United States v. Santos-Frias

USCA1 Opinion












August 25, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1942
UNITED STATES OF AMERICA,

Appellee,

v.

FIDELINA SANTOS-FRIAS,

Defendant, Appellant.

____________________
No. 94-1943

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCISCA DE LEON-PENA,

Defendant, Appellant.

____________________
No. 94-2065

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCISCO MATTA-GARCIA,

Defendant, Appellant.

____________________


APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge] ___________________
















____________________

Selya, Circuit Judge, _____________

Coffin, Senior Circuit Judge, ____________________

and Cyr, Circuit Judge. _____________

____________________



Rafael Gonzalez Velez for appellant Santos-Frias. _____________________
Jose R. Gaztambide for appellant De Leon-Pena. __________________
Luis A. Plaza for appellant Matta-Garcia. _____________
W. Stephen Muldrow, Assistant United States Attorney, with whom ___________________
Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, Senior _____________ _______________________
Litigation Counsel, Mar a Pab n, Assistant United States Attorney, ____________
Jacabed Rodr guez, Assistant United States Attorney, and Sonia Torres, _________________ ____________
Assistant United States Attorney, were on brief for appellee.


____________________


____________________
























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Per Curiam. Defendants Fidelina Santos-Frias ("San- Per Curiam. ___________

tos"), Francisco Matta-Garcia ("Matta"), and Francisca De Leon-

Pena ("De Leon") appeal the judgments of conviction and sentence

entered against them following their consolidated jury trial on

cocaine charges in the United States District Court for the

District of Puerto Rico. We affirm the district court judgments.


I I

BACKGROUND BACKGROUND __________

We recount the evidence in the light most favorable to

the verdicts. United States v. Tuesta-Toro, 29 F.3d 771, 773 _____________ ___________

(1st Cir. 1994), cert. denied, 115 S. Ct. 947 (1995). Santos, _____ ______

Matta, De Leon, and Rosalia Sanchez-Vencosme ("Sanchez") resided

in the same apartment building in Rio Piedras, Puerto Rico.

Sanchez and Santos shared an apartment. On May 8, 1993, Santos

and De Leon invited Sanchez to another apartment, shared by Matta

and De Leon, and offered to pay Sanchez $1,700 for carrying a

kilogram of cocaine to New York. Sanchez declined the offer at

the time, but later relented.

The next day, May 9, De Leon helped Santos and Sanchez

strap cocaine-laden girdles to their bodies. Matta then drove

Santos and Sanchez to the airport while De Leon remained at her

apartment. En route to the airport, Matta gave Santos the money

with which to purchase two plane tickets. Upon their arrival at

the airport, Santos and Sanchez proceeded to the ticket counter

while Matta remained at a discreet distance. Santos, who was

carrying two kilograms of cocaine, purchased the tickets, pro-

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ceeded toward the departure gate and passed through the security

checkpoint without incident. Sanchez, carrying one kilogram, was

detained when the checkpoint security alarm sounded as she passed

through. After the cocaine was discovered on her person, Sanchez

was placed under arrest and charged with possessing cocaine with

intent to distribute. She later pled guilty and testified

against appellants Santos, Matta and De Leon.


II II

DISCUSSION DISCUSSION __________

A. Opening Statement A. Opening Statement _________________

Count one charged appellants with conspiring to possess

cocaine with intent to distribute, from on or about December 1,

1992, to and including May 9, 1993. In the government's opening

statement, the prosecutor described various criminal activities,

as alleged in the indictment, which would be established during __ _______ __ ___ __________

trial. At side-bar immediately after the opening statement,

defense counsel moved for mistrial based on unfair prejudice

allegedly resulting from the prosecutor's references to defen-

dants' pre-May 8 criminal activities since Sanchez the only

government witness to the alleged conspiracy had not become

involved until May 8. Following an evidentiary proffer by the

government, the district court ruled that the alleged conspiracy

spanned only the two-day period May 8 through May 9, 1993

during which Sanchez participated. The court then denied the

motions for mistrial, on the ground that its curative jury

instructions would afford adequate protection against unfair

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prejudice.

The district court gave a curative instruction immedi-

ately before Sanchez testified, emphatically directing the jury

to disregard all prosecutorial references to occurrences during

the period December 12th, 1992, through May 7th, 1993. At the

same time the court reiterated its admonition initially stated

during its preliminary jury instructions that statements made

by counsel are not evidence. During its final charge the court

said: I caution you and instruct you that
. . . any comments that the govern-
ment made in [its] opening argu-
ments with respect to anything that
might have happened prior to May
8th is to be totally and completely
disregarded and ignored by you.
The evidence in this case . . .
starts on May the 8th, and goes
over into May the 9th. That's all
you're concerned with. Anything
that you might recall or anything
that was said that went before May
the 8th, is completely irrelevant
to you, and may not be considered
by you.

