United States Court of Appeals
For the First Circuit
No. 05-2835
UNITED STATES OF AMERICA,
Appellee,
v.
NOEL HERNÁNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lipez, Circuit Judge,
*
Gibson and Stahl, Senior Circuit Judges.
Susan E. Taylor, by Appointment of the Court, for appellant.
Randall E. Kromm, Assistant U.S. Attorney, with whom Michael
J. Sullivan, United States Attorney, was on brief for appellee.
June 15, 2007
*
Of the Eighth Circuit, sitting by designation.
STAHL, Senior Circuit Judge. Appellant Noel Hernandez
raises four objections to the conduct of his criminal trial.
Finding no error, we affirm his conviction.
I. Background
Hernandez was convicted after a jury trial of conspiracy
to import heroin, in violation of 21 U.S.C. §§ 952(a) and 963; and
importation of heroin, in violation of 21 U.S.C. § 952(a).
Hernandez was arrested at Boston's Logan Airport on July 13, 2004,
after Customs agents connected him to two arriving passengers,
Francisco Navarro and Cesar Mercedes, who were discovered to have
concealed 874 grams of heroin in their clothing and stomachs.
During questioning at the airport by Customs agents, Navarro
revealed that he and Mercedes were to be picked up at the airport
by a "Noel Hernandez," and gave the agents his contact's cell phone
number. An agent called the number and told the person who
answered the phone that he was "with his friend" and asked him to
come to Logan's Terminal E. When a man who fit Navarro's
description of Hernandez arrived at Terminal E, the agents called
the phone number again and observed the man answer his cell phone.
The agents then detained the man, who they determined was the
appellant, Hernandez.
After he was detained, Hernandez told the agents that he
was at the airport to pick up an adult and two children for a
friend named Medina. Following his arrest, agents found in
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Hernandez's possession an envelope containing the travel itinerary
for Navarro and Mercedes, and printed receipts for their airline
tickets.
Navarro and Mercedes pled guilty and testified for the
government at Hernandez's trial. Navarro testified that Hernandez
had lent him $7,000, after he (Navarro) became incapacitated and
could not work. When Navarro was unable to repay the loan,
Hernandez allegedly invited Navarro to meet with him in New York
City at Hernandez's expense, on June 25, 2004. At the meeting,
according to Navarro's account, Hernandez requested that Navarro
repay the debt by transporting drugs into the United States.
Navarro eventually agreed to the plan, and asked if his friend,
Mercedes, who also faced financial problems, could participate as
well. Neither Navarro nor Mercedes knew what kind of drugs they
were transporting, though they apparently both suspected it was
cocaine rather than heroin.
Hernandez was convicted by a jury of importation and
conspiracy to import heroin, and was sentenced by the district
court to concurrent 132-month sentences for each count, as well as
four years' supervised release.
II. Discussion
Hernandez raises four objections to the conduct of his
trial. We address each below.
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A. Constructive Amendment
Hernandez argues that the district court constructively
amended the indictment by stating in its original jury instruction
that the jury could convict on the importation count based on
evidence of heroin or cocaine, whereas Hernandez's indictment
premised the importation count only on heroin. We review a
preserved claim1 of constructive amendment de novo, see United
States v. Mitov, 460 F.3d 901, 906 (7th Cir. 2006), and ask whether
"the charging terms of the indictment [were] altered, either
literally or in effect, by prosecution or court after the grand
jury has last passed upon them," United States v. DeCicco, 439 F.3d
36, 43 (1st Cir. 2006). "A constructive amendment is considered
prejudicial per se and grounds for reversal of a conviction." Id.
While the district court, in its first set of
instructions, stated that the importation count could be premised
on heroin or cocaine, the court clarified this statement in its
subsequent reinstruction of the jury:
Note the change from yesterday. Yesterday I
mentioned another drug. Cocaine. Please
strike that out. And the reason is obvious.
There's no evidence about cocaine here at all.
Don't start speculating about that. There's
no evidence in this case about cocaine.
1
The government argues that we should employ a plain error
review as to this issue, because Hernandez allegedly did not
preserve his objection. However, because Hernandez's claim fails
under the more searching de novo standard, we need not decide
whether Hernandez indeed preserved his objection.
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There's no evidence in this case about any
drug but heroin.
However, Hernandez argues that the district court's reinstruction,
quoted above, referred only to the conspiracy count, meaning the
court did not correct its instruction that the importation count
could be based on either cocaine or heroin. Hernandez is correct
that the district court's statement was made as part of a larger
discussion of the conspiracy count. However, the court's statement
was, on its face, not limited to the conspiracy count, and the
statement's sweeping language made it quite clear to the jury that
the only drug it should consider, in regards to either count, was
heroin.
As we have previously said, "A primary objective of the
rule against constructive amendment of indictments is to ensure
defendants have notice of the charges they must defend against."
United States v. Dubon-Otero, 292 F.3d 1, 5 (1st Cir. 2002). In
this case, Hernandez was on notice, through the indictment, that
his charges were related to heroin importation, and the district
court's reinstruction made it clear to the jury that heroin was the
only drug it should consider in reaching its verdict. Therefore,
though the district court's initial instructions created some
unnecessary confusion, the reinstruction ensured that Hernandez
would not be convicted of a crime for which he had not received
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notice. Thus, we hold that no constructive amendment occurred
here.
