USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 94-1235
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS CARTAGENA-CARRASQUILLO,
Defendant, Appellant.
____________________
No. 94-1236
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS LUGO-LOPEZ,
Defendant, Appellant.
____________________
No. 94-2127
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE L. FIGUEROA-GARCIA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge] ___________________
[Hon. Morton A. Brody,* U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Lynch, Circuit Judge, _____________
and Watson,** Senior Judge. ____________
____________________
Roberto Rold n Burgos, by appointment of the court, for ______________________
appellant Cartagena-Carrasquillo.
Miriam Ramos Grateroles, by appointment of the court, for ________________________
appellant Lugo-L pez.
Theodore L. Craft, by appointment of the court, for ___________________
appellant Figueroa-Garc a.
Nelson P rez-Sosa Cruz, Assistant United States Attorney, _______________________
with whom Guillermo Gil, United States Attorney, was on brief, _____________
for appellee.
____________________
December 1, 1995
____________________
*Of the District of Maine, sitting by designation.
**Of the U.S. Court of International Trade, sitting by
designation.
-2-
LYNCH, Circuit Judge. Cocaine trafficking in LYNCH, Circuit Judge. ______________
Puerto Rico resulted in the criminal convictions of the three
appellants, who raise issues primarily as to the conduct of
their trials. Two issues -- the exclusion of expert evidence
attempting to establish an insanity defense based on
Posttraumatic Stress Disorder claimed to have resulted from
military service in Vietnam and the prosecutor's ill-
considered reference to religion in his closing argument --
merit close discussion. We affirm, rejecting the defendants'
challenges on these and other grounds.
Facts and Trial Proceedings ___________________________
In the summer of 1992, Jefferson Mor n, a special
agent with the Drug Enforcement Administration ("DEA"),
learned from a confidential informant, Ram n Malav , that
defendant Carlos Lugo-L pez was interested in selling
kilogram quantities of cocaine. On instruction from Mor n,
Malav confirmed Lugo-L pez' interest in a phone conversation
and later called to negotiate the purchase of two kilograms
of cocaine. Malav told Lugo-L pez that he could page Mor n
(whom Malav said would handle the money) when he was ready
to make the transactions. Lugo-L pez had Mor n paged. Lugo-
L pez left a message for Mor n that the "contracts" were
ready and that he should drop by Lugo-L pez' house to pick
them up.
-3- 3
Malav went to the Lugo-L pez residence, where he
met the supplier, defendant Luis Cartagena-Carrasquillo.
Cartagena-Carrasquillo left, saying that he would return
right away with the drugs. Cartagena-Carrasquillo later
returned with defendant Jos L. Figueroa-Garc a and a bag.
They went to a room at the rear of the carport where
Cartagena-Carrasquillo opened the bag and took out a kilo of
cocaine.
During phone conversations between Mor n and Malav
while Malav was at Lugo-L pez' house, Malav said two men
had arrived to sell two of the four kilograms of cocaine in
the bag. Lugo-L pez asked Malav to call his partner, Mor n,
to come and put up the money. In a round robin, Lugo-L pez
kept insisting that the money be brought to his house while
Malav , on instructions from Mor n, tried to lure Lugo-L pez
to San Juan (where an arrest would be easier) with promises
he would be paid there. At some point during the series of
pages and telephone calls, Cartagena-Carrasquillo and
Figueroa-Garc a left to sell one of the kilos to another.
When the two returned, Lugo-L pez and Malav were still
sallying about where the sale would take place. Cartagena-
Carrasquillo got upset with the delay and left in a car with
Figueroa-Garc a.
Law enforcement agents shadowed the car, driven by
Figueroa-Garc a, and saw Cartagena-Carrasquillo get out of
-4- 4
the car carrying a tan bag. When agents approached him, he
got back into the car and fled with Figueroa-Garc a. A car
chase resulted, ending in a public housing project. The two
men fled by foot and were ultimately arrested. Cartagena-
Carrasquillo, who had the tan bag in his hands when he
abandoned the car, did not have it when he was arrested.
