UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2376
UNITED STATES,
Appellee,
v.
JOSE SALVADOR ANDUJAR,
Defendant - Appellant.
No. 92-2377
UNITED STATES,
Appellee,
v.
AMADOR IRIZARRY-SANABRIA,
Defendant - Appellant.
No. 92-2378
UNITED STATES,
Appellee,
v.
PEDRO INFANTE,
Defendant - Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Boyle,* Senior District Judge.
Ram n Garc a, by Appointment of the Court, for appellant
Jos Salvador And jar.
Gabriel Hern ndez-Rivera, by Appointment of the Court, on
brief for appellant Amador Irizarry-Sanabria.
Thomas R. Lincoln, by Appointment of the Court, with whom
Law Offices of Thomas R. Lincoln was on brief for appellant Pedro
Infante.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Guillermo Gil, United States Attorney, was on brief for
appellee.
March 6, 1995
* Of the District of Rhode Island, sitting by designation.
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TORRUELLA, Chief Judge. On July 17, 1992, defendants
TORRUELLA, Chief Judge.
Amador Irizarry-Sanabria, Jos Salvador And jar, and Pedro
Infante-Ruiz were convicted by a jury in federal district court
for conspiracy to import approximately 3000 pounds of marijuana
and for the possession of a firearm in relation to the commission
of said narcotics offense, in violation of 21 U.S.C. 952(a)
and 963, and 18 U.S.C. 924(c)(1), respectively. All defendants
now appeal. Jos Salvador And jar alleges that the evidence was
insufficient to support the jury's verdict. Amador Irizarry-
Sanabria (1) challenges the sufficiency of the evidence; (2)
alleges that the district court erroneously instructed the jury
regarding the meaning of reasonable doubt; and (3) maintains that
the district court abused its discretion in precluding the
defense from presenting certain impeachment testimony. Pedro
Infante-Ruiz alleges (1) that the district court misapplied the
United States Sentencing Guidelines (the "Guidelines") in
determining his sentence; and (2) that the jury instructions
impermissibly reduced the government's burden of proof at trial.
For the following reasons, we vacate the conspiracy and
924(c)(1) convictions of Jos Salvador And jar. All other
convictions are affirmed.
I. BACKGROUND
I. BACKGROUND
We recite the facts in the light most favorable to the
government. United States v. Echeverri, 982 F.2d 675, 676 (1st
Cir. 1993). The charges contained in the indictment arose from
an unsuccessful operation to import narcotics into Puerto Rico
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from Colombia. The pertinent facts occurred between September 24
and September 30, 1991, beginning with the co-conspirators'
efforts to recruit William Linder ("Linder") to assist them in a
scheme to import marijuana. These facts came to light because
Linder, unbeknownst to the co-conspirators, was a confidential
informant working for the government.
Linder had resided in the town of Lajas, Puerto Rico,
Papayo Ward, for nearly thirty years. Linder's occupation at the
relevant time was selling oysters from a kiosk adjacent to
Salvi's Tire Center (the "Tire Center"). The Tire Center, as
well as the adjacent kiosk, was owned by Appellant Jos Salvador
And jar ("And jar"), whom Linder had known for approximately
twenty-eight years. Linder had become acquainted with Appellant
Pedro Infante-Ruiz ("Infante") because Infante was a frequent
customer at his oyster stand. Linder knew Appellant Amador
Irizarry-Sanabria ("Irizarry") because he owned a fish market in
the nearby town of La Parguera.
On September 24, 1991, while Linder was at the Tire
Center, he noticed Infante drive up. After Infante and And jar
had a brief conversation, which Linder could not hear, And jar
told Linder that Infante wanted to see him inside the Tire
Center. Infante and Linder met alone in And jar's office, at
which time Infante asked Linder if Linder would use his boat to
retrieve a load of drugs from an ocean rendezvous. Linder
accepted the proposition, and they agreed to meet later the same
day at the Tire Center.
