For educational use only



Download 227.43 Kb.
Date conversion12.05.2016
Size227.43 Kb.


219 F.3d 37

FOR EDUCATIONAL USE ONLY

Page

219 F.3d 37



(Cite as: 219 F.3d 37)

U.S. v. Gonzalez-Vazquez

C.A.1 (Puerto Rico),2000.
United States Court of Appeals,First Circuit.

UNITED STATES, Appellee,

v.

Waldemar GONZALEZ-VAZQUEZ, Defendant, Appellant.



United States, Appellee,

v.

Hector Hernandez-Negron, Defendant, Appellant.



Nos. 98-2108, 98-2109.
Heard March 8, 2000.

Decided July 18, 2000.


Defendants were convicted in the United States District Court for the District of Puerto Rico, Héctor M. Laffitte, J., of conspiracy to distribute controlled substances and aiding and abetting distribution of controlled substances within one thousand feet of a school. They appealed. The Court of Appeals, Lipez, Circuit Judge, held that: (1) government did not violate defendant's constitutional rights by offering him “package deal” plea involving two other codefendants; (2) three-level upward adjustment for defendant's role as a manager or supervisor was warranted; (3) trial court had discretion to limit cross-examination of officer regarding corruption of other officers; and (4) testimony of paid informant was sufficiently reliable to present to jury.
Affirmed.
West Headnotes
[1] Criminal Law 110 1440(2)
110 Criminal Law

     110XXX Post-Conviction Relief

           110XXX(A) In General

               110k1435 Consideration Despite Waiver or Other Bar

                     110k1440 Counsel

                         110k1440(2) k. Preferability of Raising Effectiveness Issue on Post-Conviction Motion. Most Cited Cases

Defendant's claim of ineffective assistance of counsel in plea proceedings was to be raised in motion to vacate rather than on direct appeal. U.S.C.A. Const.Amend. 6; 28 U.S.C.A. § 2255.
[2] Criminal Law 110 1602
110 Criminal Law

     110XXX Post-Conviction Relief

           110XXX(C) Proceedings

               110XXX(C)1 In General

                     110k1600 Counsel

                         110k1602 k. Right to Counsel. Most Cited Cases

Defendant was entitled to appointment of counsel if he chose to file motion to vacate in which he argued that he received ineffective assistance of counsel in plea proceedings; defendant claimed that he had instructed his trial attorney to accept plea bargain, and after trial, defendant received sentence that was ten times the sentence he likely would have received pursuant to agreement. U.S.C.A. Const.Amend. 6; 18 U.S.C.A. § 3006A(a)(2)(B); 28 U.S.C.A. § 2255.
[3] Criminal Law 110 273.1(2)
110 Criminal Law

     110XV Pleas

           110k272 Plea of Guilty

               110k273.1 Voluntary Character

                     110k273.1(2) k. Representations, Promises, or Coercion; Plea Bargaining. Most Cited Cases

Prosecutor may withdraw a plea offer before a defendant accepts it.


[4] Criminal Law 110 273.1(2)
110 Criminal Law

     110XV Pleas

           110k272 Plea of Guilty

               110k273.1 Voluntary Character

                     110k273.1(2) k. Representations, Promises, or Coercion; Plea Bargaining. Most Cited Cases

Government did not violate any of defendant's constitutional rights by offering “package deal” plea bargain that would be available to defendant only if his two codefendants also gave up their right to jury trial.


[5] Criminal Law 110 273.1(2)
110 Criminal Law

     110XV Pleas

           110k272 Plea of Guilty

               110k273.1 Voluntary Character

                     110k273.1(2) k. Representations, Promises, or Coercion; Plea Bargaining. Most Cited Cases

There is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.


[6] Criminal Law 110 1158(1)
110 Criminal Law

     110XXIV Review

           110XXIV(O) Questions of Fact and Findings

               110k1158 In General

                     110k1158(1) k. In General. Most Cited Cases

When sentencing court applies guideline provision that defendant was a manager or supervisor and criminal activity was extensive, appellate court will reverse sentencing court's determination only if it is clearly erroneous. U.S.S.G. § 3B1.1(b), 18 U.S.C.A.


[7] Sentencing and Punishment 350H 752
350H Sentencing and Punishment

     350HIV Sentencing Guidelines

           350HIV(C) Adjustments

               350HIV(C)2 Factors Increasing Offense Level

                     350Hk752 k. Organizers, Leaders, Managerial Role. Most Cited Cases

Evidence supported three-point increase to defendant's base offense level for his role as a manager or supervisor; there was testimony that defendant was second-in-command at drug point, and defendant played leadership role in arranging to use informant's apartment for drug trafficking. U.S.S.G. § 3B1.1(b), 18 U.S.C.A.


[8] Sentencing and Punishment 350H 752
350H Sentencing and Punishment

     350HIV Sentencing Guidelines

           350HIV(C) Adjustments

               350HIV(C)2 Factors Increasing Offense Level

                     350Hk752 k. Organizers, Leaders, Managerial Role. Most Cited Cases

After finding that defendant played a role as a leader or manager, sentencing court did not have authority to increase defendant's offense level by only two levels rather than the three levels called for by Guideline. U.S.S.G. § 3B1.1(b), 18 U.S.C.A.


