United States Court of Appeals
For the First Circuit
____________________
No. 99-1797
MIGDALIA NEGRON, IN HER OWN BEHALF AND AS
REPRESENTATIVE OF THE LEGAL PARTNERSHIP;
ALFONSO RUIZ, IN HIS OWN BEHALF AND AS
REPRESENTATIVE OF THE LEGAL PARTNERSHIP;
Plaintiffs, Appellees,
v.
CALEB BRETT U.S.A., INC.,
d/b/a INCHCAPE TESTING SERVICES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, Senior U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Selya and Lipez, Circuit Judges.
_____________________
John C. Bartenstein, with whom Crystal D. Talley, Ropes & Gray,
Guillermo J. Ramos-Luiña and Rivera, Tulla & Ferrer were on brief, for
appellant.
Godwin Aldarondo-Girald, with whom Angel X. Viera-Vargas was on
brief, for appellees.
____________________
May 24, 2000
____________________
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TORRUELLA, Chief Judge. At issue in this appeal is the scope
of an exception to Puerto Rico Law 80, 29 L.P.R.A. § 185a, which
provides the exclusive remedy under Puerto Rico law for an employee who
is discharged without just cause. In Arroyo v. Rattan Specialties,
Inc., 117 P.R. Offic. Trans. 49; 117 D.P.R. 35 (P.R. 1986), the Supreme
Court of Puerto Rico recognized an exception to Law 80 that applies
when an employer's decision to terminate an employee was made in
violation of a public policy of constitutional magnitude.
The appellee1 in this case relied on the Arroyo exception to
bring a wrongful discharge action. After an adverse jury verdict, the
appellant brought this appeal arguing that, among other deficiencies in
the trial, the district court erred in permitting the appellee's claim
to go forward because her discharge did not implicate her right to
privacy as guaranteed by the Constitution of the Commonwealth of Puerto
Rico and, thus, her claim should have been barred by Law 80. Because
we disagree with the appellant's contention that the Arroyo exception
should be read narrowly to preclude the appellee's cause of action, and
for the additional reasons discussed more fully below, we affirm the
judgment of the district court.
1 There are actually two appellees in this case, Migdalia Negrón and
her husband; however, her husband's claim is purely derivative, and
thus, we will refer to Migdalia Negrón as if she were the sole
plaintiff and appellee.
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BACKGROUND
Viewed in a light most favorable to appellee Migdalia Negrón,
a reasonable jury could have found the following facts. See Consolo v.
George, 58 F.3d 791, 792 (1st Cir. 1995); Keisling v. SER-Jobs for
Progress, Inc., 19 F.3d 755, 759-60 (1st Cir. 1994).
Negrón is a chemist licensed by the College of Chemists as
required under the laws of Puerto Rico, and as such, she is bound by a
Code of Professional Ethics. See 20 L.P.R.A. §§ 492(i), 493. A breach
of her duties under the Code could result in revocation of her license.
See id. § 492(f).
The appellant, Caleb Brett U.S.A., Inc., a Louisiana
corporation with its principal place of business in Texas, hired Negrón
in 1990 as the laboratory manager of its office in Bayamón, Puerto
Rico. Caleb Brett provides inspection and laboratory services to
clients engaged in commodity transfers. Clients retain Caleb Brett to
independently verify compliance with specifications set forth in the
contracts governing the sale of their products. In accordance with
Puerto Rico law, see 20 L.P.R.A. § 471q, Negrón would sign and affix
her seal to quality certificates to indicate that a product is within
the contractual specifications. A sealed certificate would release a
bank to pay the seller's contract in accordance with the purchaser's
letter of credit. If a product was not within the required
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specifications -- "out of specification" -- the buyer and the seller
could either reject the product or renegotiate the price.
Luis Fortuño became Negrón's direct supervisor in 1993,
during a period of dramatic increase in the volume of lab work. In
addition to the increased workload, the appellee was often under
pressure to rerun lab results that were out of specification. The
company received complaints from clients when lab results did not meet
their expectations. In response, management personnel met with Negrón,
but she refused to change or review results that were properly
obtained.