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Linder then left the Tire Center and informed Puerto
Rico Police Agent Am lcar Vargas ("Agent Vargas") of Infante's
illegal offer. Afterwards, he returned to the Tire Center to
wait for Infante, who eventually arrived with Irizarry. Infante
then drove them to a house located in the direction of Barrio
Joyuda (the "Barrio Joyuda House"), where Federico Francisco de
la Paz (a.k.a. "Freddie") was waiting. Also present were two
Colombian nationals, Alberto Enrique Pineda-Wissman ("Pineda")
and an unidentified individual. And jar was not present at this
meeting.
Pineda proceeded to sketch out the plans for the off-
shore drug pick-up. The plan called for Linder to take his boat
to a location near Mona Island, where he would retrieve the drugs
from a speed boat called "La Colombiana." Pineda provided Linder
with a crude map of Mona Island, the coordinates for the intended
rendezvous point, and a list of the radio frequencies on which
the co-conspirators planned to communicate.
Because Linder was unsatisfied with the map of Mona
Island, Infante instructed Irizarry to get him a nautical chart.
Irizarry and Linder then proceeded to Lucas Marine Shop in Cabo
Rojo, where they purchased a nautical ruler, and La Pescader a
Rosa, where they found an appropriate chart. Irizarry paid for
both items.
On their way back to the Barrio Joyuda House, Irizarry
informed Linder that he was to pick up a 3,000 pound load of
marijuana and offered him $100,000 for his efforts. At the
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Barrio Joyuda House, Linder was given $800 to purchase supplies
for the trip. Linder then left the house and bought the
necessary supplies. Before he returned home, he briefed Agent
Vargas on the day's events.
The following day, September 25, 1991, Linder went to
the Tire Center, where And jar instructed him to return the
following day to meet Infante. The next day, as instructed,
Linder returned to the Tire Center. Infante was late for the
scheduled meeting, so And jar, at Linder's request, called
Infante's cellular phone to determine his whereabouts. After the
call, And jar assured Linder that Infante would arrive soon.
Shortly thereafter, accompanied by Irizarry, Infante drove
through the Tire Center's back entrance. Infante ordered Linder
to get in the vehicle quickly so that he would not be seen.
Before proceeding to the Barrio Joyuda House, Infante instructed
And jar to move Linder's car from the front to the back of the
Tire Center.
When Linder, Infante, and Irizarry arrived at the
Barrio Joyuda House, the same group present at the September 24
meeting was already assembled. They discussed revisions in the
plans, and Linder told the group that he would require a gun if
he was to make the journey alone. After a brief consultation
with Infante and Freddie, Irizarry left the house and returned
shortly with a .357 Ruger revolver, which he gave to Linder.
After the meeting dissolved, Linder met with the local police,
who copied the weapon's serial number.
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Before his departure on the evening of September 26,
Linder met with Lt. Gonz lez, a local police officer, and Drug
Enforcement Administration agent Jos Morales ("Agent Morales").
Linder informed them of the specifics of his trip, and the three
agreed to meet the following day at a spot near Mona Island.
Linder surrendered the revolver to the officers at this time.
Linder arrived at Mona Island on the morning of
September 27. He was met later that day by Lt. Gonz lez, Agent
Morales, and several other law enforcement personnel. Linder
left that night for the rendezvous, which was scheduled to take
place the following afternoon.
Although Linder arrived at the rendezvous point at the
appointed hour, the Colombian boat was nowhere to be seen. The
boat never appeared, and attempts to communicate with it by radio
were unavailing. It was close to midnight when Linder finally
decided to head back to Mona Island. The seas were rough, and he
was having engine and radio problems. Eventually, his engine
quit altogether. Linder's boat remained adrift until a large tug
boat stopped to help and called the Coast Guard for assistance.
The Coast Guard arrived and brought Linder on board. Although
they tried to tow his boat back to Mona Island, it sank along the
way.