Agents later found it in a trash can in the area where he
first fled on foot. It contained three kilograms of cocaine
and $12,900 in cash.
On June 17, 1992, a grand jury returned a four-
count indictment charging that Lugo-L pez, Cartagena-
Carrasquillo, Figueroa-Garc a, and another, aiding and
abetting each other, possessed with intent to distribute some
3303.96 grams of cocaine in violation of 21 U.S.C.
841(a)(1) and 18 U.S.C. 2. Lugo-L pez was also charged in
two counts with using a telephone in furtherance of drug
distribution in violation of 21 U.S.C. 843(b).
Trial started on November 30, 1993. After four
days of testimony, defendants requested and were granted a
mistrial. Cartagena-Carrasquillo and Lugo-L pez moved for
dismissal on double jeopardy grounds. The district court's
denial of the motion was appealed.
While that appeal was pending, this case went to
trial for the second time on February 14, 1994. The
defendants were found guilty of all counts. The appeals from
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the conviction were consolidated with the appeals from the
denial of the motion to dismiss on grounds of double
jeopardy.
Post-Traumatic Stress Disorder ______________________________
Lugo-L pez argues there was error in the exclusion
of his proffered expert testimony that he suffered from
Posttraumatic Stress Disorder ("PTSD") and his attempts to
base an insanity defense on PTSD.1
The insanity defense, set forth at 18 U.S.C. 17,
is an affirmative defense. The burden is on the defendant to
show by clear and convincing evidence, see 18 U.S.C. 17(b), ___
that:
at the time of the commission of the acts
constituting the offense, the defendant,
as a result of a severe mental disease or
defect, was unable to appreciate the
nature and quality or the wrongfulness of
his acts. Mental disease or defect does
not otherwise constitute a defense.
____________________
1. Lugo-L pez is a Vietnam veteran who asserted he was
exposed to Agent Orange, has been hospitalized for mental
illness and had been diagnosed as schizophrenic. He also
asserted that he suffers from PTSD, which is a mental
disorder recognized in the Diagnostic and Statistical Manual _________________________________
of Mental Disorders 424-29 (4th ed. 1994). PTSD is caused by ___________________
exposure to an extreme traumatic stressor involving actual or
threatened death or serious injury or other threat to one's
physical integrity and tends to result in symptoms such as
re-experiencing the traumatic event, a tendency to avoid
stimuli associated with the trauma, numbing of general
responsiveness, and increased arousal. Id. at 424. ___
-6- 6
18 U.S.C. 17(a). There is a procedural component to
assertion of the defense as well. Rule 12.2 of the Federal
Rules of Criminal Procedure requires that notice of an
intention to raise the insanity defense must be given by the
defendant to the government "within the time provided for the
filing of pretrial motions or at such later time as the court
may direct." If such notice is not given, the insanity
defense may not be raised.
The trial court excluded the PTSD evidence
primarily because it felt inadequate notice had been given
and secondarily because it thought the evidence was
insufficient in any event. The standard of review for
excluding the testimony under Rule 12.2 is abuse of
discretion. See United States v. Cameron, 907 F.2d 1051, ___ ______________ _______
1059 (11th Cir. 1990); United States v. Weaver, 882 F.2d _____________ ______
1128, 1136 (7th Cir.), cert. denied sub nom. Schwanke v. _____ ______ ___ ____ ________
United States, 493 U.S. 968 (1989); United States v. Duggan, _____________ ______________ ______
743 F.2d 59, 80 (2d Cir. 1984). A district court's decision
to admit or exclude expert testimony is entitled to great
deference and will be reversed only if: (1) the decision was
based on an incorrect legal standard or (2) the reviewing
court has a "'definite and firm conviction that the court
made a clear error of judgment in the conclusion it reached
based upon a weighing of the relevant factors.'" United ______
States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995) (quoting ______ ____
-7- 7
United States v. Benavente Gomez, 921 F.2d 378, 384 (1st Cir. _____________ _______________
1990)); see also United States v. Brien, 59 F.3d 274, 277 ___ ____ _____________ _____
(1st Cir. 1995) ("[T]rial judges have traditionally been
afforded wide discretion to admit or exclude expert
evidence."), cert. denied, ___ S. Ct. ___, 94 U.S.L.W. 3316 _____ ______
(1995).
