February 27, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1337
UNITED STATES,
Appellee,
v.
VIVIENE LEE HOPKINS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Torruella, Chief Judge,
Aldrich, Senior Circuit Judge,
and Stahl, Circuit Judge.
Lydia Lizarribar-Masini, by Appointment of the Court, for
appellant.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Guillermo Gil, United States Attorney, and Rosa Emilia
Rodr guez-V lez, Executive Assistant United States Attorney, were
on brief for appellee.
CORRECTED
Per Curiam. Appellant Viviene Lee Hopkins ("Hopkins")
Per Curiam.
challenges her conviction after a jury trial for importation and
possession with intent to distribute cocaine, in violation of 21
U.S.C. 841(a)(1), 952(a), and 955. Hopkins' appeal rests on
two grounds. First, she claims that her conviction is not
supported by sufficient evidence, see Fed. R. Crim. P. 29.
Second, she claims that the government's use during cross-
examination of information not provided to defense counsel before
trial constituted prosecutorial misconduct, and deprived her of
her right to a fair trial. For the following reasons, we affirm.
BACKGROUND
BACKGROUND
We summarize the evidence in the light most favorable
to the government. United States v. Abreu, 952 F.2d 1458, 1460
(1st Cir.), cert. denied, U.S. , 112 S. Ct. 1695, 118
L.Ed.2d 406 (1992). Hopkins arrived at the Luis Mu oz-Mar n
International Airport in San Juan, Puerto Rico on the morning of
January 4, 1993 on a flight from St. Maarten, Netherlands
Antilles. When Hopkins deplaned, United State Customs Service
Inspector Stephanie O'Gorman asked Hopkins for her Customs
Declaration Form. The form noted Hopkins' purchase of a stereo.
Hopkins also had the sales receipt for the stereo, which was
admitted as evidence at trial. Hopkins was carrying a large
stereo box, a small bag, and a handbag. When questioned, Hopkins
claimed that she had not yet opened the stereo box.
In Inspector O'Gorman's experience, stereos and other
electronic appliances are often used to hide and transport
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narcotics. O'Gorman became suspicious because Hopkins had so
little luggage, had only spent three days in St. Maarten, and did
not have a suntan. Acting on this experience and suspicion,
O'Gorman conducted an X-ray examination of the stereo box.
The X-ray examination revealed "some shadow areas"
shaped like packages in the stereo, so O'Gorman decided to search
the stereo box and its contents. When lifting the stereo out of
the box, O'Gorman noticed that it was unusually heavy, and that
the view inside the stereo's back panel was blocked by black
electrical tape. Using some keys, O'Gorman touched the area and
felt what she believed to be a package moving. She then decided
to remove the stereo's back panel. During this search, O'Gorman
noticed that Hopkins seemed to become increasingly nervous.
As she was pulling off the stereo's back panel,
O'Gorman noticed that the attaching screws were scratched, as if
someone had already tried to remove them. As she pulled the back
panel apart, O'Gorman could see a package inside the stereo.
When the panel was removed, O'Gorman found five rectangular
packages wrapped in electrical tape. The packages, it turned
out, contained approximately 5.7 kilograms of cocaine.
Subsequently, Hopkins was arrested and indicted on
three counts of importation and possession with intent to
distribute. She pled not guilty at her arraignment. During a
two-day jury trial, defense counsel moved for judgment of
acquittal pursuant to Fed. R. Crim. P. 29 at the close of the
prosecution's case. The defense did not, however, renew its
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motion before the close of trial after presenting its own
evidence. The jury found Hopkins guilty on all counts.
ANALYSIS
ANALYSIS
A. Sufficiency of the Evidence
A. Sufficiency of the Evidence
Hopkins appeals her conviction on the ground that the
evidence was insufficient to convict her of the charges.
Generally, our standard of review for sufficiency of the evidence
appeals requires us to review the record to determine whether the
evidence and reasonable inferences therefrom, taken as a whole
and in the light most favorable to the prosecution, would allow a
rational jury to determine beyond a reasonable doubt that the
defendant was guilty as charged. United States v. Mena-Robles, 4
F.3d 1026, 1031 (1st Cir. 1993). It is settled law, however,
that when a defendant moves for judgment of acquittal at the end
of the prosecution's case, but then fails to renew the motion
after presenting her own case, she waives the original motion.
United States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992).
Because the motion is deemed waived, then, the defendant forfeits
the benefit of the customary standard of review, "thereby
negating any claim of evidentiary insufficiency unless affirming
the conviction would work a 'clear and gross injustice'." Id. at
980 n.2 (quoting United States v. Cheung, 836 F.2d 729, 730 n.1
(1st Cir. 1988) (per curiam)).
Keeping this standard in mind, our reading of the
record does not reveal any such injustice. On the contrary, it
appears that, even if we were to apply the customary standard of
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review, Hopkins' conviction is amply supported by admissible
evidence, particularly the testimony of Inspector O'Gorman.
Moreover, although Hopkins argues that the government
offered only circumstantial evidence of her knowledge of the
illegal contents of her stereo, this argument is unavailing. We
resolve all credibility issues in favor of the verdict. United
States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993). The
evidence may be entirely circumstantial and need not exclude
every reasonable hypothesis of innocence; the factfinder may
decide among reasonable interpretations of the evidence. Id.
