USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 96-2280
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL GONZALEZ-GONZALEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Lynch, Circuit Judge,
_____________
Coffin and Cyr, Senior Circuit Judges.
_____________________
____________________
Laura H. Parsky, Trial Attorney, with whom John C. Keeney, Acting
_______________ ______________
Assistant Attorney General, and Theresa M.B. Van Vliet, Chief of the
______________________
Narcotics and Dangerous Drugs Section, Department of Justice, were on
brief, for appellee.
Lawrence E. Besser for appellant.
__________________
Manuel Gonzalez-Gonzalez on brief pro se.
________________________
____________________
February 5, 1998
____________________
LYNCH, Circuit Judge. Manuel Gonzalez-Gonzalez was
LYNCH, Circuit Judge
_____________
convicted of a major drug smuggling and money laundering
conspiracy based in Puerto Rico. Gonzalez' defense at trial
was that such a conspiracy did exist, but that he was not
part of it. Gonzalez now argues through counsel that an
admittedly improper definition of reasonable doubt argued by
the prosecutor in closing requires a new trial, as does a
jury instruction on the effect of a guilty plea by a co-
defendant. Gonzalez also filed a brief pro se, arguing that
the district court erred for other reasons in denying his
motion for a new trial. We affirm.
I.
Gonzalez was charged on November 2, 1994 with
conspiracy to possess with intent to distribute cocaine and
marijuana, possession with intent to distribute marijuana,
possession with intent to distribute cocaine, importation of
marijuana and cocaine, and aiding and abetting in the
laundering of monetary instruments. After a nineteen-day
trial, the jury found Gonzalez guilty as charged. Gonzalez
was sentenced on September 20, 1996 to life imprisonment and
was fined.
Because this appeal involves admittedly improper
remarks by the prosecutor, and because the verdict could have
been tainted by these remarks, we do not consider the facts
in the light most favorable to the jury's verdict. Our
description of the facts is "designed to provide a balanced
picture of the evidence appropriate for determining whether
the remarks were harmless or prejudicial." United States v.
_____________
Hardy, 37 F.3d 753, 755 (1st Cir. 1994). See Arrieta-
_____ ___ ________
Agressot v. United States, 3 F.3d 525, 528 (1st Cir. 1993).
________ _____________
Several witnesses testified that they belonged to
Gonzalez' drug smuggling and money laundering operation.
This extensive testimonial evidence was corroborated by tape
recorded conversations, surveillance photographs, passport
entries, travel records, and telephone records. Ricardo
Rivero ("Rivero") testified that Gonzalez recruited him to
retrieve and repackage 900 pounds of marijuana imported from
Colombia in 1991. Rivero testified that Gonzalez stored
cocaine and marijuana at a house belonging to Manuel Garrido,
which other witnesses, a co-defendant and an FBI agent,
subsequently confirmed.
Gonzalez transported 125 kilograms of cocaine from
Puerto Rico to New York for distribution with help from
Rivero. Gonzalez also hired Roberto Garraton-Rivera and
Alberto Maysonet to transport cocaine. Garraton testified
that Gonzalez came to his house to deliver cocaine to
Maysonet. Garraton and Maysonet traveled to New York in
August of 1991 to deliver cocaine to Gonzalez. While in New
York, Gonzalez instructed Ricardo on how to distribute the
cocaine and resolved a dispute over payment for the drugs.
-3-
3
After the success of this deal, Gonzalez purchased several
cars before returning to Puerto Rico.
Witnesses described other drug transactions in
1992. Co-defendant Luz Marina-Giraldo testified that she
helped Gonzalez import 6,500 pounds of marijuana into Puerto
Rico. Gonzalez stored the marijuana at a stash house and
sold it in Puerto Rico. Rivero also testified about that
marijuana shipment. According to Rivero, Gonzalez supervised
the unloading and transportation of the marijuana.
Both Rivero and Marina-Giraldo testified that
Gonzalez was involved in transporting 300 kilograms of
cocaine from St. Martin to Puerto Rico in 1992. These
witnesses also testified about a major shipment of cocaine
and marijuana Gonzalez had imported from Colombia to Puerto
Rico in September of 1992. Part of this shipment was seized
by the police.