[9] Criminal Law 110 662.7
110 Criminal Law

     110XX Trial

           110XX(C) Reception of Evidence

               110k662 Right of Accused to Confront Witnesses

                     110k662.7 k. Cross-Examination and Impeachment. Most Cited Cases

Confrontation Clause of the Sixth Amendment secures a right to cross-examination in order to test the believability of a witness and the truth of his testimony. U.S.C.A. Const.Amend. 6.


[10] Witnesses 410 372(1)
410 Witnesses

     410IV Credibility and Impeachment

           410IV(C) Interest and Bias of Witness

               410k372 Cross-Examination to Show Interest or Bias

                     410k372(1) k. In General. Most Cited Cases

When a witness's credibility is at issue, the trial court may limit cross-examination as long as the court allows sufficient leeway to establish a reasonably complete picture of the witness's veracity, bias, and motivation.


[11] Criminal Law 110 1139
110 Criminal Law

     110XXIV Review

           110XXIV(L) Scope of Review in General

               110k1139 k. Additional Proofs and Trial De Novo. Most Cited Cases


Criminal Law 110 1153(4)
110 Criminal Law

     110XXIV Review

           110XXIV(N) Discretion of Lower Court

               110k1153 Reception and Admissibility of Evidence; Witnesses

                     110k1153(4) k. Examination of Witnesses. Most Cited Cases

Confrontation clause challenges are reviewed de novo to determine whether defense counsel was afforded a reasonable opportunity to impeach adverse witnesses; once that threshold is reached, the trial court's restrictions on the extent and manner of cross-examination are reviewed only for abuse of discretion.


[12] Witnesses 410 372(2)
410 Witnesses

     410IV Credibility and Impeachment

           410IV(C) Interest and Bias of Witness

               410k372 Cross-Examination to Show Interest or Bias

                     410k372(2) k. Inquiry as to Particular Acts or Facts Tending to Show Interest or Bias. Most Cited Cases

Trial court acted within its discretion in limiting defense's cross-examination of officer regarding corruption of other officers who did not appear as witnesses; there was no allegation that witness himself was corrupt, and cross-examination that attacked other officers' integrity would have done nothing to cast doubt on witness's claims that he personally saw defendant packaging a white powder, that he personally observed field test indicating that powder was cocaine, and that he recognized drugs from laboratory as those seized from defendant.


[13] Witnesses 410 267
410 Witnesses

     410III Examination

           410III(B) Cross-Examination

               410k267 k. Control and Discretion of Court. Most Cited Cases

District court retains wide latitude to impose reasonable limits on cross-examination in order to avoid confusion of the issues or extended discussion of marginally relevant material.
[14] Criminal Law 110 555
110 Criminal Law

     110XVII Evidence

           110XVII(V) Weight and Sufficiency

               110k555 k. Testimony of Interested Persons. Most Cited Cases

The testimony of interested informants is not so inherently unreliable that it must be excluded.
[15] Criminal Law 110 555
110 Criminal Law

     110XVII Evidence

           110XVII(V) Weight and Sufficiency

               110k555 k. Testimony of Interested Persons. Most Cited Cases

Conviction may be based solely on the uncorroborated testimony of a confidential informant so long as the testimony is not incredible or insubstantial on its face.
[16] Criminal Law 110 786(3)
110 Criminal Law

     110XX Trial

           110XX(G) Instructions: Necessity, Requisites, and Sufficiency

               110k786 Credibility of Testimony or Statement of Accused

                     110k786(3) k. Reference to Interest in Event. Most Cited Cases
Witnesses 410 372(2)
410 Witnesses

     410IV Credibility and Impeachment

           410IV(C) Interest and Bias of Witness

               410k372 Cross-Examination to Show Interest or Bias

                     410k372(2) k. Inquiry as to Particular Acts or Facts Tending to Show Interest or Bias. Most Cited Cases

When an informant is paid a contingent fee, the jury must be informed of the exact nature of the contingency agreement; the defense counsel must be permitted to cross-examine the witness about the agreement; and the jury must be specifically instructed to weigh the witness's testimony with care.


[17] Witnesses 410 102
410 Witnesses

     410II Competency

           410II(B) Parties and Persons Interested in Event

               410k91 Interest of Party or Other Person

                     410k102 k. Interest in Criminal Prosecution of Person Injured, Prosecutor, Informer, or Detective or Other Officer. Most Cited Cases

Testimony of paid informant was sufficiently trustworthy to be presented to jury; informant provided detailed descriptions of defendant's participation in drug distribution operation, defendant was allowed to vigorously cross-examine informant, informant acknowledged her compensation, and court instructed jury to weigh informant's testimony with care.