When Linder eventually arrived back at La Parguera, he
recounted the events to Irizarry, who explained that the
Colombian boat had suffered engine problems and had been unable
to make the trip. During the following days, Linder and the co-
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conspirators met at the Tire Center, where they assured him that
they would get him another boat. Infante cautioned Linder not to
tell anyone about the failed mission and specifically told him
not to communicate over the telephone. Instead, Infante
instructed Linder, "Anytime you want to say something to me, tell
[And jar]. [And jar] will call me and I get with you [sic]."
Several days later, while Linder was at the oyster
kiosk, And jar told him, "My friend came to pick up the gun. He
was looking for the gun. I told him he better go to Mona Island
and look in the mouth of a shark, and he might find it."
Subsequently, the appellants were indicted and
convicted in federal court on charges of conspiracy to import
marijuana and possession of a firearm in relation to the
commission of the offense.
II. SUFFICIENCY OF THE EVIDENCE
II. SUFFICIENCY OF THE EVIDENCE
Both And jar and Irizarry allege that the proof at
trial was insufficient to support their convictions.
A. Standard of Review
A. Standard of Review
The standard of review governing a challenge to the
sufficiency of the evidence is well established. An appellate
court must determine whether a rational jury could find guilt
beyond a reasonable doubt. Echeverri, 982 F.2d at 677; United
States v. Garc a, 983 F.2d 1160, 1163-64 (1st Cir. 1993). In
making this determination, the reviewing court must examine the
evidence, together with all inferences that may be reasonably
drawn from it, in the light most favorable to the prosecution.
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Echeverri, 982 F.2d at 677. Furthermore, the reviewing court
does not evaluate witness credibility, but resolves all
credibility issues in favor of the verdict. Garc a, 983 F.2d at
1164 (quoting United States v. Batista-Polanco, 927 F.2d 14, 17
(1st Cir. 1991)). "The evidence may by entirely circumstantial,
and need not exclude every reasonable hypothesis of innocence;
that is, the factfinder may decide among reasonable
interpretations of the evidence." Batista-Polanco, 927 F.2d at
17. Nevertheless, "[i]f the 'evidence viewed in the light most
favorable to the prosecution gives equal or nearly equal
circumstantial support to a theory of guilt and a theory of
innocence of the crime charged,' this court must reverse the
conviction. This is so because . . . where an equal or nearly
equal theory of guilt and a theory of innocence is supported by
the evidence viewed in the light most favorable to the verdict,
'a reasonable jury must necessarily entertain a reasonable
doubt.'" United States v. S nchez, 961 F.2d 1169, 1173 (5th
Cir.) (citations omitted), cert. denied, 113 S. Ct. 330 (1992).
With the scope of our review thus defined, we move to the
appellants' claims.
B. Conspiracy
B. Conspiracy
To establish a conspiracy conviction, the prosecution
must prove, inter alia, that the defendant entered an agreement
to commit the substantive offense, and that the defendant was a
voluntary participant in the conspiracy. Echeverri, 982 F.2d at
679. The government must prove that the defendant possessed both
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"intent to agree and intent to commit the substantive offense."
Garc a, 983 F.2d at 1165 (citation omitted). However, "[d]ue to
the clandestine nature of criminal conspiracies, the law
recognizes that the illegal agreement may be either 'express or
tacit' and that a '"common purpose and plan may be inferred from
a development and collocation of circumstance."'" United States
v. S nchez, 917 F.2d 607, 610 (1st Cir. 1990)(citations omitted),
cert. denied, 111 S. Ct. 1625 (1991). "Mere presence at the
scene and close association with those involved are insufficient
factors alone; nevertheless, they are relevant factors for the
jury." S nchez, 961 F.2d at 1174 (5th Cir.) (citation omitted)
(emphasis in original).
Irizarry maintains that the evidence against him is
insufficient because it consisted only of Linder's uncorroborated
testimony. While it is true that much of the government's
evidence consisted of the largely uncorroborated testimony of the
confidential informant, Linder, Irizarry's argument fails
nevertheless. As we noted above, an appellate court reviewing
the sufficiency of the evidence must resolve all credibility
determinations in favor of the verdict. This rule of appellate
review applies equally when the evidence centers on the
uncorroborated testimony of a confidential informant, so long as
the testimony is not "'incredible or insubstantial on its face.'"