Several witnesses testified that they helped
Gonzalez' cousin, Augustin Rivero ("Augustin"), import 625
kilograms of cocaine in November of 1992. Ricardo Rivero
testified that Gonzalez supplied a motor for a boat to help
bring in the shipment. Roberto Sierra-Rivera, a paid
informant, testified that Gonzalez provided surveillance for
this shipment, which was later sold in Puerto Rico and New
York. Sierra-Rivera testified that Gonzalez and Augustin
agreed that each time one of them brought in a load of
-4-
4
cocaine, the other would be given 10 kilograms of cocaine or
$100,000. There was also testimony about later cocaine
smuggling operations conducted by Gonzalez' cousin Augustin.
Angel Santiago-Mora, a cooperating witness, and
Martin Suarez, an FBI agent, testified that Gonzalez and his
associates often delivered money to them to be laundered. On
several separate occasions Gonzalez delivered hundreds of
thousands of dollars to them. Other people closely connected
to Gonzalez also delivered substantial sums of money to be
laundered.
The government also presented tape recordings of
conversations between Gonzalez and his associates in which
Gonzalez admitted his involvement in drug smuggling and
distribution. This evidence was supplemented by tapes of
Gonzalez' associates referring to Gonzalez' involvement in
drug trafficking.
Gonzalez testified and denied it all.
II.
Gonzalez argues that he was deprived of his Sixth
Amendment right to a jury trial because in the prosecutor's
closing argument the prosecutor said:
[Y]ou heard [defense counsel] say at the end
of his argument, that there was reasonable
doubt as to whether he was or was not and I
am going to tell you something, you will
listen to the instructions from the judge as
to what reasonable doubt is -- it is
something very simple. If in your mind you
think that he was a member of the
-5-
5
organization, and in your heart, you feel
that he was a member of the organization,
then he was a member of the organization, and
you say so with your verdict. Don't let
yourselves be confused by the definition of
reasonable doubt.
The government appropriately concedes that the prosecutor's
remarks incorrectly defined reasonable doubt. Because there
was no objection to these remarks (which the defendant
concedes), we apply a plain error standard of review. See
___
United States v. Crochiere, 129 F.3d 233, 237 (1st Cir.
______________ _________
1997); United States v. Taylor, 54 F.3d 967, 972-73 (1st Cir.
______________ ______
1995). The "decision to correct the forfeited error [is]
within the sound discretion of the court of appeals, and the
court should not exercise that discretion unless the error
'seriously affect[s] the fairness, integrity or public
reputation of the judicial proceedings.'" United States v.
______________
Olano, 507 U.S. 725, 732 (1993) (quoting United States v.
_____ ______________
Young, 470 U.S. 1, 15 (1985)).
_____
Gonzalez relies on a series of cases holding that
jury instructions which misstate the reasonable doubt
standard require a new trial. He argues that the
prosecutor's comments on reasonable doubt are the "functional
equivalent" of jury instructions, especially since the
prosecutor followed his incorrect definition with a statement
that the jury should not be confused by the definition of
reasonable doubt. Gonzalez argues that the prosecutor
-6-
6
essentially told the jury to ignore the judge's instructions
on reasonable doubt and to follow his "mind and heart" test
instead. We start with the latter contention.
The remark, "Don't let yourselves be confused by
the definition of reasonable doubt" is ambiguous, and could
have at least three meanings. It could mean "Don't be
confused by the definition that I, the prosecutor, have just
told you." It could mean, "Don't be confused by the
definition you hear from either lawyer." And it could mean,
"Don't be confused by the definition you hear from the
judge," with the implication that the prosecutor's definition
governs.
In context, the third meaning is by far the least
likely of the three.1 The prosecutor prefaced his remarks by
telling the jury to listen to the judge's instructions, and
his statement that the jury should not be confused by the
definition of reasonable doubt is subject to benign
interpretation. Furthermore, the prosecutor concluded his
argument by stating, "You will listen to the instructions of
____________________
1 We note but need not resort to the rule that when a
prosecutor's comments are ambiguous, and there is no
contemporaneous objection, the ambiguity is construed in favor of
a proper meaning. See Taylor, 54 F.3d at 979 ("[W]hen the target
___ ______
of the comments does not interrupt and register a timely
objection, it seems especially appropriate to 'give the arguer
the benefit of every plausible interpretation of her words.' . .
. Given the absence of a contemporaneous objection, we must cede
to the government the benefit of a legitimate, plausible
interpretation of the prosecutor's words.") (quoting United
______
States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993)).