(quoting United States v. Batista-Polanco, 927 F.2d 14, 17 (1st
Cir. 1991). Here, the jury was entitled to reasonably infer
Hopkins' knowledge of the stereo's contents, and to reject her
testimony on her own behalf at trial to the effect that she
lacked the requisite knowledge.
Because we find no indicia of "clear or gross
injustice" surrounding her conviction, and find that her
conviction is supported by sufficient evidence, we reject
Hopkins' sufficiency of the evidence challenge.
B. Prosecutorial Misconduct
B. Prosecutorial Misconduct
Hopkins' second claim on appeal involves events
surrounding the prosecution's cross-examination of Hopkins on the
second day of trial. Upon taking the stand in her own defense,
Hopkins testified about buying the stereo, but averred that she
did not remember the salesperson who sold her the stereo in St.
Maarten. During its cross-examination of Hopkins, presumably in
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an impeachment attempt, the government confronted Hopkins with a
document containing information that the salesperson who sold the
stereo had been identified, and remembered selling it not to
Hopkins but to a man.1
This cross-examination continued without objection from
defense counsel. The government did not offer the impeachment
document into evidence. At the conclusion of this cross-
examination, the government provided defense counsel with a copy
of the impeachment document, and defense counsel then requested a
bench conference. During the conference, defense counsel
explained to the court that, in conducting its own investigation,
the defense had interviewed the salesperson and had come away
with a different story than that contained in the impeachment
document.
At counsel's request, the court granted the defense
time, until after the lunch recess, to either locate another
witness to testify or to decide whether counsel would take the
stand and testify about the salesperson's prior inconsistent
statements. After the lunch recess, however, defense counsel had
apparently abandoned the matter, and called no witnesses
regarding the salesperson's statements or the impeachment
document's information.
Hopkins now claims on appeal that the government's use
of the impeachment document constituted prosecutorial misconduct,
1 The government explains that it had just received a facsimile
transmission from the St. Maartens' police force, reporting this
information, that very morning.
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and prejudiced her ability to obtain a fair trial. Because no
objections to the cross-examination or the use of the impeachment
document were made during trial, however, our standard of review
is for "plain error." United States v. Montas, 41 F.3d 775, 779
(1st Cir. 1994); United States v. Rosales, 19 F.3d 763, 765 (1st
Cir. 1994); see Fed. R. Crim. P. 52(b). Under this standard, we
will reverse only if the error seriously affected the fairness,
integrity, or public reputation of the judicial proceedings,
Rosales, 19 F.3d at 765, or where a miscarriage of justice has
occurred. United States v. Olivio-Infante, 938 F.2d 1406, 1411
(1st Cir. 1991).
We find it difficult to discern any error here, much
less that rising to the level of "plain error." Hopkins,
somewhat cryptically, claims that the government unfairly
withheld information from the defense in violation of the
discovery rule, Fed. R. Crim. P. 16(a)(1)(A), which requires the
government to provide the defense with "the substance of any oral
statment which the government intends to offer in evidence at the
trial . . . . " (emphasis added). The problem with this
argument, however, is that the government did not offer the
document or its contents into evidence; indeed, its use of the
document was spurred solely by Hopkins' testimony on the stand,
the substance of which the government could not have anticipated
in exact detail. We have held that although Rule 16 encompasses
statements that the government believes it will likely introduce
in rebuttal as well as in its case-in-chief, the rule does not
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and cannot encompass statements that the government, at the
outset, does not know about, has no reason to find out about or
take note of, and would be unlikely to introduce at trial.
United States v. Ferrer-Cruz, 899 F.2d 135, 140 (1st Cir. 1990).
Similarly, the government cannot be required to anticipate every
possible defense, assume what the defendant's trial testimony may
be, and then furnish the defense with otherwise irrelevant
material that might be used for impeachment. Id. (quoting United
States v. Gleason, 616 F.2d 2, 25 (2d Cir. 1979), cert. denied,
444 U.S. 1082 (1980), and cert. denied sub nom. Carter v. United
States, 445 U.S. 931 (1980)). Because the government only
received the information that morning,2 provided counsel with a
copy of the document at trial, and did not introduce the document
into evidence but only used it to impeach Hopkins, we find that
the government did not violate Rule 16's discovery requirements.
Finally, we do not agree with Hopkins' contentions that
the use of the document to impeach her was unfairly prejudicial.
We do not see how the use of the document could have inflamed or
misled the jury. In fact, if the document had been introduced
2 Of course, Rule 16 imposes a continuing duty on the government
to disclose discoverable evidence that comes to light throughout
the course of the proceedings. Ferrer-Cruz, 899 F.2d at 140. In
this case, the government did provide defense counsel with the
document at the trial that day, after receiving the document in
the morning. The defense certainly received the document with
ample time to analyze it. Its failure to address or respond to
the government's use of the document in its own case seems to be
a tactical decision, rather than a result of unfair surprise.
Indeed, defense counsel never requested a continuance or filed an
objection to the document, which it would have been entitled to
do.
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into evidence, it may have actually aided Hopkins' defense, as it
would have provided the jury with an alternative theory about who
may have purchased the stereo. In any event, the document was
only used to impeach Hopkins' testimony and was not offered as
evidence. We simply do not see any error here.3
CONCLUSION
CONCLUSION
For the foregoing reasons, Hopkins' conviction is
affirmed.
3 As the government points out in its brief, even if the
government's use of the document were error, it could only be
termed harmless error in light of the abundance of evidence of
Hopkins' culpability, and certainly would not rise to the level
of error required for reversal.
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