The insanity defense was not raised in the aborted
first trial, nor was it raised when Lugo-L pez asserted and
lost the issue of whether he was competent to stand trial.
One month after the mistrial, Lugo-L pez first filed a
written motion on January 11, 1994, giving notice of a PTSD
defense. The motion indicated that Lugo-L pez would present
the testimony of both Luis Falc n-Torres, his caseworker at
the Puerto Rico Vietnam Veteran's Assistance Program, and an
as yet unnamed expert on PTSD. The motion also said that the
facts surrounding the commission of the crime showed that
defendant was suffering from delusions or a disease or
disorder that affected his conduct. The motion was discussed
in a February 1, 1994 status conference and the judge hearing
that motion "noted" that Lugo-L pez "shall raise at trial the
defense of insanity" and that "[t]he issue whether post
traumatic stress disorder is admissible shall be resolved at
trial."
The government, aware only of psychiatric
evaluations performed by a Dr. Cabrera earlier on defendant's
-8- 8
competence to stand trial, on February 4 requested a
preliminary hearing on the admissibility of the proposed PTSD
testimony. On February 9, Lugo-L pez responded and filed a
motion stating his intent to offer a Dr. Santiago as his
expert witness and requesting authorization for this expert's
services. The authorization was granted, and counsel was
"reminded that the admissibility of Dr. Santiago's testimony
[would be] left to the trial judge."
Trial started before a different judge on February
14. At no time did Lugo-L pez file proposed instructions on
an insanity defense, although on the first day of trial he
did file a memorandum of law as to whether PTSD could
constitute an insanity defense. On the fifth day of the six-
day trial, the issue of the PTSD defense came up indirectly,
during colloquy concerning an objection to the social
worker's testimony as to Lugo-L pez' war record and medals.
The court noted at a sidebar conference that such testimony
would be admissible, if at all,2 only if the PTSD defense
was admissible and asked to see psychiatric expert's report.
Later, after review of the report, the trial court excluded
the insanity defense.
____________________
2. The trial judge later ruled the war-record testimony
inadmissible for other reasons. Thus, we understand Lugo-
L pez' appeal on the insanity defense issue to be focussed on
the exclusion of the expert testimony of his psychiatrist.
The social worker's testimony was not intended to establish
the defense; at most it would buttress the psychiatric
testimony.
-9- 9
The defense was, we think, timely raised in light
of the pre-trial rulings of the conference judge noting the
raising of the defense and reserving the admissibility issue
to trial and the later authorization of the retention of the
psychiatric expert. See Cameron, 907 F.2d at 1059. But we ___ _______
also hold that there was no abuse in excluding the testimony
proffered for certain other reasons stated by the trial
judge. The trial judge found that Dr. Santiago's report was
at best conclusory in that it did "not show in what way the
PTSD syndrome could relieve the defendant of the
responsibility for the crimes charged"; that the testimony
was insufficient as a matter of law in that it did not go to
Lugo-L pez' state of mind on the dates of commission of the
crimes charged, and that it would be unduly prejudicial in
violation of Rule 403 in light of its lesser probative value.
The only witness proffered to establish the defense
was Dr. Santiago. As to PTSD, the expert's report stated, in
pertinent part:
[Lugo-L pez] justifies his behavior with
his special army training and his Viet
Nam experience when his main problem is
his poor judgment -- he cannot anticipate
the consequences of his behavior most of
the time. His schizophrenic make up adds
to his difficulties.