B. Reference to the "Meeting in New York"
During a reinstruction of the jury, the district court
charged the jurors regarding the conspiracy count as follows:
To prove conspiracy the government must prove
beyond a reasonable doubt that Mr. Hernandez
and at least one other co-conspirator, if you
think there was a conspiracy, one other co-
conspirator--it may be Navarro, it could be an
unnamed co-conspirator. If you believe a
meeting in New York took place. You have to
believe those things beyond a reasonable
doubt.
Hernandez assigns error to the court's reference to the
"meeting in New York" because it "drew the attention of the jury to
a piece of hotly contested evidence, and provided the manner in
which that evidence could be used." This argument is without
merit. It is unquestioned that, when instructing a jury, a judge
"may explain, comment upon and incorporate the evidence into the
instructions in order to assist the jury to understand it in light
of the applicable legal principles." United States v. Maguire, 918
F.2d 254, 268 (1st Cir. 1990). In mentioning the alleged New York
meeting, the judge here did no more than that. He merely explained
to the jury how such a meeting, if the jury believed beyond a
reasonable doubt that it had occurred, would relate to the
conspiracy charge. Id. at 269 (finding no error where the court's
"discussion of the evidence did not dictate to the jury the
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conclusion the latter should make"). Therefore, we find no error.
C. Cell Phone Evidence
Hernandez also objects to the district court's admission
into evidence of his cell phone records and testimony interpreting
those records. On the fifth day of the eight-day trial, the
prosecution apparently discovered that cell phone records linked to
Hernandez's phone, which had been produced in discovery, contained
codes that could be used to identify the general location of the
phone when it was in use. The prosecution proposed to introduce
the cell phone records and testimony from a cell phone company
employee, who would explain that the codes revealed that the phone
was used in the New York City area on the date that Navarro alleged
that the New York meeting had occurred. Over Hernandez's
objection, the court admitted the evidence.
On appeal, Hernandez argues that the admission of the
evidence constituted a prejudicial late disclosure under Brady v.
Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United States, 405
U.S. 150, 154-55 (1972), because he would have used a different
strategy in cross-examining Navarro if he had known of the evidence
suggesting his presence in New York on the date of the alleged
meeting. We review the district court's decision to admit evidence
for abuse of discretion. See United States v. McGauley, 279 F.3d
62, 72 (1st Cir. 2002).
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In Brady, the Supreme Court held that "suppression by the
prosecution of evidence favorable to an accused . . . violates due
process," regardless of the good or bad faith of the prosecution.
373 U.S. at 87. A Brady violation is found where there is evidence
that is favorable to the accused, suppression of that evidence, and
a showing of prejudice. See Strickler v. Greene, 527 U.S. 263,
281-82 (1999). In Giglio, the Supreme Court held that
"nondisclosure of evidence affecting credibility falls within [the]
general [Brady] rule." 405 U.S. at 154.
Hernandez's Brady/Giglio argument fails because the
evidence he objects to was not "favorable to the accused, either
because it is exculpatory, or because it is impeaching."
Strickler, 527 U.S. at 281-82. Instead, the information was
harmful to Hernandez's defense. Certainly the defendant was
surprised by the government's new evidence. However, Hernandez has
not alleged that the government was aware of the significance of
the codes at an earlier time, or that it deliberately withheld the
evidence until it would cause maximum harm to the defense. See
United States v. Gilbert, 181 F.3d 152, 162 (1st Cir. 1999)
(although defendant was "surprised" by testimony discovered by the
prosecution on the eve of trial, "she was [not] ambushed by it, if
we define ambush as the government deliberately laying a trap for
her to walk into"). Indeed the only information before us is that
the government alerted the defense and the court as soon as it
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realized that the cell phone codes were significant. In addition,
the evidence Hernandez complains of was within his ability to
discover, just as it was within the government's, as both parties
had access to the cell phone records. Id. Finally, even if we had
some basis to doubt the prosecution's account of when it discovered
the significance of the codes, the district court's decision to
admit the evidence would not constitute an abuse of discretion if
"any reasonable view of the evidence support[ed]" the decision.
United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996). Therefore,
we conclude that the district court did not abuse its discretion in
admitting the cell phone records and the testimony regarding the
codes contained therein.
D. "Mere Presence" Instruction
Hernandez's final challenge is to the district court's
alleged failure to instruct the jury as to "mere presence."
Hernandez argues that, because his defense was that he had gone to
the airport merely to pick up three people as a favor to his
friend, he was entitled to an instruction that his mere presence at
the airport was not sufficient alone to establish guilt. We need
not determine whether Hernandez was entitled to such an
instruction, as the court actually instructed the jury in this
regard. In its initial set of instructions, the court said:
Mr. Hernandez cannot . . . be found guilty
simply because he came to the airport and it
was at the airport that two other folks were
trying to import heroin. . . . People are not
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guilty on the basis of association. People
are not guilty because they happened to be at
a crime scene or have come to a crime scene.
Given this instruction, we fail to see any merit in appellant's
argument.
III. Conclusion
For the foregoing reasons, we affirm the appellant's
conviction.
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