. The prosecution made no direct
reference to that claim, however.
-34-
intended or was of such character that the jury would naturally
and necessarily take it to be a comment on the failure of the
accused to testify.'" Hardy, 37 F.3d at 757 (quoting United
_____ ______
States v. Glantz, 810 F.2d 316, 322 (1st Cir.), cert. denied, 482
______ ______ ____________
U.S. 929 (1987)). None of the statements Fern ndez points to in
this context meet this test.
First, in his rebuttal, the prosecutor referred to Gulf
as the "other company that we didn't know they had, which at the
beginning they didn't tell us about." Tr. at 2580. Read in
context, it is clear that the jury would not "naturally and
necessarily" take this as a comment on Fern ndez' failure to
testify, because the prosecutor is in fact referring to the
premise that the evidence introduced about Carrier does not prove
anything about Gulf. We note that the statement does not
indicate that Fern ndez did not tell the government about Gulf,
rather, that "they" -- the witnesses -- did not tell it about
____
Gulf. Second, the prosecutor argued that there was "no other
explanation" for the fact that three witnesses had Fern ndez'
phone number "except that they were involved with him." Tr. at
2472. Third, the prosecution argued against the defense position
that Fern ndez' association with Loredo and Frame was an innocent
one, positing that knowing three drug traffickers could hardly be
a coincidence, and that "the only explanation" presented before
the jury was a criminal association between the men.
We find that neither statement meets the "naturally and
necessarily" criteria. Although Fern ndez would presumably have
-35-
been able to testify as to these things, so would the other
witnesses. "Where arguably favorable evidence other than the
defendant's own testimony is available to him, comment upon his
failure to produce it may be justified." United States v.
______________
Sardelli, 813 F.2d 654, 657 (5th Cir. 1987). Indeed, defense
________
counsel argued in his closing that the dissemination of
Fern ndez' phone numbers and his associations with co-defendants
were innocent. We find no plain error in the court's allowance
of these statements. See Procopio, slip. op. at 23-25.
___ ________
(14) Fern ndez also contends that the government
improperly tried to shift the burden of proof to the defense.
The first cited statement asked: "Why would the defense be
hiding the fact or they to portray [sic] the fact that Mr. Loredo
started working for Carrier after 1992, if he started before[?]"
Tr. at 2580. From the statement's context, it is apparent that
this is a rebuttal to defense counsel's claim that Loredo's
business card from Carrier dated from 1992: the prosecution
counters that the business card had no date. The second
statement cited pointed out that on direct examination Sanjurjo
testified that Carrier started in 1992, adding:
But then we had to wait for cross
examination by Mr. Pagel to find out that
there was a previous company before 1992,
in fact from 1986 it had started, which
did the exact same type of job . . . and
Mr. Juan Fern ndez was also one of the
owners or partners in the corporation.
[Sanjurjo] denied at that point that
the corporation was named Gulf Carrier or
had Carrier in its name. We found that
out through another witness at a later
-36-
time.
Tr. at 2474-75. These comments are in keeping with the general
structure of the prosecution's argument, discussed above,
pointing out who testified what about Carrier and Gulf.
We find that these statements did not shift the burden
of proof onto the defendant. On balance, any subtle implication
that the burden of proof had shifted would have been mitigated by
the court's instructions -- as well as those of the prosecution
and defense -- regarding the burden of proof. While not
necessarily ideal, the cited statements did not amount to
reversible error under our standard of review.
(15) Fern ndez points to four statements made in the
government's rebuttal which are more troubling:
The second reason [why the prosecution
has an opportunity for rebuttal] is, to
help you see through this smoke screen
that the defense always tries to raise to
confuse you.
Tr. at 2574.
look how desperate [the defense is], look
at the argument they're making to try to
escape what is obvious to everybody.
Tr. at 2577.
The fact is, we do have enough evidence.
The evidence beyond a reasonable doubt.
They're just trying to confuse you.
Don't allow them to be confusing.