[18] Criminal Law 110 1153(1)
110 Criminal Law

     110XXIV Review

           110XXIV(N) Discretion of Lower Court

               110k1153 Reception and Admissibility of Evidence; Witnesses

                     110k1153(1) k. In General. Most Cited Cases

Court of Appeals reviews evidentiary rulings for abuse of discretion.


[19] Conspiracy 91 45
91 Conspiracy

     91II Criminal Responsibility

           91II(B) Prosecution

               91k44 Evidence

                     91k45 k. Admissibility in General. Most Cited Cases

Evidence that officer saw defendant with drug paraphernalia as he left distribution point was relevant in drug conspiracy prosecution; evidence suggested that defendant was a member of drug ring at that point.


[20] Criminal Law 110 338(7)
110 Criminal Law

     110XVII Evidence

           110XVII(D) Facts in Issue and Relevance

               110k338 Relevancy in General

                     110k338(7) k. Evidence Calculated to Create Prejudice Against or Sympathy for Accused. Most Cited Cases

It is only unfairly prejudicial evidence, not evidence that is prejudicial per se, that is inadmissible. Fed.Rules Evid.Rule 403, 28 U.S.C.A.


[21] Criminal Law 110 338(7)
110 Criminal Law

     110XVII Evidence

           110XVII(D) Facts in Issue and Relevance

               110k338 Relevancy in General

                     110k338(7) k. Evidence Calculated to Create Prejudice Against or Sympathy for Accused. Most Cited Cases

Unfairly prejudicial evidence is evidence having some quality that moves the jury to attribute to it excessive probative value; it is evidence that triggers the mainsprings of human action in such a way as to cause a jury to base its decision on something other than the established proposition in the case. Fed.Rules Evid.Rule 403, 28 U.S.C.A.


[22] Criminal Law 110 338(7)
110 Criminal Law

     110XVII Evidence

           110XVII(D) Facts in Issue and Relevance

               110k338 Relevancy in General

                     110k338(7) k. Evidence Calculated to Create Prejudice Against or Sympathy for Accused. Most Cited Cases

Probative value of evidence that officer saw defendant with drug paraphernalia as he left distribution point was not outweighed by its prejudicial effect in drug conspiracy prosecution. Fed.Rules Evid.Rule 403, 28 U.S.C.A.


[23] Criminal Law 110 1169.5(2)
110 Criminal Law

     110XXIV Review

           110XXIV(Q) Harmless and Reversible Error

               110k1169 Admission of Evidence

                     110k1169.5 Curing Error by Withdrawal, Striking Out, or Instructions to Jury

                         110k1169.5(2) k. Particular Evidence or Prosecutions. Most Cited Cases

Any error in admission of testimony regarding investigations and surveillance of site of drug ring was cured when trial court ordered jury to disregard that portion entirely.
[24] Criminal Law 110 1144.15
110 Criminal Law

     110XXIV Review

           110XXIV(M) Presumptions

               110k1144 Facts or Proceedings Not Shown by Record

                     110k1144.15 k. Custody and Conduct of Jury. Most Cited Cases
Criminal Law 110 1174(1)
110 Criminal Law

     110XXIV Review

           110XXIV(Q) Harmless and Reversible Error

               110k1174 Conduct and Deliberations of Jury

                     110k1174(1) k. In General. Most Cited Cases

It is presumed that juries follow instructions; this presumption may be rebutted on a sufficient showing that the offending testimony reasonably could not have been ignored and that serious prejudice likely resulted.


*40 Lydia Lizarribar-Masini for appellant González-Vázquez.

Mauricio Hernández Arroyo for appellant Hernández-Negrón.

Antonio A. Bazán, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, Chief, Criminal Division, and Camille Vélez-Rivé, Assistant United States Attorney, were on brief, for the United States.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.
LIPEZ, Circuit Judge.

Hector Hernández-Negrón and Waldemar González-Vázquez appeal from their convictions following a trial for conspiracy to distribute controlled substances and aiding and abetting the distribution of controlled substances within one thousand feet of a school. Hernández claims that he received ineffective assistance of counsel when his trial attorney failed to accept a plea bargain as instructed, and that the government then violated his constitutional rights by withdrawing the original plea offer and offering a new “package deal” plea bargain that Hernández could only accept if his two remaining co-defendants also pled guilty. Hernández also argues that the district court misapplied U.S.S.G. § 3B1.1 in finding him to be a “manager or supervisor” of the criminal activity. González challenges the sufficiency of the evidence, arguing that it was based solely on testimony from the government's confidential informant. We reject these arguments (as well as several arguments concerning evidentiary errors) and affirm the convictions and sentence of Hernández and the convictions of González.