The psychiatrist's diagnosis was that:
[C]ocaine and heroin use and dependency .
. . together with his schizophrenic make
up explain his grandiose and delusional
-10- 10
behavior, [e]specially in relation to the
informant during investigation.
The report concluded:
There is no doubt that the patient meets
the criteria for a P.T.S.D. patient [and]
was having delusions when he was being
intervened (sic) by a D.E.A. confident
(sic) and it is confirmed in the report
prepared by D.E.A. agents. . . . At the
time of the intervention of the D.E.A.
representatives, Mr. Lugo because of his
delusions of grandeur had a significant
mental disease and was unable to conform
his conduct to the requirements of the
law.
There was no abuse of discretion in excluding the
testimony based on this proffer. The report is singularly
unfocussed and does not address whether at the time of the
commission of the crimes charged, Lugo-L pez "as a result of
a severe mental disease or defect, was unable to appreciate
the nature and quality or the wrongfulness of his act." 18
U.S.C. 17. As the statute itself says, the mere fact of
"mental disease or defect does not otherwise constitute a
defense." Id. ___
The report does not establish that Lugo-L pez was
suffering from a "severe" mental disorder at the time of
commission of the offenses; at most, it characterizes his
claimed disorder as "significant." Indeed, the report
recounts that by 1992, the year of the crime, Lugo-L pez had
stopped using his drugs of choice, heroin and cocaine. His
hospitalizations for schizophrenia had been more than a
-11- 11
decade before. His mental status at the time of Dr.
Santiago's examination was described as "mild[ly] to
moderate[ly] depress[ed]," "logical and coherent" but at
times "irrelevant," "well oriented in time, place, and
person," suffering from "poor judgment" and being "insecure."
The legislative history of 18 U.S.C. 17 reveals that:
The concept of severity was added to
emphasize that non-psychotic behavior
disorders or neuroses such as an
"inadequate personality," "immature
personality," or a pattern of "anti-
social tendencies"donot constitutethedefense.
S. Rep. No. 98-225, 98th Cong., 2d Sess. 229 (1984),
reprinted in U.S.C.C.A.N. 3182, 3411, quoted in United States ____________ _________ _____________
v. Salava, 978 F.2d 320, 323 (7th Cir. 1992). ______
There is nothing in the psychiatrist's report which
suggests that the defendant did not know or could not
appreciate that selling cocaine was wrong. At best, the
report accepts and repeats Lugo-L pez' statements that he was
suffering delusions at the time that Malav approached him to
ask whether he would sell Malav drugs. Lugo-L pez said he
was "feeling" he was a CIA spy with connections to the police
in Haiti. The report does not link such a delusion with an
incapacity to determine whether selling cocaine is wrong.
Moreover, there is no explanation as to why such delusions
would be associated with PTSD. And there is no evidence in
the report or otherwise that Lugo-L pez was suffering from
any effects, delusional or otherwise, on the dates when the
-12- 12
crimes -- the drug transaction and the telephone
conversations -- actually took place.
The psychiatrist's testimony is the only evidence
the defendant offered to establish the insanity defense. The
psychiatrist's report is inadequate to establish that as a
result of his PTSD Lugo-L pez was "unable to appreciate the
nature and quality or the wrongfulness of his acts." See 18 ___
U.S.C. 17(a); Duggan, 743 F.2d at 81 (expert affidavit ______
asserted that "as a result of [PTSD], [defendants] were not
able to conform their conduct to the requirements of the
law," but contained no evidence or clinical findings in
support of these conclusions and was thus inadequate to raise
the insanity defense in compliance with Rule 12.2); see also ___ ____
United States v. Whitehead, 896 F.2d 432, 435 (9th Cir. 1990) _____________ _________
(jury not permitted to consider defense where testimony could
not establish with convincing clarity that PTSD caused
defendant to be unable to appreciate the wrongfulness of bank
robbery), cert. denied, 498 U.S. 938 (1990).3 The district _____ ______
court did not apply an incorrect legal standard or make an
error in judgment in excluding the psychiatrist's testimony.