United States v. G mez-Pab n, 911 F.2d 847, 853 (1st Cir. 1990)
(holding that evidence was not rendered insufficient merely
because it consisted largely of the uncorroborated testimony of a
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paid informer) (quoting United States v. Aponte-Su rez, 905 F.2d
483, 489 (1st Cir. 1990)).
Given that we resolve any credibility issues in favor
of the verdict, we find that Irizarry's sufficiency-of-the-
evidence challenge fails because the record contains ample
support for his conspiracy conviction. A reasonable jury could
infer from Linder's testimony that Irizarry was deeply involved
in the entire operation. According to Linder, Irizarry was
present at the Barrio Joyuda House when the Colombians discussed
the radio frequencies, code names, and coordinates that would be
used for the drug run. Moreover, Irizarry procured the firearm
for Linder and offered Linder $100,000 for his services in
retrieving the marijuana from the off-shore rendezvous with the
Colombians. A jury hearing this evidence could reasonably
conclude that Irizarry was a voluntary participant in an unlawful
scheme to import marijuana. We therefore conclude that the
evidence was sufficient to convict Irizarry of conspiracy to
import narcotics.
And jar also maintains that his conspiracy conviction
is unsupported by the record. Specifically, he claims that the
evidence at trial showed no more than "mere presence" at the Tire
Center. Recently, we noted that "the culpability of a
defendant's presence hinges upon whether the circumstances fairly
imply participatory involvement. In other words, a defendant's
'mere presence' argument will fail in situations where the 'mere'
is lacking." Echeverri, 982 F.2d at 678. Upon a thorough
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scrutiny of the record, we find that the evidence is insufficient
to establish anything more than And jar's mere presence
throughout the conspiracy. That is, the evidence is insufficient
as a matter of law to have permitted a jury to conclude beyond a
reasonable doubt that And jar was a voluntary participant in the
importation conspiracy.
The evidence relating to And jar's alleged
participation in the conspiracy can be fairly summarized as
follows: According to Linder, And jar arranged the original
meeting between Linder and Infante, during which Infante asked
Linder to participate in the marijuana importation scheme.
Though And jar was not present, he allowed Infante to talk
privately with Linder in his office at the Tire Center. No
evidence was presented as to whether And jar knew the subject
matter of this conversation. And jar also orchestrated the
September 26 meeting between Linder and Infante, and when Infante
was late for this meeting, And jar called Infante's cellular
phone and informed him that Linder was waiting at the Tire
Center. When Infante arrived, he ordered And jar to move
Linder's car to the back of the Tire Center. Following Linder's
ill-fated voyage to Mona Island, the co-conspirators used
And jar's Tire Center several times to meet and discuss their
plans. Linder testified that during one of these meetings
And jar had remarked, "My friend came to pick up the gun . . .
and I told him that he better go to Mona Island and look in the
mouth of a shark, [and] he might find it." After Linder's boat
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had sank, Infante ordered Linder to refrain from using the phone
to contact him. Instead, he told Linder, "Any time you want to
say something to me, tell [And jar]. [And jar] will call me and
I get [sic] with you."
The prosecution was required to prove beyond a
reasonable doubt that And jar was a voluntary and knowing
participant in the conspiracy. More specifically, the government
had to establish (1) that And jar intended to agree to the
importation scheme and (2) that he intended to import marijuana
into the United States. From the evidence presented, a jury
could permissibly infer that, at least after the fact, And jar
was aware of many of the details of the bungled attempt to import
marijuana. The evidence is insufficient, however, to permit the
jury to have found that And jar had the requisite specific intent
to import marijuana. Although And jar arranged several meetings
between Linder and Infante, And jar was not present at any of the
co-conspirators' critical planning meetings at the Barrio Joyuda
House. In fact, the prosecution did not introduce any evidence
suggesting that And jar was aware that the meetings concerned a
pending drug deal. We realize, of course, that after-the-fact
knowledge of an illegal conspiracy and presence at the operative
locations are relevant factors for the jury to consider.