I. Background
We recite the facts in the light most favorable to the jury's verdict, consistent with record support. See United States v. Hughes, 211 F.3d 676, 679 (1st Cir.2000). In January 1995, FBI Agent Michael Anderson learned that an individual named Angel González-Ortiz, a.k.a. “Pichi,” headed a gang that distributed illegal drugs at the Luis Palés Matos housing project in Guayama, Puerto Rico. The distribution point was within 1000 feet of the Palés Matos Public School. Anderson opened an investigation, assisted by Agent José Tirado, a Puerto Rico Police officer who had performed some initial investigation of the drug ring. Anderson met with a confidential informant (“CI”), Ramonita Massó-Nieves, who had assisted Agent Tirado in his initial investigation. To corroborate the information provided by Massó, Anderson set up two video surveillance cameras at the drug point, recording numerous drug deals.
In February 1996 a Grand Jury returned a two-count indictment against twenty-two individuals, charging a conspiracy to distribute controlled substances in violation of 21 U.S.C §§ 841(a)(1) & 846 and aiding and abetting the distribution of controlled substances within 1,000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) & 860 and 18 U.S.C. § 2. Shortly after the indictments, the government offered plea bargains to all of the co-defendants. Nineteen of the twenty-two co-defendants accepted a plea bargain; Hernández, González, and Louis Bonano-Serrano went to trial.
The jury trial lasted seven days. Through surveillance videotapes, the jury saw drug transactions involving many of the individuals who had pled guilty. Hernández,*41 González, and Bonano, however, did not appear in these videos. The government attempted to link the defendants to the conspiracy through the testimony of Massó and Agent Tirado. Massó testified that, from her experience working at the drug point, she knew that Hernández, González, and Bonano were the “guilterro” or “triggermen” for Pichi, insuring that the kingpin and his interests were protected. She further testified that González had provided drugs to the distribution point and that Hernández was second in command, after Pichi himself. She also testified that on one occasion Hernández had used her apartment to package drugs, and that she called Agent Tirado to inform him. Agent Tirado confirmed this, testifying that upon arriving at Massó's apartment, he found Hernández and two others sitting around a table packaging a powder that a field test indicated was cocaine. A chemist testified that later laboratory tests also indicated that the substance was cocaine. Tirado also testified that when he stopped González for a traffic violation he found a bag containing drug packaging paraphernalia.
González and Bonano did not offer defense witnesses. Hernández offered one witness: a co-conspirator who had pled guilty, and who testified that Hernández had been with him when Agent Tirado came to Massó's apartment and found them packaging drugs. The jury found Hernández and González guilty on both counts. Bonano was acquitted. Hernández was sentenced to 450 months and González was sentenced to 360 months.
We evaluate Hernández's claims first, turn then to the issues raised by González, and finally address an issue raised by both appellants.
II. Hernández
A. The Plea Bargain
Hernández raises two arguments related to his unsuccessful efforts to obtain a plea agreement from the government. Like all of the twenty-two original co-defendants, Hernández was offered a plea agreement after he was indicted in 1996. Nineteen of the co-defendants accepted the plea bargain and were sentenced to between eighteen and forty-six months. Hernández, however, deferred a decision on the plea offer while preparing a motion to dismiss. After that motion was denied, Hernández moved to compel the government to honor the initial plea agreement. The government responded that there had been no agreement. Rather, there had only been an offer that Hernández had not accepted and that was now withdrawn. The government further stated that it had advised Hernández that “trial preparation in this case would be the same against one or against any of the three co-defendants.”
1. Ineffective Assistance of Counsel
Hernández argues that he received ineffective assistance of counsel because his trial counsel mishandled the plea bargaining process by grossly underestimating Hernández's potential sentence if the case were taken to trial, having stated that Hernández could face a maximum of a ten year prison term when in reality he faced a life sentence (and in fact received thirty-seven and a half years). Additionally, Hernández asserts that his trial counsel failed to accept the plea offer as instructed, allowing the offer to lapse. Hernández asserts that he went so far as to call his sisters in the United States to enlist their help in bypassing his attorney and communicating to the government that he wanted to accept the plea bargain.
[1] If true, Hernández's claims would present a serious ineffective assistance question. See Boria v. Keane, 99 F.3d 492, 496 (2nd Cir.1996) ( “A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable.”); id. at 496-97 (“The decision whether to plead guilty or contest a criminal charge ... must ultimately be left to the client's wishes.”). However, “[w]e have held with *42 a regularity bordering on the monotonous that fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court.” United States v. Berríos, 132 F.3d 834, 841 (1st Cir.1998) (quoting United States v. Mala, 7 F.3d 1058, 1062-63 (1st Cir.1993)); see also United States v. McGill, 952 F.2d 16, 19 (1st Cir.1991); United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.1989); United States v. Costa, 890 F.2d 480, 482-83 (1st Cir.1989).
While there is an exception to this bar in cases “where the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration of the ineffective assistance claim,”United States v. Soldevila-López, 17 F.3d 480, 485 (1st Cir.1994), Hernández's claims require the resolution of factual disputes. We thus follow our usual practice of dismissing this portion of the appeal without prejudice to Hernández raising the ineffective assistance claim in a 28 U.S.C. § 2255 petition. See id.