During 1993-1994, Miriam Estrada, Fortuño's secretary,
altered approximately 500-600 final certificates that had been signed
and sealed by Negrón. After the alterations, the certificates were
either returned to Fortuño or delivered to clients.
On December 7, 1994, Negrón had a conflict with Norberto
Sepúlveda, the Planning and Economics Manager of CAPECO, one of Caleb
Brett's largest clients. Negrón refused to change a lab result from
10.53, reported in accordance with the American Society of Testing and
Materials method, to 10.5 to conform with the requirements of CAPECO's
contract with Vitol. She required that Sepúlveda initial any
alteration that he made to the certificate.
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On December 15, 1994, Negrón's employment was terminated.
Her personnel file does not include any disciplinary actions and shows
that she received salary increases each year.
She brought this action against the appellant on November 30,
1995 in the United States District Court for the District of Puerto
Rico alleging claims under federal and state law. The district court
dismissed the federal claim, but the state law claims went to trial
under the district court's diversity jurisdiction. See 28 U.S.C. §
1332. During the trial, Caleb Brett moved for judgment as a matter of
law pursuant to Fed. R. Civ. P. 50(a). The district court granted the
motion in part, but the remaining claims were submitted to the jury.
The jury returned a verdict in favor of Negrón. Caleb Brett appeals
the district court's denial of its motion for judgment as a matter of
law and challenges the validity of the verdict based on the weight of
the evidence, the jury instructions, and alleged evidentiary errors
made during the course of the trial.
DISCUSSION
I. JUDGMENT AS A MATTER OF LAW
The appellant argues that the district court erred in denying
its Rule 50 motion for judgment as a matter of law for two reasons:
(1) the court misconstrued the Arroyo exception to Law 80; and (2) the
evidence was insufficient to support Negrón's claim that her dismissal
violated her constitutional rights. We review questions of law de
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novo, but review the sufficiency of the evidence drawing all reasonable
inferences in favor of the prevailing party. See Coastal Fuels of
Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 188 (1st
Cir. 1996). On review, we will only set aside a jury verdict if the
evidence points "so strongly and overwhelmingly" in favor of Caleb
Brett that a reasonable jury could reach only one conclusion, namely,
that Caleb Bret was entitled to judgment. Id. (citing Sullivan v.
National Football League, 34 F.3d 1091, 1096 (1st Cir. 1994); Gallagher
v. Wilton Enters., Inc., 962 F.2d 120, 124-25 (1st Cir. 1992)).
A. The Scope of the Arroyo Exception
The first question before us is whether the district court
was correct in its determination that Negrón's cause of action for
wrongful discharge was not barred by Law 80. The legislature of Puerto
Rico enacted Law 80 to alter the employment-at-will doctrine by
providing a statutory remedy for employees terminated without just
cause. Although Law 80 is recognized as the exclusive remedy for a
wrongful discharge, it is subject to limited exceptions, only one of
which is at issue today, the Arroyo exception. See generally Arroyo,
117 P.R. Offic. Trans. 49.
In Arroyo, the Supreme Court of Puerto Rico held that Law 80
"cannot operate to deprive the worker of the adequate remedies for
effectively vindicating his constitutional rights." Id. at 76.
Accordingly, the court concluded that dismissal of an employee who
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refused to submit to a polygraph test "subverts a constitutional-
ranking public policy." Id. In reaching this determination, the court
explicitly relied on section 1 of the Puerto Rico Bill of Rights, which
provides, "[t]he dignity of the human being is inviolable . . . ," and
section 8, which provides, "[e]very person has the right to the
protection of law against abusive attacks on his honor, reputation and
private or family life." See id. at 69 (also discussing sections 7 and
16).
