[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1522
UNITED STATES OF AMERICA,
Appellee,
v.
JERRY RESTO-DIAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Lipez, Circuit Judges.
Joseph Frattallone Marti, by appointment of the court, for
appellant.
Warren Vázquez, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco and
Camille Vélez-Rivé, Assistant United States Attorneys, were on
brief, for appellee.
March 17, 2000
Per Curiam. After a five-day trial, a jury found
defendant-appellant Jerry Resto-Díaz (Resto) guilty of two
counts of carjacking, each with intent to cause death or serious
bodily harm,1 18 U.S.C. § 2119, and two related firearms
offenses, 18 U.S.C. § 924(c). The district court sentenced
Resto to life imprisonment. Resto appeals. We affirm.
The appellant advances only a single assignment of
error, contending that the trial judge committed reversible
error in refusing to declare a mistrial when a government
witness, Agent Francisco Ng of the Federal Bureau of
Investigation, blurted out an inadmissible and incriminating bit
of hearsay during his direct examination (despite forewarning
from the prosecutor).2 Defense counsel objected and the court
immediately struck the offending testimony, cautioning the jury
to disregard it.
Further proceedings ensued outside the jury's earshot.
The appellant moved for a mistrial, claiming irretrievable
prejudice. Following a voir dire examination of Agent Ng, the
1
The proof showed conclusively that the carjackers shot and
killed one of the victims, Eliezer Ortiz-Rodríguez, in cold
blood.
2
Agent Ng testified that, upon interviewing a witness, the
witness mentioned that one of the alleged perpetrators "had
confided . . . that Eduardo Rodríguez Vásquez and Jerry Resto-
Díaz had committed the carjacking."
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court supportably found that the insertion of the "double
hearsay" statement into the case had been a manifestation of
Agent Ng's confusion rather than a deliberate attempt to
influence the outcome of the trial. The court then denied the
mistrial motion. In its charge to the jury, the court
reiterated its admonition to disregard testimony that had been
stricken from the record.
The denial of a motion for a mistrial is reviewed for
abuse of discretion. See United States v. Pierro, 32 F.3d 611,
617 (1st Cir. 1994). Despite defense counsel's able advocacy,
we discern no abuse of discretion here. While the mention of
the "double hearsay" statement was regrettable, it was a
momentary interlude in a five-day trial. Corrective action was
swift and sure. 3 Given the strength of the government's case
against Resto and the lower court's adroit handling of Agent
Ng's wayward remark, we conclude, on whole-record review, that
the incident was harmless. Courts, after all, ordinarily should
presume that jurors will follow a trial judge's instructions,
see Richardson v. Marsh, 481 U.S. 200, 206 (1987); United States
v. Torres, 162 F.3d 6, 12 (1st Cir. 1998); United States v.
Sepulveda, 15 F.3d 1161, 1185 (1st Cir. 1993), and the record in
3
We think it is noteworthy that defense counsel neither
objected to the wording of the trial court's cautionary
instructions nor suggested how those instructions might have
been better phrased.
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this case affords no basis for discarding that venerable
presumption.
We need go no further. For aught that appears, the
appellant was fairly tried, justly convicted, and lawfully
sentenced.
Affirmed.
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