____________________
3. We also note, but do not rest our decision on, the trial
judge's concern under Rule 403. Cf. United States v. Shay, ___ _____________ ____
57 F.3d 126, 133 (1st Cir. 1995). The proffered insanity
defense, supported only by vague, weak and conclusory
testimony, could skeptically be viewed as only a pretext to
get before the jury the extremely sad and sympathetic story
of a much decorated Vietnam war hero gone far astray.
-13- 13
Religious Reference ___________________
Cartagena-Carrasquillo, who throughout trial wore
white clothing, a possible marker of adherence to a minority
religious sect, now objects on appeal to the prosecutor's
closing arguments which, in an apparent effort to discredit
the defendant's testimony, embraced Catholicism. While the
prosecutor's argument was improper, that is not enough to win
the day for this defendant, who did not properly make or
preserve his objection, and as to whom the evidence of guilt
was overwhelming.
We know only from assertions of defense counsel on
this appeal, which the government on questioning at oral
argument conceded, that Cartagena-Carrasquillo wore white
clothing at trial and that this manner of dress in Puerto
Rico may symbolize membership in a minority religious group.
We do not know, nor apparently did the jury, whether he was
in fact a member of such a group nor the strength of the
inference that he might be. Nothing was put on the record.
The closing argument, though, is on the record.
The prosecutor argued:
When we live in the same neighborhood, we
go to the same church, when we go to
church, we come out, we talk to
everybody. Now that we are in [L]ent and
this is in "Cuaresma", we do "via crusis"
where we go from house to house and say a
prayer and meet the people there.
-14- 14
The prosecutor's reference to Lent ("Cuaresma"), to doing the
way of the cross ("via crusis"), to saying prayers, and the
use of the term "we" suggested an alliance between the
government and a church to which, presumably, many of the
jurors, but not the defendant, belonged. Injection of
religion into the case was flatly wrong and contrary to what
the public has a right to expect of government prosecutors.
Cartagena-Carrasquillo objected to the reference.
The court responded it would hear the objection later at
sidebar and asked counsel to keep the objection in mind.
During the sidebar conference, the objection was not raised
again and there was no request for a curative instruction or
other curative action.
Cartagena-Carrasquillo argues that even in the
absence of a renewed objection or a request for instruction
that the trial judge was obligated to give a curative
instruction sua sponte. While there may be situations in ___ ______
which the imposition of sua sponte obligations on trial ___ ______
judges has been considered, see, e.g., United States v. ___ ____ _____________
Santiago Soto, 871 F.2d 200, 202 (1st Cir.), cert. denied, ______________ _____ ______
493 U.S. 831 (1989), we decline to impose one here. Whether
an instruction will "cure" a problem or exacerbate it by
calling more attention to it than warranted is within the ken
of counsel and part of litigation strategy and judgment. The
-15- 15
obligation to suggest the appropriate response, if any,
rested on defense counsel.
Balancing, on Cartagena-Carrasquillo's part, the
failure to properly give notice to the trial court of a
desire for remedial instruction, to preserve the issue, or
even to create a proper record, against the isolated but
seemingly deliberate injection of religion into the case by
the prosecutor, we turn to a test adopted by this Court in a
more straightforward case, United States v. Hodge-Balwing, _____________ _____________
952 F.2d 607, 610 (1st Cir. 1991). In reviewing whether
improper remarks in a closing argument are grounds for
reversal in that they "so poisoned the well" that the trial's
outcome was likely affected, this court considers the
following factors: "(1) whether the prosecutor's conduct was
isolated and/or deliberate; (2) whether the trial court gave
a strong and explicit cautionary instruction; and (3) whether
it is likely that any prejudice . . . could have affected the
outcome of the case." Id. ___
As to the first prong, "[d]efendant's religion has
no bearing whatsoever on any legitimate issue in the case."