Appellants contend that the district court erred in

denying their motion for mistrial, as no curative instruction

could overcome the unfair impression conveyed by the prosecutor's

statement that appellants were involved in a more extensive

conspiracy than the government would establish at trial. Appel-

lants assert that "a curative instruction would not suffice"

because the jury clearly understood the prosecutor and, coming

from the government, the statement would be given weight "not-

withstanding any instructions from the court."

Although the assurances that the government would

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establish criminal activities predating the commencement of any

provable conspiracy posed a considerable potential for unfair

prejudice to appellants, any actual prejudice was self-inflicted

by their failure to mount a pretrial challenge to the indictment,

based on overbreadth, see Fed. R. Crim. P. 12(b)(2), and their ___

failure to request the district court in advance to limit prose-

cutorial references in the government's opening statement to the

temporal scope of the provable conspiracy.1 Furthermore, at no

time did the defense suggest to the district court that the

opening statement involved intentional misconduct by the prosecu-

tor.

Even under a "plain error" analysis, appellants'

argument fails. The denial of a timely motion for mistrial is

reviewed for manifest abuse of discretion. United States v. _____________

Romero-Carrion, 54 F.3d 15, 17 (1st Cir. 1995); United States v. ______________ _____________

____________________

1At bottom, of course, the challenge to the temporal breadth
of the alleged conspiracy described in the opening statement
represented a challenge to the indictment. "Defenses and objec-
tions based on defects in the indictment" are to be raised prior
to trial, Fed. R. Crim. P. 12(b)(2), and are deemed waived
pursuant to Fed. R. Crim. P. 12(f) unless the court affords
relief for "cause shown." As appellants failed to avail them-
selves of a full and fair opportunity to mount a pretrial chal-
lenge to the indictment, and now offer no justification for their
failure, the present claim is deemed waived. See United States ___ _____________
v. Rodriguez, 738 F.2d 13, 15 (1st Cir. 1984) (motion to dismiss _________
indictment during trial untimely under Rule 12(b)); Flying Eagles _____________
Publications, Inc. v. United States, 273 F.2d 799, 803 (1st Cir. ___________________ _____________
1960) (declining to address merits of nonjurisdictional challenge
to indictment at close of evidence because "under Criminal Rule
12(b)(2) it should have been asserted by motion before trial.");
see also United States v. Smith, 866 F.2d 1092, 1098 (9th Cir. ___ ____ _____________ _____
1989) (finding that defendants waive all but jurisdictional
claims of error regarding an indictment unless they raise their
claims prior to trial).

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Pierro, 32 F.3d 611, 617 (1st Cir. 1994), cert. denied, 115 S. ______ _____ ______

Ct. 919 (1995). And absent a clear showing of prejudice by

appellants the denial must be upheld. United States v. Hahn, 17 ______________ ____

F.3d 502, 508 (1st Cir. 1994) (citing United States v. Sclamo, ______________ ______

578 F.2d 888, 890-91 (1st Cir. 1978)).

We evaluate the potential for prejudice by assessing

the likely impact of the challenged conduct upon the jury as

viewed in the context of the entire trial, including prosecutori-

al culpability, the nature and timeliness of the defendant's

response and any curative measures undertaken by the trial court.

See United States v. Moreno, 991 F.2d 943, 947-49 (1st Cir.) ___ _____________ ______

(evaluating government's opening and closing statements), cert. _____

denied, 114 S. Ct. 457 (1993); see also United States v. Mac- ______ ___ ____ ______________ ____

cini, 721 F.2d 840, 842-43 (1st Cir. 1983). Ultimately, of ____

course, the acid test is whether the defendant received a fair

trial. Moreno, 991 F.2d at 949. ______

A careful review of the record demonstrates that any

potential prejudice to appellants was averted by the district

court's firm curative instructions and by its ruling limiting the

temporal reach of the government's evidence at trial to the two-

day period May 8 and 9, 1993. Nor have appellants suggested a

sufficient basis for their conjecture that the jury failed to

follow the specific curative instructions repeatedly given by the

district court. See United States v. Paiva, 892 F.2d 148, 160 ___ _____________ _____

(1st Cir. 1989) (court normally presumes that jury follows its

instructions).