______ _________
-7-
7
the Honorable Judge, as he explains them to you, you will
decide what the facts in this case were [and] you will apply
the law . . . ." The prosecutor's own comments went a long
way toward curing any understanding of the comment as an
admonition to ignore the court's instruction.
The problem with the prosecutor's error was
obviated by the court's instructions on reasonable doubt,
which Gonzalez concedes were correct, as well as the court's
admonition to the jurors that instructions on the law come
only from the court, and not from counsel.
We flatly reject Gonzalez' argument that a
misstatement of the law by a prosecutor should be treated the
same way as a misstatement of law by the judge. No juror
would mistake a prosecutor for a judge. Our law assumes that
the jurors follow jury instructions and thus that they
followed the judge's, not counsel's, definition of reasonable
doubt. See United States v. Rivera-Gomez, 67 F.3d 993, 999
___ _____________ ____________
(1st Cir. 1995) ("[O]ur system of trial by jury is premised
on the assumption that jurors will scrupulously follow the
court's instructions."); Refuse & Envtl. Sys., Inc. v.
______________________________
Industrial Serv. of Am., Inc., 932 F.2d 37, 40 (1st Cir.
_______________________________
1991) ("A basic premise of our jury system is that the jury
follows the court's instructions."). That assumption is
especially so here, since the prosecutor also told the jury
to listen to the judge.
-8-
8
Whether the prosecutor's remarks amount to plain
error warranting a new trial depends on analysis of several
factors: "(1) the extent to which the conduct is recurrent
and/or deliberate; (2) the extent to which the trial judge's
instructions insulated the jury against, or palliated, the
possibility of unfair prejudice; and (3) the overall strength
of the prosecution's case, with particular regard to the
likelihood that any prejudice might have affected the jury's
judgment." Taylor, 54 F.3d at 977.
______
We make no determination on the first of the Taylor
______
factors. We do note a long history of improper statements in
closing argument from federal prosecutors in Puerto Rico.
See, e.g., United States v. Rodriguez-Carmona, 111 F.3d 122,
__________ _____________ _________________
1997 WL 157738, at *4 (1st Cir. 1997); United States v.
_____________
Fernandez, 94 F.3d 640, 1996 WL 469009, at *17 (1st Cir.
_________
1996); United States v. Cartagena-Carrasquillo, 70 F.3d 706,
_____________ ______________________
713 (1st Cir. 1995); United States v. Levy-Cordero, 67 F.3d
_____________ ____________
1002, 1009 (1st Cir. 1995); Arrieta-Agressot, 3 F.3d at 527
________________
(citing cases); United States v. Ortiz-Arrigoita, 996 F.2d
______________ _______________
436, 441 (1st Cir. 1993) ("We do not understand, however, why
after numerous warnings from this court, the prosecuting
attorneys in the District of Puerto Rico persist in spiking
their arguments with comments that put their cases at risk.")
(collecting cases). In light of this history, the government
gains no advantage under the first factor.
-9-
9
As to the second factor, we are persuaded the jury
was not led astray. That is because of the court's
concededly correct jury instructions on reasonable doubt and
the direction to disregard statements about the law from
counsel. As to the third factor, the government had a very
strong case against Gonzalez. Given these considerations, we
do not think the jury's judgment was affected and a new trial
is not warranted. Cf. Levy-Cordero, 67 F.3d at 1008 (holding
___ ____________
that several "obviously improper" prosecutorial comments did
not warrant a new trial).
III.
In his counselled appeal, Gonzalez says the
district court committed error in its jury instructions
regarding the guilty plea of co-defendant Luz Marina-
Giraldo.2 Specifically, Gonzalez argues that the court's
____________________
2 Before Marina-Giraldo testified as a witness, the court
instructed the jury:
[T]he government must establish each case
against each defendant separately. Now, the
fact that this co-defendant is going to
testify, you are going to hear from her that
she did enter a plea of guilty and now she is
testifying for the government. Now the fact
that a co-defendant has entered a plea of
guilty to the offense charged, that fact
also, the entering of a plea of guilty in and
of itself is not evidence of any guilt of any
other of the co-defendants. I repeat that.
The fact that a co-defendant has entered a
plea of guilty to the offense charged is not
evidence in and of itself of the guilt of any
other co-defendant and I cannot emphasize
that enough.