Only a few courts have had an opportunity to explore the
constitutional policy exception articulated in Arroyo, see, e.g., In re
El San Juan Hotel Corp., 149 B.R. 263, 273-74 (D.P.R. 1992), aff'd sub
nom. Kagan v. El San Juan Hotel & Casino, 7 F.3d 218 (1st Cir. 1993)
(unpublished opinion), and the Supreme Court of Puerto Rico did not
directly address the scope of the exception again until 1998 in Segarra
Hernández v. Royal Bank of Puerto Rico, No. CE-94-499, slip op. offic.
trans., 98 J.T.S. 37 (P.R. April 1, 1998). See also Santiago v.
Western Digital Caribe, Inc., No. RE-91-129, slip. op. offic. trans. at
2, 98 J.T.S. 42, at 2 (P.R. Mar. 21, 1996) (referring to
Arroyo exception "when the dismissal has the purpose or effect of
thwarting or defeating a clear public policy"); Rodríguez v. Pueblo
Int'l, Inc., No. RE-93-125, slip. op. offic. trans. at 9 n.11, 135
D.P.R. 500 (P.R. Mar. 18, 1994) (referring to Arroyo exception "when
discharge frustrates or subverts clear public policy, as, for example,
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those which allow the workers to vindicate their constitutional
rights"). In Segarra, the constitutional claim amounted to a charge of
harassment based on a series of internal transfers and memoranda that
the employee deemed offensive. After reviewing the evidence, the court
held that her treatment did not rise to the level of a constitutional
violation because it did not "involve[] the indiscriminate
dissemination of private or personal information," "unreasonably
impinge[] on her personal or family tranquility," "disseminate false or
slanderous information," or "limit Segarra Hernández's faculty to make
decisions about her private or family life." Segarra, slip op. offic.
trans. at 12.
Here, the district court relied on both Arroyo and Segarra
in determining that Negrón could maintain her cause of action under
Puerto Rico law because her discharge implicated a "constitutional
ranking public policy." Negrón v. Caleb Brett U.S.A. Inc., No. 95-
2478, slip op. at 3-4 (D.P.R. May 19, 1999) [hereinafter Opinion]
(citing Arroyo, 117 D.P.R. 35, 65-66; Segarra, 98 J.T.S. 37). The
court reasoned that Negrón "was exposed by her employer to a catch 22
situation, that is, either breach her duty under the code of ethics of
her profession and run the risk of losing her license . . . or fight
for her principles and still loose [sic] her job." Id. at 9. The
court then concluded that placing an employee in such a precarious
position is "against the constitutional right [as guaranteed by the
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Constitution of Puerto Rico] of every worker to the protection against
risks to their personal integrity in the workplace." Id. at 10.
The appellant contends that the district court improperly
construed the constitutional exception, because despite the broad
language of Arroyo, subsequent cases, particularly Segarra, have
narrowly confined the exception to the core concerns of privacy.
However, we find nothing in Segarra that limits the constitutional
policy exception in the manner suggested by the appellant. Quite to
the contrary, the Supreme Court discusses the exception in the same
broad terms as it did in Arroyo, referring to the "right of privacy"
and "personal dignity," and "the right to be protected against attacks
on the honor and personal reputation." Segarra, slip op. offic. trans.
at 5-7 (discussing sections 1 and 8 of the Puerto Rico Bill of Rights).
To support its position, the appellant makes much of Segarra's
discussion of a "zone of individual autonomy" in matters related to
personal and family life -- for instance use of birth control,
obtaining a divorce, protection from defamatory statements. Id. at 11-
12. Indeed, the court used those examples, but solely to illustrate
the weakness of Segarra's claim; by no means did the court confine the
Arroyo exception to those examples. In fact, the court went on to
suggest that under different circumstances a pattern of transfers and
internal communications could create a climate of harassment that would
violate a worker's constitutional rights, with the caveat that the
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employee must show "that the employer's actions are not related to the
normal workplace performance and that they constitute harmful attacks
on the plaintiff's dignity and personal or family integrity." Id. at
15.