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B. Closing Argument B. Closing Argument ________________

On appeal, Matta and De Leon contend for the first time

that the government improperly vouched for Sanchez's credibility

during closing argument when the prosecutor stated, "She's not a

perjurer. She's going to do time. She's not going to walk. She

is truthful." The appellate brief jointly filed by Matta and De

Leon devotes a single conclusory sentence to their vouching

claim: "The government also vouched for its principal witness,

Rosalia Sanchez-Bencosme."2 Their failure to raise the claim

below and to present developed argumentation on appeal constitut-

ed a clear waiver. See United States v. Zannino, 895 F.2d 1, 17 ___ _____________ _______

(1st Cir.), cert. denied, 494 U.S. 1082 (1990). _____ ______

C. Motions for Judgments of Acquittal C. Motions for Judgments of Acquittal __________________________________

All three appellants claim there was insufficient

evidence to support their convictions, hence the district court

erred in denying their motions for judgments of acquittal. They

base their claim on the ground that the only testimony supporting

their convictions was provided by Sanchez and it was not credi-

ble. See supra pt. II.B. Appellants argue that Sanchez demon- ___ _____

strated her lack of credibility by giving false information in

her earlier dealings with the United States Drug Enforcement

____________________

2Santos would be permitted to adopt the arguments presented
by Matta and De Leon, see Fed. R. App. P. 3(b), but only to the ___
extent that the adopted arguments themselves are apposite and
adequately developed. Cf. United States v. David, 940 F.2d 722, ___ _____________ _____
737 (1st Cir. 1991) (rejecting attempt to adopt materially
different arguments by reference), cert. denied, 504 U.S. 955 _____ ______
(1992); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.) ______________ _______
(similar), cert. denied, 494 U.S. 1082 (1990). _____ ______

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Administration, and by entering into a sham marriage in order to

obtain immigrant status.

It is well settled that all credibility questions must

be resolved in favor of the verdict when reviewing a trial

court's denial of a motion for judgment of acquittal. Hahn, 17 ____

F.3d at 506 (citing United States v. Batista-Polanco, 927 F.2d ______________ _______________

14, 17 (1st Cir. 1991)). The conclusory assertions supporting

the instant claim afford no basis for departing from the general

rule that credibility determinations are for the factfinder. Id. ___

A careful record review demonstrates that defense counsel, during

cross-examination and in their closing arguments, ably exposed

the very serious credibility problems with Sanchez's testimony.

The record likewise reveals ample evidence crediting Sanchez's

testimony as we must, see id. to establish beyond a reasonable ___ ___

doubt each essential element of the crimes charged against

Santos, Matta and De Leon. D. Sentencing D. Sentencing __________

Santos and De Leon did not object to their presentence

reports. Thus, their undeveloped sentencing claims, broached for

the first time on appeal, were not preserved. See United States ___ _____________

v. Ocasio-Rivera, 991 F.2d 1, 3 & n.3 (1st Cir. 1993). Indeed, _____________

the appellate brief submitted by Santos does not explicitly

present a sentencing claim. Her reliance on a perfunctory

announcement of joinder under Fed. R. App. P. 3(b) is inadequate

to entitle her to "piggyback" on the sentencing claims advanced

by her codefendants. See supra note 2. As for De Leon, the ___ _____

argumentation in the joint brief submitted by her and Matta


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merely rests on the bald statement that she should have been

granted a downward departure, though she purports to adopt

Matta's arguments by reference. See id. Since neither De Leon ___ ___

nor Santos discussed their own sentencing claims, nor their

respective grounds for either a downward departure or adjustment,

we decline to consider their claims. "[T]he settled appellate

rule [is] that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived." Zannino, 895 F.2d at 17. _______

Although Matta has presented a developed claim for a

downward adjustment, assertedly based on his "minor role" in the

cocaine transaction, see U.S.S.G. 3B1.2(b), it is frivolous. ___

The presentence report not only includes no information which

would warrant a finding that Matta played a minor role in the

offense but it recommends a four-level upward adjustment for ______

Matta's supervisory role in the offense. See id. 3B1.1(a). ___________ ____ ___ ___

Even though the district court rejected this recommendation, the

uncontroverted evidence that Matta provided the money used to

purchase the airline tickets for Santos and Sanchez, then re-

mained in the background as his "mules" proceeded to the airport

security checkpoint, left little room for a finding that Matta

played a minor role in the offense.

The contention that Matta was entitled to a downward

departure for "aberrant behavior" fares no better. There is no

basis for concluding that the sentencing court did not understand

that a downward departure based on aberrant behavior may be


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permissible in an appropriate case. The district court simply

refused to depart on the grounds presented by Matta. See United ___ ______

States v. Catucci, 55 F.3d 15, 19 n.3 (1st Cir. 1995). Conse- ______ _______

quently, we lack jurisdiction to consider the departure claim.

See United States v. Ruiz, 905 F.2d 499, 508-09 (1st Cir. 1990). ___ _____________ ____

Affirmed. Affirmed. ________










































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