-10-
10
statement that his co-defendant's guilty plea is not "in and
of itself" proof of Gonzalez' guilt implies that the plea
could be considered as evidence of guilt in conjunction with
other evidence in the case. There was no objection to these
instructions, so we apply the plain error standard of review
(which Gonzalez concedes). See Taylor, 54 F.3d at 976;
___ ______
United States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir. 1993).
_____________ ___________
The phrase "in and of itself," in isolation, could
be understood to mean what Gonzalez posits: that standing
alone, the guilty plea of a co-defendant could not be
evidence of guilt of the defendant, but, in combination with
such other evidence, the plea could be taken as evidence of
the defendant's guilt. That is, of course, not the law, nor,
we are sure, was that the trial judge's intended meaning when
he gave the instructions.
____________________
The guilty plea of Luz Marina-Giraldo may
not be regarded by you as substantive
evidence of the other defendant's guilt nor
may you draw any inference of guilt as to the
remaining co-defendants. The fact that she
pled is what I am talking about, that cannot
be used as evidence against the other
defendants nor may you draw any inference
from the fact that she pled guilty. . . .
[W]hat you cannot consider is the fact that
she has entered a plea of guilty, that fact
cannot be considered. It is not evidence
against the other defendants and affords no
inference or suggestion of guilt as to the
other defendants.
-11-
11
The trial judge may have relied on dicta in United
______
States v. Rivera-Santiago, 872 F.2d 1073, 1083 (1st Cir.),
______ _______________
cert. denied, 492 U.S. 910 (1989), and cert. denied, 493 U.S.
____________ ________________
832 (1989). In describing the events at the trial, this
court's opinion referred to the following language given by
the trial judge as a "standard accomplice" instruction: "the
fact that an accomplice has entered a plea of guilty to the
offense charged is not evidence in and of itself of the guilt
of any other person." The language of the instruction itself
was not at issue in Rivera-Santiago3 and this Court has not
_______________
ruled on the propriety of such language in an accomplice
instruction. We do so now and discourage the use of such "in
and of itself" language. There is no need for such language,
as the pattern jury instructions from other jurisdictions
make evident.4
____________________
3 The Fifth Circuit also described a similar "in and of
itself" accomplice instruction in United States v. Abravaya, 616
_____________ ________
F.2d 250 (5th Cir. 1980). The new District Court Criminal Law
Pattern Jury Instructions for this circuit do not address guilty
pleas by accomplices or co-defendants.
4 The pattern instructions of other circuits are more
straightforward and do not contain "in and of itself" language.
For example, Sixth Circuit pattern jury instruction 7.08 reads as
follows:
(3) The fact that ________ has pleaded
guilty to a crime is not evidence that the
defendant is guilty, and you cannot consider
_______________________
this against the defendant in any way.
_____________________________________
The Seventh Circuit's pattern jury instruction 3.23 reads:
The witness, ________, has pleaded guilty to
a crime arising out of the same occurrence
for which the defendant is now on trial. You
may give his testimony such weight as you
-12-
12
Despite the potentially misleading nature of the
"in and of itself" language, a new trial is not warranted
here. The district court instructions, taken as a whole,
repeatedly and unequivocally told the jury not to consider
the co-defendant's guilty plea as evidence of the defendant's
guilt.5
____________________
feel it deserves, keeping in mind that it
must be considered with caution and great
care. Moreover, his guilty plea is not to be
______________________________________
considered as evidence against the defendant.
____________________________________________
Pattern jury instruction 2.19 from the Eighth Circuit states:
You have heard evidence that witness (name)
has pleaded guilty to a crime which arose out
of the same events for which the defendant is
on trial here. You must not consider that
___________________________
guilty plea as any evidence of this
_____________________________________________
defendant's guilt. You may consider that
__________________
witness' guilty plea only for the purpose of
determining how much, if at all, to rely upon
that witness' testimony.
Finally, Ninth Circuit pattern instruction 4.12 reads:
The witness, _________, has pleaded guilty to
a crime arising out of the same events for
which the defendant is on trial. This guilty
___________
plea is not evidence against the defendant
_____________________________________________
and you may consider it only in determining
_____________________________________________
this witness' believability. You should
_____________________________________________
consider this witness' testimony with great
_____________________________________________
caution, giving it the weight you feel it
_____________________________________________
deserves.
________
5 The court also instructed the jury:
Now, the case against Luz Marina-Giraldo
has been disposed of and will no longer be
before you. It is very important that you
realize that you cannot guess or concern
yourselves or speculate as to the reason for
the disposition of her case. The disposition
cannot and should not influence your verdict
with reference to the remaining defendants
that are on trial here.