Applying the reasoning of Segarra to the case at hand, we
conclude, consistent with the appellant's concession at oral argument,
that a chemist's constitutional rights to privacy and dignity could be
implicated if she were pressured to make illegal alterations to lab
reports that would jeopardize her license or subject her to civil and
criminal liability. Such a scenario would distinguish the appellant
from an ordinary whistleblower who is terminated in retaliation for
reporting illegal activities of others and has no constitutional
protection. See In re San Juan Hotel Corp., 149 B.R. at 273-74
(declining to read Arroyo exception as a general public policy
exception to protect whistleblowers).2 Forcing an employee to choose
between her employment and her profession, its code of ethics, and the
law, is certainly a matter of personal integrity, and thus, the
district court did not err in its legal determination that Negrón's
claim is within the constitutional policy exception to Law 80 created
2 Although the appellant emphasizes that this Court affirmed the
district court's judgment, we must clarify that our opinion was
unpublished and therefore lacks any precedential value, see 1st Cir. R.
36, and more important, we affirmed on other grounds. Consequently, we
take no view as to the validity of El San Juan Hotel's treatment of the
Arroyo exception.
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by Arroyo. Whether Negrón's evidence supports such a claim or shows
only that she suffered "[a] mere feeling of uneasiness in the workplace
due to some labor-management situation," as the appellant contends, is
an entirely different question, to which we will now turn. Segarra,
slip op. offic. trans. at 14.
B. The Sufficiency of the Evidence as a Matter of Law
The appellant claims that the evidence is insufficient as a
matter of law to establish that the requested alterations were improper
or illegal as is required to implicate Negrón's constitutional rights.
The appellant hangs its hat on Negrón's testimony, which related
primarily to the CAPECO/Vitol report. There, Negrón had refused to
adjust a figure to one decimal point to comply with the contract
between the buyer and the seller. The appellant acknowledges that the
alteration may violate the American Standards Manual but argues that it
does not rise to the level of a violation of Negrón's constitutional
right to privacy and integrity.
We disagree. Viewing the record in its entirety, we observe
ample evidence from which a reasonable jury could infer that Negrón was
frequently pressured to alter test results and certificates and that
her repeated refusals ultimately resulted in her termination. Negrón
herself testified that beginning in 1993, Fortuño asked her to alter
results to conform to specifications mandated in customer's contracts.
She explained that an out-of-specification product would have a
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financial impact on Caleb Brett's customers. Although Fortuño
testified that he never instructed Negrón to make alterations, his
testimony was refuted by his secretary's admission that she altered
500-600 certificates from 1993-1994 and the testimony of Negrón's
secretary that she witnessed heated discussions between Fortuño and
Negrón regarding customers' preferences. Furthermore, Negrón's husband
confirmed that Negrón was distraught about Fortuño's requests, and the
former president of the College of Chemists, Dr. Rodulfo Gauthier,
testified that Negrón consulted him regarding her ethical dilemma.
Gautier testified that a chemist is under a duty to report lab results
accurately and he advised Negrón to consult the Board of Ethics,
indicating that her license could be affected. Moreover, a reasonable
jury could have found that the appellant's proffered reason for
terminating Negrón -- that she had performance problems and was
difficult to work with -- was pretextual in light of the absence of
disciplinary measures in her personnel file, her consistent salary
increases, her positive performance evaluations, and testimony from her
co-workers. A jury is entitled to weigh the credibility of the
witnesses and could infer that Negrón had been asked to do something
improper or illegal. See Newell v. Rubbermaid, Inc., 20 F.3d 15, 23
(1st Cir. 1994) (citing United States v. García, 995 F.2d 556, 561 (5th
Cir. 1993); Lessee of Ewing v. Burnet, 36 U.S. 41 (1837)).
