Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-20-2006
USA v. De Los Santos
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1168
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-1168
UNITED STATES OF AMERICA
v.
AUGUSTIN VERAS DE LOS SANTOS,
Appellant
Appeal from the District Court of the Virgin Islands,
Division of St. Thomas and St. John
(D.C. Criminal No. 03-cr-00040-2)
District Judge: Hon. Stanley S. Brotman
Argued: December 5, 2005
Before: SCIRICA, Chief Judge, McKEE, and NYGAARD, Circuit Judges
(Opinion filed: January 20, 2006)
George H. Hodge, Jr. (Argued)
P.O. Box 803
Charlotte Amalie, St. Thomas
USVI, 00804
Attorney for Appellant
Kim L. Chisholm (Argued)
Assistant United States Attorney
Ron De Lugo Federal Building &
U.S. Courthouse
5500 Veterans Drive, Suite 260
Charlotte Amalie, St. Thomas
USVI 00802-6424
Attorney for Appellee
OPINION
McKEE, Circuit Judge.
Augustin Veras de los Santos (“Augustin”) raises three challenges to his criminal
conviction, and we consider each separately. For the reasons stated below, we will
affirm.
I. SUFFICIENCY OF EVIDENCE
Because we write primarily for the parties, it is not necessary to reiterate the facts
or background of this case except insofar as may be helpful to our brief discussion. In
resolving Augustin’s claim that evidence was insufficient to support his conviction, we
review the evidence “in the light most favorable to the government, and . . . sustain the
verdict if any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)
(citations and internal quotations omitted). The claim carries “a very heavy burden.” See
United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990). Having reviewed the
evidence admitted at trial, we conclude that Augustin has failed to satisfy that burden.1
In denying Augustin’s motion for a new trial under Fed. R. Crim. P. 29, the
District Court carefully and thoroughly reviewed the evidence and concluded it was
1
Augustin’s argument that he cannot be convicted of aiding and abetting wire fraud
because he was not charged under an aiding and abetting statute also fails. See United
States v. Forsythe, 560 F.2d 1127, 1136 n.15 (3d Cir. 1977) (every indictment “must be
read as if 18 U.S.C. §2 were embodied in each count/” The indictment “need not
specifically charge aiding and abetting in order to support a conviction for aiding and
abetting.”).
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sufficient to uphold the conviction.2 The standard for granting a Rule 29 motion is
identical to the standard we must apply in resolving his insufficiency claim. Accordingly,
the trial court had to determine whether a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See United States v. Smith,
294 F.3d 473, 476 (3d Cir 2002). After reviewing the record in the light most favorable
to the government, the District Court concluded that it was sufficient to allow a jury to
find Augustin guilty beyond a reasonable doubt on each of the charges. We will affirm
that ruling substantially for the reasons explained by the District Court in its denial of the
Rule 29 motion.
II. DENIAL OF SEVERANCE
Augustin argues that the District Court should have severed either the co-
defendants or the conspiracy and aiding and abetting charges, because his redacted
statement denied him a fair trial. Augustin’s statement was redacted as follows:
Original Statement Statement Admitted Into Evidence
Q: Is that address1 under your name?
A: Under my sister, Ignacia Veras de los DELETED
Santos.
Q: Do you know if there are any passports
in your apartment, which do not belong to SAME
anyone residing in the apartment?
A: Yes.
Q: To whom do these passports belong?
2
See Opinion on Defendants’ Motion for Acquittal Under Fed. R. Crim. P. 29,
Supplemental Appendix 1- 25.
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A: They belong to the people who left DELETED
them with my sister Ignacia.
Q: To whom did you give the money that
Fernando gave you?
A: To my sister Hignacia (sic). Q: What did you do with that money?
Q: When did your sister Ignacia come for A: The next day, I passed it as instructed.
the money?
A: The following day.
Q: What did Fernando tell you [when he Q:What did Fernando tell you [when he
brought money for a second time]? brought money for a second time]?
A: He told me “I am bringing this money A: He asked me to give the money as
so that you can give it to Raquel.” before.
We review a denial of a motion for severance for abuse of discretion. United
States v. Hart, 273 F.3d 363 (3d Cir. 2001). However, even if the court abused its
discretion, Augustin is not entitled to relief unless he can establish that he was prejudiced
by the improper joinder. United States v. DeLarosa, 450 F.2d 1057, 1065 (3d Cir. 1971).