Tr. at 2585. Finally:
Their argument, really is that we
cannot use these drug traffickers, the
witnesses who were their friends and
their associates, to convict. That's
what they're saying. Well, ladies and
-37-
gentlemen, that is an important weapon,
an important tool in law enforcement, to
deprive of us the ability to do that is
[sic] to deal a hard blow to law
enforcement. . . .
. . .
Now, these criminals, drug traffickers
in general, think that they commit the
crime and nobody catches them at that
time, or the people who saw them were
other drug traffickers that then they're
home free. But unfortunately, for all
these drug traffickers, including
Mr. Contreras and Mr. Juan Fern ndez,
that's not the way it works. Because we
in the law enforcement community, the
people who you see sitting [at] this
table, the agents that you saw testifying
before you, they didn't give up. They
kept on investigating and they didn't
catch them when it happened, but they
kept investigating and they kept catching
other criminals and they were able to
build a case around them. Because we
have other means, other methods in which
to investigate and to present cases to
you.
And I submit to you that this is
another way to present the case. And it
also shows beyond a reasonable doubt that
these defendants are guilty. So, they
thought they had gotten away with their
crimes when they committed them. The
agents kept, they didn't give up, they
kept investigating.
I ask you now don't give you up [sic]
on us now. They thought they had gotten
away with their crime. Don't you let
them get away with their crime today.
Tr. at 2590-92.
We do not doubt that these statements constituted
improper argument. See, e.g., Boldt, 929 F.2d at 40 (improper to
___ ____ _____
comment on "favorite defense tactic"); Hardy, 37 F.3d at 757
_____
(finding prosecution argument that defendants, who did not
-38-
testify, were "still running and hiding" improper). Thus we turn
to our four factors. First, regarding severity, while the
misconduct is real, it is not as severe as some which we have
previously found improper. See, e.g., Arrieta-Agressot, 3 F.3d
___ ____ ________________
at 527 (holding it improper to argue, inter alia, that "the
__________
defendants are not soldiers in the army of good. They are
soldiers in the army of evil, in the army which only purpose
[sic] is to poison, to disrupt, to corrupt"). In terms of the
context, the government argues that these were isolated comments.
However, the fact that the prosecutor made multiple, albeit
brief, statements disparaging the role of the defense convinces
us that they were not isolated comments. Indeed, the prosecutor
ended his rebuttal shortly after finishing the last statement,
enhancing its impression on the jury. As for any corrective
instructions, Fern ndez did not object to any of the statements.
Finally, we note that the evidence against Fern ndez was
adequate, but not overwhelming.
In the end, although it is a close call, Fern ndez does
not prevail on this point. Because he made no objection at
trial, Fern ndez "must show that the improper remarks likely
infected the jury (affected 'substantial rights' in Olano's
_____
words) and mere possibilities are not enough." Procopio, slip
________
op. at 26. Simply put, there was not much substance to the
statements: while they were improper disparagement of the role
of defense counsel, we do not see how they alone could have
created "'circumstances in which a miscarriage of justice would
-39-
otherwise result.'" Young, 470 U.S. at 15 (quoting Frady, 456
_____ _____
U.S. at 163 n.14); see Procopio, slip op. at 28-29 (stating that
___ ________
it was "unrealistic to suggest that . . . empty cliches" that the
defense arguments were "illusions" and "smoke screens" would have
affected the jury's verdict).
4. The Cumulative Effect
4. The Cumulative Effect
_____________________
There are many reasons why defense counsel would choose
not to make every possible objection during the government's
closing argument. However, there is a cost to that strategy:
most of the statements Fern ndez now proffers as misconduct are
reviewed under the deferential plain error standard. We have
found, under that standard, that although various of the
statements were indeed improper, they did not so poison the well
that a new trial is mandated. Having reviewed the record and the
closing arguments, we find the same is true as for their
cumulative effect. Only the statements impugning the role of the
defense give us real pause; nonetheless, even considering all the
points where the prosecution's argument fell below the mark, we
do not feel that a jury would have been improperly swayed by the
argument. Nonetheless, we add that we are concerned by the sheer
quantity of errors, however minor, in this case. The prosecution
should weigh carefully its words when it next approaches the
floor for argument. See id. at 29 (noting that "a pattern of
___ ___
faults does suggest a failure in supervision").