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Because a reasonable jury could find for Negrón on this
evidence, we conclude that the district court properly denied the
appellant's motion for judgment as a matter of law. See Coastal Fuels,
79 F.3d at 188.
II. JURY INSTRUCTIONS
The appellant argues that the jury instructions constituted
reversible error because they " required the jury to find that any
alteration of laboratory results or reports would have subjected the
Plaintiff Negrón to sanction, however legitimate or appropriate those
alterations might have been." Appellant's Brief at 42. The targeted
portion of the jury charge provided: "if you find that Ms. Negrón
established by a preponderance of the evidence that her dismissal was
in violation of public policy because it was in retaliation for
refusing to alter laboratory results, you must find in her favor." The
appellant also takes issue with the special verdict form that asked
only the following question with respect to liability: "1. Was
Migdalia Negrón's discharge in retaliation for refusing to alter
laboratory results and reports?"
However, the appellant failed to timely object to the jury
charge and the special verdict form. Although it contends otherwise in
its brief, the appellant's pre-charge objection, articulated for the
record subsequent to an in-chambers conference, is inadequate to
preserve the issue for appeal for two reasons. First, it is well
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established that counsel must object immediately after the jury charge
and before the jury retires in order to preserve an objection for
appeal. See Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999); Moore v.
Murphy, 47 F.3d 8, 11 (1st Cir. 1995); United States v. Nason, 9 F.3d
155, 160 (1st Cir. 1993). In this circuit, we have specifically held
that an objection before delivery of the jury charge does not preserve
for review issues relating to the charge. See Nason, 9 F.3d at 160-61.
Second, the objection itself was insufficiently specific to
satisfy the requirement of Fed. R. Civ. P. 51 that objections must
"stat[e] distinctly the matter objected to and the grounds of the
objection." The record reflects that the primary objection articulated
by the appellant related to an instruction on discovery rights. After
the court denied the appellant's request, the following colloquy took
place:
Mr. Ramos: . . . we want to make very clear that
the charge as will be submitted to the jury has
been the subject of discussion and agreement
between counsel. I would like to clarify,
however, we insist in our position that no such
cause of action exists in Puerto Rico.
The Court: That is a question of law.
Mr. Ramos: Yes, but I don't want this to be
construed as any waiver on our part that we have
recognized in some phase the existence of some
cause of action.
Nothing in counsel's statement articulates the issue now being raised.
The appellant did not explain that the proposed jury charge was
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objectionable because it would permit a jury to find for the plaintiff
even if the requested alterations to lab results were legal and proper,
a circumstance that would not affect her professional status as a
licensed chemist and, thus, would not implicate her constitutional
rights.
This procedural bar to the appellant's argument was not cured
by the appellant's contemporaneous objection to the jury charge. After
the court finished charging the jury, the appellant renewed its request
for an instruction on discovery rights, and then added, "[l]astly, we
are not waiving any rights to contest the fact that we understand there
is no cause of action as the jury has been instructed." Again, the
appellant failed to identify the issue that it raises on appeal,
namely, that the instructions and special verdict form are incorrect
because they do not distinguish between proper and improper
alterations. It is well established that an objection on one ground
does not preserve appellate review of a different ground. See
Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 766 (1st Cir. 1996).
As Caleb Brett fell far short of "stat[ing] distinctly" before the
district court the argument it is raising on appeal, it is not
preserved. Id. at 767 (quoting Fed. R. Civ. P. 51).
As a result, we can quickly dispose of the appellant's
challenge to the jury charge. See Moore, 47 F.3d at 11. Because the
appellant failed properly to preserve its objections to both the jury
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instruction and the special verdict form, we review for plain error
only. See Cambridge Plating, 85 F.3d at 767; Nason, 9 F.3d at 160-61;
see also Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 53 (1st
Cir. 1998) (applying same standard to review of special verdict form)
(citing Cambridge Plating, 85 F.3d at 767); Moore, 47 F.3d at 11
(noting that Rule 51 imposes the same duties of diligence with respect
to special verdict forms). Plain error "'applies only where the error
results in a clear miscarriage of justice or seriously affects the
fairness, integrity or public reputation of judicial proceedings.'"
