United States v. Franky-Ortiz

United States Court of Appeals
For the First Circuit

No. 99-1113

UNITED STATES OF AMERICA,

Appellee,

v.

JAVIER FRANKY-ORTIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Luis Rafael Rivera, by appointment of the court, on brief
for appellant.
Jacabed Rodriguez-Coss, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jorge E.
Vega-Pacheco, Assistant United States Attorney, were on brief,
for appellee.

October 24, 2000
 SELYA, Circuit Judge. On April 10, 1997, a federal

grand jury sitting in the District of Puerto Rico returned a

three-count indictment against a number of individuals. In

Count 2 of the indictment, the grand jury charged several

persons, including Javier Franky-Ortiz, with conspiring to

distribute controlled substances in violation of 21 U.S.C. §

846. In Count 3 of the same indictment, the grand jury charged

some of the same individuals, including Franky-Ortiz, with using

and carrying firearms during and in relation to the commission

of a drug-trafficking offense. See 18 U.S.C. § 924(c)(1).

Following a five-week trial, a petit jury found Franky-Ortiz

guilty on both counts. The district court thereafter sentenced

him to a term of life imprisonment on the conspiracy charge and,

ironically, to a consecutive five-year prison term on the

firearms charge. Franky-Ortiz appeals. 1 Having carefully

reviewed the record, we affirm.

On appeal, Franky-Ortiz's basic argument entails a

challenge to the sufficiency of the evidence — but with a twist.

The usual standard of review obligates an appellate court, when

1
Franky-Ortiz stood trial with eight codefendants (all of
whom were found guilty), and we consolidated all nine appeals.
Seven of them were argued together on September 14, 2000. The
other two, including this one, were submitted on the briefs to
the same panel. Because this appeal raises issues peculiar to
Franky-Ortiz, we have chosen to decide it in a separate opinion.

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evaluating the sufficiency of the proof presented against a

defendant in a criminal case, to "canvass the evidence (direct

and circumstantial) in the light most agreeable to the

prosecution and decide whether that evidence, including all

plausible inferences extractable therefrom, enables a rational

factfinder to conclude beyond a reasonable doubt that the

defendant committed the charged crime." United States v. Noah,

130 F.3d 490, 494 (1st Cir. 1997). In carrying out that test,

the court is bound to refrain from making independent judgments

as to the credibility of witnesses. See United States v. Lara,

181 F.3d 183, 204 (1st Cir. 1999); Noah, 130 F.3d at 494; United

States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). We

recently summed up this principle in United States v. Alicea,

205 F.3d 480 (1st Cir. 2000), in which we wrote that "[e]xcept

in the most unusual circumstances . . . credibility

determinations are for the jury, not for an appellate court."

Id. at 483.

The appellant acknowledges this principle, at least

tacitly. Nevertheless, he seeks to detour around it by arguing

that the lower court should have excluded from the jury's

consideration the testimony of certain turncoat witnesses. This

detour leads only to a dead end.

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 The appellant's argument, at bottom, is a vain attempt

to invoke the specter of a witness-bribery statute that provides

in pertinent part:

Whoever . . . directly or indirectly, gives,
offers or promises anything of value to any
person, for or because of the testimony
under oath or affirmation given or to be
given by such person as a witness upon a
trial, hearing, or other proceeding, before
any court . . . authorized by the laws of
the United States to hear evidence or take
testimony . . . shall be fined under this
title or imprisoned for not more than two
years, or both.

18 U.S.C. § 201(c)(2). In 1998, a Tenth Circuit panel held that

this statute forbade testimony given in exchange for promised

leniency, and applied an exclusionary rule to remedy perceived

violations. See United States v. Singleton, 144 F.3d 1343 (10th

Cir. 1998) (Singleton I). The appellant acknowledges that the

Tenth Circuit, sitting en banc, has repudiated Singleton I. See

United States v. Singleton, 165 F.3d 1297, 1298 (10th Cir. 1999)

(en banc) (Singleton II), cert. denied, 527 U.S. 1024 (1999).

He likewise acknowledges that this court has disavowed the

reasoning of Singleton I. See United States v. Lara, 181 F.3d

183, 198 (1st Cir. 1999). He nonetheless argues that the spirit

of Singleton I persists, and that the rationale behind the

decision — namely, that testimony from government witnesses who

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have received inducements to testify is inherently unreliable —

justifies the reversal of the jury verdict in this case.

We reject this specious argument. While the testimony

of cooperating witnesses must always be scrutinized with care,

e.g., United States v. LiCausi, 167 F.3d 36, 47 (1st Cir. 1999),

the witnesses here were subjected to withering cross-examination

by several sets of defense counsel, and the jury was properly

instructed to weigh their testimony in light of the promises

made and inducements tendered. The jury apparently found the

witnesses credible. We know of no authority that would permit

us to second-guess the jury's assessment. We therefore decline

to accept the appellant's reading of either the letter or the

spirit of section 201(c)(2). See Lara, 181 F.3d at 198;

Singleton II, 165 F.3d at 1298; see also United States v.

Lowery, 166 F.3d 1119, 1122-24 (11th Cir. 1999); United States

v. Ramsey, 165 F.3d 980, 987 (D.C. Cir. 1999); United States v.