Nevertheless, these factors alone are insufficient to establish a
conspiracy conviction.
We do not look at the record through rose colored
lenses; rather, we canvass the record dispassionately, and base
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our decision on proven facts, leaving aside undue speculation.
While And jar's actions are consistent with those of a low level
participant or "middle-man" in the importation scheme, they do
not demonstrate his participation with the certainty necessary
for a criminal conviction. And jar's actions, when seen in light
of the events following Linder's voyage, offer equal support to
both And jar's mere presence theory and the prosecution's theory
that And jar was knowingly acting as a facilitator and go-between
in the conspiracy, which of course constitutes participatory
involvement. In this circumstance, we must find that the
evidence was insufficient to sustain the conviction. When a jury
is confronted, as here, with equally persuasive theories of guilt
and innocence it cannot rationally find guilt beyond a reasonable
doubt. We therefore vacate And jar's conviction for conspiracy
to import marijuana.
C. The Firearm Conviction
C. The Firearm Conviction
And jar also alleges that the evidence against him is
insufficient to support his conviction for possession of a
firearm in relation to the commission of a narcotics offense, in
violation of 18 U.S.C. 924(c)(1).1 We agree. Section
924(c)(1) provides sentencing enhancements if a defendant "during
and in relation to any crime of violence or drug trafficking
crime[,] . . . uses or carries a firearm." 18 U.S.C.
924(c)(1). "By its terms, the statute requires the prosecution
1 For reasons unknown, the government failed to address this
issue in its brief on appeal.
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to make two showings. First, the prosecution must demonstrate
that the defendant 'use[d] or carrie[d] a firearm.' Second, it
must prove that the use or carrying was 'during and in relation
to' a 'crime of violence or drug trafficking crime.'" Smith v.
United States, 113 S. Ct. 2050, 124 L.Ed.2d 138, 147 (1993).
Both elements are absent here. First, there is no
evidence that And jar used or carried the gun the conspirators
gave to Linder. Second, there was insufficient evidence to
convict And jar of a crime of violence or drug trafficking crime.
Consequently, liability under 924(c)(1) is inapplicable.
Accordingly, we vacate his conviction for the 924(c)(1)
firearms count as well.
II. JURY INSTRUCTIONS
II. JURY INSTRUCTIONS
Both Irizarry and Infante challenge the jury
instructions given by the district court. However, because
neither appellant raised an objection to the jury charge at
trial, we review the instructions only for plain error, that is,
"'errors so shocking that they seriously affect the fundamental
fairness and basic integrity' of the trial." United States v.
Mej a-Lozano, 829 F.2d 268, 272 (1st Cir. 1987) (citation
omitted); see also Fed. R. Crim. P. 30 and 52(b). We gauge each
challenged instruction in the context of the charge as a whole,
not in isolation. United States v. Boylan, 898 F.2d 230, 244
(1st Cir. 1990).
A. Definition of Reasonable Doubt
A. Definition of Reasonable Doubt
Irizarry contends that the court's instructions
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regarding the definition of reasonable doubt constituted plain
error. The court instructed the jury that:
a reasonable doubt is a doubt based upon
reason and common sense. Proof beyond a
reasonable doubt must, therefore, be
proof of such a convincing character that
a reasonable person would not hesitate to
act upon it.
. . .
So if you, the jurors, after a careful
and impartial consideration of all the
evidence in the case have a reasonable
doubt, it means, then, that you would
hesitate to act and find the defendants
guilt [sic] of the charge, and if that
happens, therefore, you must acquit.
We have repeatedly warned against attempting to define
reasonable doubt, noting that "[m]ost efforts at clarification
result in further obfuscation of the concept." United States v.
Campbell, 874 F.2d 838, 843 (1st Cir. 1989) (citations omitted).