Cambridge Plating, 85 F.3d at 767 (quoting Clausen v. Sea-3, Inc., 21
F.3d 1181, 1196 (1st Cir. 1994)). In addition, it is reserved for "the
most egregious circumstances." Moore, 47 F.3d at 11 (citing Poulin v.
Greer, 18 F.3d 979, 982 (1st Cir. 1994)); see also Nason, 9 F.3d at
160. In this case, the appellant cannot clear such a high hurdle
because, as we discussed more thoroughly above, there was convincing
evidence adduced at trial from which a reasonable jury could conclude
that Negrón was dismissed because she refused to make illegal or
improper alterations that would jeopardize her chemist's license.
Thus, Caleb Brett cannot show that a miscarriage of justice resulted
from judgment in Negrón's favor.3 See Cambridge Plating, 85 F.3d at
3 While the quoted section of the jury instruction arguably blurs the
significance of the distinction between proper and improper
alterations, the preceding paragraphs were adequate to convey to the
jury that the alterations must be against constitutional policy to
impose liability outside of Law 80. The charge read as follows:
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767-68. Nothing before us suggests that the alleged error "seriously
affected the fairness or integrity of the trial" bringing it close to
an "exceptional case" which might require reversal. Moore, 47 F.3d at
11.
III. NEW TRIAL
Moving on, we turn to the appellant's final claim that a new
trial is warranted because the verdict was against the weight of the
evidence and because a litany of evidentiary errors were made during
the course of the trial. We have given due consideration to the
appellant's claims and find them to be unpersuasive. We give them
cursory treatment as "our time is best reserved for colorable claims."
Ms. Negrón asserts that her dismissal was in
contravention to public policy because it had the
effect of frustrating and violating her
constitutional rights.
The Bill of Rights of the Constitution of the
Commonwealth of Puerto Rico provides that every
person has a right of privacy. This right
affords every person the protection to the
inviolability of the their dignity and protects
them against risks to their personal integrity in
the workplace. These are high ranking,
fundamental, constitutional rights enforceable
against private individuals. Accordingly, every
human being has a right to be compensated for
damages proximately caused by an employer who
violates them.
Any deficiency in clarity is below the level required to constitute
plain error.
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United States v. Bennett, 75 F.3d 40, 49 (1st Cir. 1996); accord
McIntosh v. Antonino, 71 F.3d 29, 37 (1st Cir. 1995).
The appellant's challenge to the weight of the evidence is
little more than a reconfiguration of its sufficiency of the evidence
argument and meets with the same fate. As discussed more thoroughly
above, there was ample evidence to support the jury's verdict in favor
of Negrón. Especially damaging was the testimony of Estrada that
directly contradicted Fortuño's denial that he would ever request
alterations of certificates. Likewise, Negrón's positive employment
history undermined the appellant's proffered reason for her dismissal,
which in turn suggests a pretextual cover for something illegal or
improper.
For similar reasons, the evidentiary errors alleged by the
appellant, if errors at all, were harmless. The appellee's use of the
existing nondisclosure agreement to explain the lack of documentary
evidence to support Estrada's testimony may have been confusing, but we
find no error in the district court's refusal to instruct the jury on
the duty of the plaintiff to discover evidence, as we are aware of no
rule of law that requires the plaintiff to prove her case by
documentary rather than testimonial evidence. Furthermore, any error
on the part of the district court in this vein was not prejudicial.
"[T]he usual assumption that a party would produce documents to
substantiate its claim wherever possible," Appellant's Brief at 49,
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cuts both ways. With or without the instruction, a reasonable jury
could easily infer from the defendant's failure to introduce the
certificates to impeach Estrada's testimony that the certificates were
in fact altered. As for the appellant's argument relating to the
improper admission of hearsay evidence, the Carnival Exhibit, and the
"testimony" of Negrón's trial counsel, we are not convinced that any of
the alleged errors identified by the appellant affected its substantial
rights. See Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 102 (1st
Cir. 1997).
CONCLUSION
For the foregoing reasons, judgment in favor of Negrón is
affirmed.
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