Ware, 161 F.3d 414, 418-25 (6th Cir. 1998), cert. denied, 526

U.S. 1045 (1999); United States v. Haese, 162 F.3d 359, 366-68

(5th Cir. 1998), cert. denied, 526 U.S. 1138 (1999). That being

so, the appellant's claim of evidentiary insufficiency

necessarily fails.

The appellant also assigns error to the sentencing

court's refusal to reduce his offense level for acceptance of

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responsibility. The sentencing guidelines prescribe that a

defendant's offense level should be trimmed by two levels, and

sometimes three, if he accepts responsibility for the offense of

conviction. See USSG §3E1.1. But a defendant is not

automatically entitled to this adjustment. "Rather, he must

demonstrate that he has taken full responsibility for his

actions, and he must do so candidly and with genuine

contrition." United States v. Saxena, ___ F.3d ___, ___ (1st

Cir. 2000) [No. 99-1842, slip op. at 16-17]. A defendant who

has elected to stand trial usually will not be able to meet this

standard when he admits wrongdoing only after the jury has

spoken. E.g., United States v. Collazo-Aponte, 216 F.3d 163,

205 (1st Cir. 2000) (warning that although a defendant who puts

the government to its proof at trial theoretically may qualify

for acceptance of responsibility, such occurrences will be

rare). In either event, if the defendant is unable to persuade

the sentencing court that he accepts responsibility and deserves

the allowable credit, he faces an uphill climb in attempting to

reverse that ruling on appeal. After all, a "defendant has the

burden of proving his entitlement to an acceptance-of-

responsibility credit, and the sentencing court's determination

to withhold the reduction will be overturned only if it is

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clearly erroneous." United States v. Ocasio-Rivera, 991 F.2d 1,

4 (1st Cir. 1993) (internal citations omitted).

In this case, the appellant's effort to set aside the

district court's determination fails. The sentencing guidelines

generally discourage a downward adjustment for acceptance of

responsibility in situations in which the defendant has "put[]

the government to its burden of proof at trial by denying the

essential factual elements of guilt, is convicted, and only then

admits guilt and expresses remorse." USSG §3E1.1, comment.

(n.2). That application note aptly describes this case: the

appellant tested the prosecution's mettle in a five-week trial,

staunchly denied the essential facts upon which his ultimate

conviction rested, and expressed remorse only after he stood on

the brink of a life sentence. The trial court, after

entertaining extensive arguments, reviewed this fact pattern and

declined to award an acceptance-of-responsibility credit. The

court stressed the "late stage" at which the appellant had

finally acknowledged his guilt and determined that this was too

little, too late. In the process, the court found specifically

that this was not "the rare instance" in which it should credit

a belated, post-trial profession of remorse. Because this

determination has a solid foundation in the record, we must

allow it to stand. See United States v. Royer, 895 F.2d 28, 30

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(1st Cir. 1990) (approving the denial of an acceptance-of-

responsibility credit when "the court had a plausible basis for

arriving at the conclusion"); see also USSG §3E1.1, comment.

(n.5) (explaining that the "sentencing judge is in a unique

position to evaluate a defendant's acceptance of

responsibility").

The appellant seeks to avoid this conclusion by

insinuating that he exercised his right to trial for two valid

reasons: first, to safeguard his objection to the court's

denial of his pretrial motion to suppress certain statements;

and second, because he was dissatisfied with the government's

plea offer. These asseverations do not withstand scrutiny.

The first asseveration was not advanced before the

sentencing court, and, thus, cannot be considered here.2 See

United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991) ("A

criminal defendant, dissatisfied with the district court's

rulings at sentencing, yet persuaded that his original arguments

lacked merit, cannot switch horses mid-stream in hopes of

locating a swifter steed."). Moreover, the spuriousness of the

claim is readily apparent: the suppression issue which the

2We could, of course, review the argument for plain error.
See Alicea, 205 F.3d at 484. However, "the plain error hurdle
is high," United States v. Hunnewell, 891 F.2d 955, 956 (1st
Cir. 1989), and the appellant clearly cannot vault over it.

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appellant now claims he longed to preserve was not even

presented to this court in his appellate brief.

This leaves us with the appellant's dissatisfaction

with the plea offer. Plea bargains are products of negotiation,

and a criminal defendant has no right to insist that the

prosecutor offer him leniency in exchange for a guilty plea.

Cf. United States v. Torres-Rosa, 209 F.3d 4, 9 (1st Cir. 2000)

(explaining that the failure to secure leniency in sentencing is

not a fair and just reason warranting a defendant's withdrawal

of his guilty plea). Conversely, a prosecutor cannot prevent a

defendant from acknowledging his guilt. Given these realities,

a defendant cannot use his dissatisfaction with whatever plea

offer the government, in its discretion, chooses to make (or,

for that matter, the absence of any plea offer) as a basis for

persisting in an outright denial of all guilt, undergoing trial,

and nonetheless claiming an entitlement to an acceptance-of-

responsibility credit.

We need go no further. We conclude, without serious

question, that the evidence introduced at trial, taken in the

light most congenial to the government's theory of the case,

sufficed to ground the jury's verdict. We also conclude that

the district court acted within the realm of its discretion in

refusing to reduce the appellant's offense level for acceptance

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of responsibility. Consequently, his conviction and sentence

must be

Affirmed.

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