E. Fern ndez' Sentence
E. Fern ndez' Sentence
___________________
At sentencing, the court granted Fern ndez a downward
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adjustment for being a minor participant in the conspiracy. See
___
U.S.S.G. 3B1.2(b). The government now argues on cross-appeal
that the facts of the case do not support that adjustment. We
review the district court's factual determinations for clear
error, granting due deference to the trial court's application of
the guideline to the facts. See United States v. Graciani, 61
___ _____________ ________
F.3d 70, 75 (1st Cir. 1995); United States v. Thompson, 32 F.3d
_____________ ________
1, 4 (1st Cir. 1994).
Section 3B1.2(b) offers a reduction to "any participant
who is less culpable than most other participants, but whose role
could not be described as minimal." U.S.S.G. 3B1.2 (comment.
n.3). Of course, the mere fact that Fern ndez may be less
culpable than others involved in the conspiracy does not
automatically entitle him to a reduction. See United States v.
___ ______________
Daniel, 962 F.2d 100, 103 (1st Cir. 1992). "Role-in-the-offense
______
adjustments depend . . . not only on the comparative conduct of
persons jointly engaged in criminal activity, but also on
comparing each offender's actions and relative culpability with
the elements of the offense." United States v. Ocasio, 914 F.2d
_____________ ______
330, 333 (1st Cir. 1990).
The district court granted the adjustment on the basis
that Fern ndez' role was "limited in essence to looking the other
way . . . while his company was used to transport the narcotics,"
and that he "played a part in the overall conspiracy that makes
him less culpable than that of the average participant."
Sentencing Hearing at 29-30. The court made no more detailed
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findings.
The government contends that the evidence does not
support the district court's findings. It points out that the
evidence indicated that Fern ndez joined the conspiracy, secured
a large payment from Sardinas and Loredo at the outset, and
received additional payment for the transportation of the
cocaine, albeit a payment smaller than Sardinas'. According to
the witnesses, he attended meetings, made his employees available
to help, bribed a gatekeeper, and personally handled shipments.
Additionally, Frame's testimony was that Fern ndez acted as
liaison to Sardinas with respect to marijuana and cocaine
shipments. All this, topped with the district court's failure to
make specific factual findings, the government contends,
demonstrates that the court clearly erred in finding that
Fern ndez was entitled to the minor role adjustment. Finally,
the argument concludes, the fact that the court made no specific
findings as to witness credibility or Fern ndez' role precludes
reliance on cases upholding a district court's credibility
determination at sentencing, see, e.g., United States v. Webster,
___ ____ _____________ _______
54 F.3d 1, 5 (1st Cir. 1995), or Fern ndez' argument that a
plausible view of the evidence supports the district court's
minor role determination.
The district court's failure to find more than the
basic facts at sentencing lends a certain awkwardness to this
case. Nonetheless, we disagree with the government's argument
that the evidence presented at trial precludes granting the
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adjustment. Fern ndez went to meetings, accepted money, and, if
the witnesses' testimony is credible, knew what was going on.
However, there was no evidence that he was in contact with the
suppliers and receivers of the cocaine that the Sardinas
organization transported, either in the New York area or in
Memphis, or that he negotiated those deals or instructed the
workers. Bruno testified that Fern ndez attended a series of
meetings, but did not testify that Fern ndez ran those meetings,
told Bruno what to do, or otherwise served as the organizer of
the conspiracy. While we do not think that Fern ndez'
entitlement to the downward adjustment was a foregone conclusion,
we cannot, on this record, find that it was plain error for the
lower court to apply it. The district court found that Fern ndez
established that he was less culpable than most other
participants in the conspiracy, and so was entitled to the
adjustment. "In this instance, it would be foolhardy to second-
guess the sentencing judge, given his superior coign of vantage."
Ocasio, 914 F.2d at 333.
______
CONCLUSION
CONCLUSION
For the reasons stated herein, we affirm.
affirm
______
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