[2] We note, though, that this seems to be one of the “rare section 2255 cases in which the appointment of counsel [would be] warranted.” Mala, 7 F.3d at 1064. As in Mala, the allegation of ineffectiveness is serious and the record provides some support for the defendant's claim. Under the initial plea agreement that Hernández's trial counsel allegedly refused to accept, Hernández would have likely received forty-six months, given a reduction for acceptance of responsibility and the government's willingness to drop the aiding and abetting count and stipulate that Hernández was only responsible for a fraction of the drugs. Both at the sentencing hearing and in an affidavit filed on appeal, Hernández stated that he had instructed his trial attorney to accept the plea bargain because it was much less severe than the twenty years he was serving on Puerto Rico charges relating to his involvement in the conspiracy.FN1 After trial, Hernández received a sentence of thirty-seven and half years-almost ten times the sentence he would have likely received pursuant to the proposed plea agreement. Moreover, the court ruled that the federal sentence could not be served concurrently with the related twenty year Puerto Rico sentence because the local courts were “too lenient.” We therefore “direct the district court, if appellant petitions for section 2255 relief and demonstrates continued financial eligibility, to appoint counsel for him under 18 U.S.C. § 3006A(a)(2)(B).” Id.
FN1. Three of Hernández's relatives have also filed affidavits stating that Hernández telephoned two of his sisters (who lived in Ohio) to enlist their help in bypassing his attorney and telling the government directly that he wanted to accept the offer.
2. The “Package Deal” Objection
Hernández argues that the government violated his constitutional rights by withdrawing the original plea offer and replacing it with a “package deal” plea that Hernández could only accept if his two remaining co-defendants also pled guilty. Because his co-defendants wanted a jury trial, Hernández says he was unable to accept the agreement and was thus “forced” to go to trial.
[3] Hernández's objections have no merit. First, the government was under no obligation to leave its original plea offer open. At the sentencing hearing, Hernández's counsel conceded that he had never accepted the initial plea offer, instead hoping for success on a motion to dismiss. He further conceded that “while we were waiting for disposition of those motions ... at that point, between all that, the government withdrew.” It is axiomatic that a prosecutor may withdraw a plea offer before a defendant accepts it. See United States v. Papaleo, 853 F.2d 16, 19-20 (1st Cir.1988); see also Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984).
*43[4] Given that the government was entitled to withdraw the initial plea offer, the question becomes whether the government could offer a new “package deal” plea bargain that would be available to Hernández only if his two co-defendants also gave up their right to a jury trial. Assuming that a “package deal” offer was made FN2, it would not violate Hernández's constitutional rights. Although we have expressed concerns with package deal plea agreements, those concerns have no application here. The difficulty with “package deal” plea offers is not the fear that a defendant, like Hernández, will be “forced” to go to trial. Rather, it is the opposite fear that the defendant will involuntarily waive his right to a jury trial because his codefendants will coerce him to accept the plea agreement. See United States v. Martínez-Molina, 64 F.3d 719, 732 (1st Cir.1995). We have held that “[p]ackage plea deals therefore impose special obligations: the prosecutor must alert the district court to the fact that codefendants are entering a package deal, and the district court must carefully ascertain the voluntariness of each defendant's plea.” Id. at 733 (internal citations omitted) (vacating package deal guilty plea when district court did not determine if it was voluntary); see also United States v. Daniels, 821 F.2d 76, 78-79 (1st Cir.1987) (vacating package deal guilty plea when government did not inform trial court about nature of agreement).
FN2. While the record is not entirely clear, it suggests that the government did offer Hernández a “package deal.” In response to Hernández's motion to compel the government to accept its original plea offer, the government stated that “[Hernández's] [c]ounsel was advised in no uncertain terms that ... trial preparation in this case would be the same against one or against any of the three co-defendants.” Moreover, when Hernández informed the trial court that the government had offered a “package deal” arrangement, the trial court seems to have accepted this characterization in deciding that such an arrangement was unproblematic, and the government did nothing to challenge this characterization.
[5] The “voluntariness” concern that the defendant may have been coerced into giving up his right to go to trial obviously does not apply when the defendant does go to trial. It is difficult, then, to understand the constitutional right at stake here. While the “package deal” did limit Hernández's ability to obtain a plea bargain (since the other defendants would also be required to plead guilty), the fact remains that “there is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial. It is a novel argument that constitutional rights are infringed by trying the defendant rather than accepting his plea of guilty.” Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); see also United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir.1987) (rejecting defendant's claim that package deal plea was unconstitutional because it “forced” him to go to trial).