Moreover, in reviewing the District Court’s decision, we must remember the “preference
in the federal system for joint trials of defendants who are indicted together.” Zafiro v.
United States, 506 U.S. 534, 537 (1993).
Augustin argues that the redacted statement replaced specific answers with general
answers that appeared evasive and created the impression that he was attempting to hide
the identity and actions of co-conspirators. However, even if we assume that this is true,
he can not establish prejudice because the totality of the evidence (as summarized by the
District Court), strongly establishes his guilt, even absent the redacted statement.
Augustin also argues that the removal of references to “Ignacia” eviscerated his
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defense. In defending against the charges, Augustin argued that Ignacia owned
Apartment B16 and therefore could not refuse any items brought there. This defense was
seriously undermined by Jose Hilario (“Jose”), a government witness who testified that
Augustin proposed Ignacia as someone who could obtain fraudulent travel documents.
S.A. 34, 49. Jose also testified that Augustin arranged the first meeting between Jose and
Ignacia; that it was Augustin who first brought him to B16; and that Augustin provided
assurances about the quality of the travel documents. S.A. 35, 67. As the District Court
pointed out, “[n]o matter what form the confession of Augustin took, it was bound to be
prejudicial.” J.A. 30. Augustin admits, in both versions of the statement, that he
accepted money in exchange for passports that he knew were being altered for travel.
Thus, even if we assume the District Court abused its discretion, Augustin is not entitled
to relief because he cannot establish the required prejudice.
III. JURY INSTRUCTIONS
Augustin first challenges the “deliberate ignorance” instruction. He claims the
instruction “was specifically geared towards a finding of guilt against Augustin and no
one else.” Appellant’s Br. at 17. The court charged the jury as follows:
The government may prove that the defendants acted
knowingly by proving, beyond a reasonable doubt, that the
defendants deliberately closed their eyes to what would
otherwise have been obvious to them. No one can avoid
responsibility for a crime by deliberately ignoring what is
obvious. A finding beyond a reasonable doubt of an intent of
defendants to avoid knowledge or enlightenment would
permit the jury to find knowledge.
Stated in another way, a person’s knowledge of a
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particular fact may be shown from a deliberate or intentional
blindness to the existence of that fact. It is, of course, entirely
up to you regarding whether you find any deliberate
ignorance or deliberate closing of the eyes and any inferences
to be drawn from such evidence.
You may not conclude that defendants had knowledge,
however, from proof of a mistake, negligence, or a belief in
an inaccurate proposition.
J.A. 189.
Augustin argues the instruction “neutralized the Court’s earlier instruction
regarding membership in the agreement . . .” Appellant’s Br. At 17. He claims the
instruction allowed him to be convicted based upon his “mere presence.” However, he
does not claim that the instruction misstates the law of deliberate indifference, nor does
he claim that the instruction is not supported by the evidence that was introduced at trial.
Given this record, it is clear that the District Court did not abuse its discretion in giving
the charge, and it is also clear that the charge that was given accurately states the legal
principles the jury had to apply to the evidence that was introduced. Accordingly, we
reject Augustin’s challenge to the deliberate indifference instruction. United States v.
Wert-Ruiz, 228 F.3d 250, 255 (3d Cir. 2000).
We also reject Augustin’s claim that the District Court erred in giving a “common
defense” instruction. The court charged common defense as follows:
Counsel for the defendants have sat together here at the trial
and have [collaborated] in the defense of this case. They are
entitled to sit together and cooperate and join in a common
defense, since their clients are charged with crimes in which
they are each alleged to have participated. This joint or
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common defense does not constitute evidence that the
defendants were previously associated in a conspiracy or
other crime, and you are to draw no inference from their joint
efforts undertaken as a matter of right in their defense of this
case.
J.A. 190. Augustin claims that this instruction “suggests to the jury a unity
of purpose among defendants sharing a common goal.” Appellant’s Br. At
17. The claim is meritless.
The charge is intended to ensure that jurors do not conclude anything
nefarious about jointly tried defendants because they sit together, interact and appear to
cooperate during their joint trial. Augustin does not argue that the charge incorrectly
states the applicable legal principle; it doesn’t. Moreover, given the joint trial and the
nature of the evidence, we would have been concerned if the court had refused to give
this charge. We need not say any more to dispose of Augustin’s frivolous attempt to
obtain relief based upon that charge.
V. Conclusion
For the reasons stated above, the judgement of the District Court is affirmed.
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