[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1706
UNITED STATES,
Appellee,
v.
DONALD PAUL DESIR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Scott F. Johnson and Stein, Volinsky & Callaghan, P.A. on
brief for appellant.
Margaret E. Curran, United States Attorney, and Edwin J. Gale,
Assistant United States Attorney, on brief for appellee.
May 24, 1999
Per Curiam. Upon careful review of the briefs and
record, we conclude that this appeal clearly presents no
substantial issue and that oral argument would not be of
assistance to us. We note that many of defendant's appellate
contentions are raised for the first time in this court.
1. Entrapment. The confidential informant's
testimony provided sufficient evidence that defendant was not
entrapped. The jury apparently found the confidential
informant credible notwithstanding his legal and financial
motivations. This court cannot second-guess that credibility
assessment, and the jury was not required to accept defendant's
interpretation of the events. The jury instruction regarding
entrapment was not plainly erroneous: the government's burden
of proof and the element of predisposition were adequately
described.
2. Outrageous conduct. The reverse sting was not
per se outrageous, even if it involved a paid informant and
some level of "furtiveness, duplicity, and manipulation." See
United States v. Gifford, 17 F.3d 462, 470-71 (1st Cir. 1994).
On the evidence presented, and had the issue been raised, it
would have been reasonable to conclude that the investigatory
methods employed by the government were not improper, let alone
outrageous.
3. Jury conduct. The district court's response to
the jury's note about a "moral issue" was well within its
discretion. The import of the note was clear enough, and the
district court had no cause to investigate the matter or deal
with it in any other way. The note did not signal a deadlock,
and there were no evident grounds for a mistrial.
We cannot say that the circumstances in which the
jury reached unanimity warrant reversal in this case, nor can
we say that the district court was required sua sponte to
inquire further into the matter.
4. Indictment. Even were defendant's belated
challenge to the indictment not deemed waived, see Fed. R.
Crim. P. 12(b)(2) & (f), in any event, the starting date of the
conspiracy was not an essential element of the instant offense.
See United States v. Nunez, 668 F.2d 10, 11-12 (1st Cir. 1981).
5. Jury instructions. Defendant's new objections
to the instructions on flight, possession, and reasonable doubt
do not pass the plain error test. The flight instruction
properly allowed the jury to decide whether or not an inference
of guilt was reasonable under the circumstances, and no more
was required. See United States v. Rose, 104 F.3d 1408, 1417
(1st Cir. 1997). Actual possession was not an issue in this
case, and the district court adequately defined constructive
possession. The reasonable doubt instruction did not require
any more specific definition, and the district court's comment
about the possible sources of reasonable doubt did not dilute
the government's burden of proof. Taking the instructions as
a whole, we perceive no likelihood that the jury misunderstood
its obligations, notwithstanding that the word "should" may
have appeared in the burden of proof instructions.
6. Drug quantity. Defendant's sentencing factor
manipulation claim fails because there was no showing of
"extraordinary misconduct." See United State v. Montoya, 62
F.3d 1, 4 (1st Cir. 1995). Even assuming that defendant's
argument about U.S.S.G. 2D1.1 note 12 were properly presented
to the district court and preserved for review, we cannot say
that the district court clearly erred in attributing 5
kilograms of cocaine to defendant, there being adequate
evidence of defendant's intention and capability to proceed
with the deal he negotiated.
7. Prior conviction. On the present record, and
in the context of defendant's challenge to the information
filed under 21 U.S.C. 851, the district court correctly
followed federal precedent and counted defendant's prior
conviction. The plea was not infirm, even assuming that
defendant was not informed about deportation consequences,
because deportation is a collateral, as opposed to direct,
consequence of an alien-defendant's conviction and therefore
legally irrelevant to the plea. See United States v. Quin, 836
F.2d 654, 655 (1st Cir. 1988), (citing, e.g., United States v.
Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988)).
However, in light of the pending proceedings in the
state courts, we recognize that there exists the possibility
that the prior conviction could be vacated, in which event
defendant may at that time bring that fact to the district
court's attention, and seek appropriate sentencing relief in a
proceeding under 28 U.S.C. 2255. We intend no prediction of
the outcome of any such future proceeding.
8. Motions. Counsel's motion to withdraw is
denied. Defendant's pro se motion to dispense with oral
argument is moot. Defendant is reminded that he is still
represented by counsel, and, although he was granted leave to
file a pro se supplemental brief, he has not been granted leave
to file any other pro se filings in this court.
Defendant's pro se motion for summary reversal is
denied as frivolous, to the extent that it is based on the
government's non-specific response to a portion of defendant's
pro se brief. To the extent that the motion is based on
defendant's sister's affidavit raising a new allegation of jury
misconduct, the motion is denied without prejudice. We will
not consider the allegation raised for the first time on
appeal, which must be submitted to the district court in the
first instance. We intend no comment on its merits, if any.
Affirmed. See 1st Cir. Loc. R. 27.1.