B. Upward Adjustment for Supervisor / Manager Role
[6]Section 3B1.1(b) of the United States Sentencing Guidelines calls for a three point increase to the base offense level “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b); see also United States v. Joyce, 70 F.3d 679, 682 (1st Cir.1995). Hernández claims that the district court erred in ordering a two level upward adjustment pursuant to § 3B1.1(b) because he was not a “manager or supervisor.” Since the determination of whether a defendant played this aggravated role is fact intensive, we will reverse a trial court's determination only if it is clearly erroneous. See United States v. Shrader, 56 F.3d 288, 293 (1st Cir.1995); United States v. Morillo, 8 F.3d 864, 871 (1st Cir.1993).
[7] As the district court noted at the sentencing hearing, Massó testified that *44 Hernández was second in command at the drug point. Moreover, Hernández played a leadership role in arranging with Massó to use her apartment for drug packaging. Thus, there was sufficient evidence for the district court to conclude that the “defendant, in committing the crime, exercised control over, or was otherwise responsible for overseeing the activities of, at least one other person.” United States v. Cali, 87 F.3d 571, 578 (1st Cir.1996)(quoting United States v. Savoie, 985 F.2d 612, 616 (1st Cir.1993)). As such, the imposition of supervisory liability under § 3B1.1(b) was not clearly erroneous.
[8] There is one other issue related to the § 3B1.1(b) determination. Although the court found that § 3B1.1(b) applied, it decided to “give [Hernández] a break on this one” and increase the offense by only two levels rather than the three called for by the guideline. This was error. As we noted in United States v. Rostoff, 53 F.3d 398, 412-14 (1st Cir.1995), § 3B1.1 sets forth a precise adjustment scheme FN3 that cannot be modified by the district court. The Sentencing Commission did not provide for a partial upward adjustment under § 3B1.1, in contrast to other provisions where the Commission authorized the sentencing judge to select an intermediate adjustment. See, e.g.,U.S.S.G. § 2A2.2(b)(3)(D), (E) (intermediate adjustment allowed for injuries considered to be “between” specified categories of injuries); § 3B1.2 (intermediate adjustment allowed for mitigating role “falling between” minimal and minor participation). Therefore, a court may not “forgo the three-level increase called for by U.S.S.G. § 3B1.1(b) and instead impose a two-level increase” when it finds mitigating circumstances. United States v. Cotto, 979 F.2d 921, 922 (2d Cir.1992); see also United States v. Kirkeby, 11 F.3d 777, 778-79 (8th Cir.1993) (“A trial court's only options in cases involving a criminal activity with five or more participants are, therefore, a four-level enhancement under § 3B1.1(a), a three-level enhancement under § 3B1.1(b), or no enhancement at all....”).
FN3. If a crime involves “five or more participants or was otherwise extensive,” the Guidelines provide for a four level enhancement for an “organizer or leader,” U.S.S.G. § 3B1.1(a), and three levels for a “manager or supervisor,” U.S.S.G § 3B1.1(b). For criminal activity on a smaller scale, the Guidelines provide for a two level upward adjustment for all four roles-organizers, leaders, managers or supervisors. SeeU.S.S.G. § 3B1.1(c).
Although the district court erred in adjusting Hernández's offense by two levels rather than three, the government did not cross-appeal. We therefore deem the issue waived and affirm the sentence. See generally United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990).
C. Limits on Hernández's Cross-Examination of Tirado
Hernández objects that the district court improperly limited his cross-examination of José Tirado, a Puerto Rico Police officer working (at the time of the conspiracy) for the Drugs and Narcotics Division in the Guayama area. Agent Tirado testified that acting on a tip from Massó, he obtained a warrant and entered her apartment with Guayama officers Laboy Rólon and Juan Rodríguez. Tirado stated that he found Hernández and two of his co-conspirators packaging a white powder, which field tests indicated was cocaine. The drugs were seized and stored in Rodriguez's locker.
Hernández wanted to cross-examine Tirado about allegations that Rodríguez and other Guayama area officers were corrupt. The district court ruled that while questions on the chain of custody of the drugs would be allowed, “you cannot benefit from somebody else's corruption, and it is immaterial to this case.” The court reasoned that the corruption was “immaterial” because Tirado himself had never been accused of corruption and because the corruption of other officers at the local level did not implicate the federal prosecution.
*45[9][10][11] The Confrontation Clause of the Sixth Amendment secures a right to cross-examination in order to test “the believability of a witness and the truth of his testimony.” United States v. Carty, 993 F.2d 1005, 1009 (1st Cir.1993). The right to cross-examine, however, is not unlimited. When a witness's credibility is at issue, the trial court may limit cross-examination as long as the court allows “sufficient leeway to establish a reasonably complete picture of the witness' veracity, bias, and motivation.” United States v. Laboy-Delgado, 84 F.3d 22, 28 (1st Cir.1996) (internal quotation marks omitted). “Confrontation clause challenges are reviewed de novo to determine whether defense counsel was afforded a reasonable opportunity to impeach adverse witnesses; once that threshold is reached, the trial court's restrictions on the extent and manner of cross-examination are reviewed only for abuse of discretion.” United States v. Balsam, 203 F.3d 72, 87 (1st Cir.2000) (citing United States v. Gomes, 177 F.3d 76, 80 (1st Cir.1999)).