Further, "[m]any definitions reduce the burden of proof on the
government by expanding the degree of doubt permissible, and
consequently such definitions result in increased appellate
litigation." Id. (citations omitted). Nevertheless, a district
court does not necessarily commit reversible error by attempting
to define the concept of reasonable doubt for the jury. See
United States v. Rodr guez-Cardona, 924 F.2d 1148, 1160 (1st
Cir.), cert. denied, 112 S. Ct. 54 (1991). "[O]ur experience has
been that even imperfect formulations usually meet constitutional
requirements when viewed in the context of the entire charge."
Watkins v. Ponte, 987 F.2d 27, 32 (1st Cir. 1993) (citation
omitted). Therefore, appellate courts must tolerate a reasonable
range of expression. Id.
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When evaluating a district court's definition of
reasonable doubt, an appellate court's ultimate concern is
whether the instruction has a tendency to reduce the government's
burden of proof at trial. See United States v. Nolasco, 926 F.2d
869, 871 (9th Cir.) ("The challenge confronting a court that
would define reasonable doubt is to avoid language that may
'mislead the jury into finding no reasonable doubt when in fact
there was some.'"), cert. denied, 112 S. Ct. 111 (1991) (quoting
Holland v. United States, 348 U.S. 121, 140 (1954)). "A criminal
defendant is entitled to an instruction that '"adequately
apprise[s] the jury of the reasonable doubt standard."'"
Campbell, 874 F.2d at 842 (citation omitted). The United States
Supreme Court has suggested that an acceptable definition would
define reasonable doubt as "the kind of doubt that would make a
person hesitate to act." Holland, 348 U.S. at 140. Deviations
from the "hesitate to act" language have often constituted
reversible error, especially where the language likens reasonable
doubt to doubt which would cause one to act, rather than hesitate
to act. See, e.g., United States v. Noone, 913 F.2d 20, 29 n.14
(1st Cir. 1990), cert. denied, 500 U.S. 906 (1991); United States
v. Col n-Pag n, 1 F.3d 80, 81 (1st Cir. 1993) (Where the court
defined "guilt beyond a reasonable doubt" as "proof of such a
convincing character that a person . . . would be willing to rely
and act upon it," it committed plain error because the
instruction may have given the jury the incorrect impression that
it could convict the defendant "upon the basis of evidence no
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stronger than might reasonably support a decision to go
shopping.").
In Noone, 913 F.2d at 29 n.14, we approved an
instruction nearly identical to the one under consideration here,
and noted that the contested language was essentially the
converse of the accepted "hesitate to act" formulation. The
instruction here says that "a reasonable doubt is a doubt based
upon reason and common sense. Proof beyond a reasonable doubt
must, therefore, be proof of such a convincing character that a
reasonable person would not hesitate to act upon it." The
Supreme Court has suggested that a reasonable doubt is one which
would cause a reasonable person to hesitate to act. As we noted
in Noone, the language here is essentially the converse of the
Supreme Court's formulation -- that is, if a reasonable doubt
makes a reasonable person hesitate to act, proof beyond a
reasonable doubt is proof upon which a reasonable person would
not hesitate to act. While we are concerned with all district
court efforts to define reasonable doubt, especially those that
deviate from the Supreme Court's "hesitate to act" language, we
nevertheless do not find that the present formulation
impermissibly shifted the government's burden of proof. This
conclusion is buttressed by the fact that the jury instructions
also included the permissible "hesitate to act" language. The
court instructed: "So if you, the jurors, after a careful and
impartial consideration of all the evidence in the case have a
reasonable doubt, it means, then, that you would hesitate to act
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. . . and if that happens, therefore, you must acquit." This
instruction tracked the Supreme Court's formulation, and,
consequently, it decreased the likelihood that the instructions,
as a whole, mislead the jury. We think these instructions, as a
whole, adequately apprised the jury of the gravity of the proof-
beyond-a-reasonable-doubt standard, and, therefore, we cannot say
that the instruction was plainly erroneous.
B. Reference to "Guilt or Innocence"
B. Reference to "Guilt or Innocence"
Infante argues that the district court's reference to
the defendants' "guilt or innocence" in the jury instructions
constituted plain error.