United States v. Goldman, 563 F.2d 501, 504 (1st Cir. 1977), ______________ _______
cert. denied, 434 U.S. 1067 (1978). But a reference to _____ ______
religion does not necessarily require reversal. Id. at 505. ___
Second, while there was no curative instruction here, there
was no request for one, and we do not discount the
-16- 16
possibility that the failure to make the request was a
tactical choice by defense counsel. See United States v. ___ _____________
Brandon, 17 F.3d 409, 446 (1st Cir. 1994), cert. denied sub _______ _____ ______ ___
nom. Granoff v. United States, 115 S. Ct. 80 (1994) and Ward ____ _______ _____________ ___ ____
v. United States, 115 S. Ct. 81 (1994). _____________
We turn, then, to the third prong of the Hodge- ______
Balwing test and ask whether it is likely that any prejudice _______
could have affected the outcome of the case. The religious
references in the prosecutor's closing were less a direct
appeal to religious prejudice than in other cases we have
considered (such as Goldman) and there is less reason here to _______
draw an inference of prejudice. On objection, the remarks
stopped.
The instructions given to the jury assisted it in
keeping to the path before it, free from prejudice. The
district court instructed the jury to perform its duty
"objectively without any bias or without any prejudice,"
reminded the jury that the defendants were presumed innocent
unless guilt was established beyond a reasonable doubt, told
the jury that statements of counsel were not evidence, and
explicitly set out the elements of the crimes charged. See ___
United States v. Giry, 818 F.2d 120, 132-33 (1st Cir.) ______________ ____
(prosecutor's improper closing argument that defendant
"sounds like Peter who for the third time denied Christ" was
deliberate and unprovoked, but was not objected to and did
-17- 17
not produce plain error in light of overall jury
instructions, even without an instruction specifically
addressed to the prejudicial comment), cert. denied, 484 U.S. _____ ______
855 (1987).
Further, the evidence of guilt was very strong.
Cartagena-Carrasquillo was introduced by Lugo-L pez as the
supplier. He arrived at the Lugo-L pez house with a bag
containing cocaine. He left the house with the bag, fled
when approached by law enforcement agents, led the agents on
a car chase, left the car with the bag in hand, and the bag
containing cocaine was found soon after the arrests in a
trash can in the area where he had been.
Double Jeopardy _______________
Both the origins and demise of defendants' double
jeopardy claims lie in the termination of the first trial by
mistrial.
The mistrial was declared by the judge after the
government's first witness, Malav , was observed going into a
witness room with DEA special agent Mor n. Mor n had been
assigned to protect the witness, a confidential informant and
the only witness to the drug transaction. The court had
given a general instruction to all witnesses not to talk
about their testimony. Although there was no evidence of
violation of that instruction, an objection by defense
-18- 18
counsel to the two talking precipitated a defense motion for
mistrial, which was allowed. The trial court specifically
held that there was no misconduct by the prosecutor and no
intent to goad a mistrial. Those fact findings are subject
to a clearly erroneous standard of review. United States v. _____________
Serra, 882 F.2d 471, 473 (11th Cir. 1989). The trial court's _____
denial of defendants' motion to dismiss based on double
jeopardy is subject to de novo review. United States v. __ ____ ______________
Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir.), cert. denied, ________________ _____ ______
113 S. Ct. 105 (1992).
Defendants contend that the conduct of the
government's witness and the DEA agent was designed to
produce a mistrial. This is based on a theory that the
witness felt he had not testified well, that he attempted to
signal his discomfort to the prosecution in full view of the
defense, and that the hostility expressed by the DEA agent to
defense counsel when they confronted him about meeting with
the witness all were intended to goad defendants into moving
for a mistrial. The government's hypothesized gain would be
a second chance for its key witness to do a better job.
Theory is not fact and the trial court specifically rejected
the theory as not based on the facts. Nothing in the record
suggests its findings were clearly erroneous.