[12] The district court's unwillingness to allow Hernández to question Tirado about the corruption of other police officers did not prevent the jury from obtaining “a reasonably complete picture of the witness' veracity, bias, and motivation.” Laboy-Delgado, 84 F.3d at 28 (emphasis added). While a magistrate judge's pre-trial report adopted by the district court contained evidence that some police officers (including Rodríguez) had behaved corruptly in other drug cases, there was no allegation that Tirado was himself corrupt. Indeed, Tirado provided the United States with information that helped implicate other corrupt officers. Thus, any testimony tending to show that these other officers were dishonest would not implicate Tirado's veracity, bias, and motivation. More concretely, cross-examination that attacked Rodríguez's integrity would do nothing to cast doubt on Tirado's claims that (1) he personally saw Hernández packaging a white powder, (2) he personally observed a field test indicating that the white powder was cocaine, and (3) he recognized the drugs from the laboratory as those seized from Hernández.
[13] Moreover, the district court did not completely bar Hernández from questioning Tirado about Rodríguez. Rather, the court allowed extensive questioning as to how Rodríguez handled the evidence in this case, including the unusually lengthy storage in Rodríguez's locker and the miscounting of the bags of drugs. The district court “retains wide latitude to impose reasonable limits” on cross-examination in order to avoid confusion of the issues or extended discussion of marginally relevant material. United States v. Twomey, 806 F.2d 1136, 1139 (1st Cir.1986). Since Hernández was unable to offer any evidence that Rodríguez corruptly handled the case against Hernández, it was not unreasonable for the court to limit Hernández to questioning Tirado about these concrete factors relating to storage and quantification rather than allowing a broad inquiry into the corruption of third party police officers who were not appearing as witnesses.
III. González
A. Sufficiency of Evidence
González was convicted of conspiracy to distribute controlled substances, 21 U.S.C. §§ 841(a)(1) & 846, and of aiding and abetting the distribution of controlled substances within one thousand feet of a school, 21 U.S.C. §§ 841(a)(1) & 860 and 18 U.S.C. § 2. The evidence tying him to the drug operation came primarily from Massó, a paid government informant. González does not argue that the evidence, taken as a whole, was insufficient. Rather, González claims that “[t]he evidence, excluding Ramonita Massó, is legally insufficient to support appellant's conviction.”(emphasis added). We reject González's sufficiency challenge. His premise that Massó's testimony must be disregarded as *46 “not trustworthy” because of her informant status is unsupportable.
[14][15][16] It is well-established that “the testimony of interested informants is not so inherently unreliable that it must be excluded.” United States v. Cresta, 825 F.2d 538, 546 (1st Cir.1987). A conviction may be based solely on the uncorroborated testimony of a confidential informant “so long as the testimony is not incredible or insubstantial on its face.” United States v. Ciocca, 106 F.3d 1079, 1084 (1st Cir.1997) (quoting United States v. Andújar, 49 F.3d 16, 21 (1st Cir.1995)). While the credibility of an interested informant can be challenged, the challenge should ordinarily be directed to the jury, not the appellate court. Thus, when an informant is paid a contingent fee, “the jury must be informed of the exact nature of the contingency agreement; the defense counsel must be permitted to cross-examine the witness about the agreement; and the jury must be specifically instructed to weigh the witness' testimony with care.” Cresta, 825 F.2d at 546;see also United States v. Fernández, 145 F.3d 59, 62 (1st Cir.1998) (plain error review when defendant does not request the “special care” instruction). When these “established safeguards,” id., are met, we will not disturb a conviction based on the testimony of an interested informant.
[17] Massó's testimony was certainly not “incredible or insubstantial on its face.” Ciocca, 106 F.3d at 1084. She provided detailed descriptions of González's participation in the drug distribution operation. González was allowed to-and did-vigorously cross-examine Massó, suggesting that her testimony was untruthful. Massó admitted that she had started working at the drug point before she made a decision to serve as an informant. González also brought out inconsistencies between Massó's trial testimony-where she identified González as a “triggerman” and recalled an incident when he delivered drugs to the distribution point-and her investigative interviews with Agent Tirado and Agent Anderson. During the closing, González argued that Massó was now lying about González's role due to compensation she had acknowledged on direct: $10,000 for expenses, $10,000 for her availability, and the promise of a “bonus” upon completion of the trial, regardless of its result. Finally, the trial court instructed the jury to weigh Massó's testimony with care.FN4 Despite this admonition, the jury rejected González's defense that Massó was lying and voted to convict. We have no reason to disturb the verdict on sufficiency grounds.
FN4. In addition to receiving a general instruction on witness credibility, the jury was advised that it should consider whether Massó's pre-trial statements were consistent with her testimony at trial and that the testimony of “an informer for pay” must “always be examined and weighed with greater care and caution than the testimony of an ordinary witness.” We assume for the sake of argument that González properly requested these instructions, though the record is unclear. See Fernández, 145 F.3d at 62 (plain error review if “special care” instructions not requested).
B. The Traffic Stop
González argues that the district court erred in failing to strike Agent Tirado's testimony that he saw González with drug paraphernalia as he left the distribution point. Tirado testified that on March 4, 1994, he stopped González for traffic violations as he left the housing project on his motorcycle. A consensual search of González's sports bag revealed a scale, a sieve, plastic containers, and pieces of aluminum-items Tirado recognized as frequently used to process controlled substances. When Tirado told the other officers, “Look what this guy has in here,” González began to run.