The jury instructions at issue read as follows:
I caution you[,] members of the jury[,]
that you are here to determine the guilt
or innocence of the accused from the
evidence in the case. You know that
these defendants are not on trial for any
other act or any other conduct that is
not alleged in this Indictment.
Neither are you called upon to return a
verdict as to the guilt or innocence of
any other person or persons not on trial
here. So you are not being asked to
decide the case of Felipe Francisco or
the case of Mr. Pineda-Wissman.
Infante claims that the references to the "guilt or innocence" of
the defendants diminished the presumption of innocence and
impermissibly reduced the government's burden of proof at trial.
He contends that the language may have confused the jury as to
the proper standard of proof, noting that a defendant is never
required to prove his innocence. He points out that jurors are
called upon only to decide whether the prosecution has proven the
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defendant guilty beyond a reasonable doubt, not whether the
defendant is innocent.
We have previously warned district courts against using
a "guilt or innocence" comparison. United States v. Mendoza-
Acevedo, 950 F.2d 1, 4 (1st Cir. 1991). Faced with nearly
identical jury instructions, we noted that "[w]hen a court
repeatedly tells jurors that the question is one of guilt or
innocence, it risks undercutting the government's burden by
suggesting that they should find the defendant guilty if they
think he is not innocent--regardless of how convincing the
government's proof has been." Id. We repeat here that, due to
the risks of misleading the jury, district courts should refrain
wherever possible from using a "guilt or innocence" comparison in
their jury instructions.
Despite this admonishment, however, we need not reverse
the defendants' convictions. As in Mendoza-Acevedo, our review
of the entire charge convinces us "that any confusion engendered
by the inappropriate references to 'guilt or innocence' was
offset by the court's careful and clear discussion of the
presumption of innocence and the government's burden of proof."
Id. (citations omitted). The court informed the jury that "[t]he
law presumes a defendant to be innocent of a crime. Thus, a
defendant, although accused, begins the trial with a clean
slate." It further charged the jury that "the presumption of
innocence alone is sufficient to acquit the defendant, unless the
jurors are satisfied beyond a reasonable doubt of the defendant's
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guilt after a careful and impartial consideration of all the
evidence in the case." In closing, the court instructed the
jurors that "[if they], after a careful and impartial
consideration of all the evidence in the case[,] have a
reasonable doubt, it means . . . [they] must acquit." These
instructions were adequate to ensure that the jury was informed
of the government's burden of proof at trial and of the
presumption of innocence cloaking criminal defendants. We,
therefore, can find no plain error in the district court's jury
instructions.
III. INFANTE'S SENTENCING GUIDELINES CHALLENGE
III. INFANTE'S SENTENCING GUIDELINES CHALLENGE
Infante claims that the district court misapplied the
United States Sentencing Guidelines in determining his sentence.
Specifically, he contends that the district court erred when it
found that he was a "leader or organizer" and consequently added
four points to his base offense level, pursuant to U.S.S.G.
3B1.1(a).2
Factbound matters related to sentencing, such as the
district court's determination of a defendant's "role in the
offense," need only be supported by a preponderance of the
2 U.S.S.G. 3B1.1 states:
Based on the defendant's role in the
offense, increase the offense level as
follows:
(a) If the defendant was an organizer
or leader of a criminal activity that
involved five or more participants or was
otherwise extensive, increase by 4
levels.
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evidence and will be set aside on appeal only for clear error.
United States v. Corcimiglia, 967 F.2d 724, 726 (1st Cir. 1992).
The Guidelines suggest that the sentencing court should
consider the following factors when determining whether the
defendant was a leader or organizer:
[T]he exercise of decision making
authority, the nature of participation in
the commission of the offense, the
recruitment of accomplices, the claimed
right to a larger share of the fruits of
the crime, the degree of participation in
planning or organizing the offense, the
nature and scope of the illegal activity,
and the degree of control and authority
exercised over others.
U.S.S.G. 3B1.1, comment. (n.4).
Infante contends that he could not have been the leader
or organizer because the entire deal was clearly run by Francisco
de la Paz. This contention, however, overlooks the fact that
"[t]here can, of course, be more than one person who qualifies as
a leader or organizer of a criminal association or conspiracy."