Because the defendants consented to the mistrial
declaration and because there was no basis to conclude that
-19- 19
the conduct giving rise to the mistrial was intended to
provoke the defendant into moving for a mistrial, there was
no double jeopardy bar to reprosecution. Oregon v. Kennedy, ______ _______
456 U.S. 667, 675-76 (1982); United States v. Perez Sanchez, _____________ _____________
806 F.2d 7, 8 (1st Cir. 1986), cert. denied, 480 U.S. 922 _____ ______
(1987). "Only where the governmental conduct in question is
intended to 'goad' the defendant into moving for a mistrial
may a defendant raise the bar of double jeopardy to a second
trial after having succeeded in aborting the first on his own
motion." Kennedy, 456 U.S. at 676. _______
Filing of Information Under 21 U.S.C. 851 ___________________________________________
Late on February 10, 1994, the day before jury
selection started for the second trial, the government filed
and faxed to counsel for Lugo-L pez an information under 21
U.S.C. 851(a)(1) seeking an enhancement of penalties.
While such cliff-hanging practices are not wise, the filing
was made before jury selection, and that is all that was
required. Kelly v. United States, 29 F.3d 1107, 1110 (7th _____ ______________
Cir. 1994) (citing cases). That the information was not
filed during the first trial did not bar the government from
seeking an enhanced penalty during the second, unless the
government sought to punish the defendant for exercising a
constitutional or statutory right. See United States v. ___ _____________
Goodwin, 457 U.S. 368, 384 (1982). Lugo-L pez alleges that _______
-20- 20
the prosecution made the last minute filing of the
information out of prosecutorial vindictiveness arising from
earlier dealings in the case. Even if seeking an enhancement
before the second trial that was not sought before an earlier
trial were sufficiently likely to be vindictive so as to
warrant a presumption of vindictiveness, the prosecutor here
rebutted that presumption. See United States v. Marrapese, ___ ______________ _________
826 F.2d 145, 149 (1st Cir.), cert. denied, 484 U.S. 944 _____ ______
(1987). The district court, after hearing the government's
reasons for the eve-of-trial filing, determined that there
was no vindictiveness. There is no reason to disturb that
finding.
Lugo-L pez also contends that the information was
signed by an unauthorized person and contained certain
mistakes of fact. This contention is unavailing. Even
assuming that an Assistant United States Attorney was not
authorized to sign the information, that and the other
mistakes could be and were corrected prior to pronouncement
of the sentence, as permitted under the statute.
Sufficiency of the Evidence ___________________________
The claims by Cartagena-Carrasquillo and Figueroa-
Garc a that the evidence was insufficient to support their
convictions are without merit, as the description of the
facts of record amply demonstrates.
-21- 21
Chain of Custody ________________
Cartagena-Carrasquillo challenges the chain of
custody of the cocaine. Chain of custody arguments usually
go to the weight of the evidence and not admissibility.
United States v. Ortiz, 966 F.2d 707, 716 (1st Cir. 1992), ______________ _____
cert. denied, 113 S. Ct. 1005 (1993); United States v. Luna, _____ ______ _____________ ____
585 F.2d 1, 6 (1st Cir.), cert. denied, 439 U.S. 852 (1978). _____ ______
Review is for abuse of discretion. Ortiz, 966 F.2d at 716. _____
Defendant argues that the deal was for 2 kilograms
of cocaine while the amount found in the tan bag was 3
kilograms, that one bag of cocaine was opened while at the
Lugo-L pez house, but that no bags were opened when the DEA
agents found them, and that the bags were found abandoned in
a high crime area. From this, the defendant says, there is a
chance of altered or substituted evidence. This is a classic
weight of the evidence argument.
The government agents testified as to proper
custodial procedures and the evidence suggests plausible
explanations for the discrepancies noted. One such
explanation is that there were four kilograms originally,
that the opened one kilogram bag of cocaine was sold to
another when Cartagena-Carrasquillo left Lugo-L pez' house to
make a sale, thus accounting for the remaining 3 kilograms of
cocaine and the $12,900 in cash found in the bag later.