-13-
13
We examine jury instructions in the context of the
charge as a whole to determine whether the court's
____________________
If you recall, I think I advised you on the
first day that each defendant, although being
tried together, has a right to have the jury
consider his case separately of the other
defendants and considering the evidence that
applies or that is admitted as to that
defendant specifically. . . . [A]lthough [the
defendants] are being tried together, you
must give separate consideration to each
defendant. . . . I repeat that you cannot and
you must not consider the fact that Luz
Marina-Giraldo is not here again and it
should not enter into your deliberations. . .
. [The disposition of her case] should not
enter whatsoever in your deliberations as to
the other two defendants.
In its final instructions to the jury, the court
said:
[D]uring the course of the trial, I
instructed you that the case against Luz
Marina-Giraldo . . . [had] been disposed of,
and was no longer before you. And the
disposition of the case[] . . . should not
influence your verdict with reference to . .
. Gonzalez and you must base your verdict
solely on the evidence against Mr. Gonzalez-
Gonzalez. In other words, the government
must establish its case against Mr. Gonzalez
separately of the disposition of the cases
against the other two defendants.
And I also instructed you, the fact that
co-defendant Luz Marina-Giraldo entered a
plea of guilty to the offense charged is not
evidence in and of itself of the guilt of the
defendant here on trial and I cannot
emphasize this enough. The guilty plea of
Luz Marina-Giraldo may not be regarded by you
as substantive evidence of the guilt [of] Mr.
Gonzalez-Gonzalez. Nonetheless, you may give
her testimony such weight as you think it
deserves, keeping in mind that it must be
considered with caution and great care.
-14-
14
instructions require a new trial. See United States v. Rose,
___ _____________ ____
104 F.3d 1408, 1416 (1st Cir. 1997). When we take this
context into account, it is apparent that the court's
instructions in this case do not warrant a new trial. We
also reject Gonzalez' claim that the synergistic effect of
two errors requires a new trial.
IV.
In his pro se brief, Gonzalez argues that the
district court erred in denying his motion for a new trial.6
The motion based the request for a new trial on claimed newly
discovered evidence and claimed prosecutorial misconduct,
including presentation of false testimony.7
We review a trial judge's ruling on a motion for a
new trial for manifest abuse of discretion. See United
___ ______
States v. Brimage, 115 F.3d 73, 79 (1st Cir. 1997). "The
______ _______
remedy of a new trial is rarely used; it is warranted 'only
where there would be a miscarriage of justice' or 'where the
evidence preponderates heavily against the verdict.'" United
______
States v. Andrade, 94 F.3d 9, 14 (1st Cir. 1996) (quoting
______ _______
____________________
6 After oral argument in this case, Gonzalez filed a letter
with this court, which we accepted as a supplemental brief,
raising issues in addition to those raised by his able counsel.
We requested the government to file a responsive brief, which it
has done. We reach the merits of Gonzalez' pro se appeal.
7 Gonzalez also complains of a factual error concerning
whether the name "Lin" appeared on any of the drug packages from
Loiza beach, an error contained in the transcript. At oral
argument before us, the government conceded this factual error,
saying the name did not appear.
-15-
15
United States v. Indelicato, 611 F.2d 376, 386 (1st Cir.
______________ __________
1979)). See United States v. Montilla-Rivera, 115 F.3d 1060
___ _____________ _______________
(1st Cir. 1997). In a motion for a new trial based upon
newly discovered evidence, the defendant must establish that
"the evidence was: (i) unknown or unavailable at the time of
trial, (ii) despite due diligence, (iii) material, and (iv)
likely to result in an acquittal upon retrial." United
______
States v. Tibolt, 72 F.3d 965, 971 (1st Cir. 1995). But
______ ______
Gonzalez' complaints are largely about what happened at trial
and were not newly discovered.
The district court gave a careful explanation of
its denial of Gonzalez' motion, and we affirm for the reasons
stated in the court's Memorandum and Order dated December 3,
1996. We add only that the "new evidence" Gonzalez presents
does not come close to "so undermin[ing] the government's
case as to give rise to a 'reasonable' probability of
acquittal on retrial." Tibolt, 72 F.3d at 972 (quoting
______
Sepulveda, 15 F.3d at 1220)).
_________
The judgment is affirmed.
_________
-16-
16