U.S.S.G. 3B1.1, comment. (n.3). Our review of the record
convinces us that although Francisco de la Paz may have been
running the show, the district court did not commit clear error
in determining that Infante had a leadership role in the
operation. After the sentencing hearing, the district court
stated:
I am now more convinced than ever,
after having heard the testimony of Mr.
Pedro Infante, that Mr. Pineda served as
the intermediary. He was the person who
had the contacts. The drug deal was
being arranged, mainly, mainly on behalf
of Francisco de la Paz, also known as
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Freddy.
His personal contact, or principal man,
was Mr. Infante-Ruiz, and in that sense
he was the leader, a leader and
organizer.
. . .
[T]his defendant [Infante] assumed a
leader/organizer role in the commission
of the instant offense as he negotiated
the importation scheme with the Colombian
drug source through an intermediary who
is also a codefendant, was aware at all
times as to the logistical elements of
the intended importation scheme,
recruited at least one of the
codefendants to take charge of the
supportive services to include securing
the boat, captain, and individuals to
assist in the importation, storage, and
subsequent distribution of the marijuana
load, and, finally, provided payments to
the confidential informant to assure
readiness of the vessel to be used in the
rendezvous with the mother ship.
We find that the district court's factual conclusions are
supported by the record and fully justify its determination that
Infante was a leader or organizer in the conspiracy. We
therefore affirm Infante's sentence.
IV. THE EVIDENTIARY RULING
IV. THE EVIDENTIARY RULING
Irizarry contends that the district court abused its
discretion when it excluded the testimony of defense witness
Humberto Hern ndez-L pez ("Hern ndez"). In order to impeach
Linder's credibility, the defense intended to have Hern ndez
testify regarding an incident in which Linder had allegedly
broken a promise he had made to Hern ndez. The incident involved
Linder's alleged failure to pay for some fishing nets that he had
apparently purchased from Hern ndez on credit. Although the jury
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had already learned of the incident through the defense's cross-
examination of Linder, the defense desired to have Hern ndez
testify as to his version of the event.
It is well settled that a party may not present
extrinsic evidence of specific instances of conduct to impeach a
witness on a collateral matter. United States v. Tejada, 886
F.2d 483, 487 (1st Cir. 1989); Fed. R. Evid. 608(b).3 "A matter
is considered collateral if 'the matter itself is not relevant in
the litigation to establish a fact of consequence . . . .'"
United States v. Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993)
(quoting 1 McCormack on Evidence 45, at 169 (4th ed. 1992)).
Here, the incident relating to the fishing nets was
only relevant to impeach the credibility of Linder. It was
irrelevant to the substance of the case -- the conspiracy and
firearms charges -- and was, therefore, a collateral matter.
Consequently, the district court did not abuse its discretion
3 Rule 608 provides in part:
(a) Opinion and reputation evidence of
character. The credibility of a witness
may be attacked or supported by evidence
in the form of opinion or reputation, but
subject to these limitations: (1) the
evidence may refer only to character for
truthfulness or untruthfulness . . . .
(b) Specific instances of conduct.--
Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting the witness' credibility . . .
may not be proved by extrinsic evidence.
They may, however, in the discretion of
the court, if probative of truthfulness
or untruthfulness, be inquired into on
cross-examination of the witness . . . .
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when it excluded the testimony of Hern ndez and limited
discussion of the fishing net incident to the defense's cross-
examination of Linder.4
V. CONCLUSION
V. CONCLUSION
For the foregoing reasons, And jar's convictions are
vacated. All other convictions are affirmed.
4 Irizarry also contends, in the alternative, that Hern ndez
should have been allowed to offer opinion and reputation
testimony regarding Linder's character for truth and veracity.
The district court excluded this testimony after it concluded
that Hern ndez was "not really acquainted with Linder" and thus
lacked sufficient knowledge to proffer an opinion of Linder's
character. This conclusion contains adequate support in the
record and does not constitute an abuse of discretion.
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