-22- 22
Other Evidentiary Rulings _________________________
Lugo-L pez complains that the trial court erred in
curtailing the cross-examination of an informant.
Limitations on the cross-examination of a witness are
reviewed for abuse of discretion. United States v. Boylan, ______________ ______
898 F.2d 230, 254 (1st Cir.), cert. denied, 498 U.S. 849 _____ ______
(1990). Although a defendant does have a constitutional
right to cross-examine witnesses against him, U.S. Const.
amend. VI, that right is not unlimited. United States v. _____________
Corgain, 5 F.3d 5, 8 (1st Cir. 1993). Here, the district _______
court refused to allow cross-examination as to the
confidential informant's failure to file income tax returns.
The informant's motive and potential bias had already been
established. Defense counsel also had already pointed out
many inconsistencies in his trial testimony as well as
discrepancies between the informant's testimony at trial and
his earlier testimony both before the grand jury and at the
mistrial. The jury had ample information from which to gauge
the credibility of this witness. See, e.g., United States v. ___ ____ _____________
Rodriguez, 63 F.3d 1159, 1168 (1st Cir. 1995). The trial _________
court did not abuse its discretion in limiting cross-
examination on the failure to file income tax returns.
Lugo-L pez also complains about the district
court's allowance of the withdrawal of a number of pages of a
trial transcript that had previously been admitted. There
-23- 23
was no objection to this withdrawal by Lugo-L pez at the
time; he waited until after the verdicts had been returned.
Even assuming that we should consider this issue given the
late objection, the error, if any, was harmless. The
district court ruled that this portion of the transcript was
inadmissible as irrelevant and confusing to the jury. Such
was well within its discretion. Moreover, the only purpose
defendant gives to be served by the portion of the transcript
that was withdrawn was to further undermine the credibility
of the confidential informant. Because the jury had enough
information to determine such credibility, there was no
prejudice.
Cartagena-Carrasquillo argues that the district
court erred in allowing a DEA agent to give his opinion that
annotations on the back of a business presentation card were
related to a drug transaction. Cartagena-Carrasquillo argues
that the annotations were simply the addition of numbers,
facially innocent. This court has previously held that it
was well within a trial court's discretion to admit expert
testimony identifying a similar document -- a column of
numbers added together -- as a drug ledger and explaining its
contents. United States v. Echeverri, 982 F.2d 675, 680-81 _____________ _________
(1st Cir. 1993). There was similarly no abuse of discretion
here.
-24- 24
Sentencing __________
Figueroa-Garc a asserts he should not have received
any more than the mandatory minimum sentence of 60 months,
because, he asserts, there was never any evidence of his
guilt or, at least, hardly any evidence. The jury found
otherwise. He was sentenced to 78 months after the court
found he had not accepted responsibility and so was
ineligible for a two-level decrease under U.S.S.G.
3E1.1(a). He claims he was entitled to a reduction as a
minor participant under U.S.S.G. 3B1.2(a).
The defendant has the burden of showing that he is
entitled to a reduction in his offense level under
3B1.2(a). United States v. Ocasio, 914 F.2d 330, 332 (1st _____________ ______
Cir. 1990). On appeal, the defendant must establish that the
district court's determination was clearly erroneous. Id. at ___
333. Defendant has not met that burden. The evidence
clearly shows that he was more than a minor participant in
the criminal venture. He and Cartagena-Carrasquillo arrived
at the Lugo-L pez house together with kilogram quantities of
cocaine. They left together to sell a kilogram to someone
else and returned together. When the transaction with the
confidential informant failed, Figueroa-Garc a drove
Cartagena-Carrasquillo away. Figueroa-Garc a then led the
agents in a car chase and fled from the law. The district
-25- 25
court did not clearly err by denying a reduction under
3B1.2(a). Figueroa-Garc a was not a minor participant.
Affirmed. _________
-26- 26