[18] After cross-examination of Agent Tirado was complete, González moved to strike the testimony concerning the traffic stop on the grounds that the evidence was irrelevant to the conspiracy charges and, even if relevant, unduly prejudicial under *47Fed.R.Evid. 403. The trial court denied the motion to strike, stating, inter alia, that the evidence was relevant (and more probative than prejudicial) because “he was at the drug point within the time frame of the conspiracy and carrying paraphernalia is consistent with drug trafficking.” We review evidentiary rulings for abuse of discretion. United States v. Rodríguez, 162 F.3d 135, 142 (1st Cir.1998).
[19][20][21][22] The evidence was plainly admissible as relevant evidence of the conspiracy: combined with the testimony of Massó, it suggested that González was a member of the drug ring at the housing project. Likewise, “it is only unfair prejudice, not prejudice per se, against which Rule 403 guards.” United States v. Rivera-Gómez, 67 F.3d 993, 997 (1st Cir.1995). “Unfairly prejudicial evidence is evidence having some quality that moves the jury to attribute to it excessive probative value. It is evidence that ‘triggers [the] mainsprings of human action [in such a way as to] cause a jury to base its decision on something other than the established proposition in the case.’ ” United States v. Currier, 836 F.2d 11, 18 (1st Cir.1987) (quoting 1 Weinstein's Evidence § 403[03], 36-39 (1986)). The items González was carrying did not create a danger of such unfair prejudice. Rather, a reasonable jury could consider the testimony concerning these items as circumstantial evidence of González's involvement in the conspiracy.
IV. Hernández and González
[23] Hernández and González argue that the district court erred in admitting the testimony of Puerto Rico Police Officer Gregorio Durán regarding investigations and surveillance at the Luis Palés Matos housing project. Durán testified that while investigating drug distribution at the housing project he observed Hernández, González, and Bonano acting as Pichi's bodyguards. Cross-examination, however, revealed that Durán was unsure precisely when he saw the co-defendants. Since some of Durán's observations were made before the charged conspiracy, he could not be certain that he had seen the defendants within the time frame of the conspiracy. Surveillance reports that could have been used to clarify when Durán saw the defendants, or to impeach his testimony if the defendants were not mentioned in them, could not be obtained because they were stored in a Puerto Rico facility that OSHA had declared highly contaminated.
In response, Hernández and González requested a mistrial. Although arguing that no mistrial was necessary, the government suggested to the district court that it might strike Agent Durán's testimony and issue a curative instruction. The trial court reasoned that there was no basis for a mistrial-or even for striking the testimony-because 1) the reports were unavailable to the government, 2) there had been no misconduct, and 3) the defendants “have had the chance to cross-examine this witness and really attack his credibility on the grounds that he did not observe the matters within the time frame.” Nonetheless, the court agreed to strike the testimony and issue the cautionary instruction because “the Government wants to do that.” On appeal, González and Hernández claim that Agent Durán's testimony impermissibly bolstered Massó's testimony. Given that Durán's testimony was struck, the only possible legal argument is that the remedy of striking the testimony and issuing a cautionary instruction was insufficient to cure the harms caused by the allegedly inadmissible testimony and that the mistrial the defendants sought should have been granted.
We find no error in the trial court's denial of a mistrial, much less the manifest abuse of discretion required for reversal. See United States v. Rullán-Rivera, 60 F.3d 16, 18 (1st Cir.1995) (“Mistrial is a last resort, to be employed only if the demonstrated harm can be cured by no less drastic means, such as a contemporaneous jury instruction.”). Even assuming that Agent Durán's testimony was inadmissible*48 (an assumption we make solely for the sake of argument), the district court's response-striking the testimony and issuing a curative instruction-was certainly adequate. The court told the jury:

Now, the testimony of Agent Gregorio Durán Malavé concerning his observations that he saw the three defendants providing security service, body guarding “Pichi”, well I am ordering that testimony to be stricken from the record, and I am instructing you to erase it from your mind entirely, the way I told you, the way you swore to obey my instructions and follow the law. So again, I repeat, disregard that testimony, that portion of the testimony, that portion, entirely from your minds.


[24] We presume that juries follow instructions. See United States v. Woodward, 149 F.3d 46, 73 (1st Cir.1998). While this presumption may be rebutted “on a sufficient showing that the offending testimony reasonably could not have been ignored and that serious prejudice likely resulted,”Rullán-Rivera, 60 F.3d at 18, no such showing has been made here. Indeed, Agent Durán's stricken testimony also implicated co-defendant Bonano as a bodyguard for Pichi. The jury, however, acquitted Bonano, indicating that they were not unduly influenced by the testimony.
V. Conclusion
For the reasons stated herein, we affirm the convictions and sentences.
C.A.1 (Puerto Rico),2000.

U.S. v. Gonzalez-Vazquez



219 F.3d 37
END OF DOCUMENT


© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.


The database is protected by copyright ©essaydocs.org 2016
send message

    Main page