United States v. Medina-Martinez

United States Court of Appeals
For the First Circuit

No. 03-1503
UNITED STATES OF AMERICA,

Appellee,

v.

JULIO A. MEDINA-MARTINEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before

Torruella and Howard, Circuit Judges,

Carter,* Senior District Judge.

Donald R. Furman, Jr., for appellant.
Nathan J. Schulte, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, Nelson Perez-Sosa, Assistant
United States Attorney, German A. Rieckehoff, Assistant United
States Attorney, were on brief for appellee.

January 6, 2005

*
Of the District of Maine, sitting by designation.
 CARTER, Senior District Judge. Defendant Julio A. Medina-

Martinez (“Medina”) appeals from a judgment of the United States

District Court for the District of Puerto Rico convicting him,

after a jury trial, of one count of conspiracy, in violation of 18

U.S.C. §§ 7(3), 113(a)(3), and 371, and one count of assault, in

violation of 18 U.S.C. §§ 2, 7(3), and 113(a)(3). For the reasons

set forth below, we affirm Medina’s conviction.

I. FACTUAL BACKGROUND

Because this appeal follows a conviction, we recite the facts

in the light most favorable to the verdict. United States v.

Gonzalez-Maldonado, 115 F.3d 9, 12 (1st Cir. 1997).

At the time of the events in question, Medina was incarcerated

inside the 3-Bravo unit at the Metropolitan Detention Center

(“MDC”) in Guaynabo, Puerto Rico. The 3-Bravo unit is a two story

cell block configured in the shape of a “U”. The cells form the

straight sides of the “U” and the middle of the “U” contains the

dining area. The cell blocks on the second floor are reached by

stairway.

On February 5, 2002, Gabriel Clemente, a federal corrections

officer, heard screaming coming from the dining area of 3-Bravo.

Upon investigation, Officer Clemente found inmate Luis Mercado-

Fantauzzi beating fellow inmate Steve Parramore with a sock

containing a combination lock. Parramore was screaming, unable to

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fight back. Officer Clemente restrained Mercado, handcuffed him,

and passed him to other officers.

At the same time that Parramore was assaulted in the dining

area with the sock and combination lock, inmate Luis Medina-Colon

(“Medina-Colon”) was similarly assaulted in his second floor cell

with a sock and combination lock. Appellant Medina and co-

defendant Juan Zuniga-Bruno gave Medina-Colon three blows to the

head and exited his cell. Immediately following the attack, Zuniga

descended the stairs and walked to the dining area. Medina-Colon,

his shirt wrapped around his head to control bleeding, walked

toward the stairs, pleading to be taken to a hospital.

With Officer Clemente’s attention now directed to a bleeding

Medina-Colon, Zuniga and inmate Jose Gaztambide-Alicea resumed the

assault on Steve Parramore, this time punching him in the face.

While the assault on Parramore was ongoing, or immediately

thereafter, inmate Peter Martinez began walking up the stairs to

his cell on the second floor. Upon seeing Medina-Colon coming down

the stairs, covered with blood, Martinez turned around to get away

from the mayhem, but was stopped at the bottom of the stairs by

inmate Jose Cosme-Rios. Cosme struggled with Martinez and

eventually threw him to the floor. Gaztambide and Zuniga

subsequently joined the assault on Martinez and proceeded to hit

and kick him while he lay on the floor.

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 After order was restored to the 3-Bravo Unit, corrections

officers recovered two socks outside of cell 202, one with a big

hole in it and one containing two padlocks. Another sock

containing a lock was recovered in the dining hall area.

On April 25, 2002, a grand jury indicted Mercado, Zuniga,

Gaztambide, Cosme, and Medina on conspiracy and assault charges

resulting from the incidents in 3-Bravo. Prior to trial,

defendants Gaztambide and Cosme pled guilty and the district court

accepted the pleas. On the eve of trial, defendant Mercado

expressed his intention to change his plea to guilty. After a

five-day trial, during which all three victims of the prison

assault testified on behalf of the government, the jury found

Medina guilty of one count of conspiracy to commit assault and one

count of assault on Medina-Colon.1 The jury also returned a guilty

verdict against defendant Zuniga on three counts: conspiracy to

commit assault, assault on Steve Parramore and assault on Medina-

Colon. The district court sentenced defendant Medina to a fifty-

two month prison term, to be served consecutively with his sentence

imposed in a prior unrelated criminal proceeding. This appeal

followed.2

1
The jury verdict form also asked the jury to determine whether
the government proved beyond a reasonable doubt that a dangerous
weapon was used in the assaults. The jury answered this question
affirmatively.
2
Zuniga also filed an appeal which was originally consolidated
with the instant appeal. However, this court subsequently
dismissed Zuniga’s appeal for lack of diligent prosecution.

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 II. ANALYSIS

On appeal, Medina raises two challenges to his conviction.

First, Medina contends that no rational jury could have found the

existence of a conspiracy beyond a reasonable doubt. Second, Medina

asserts that the district court committed plain error in failing to

adequately instruct the jury at the close of evidence of Medina’s

Fifth Amendment privileges.

A. Sufficiency of the Evidence

Medina moved for judgment of acquittal pursuant to Fed. R.

Crim. P. 29 after the government rested and again at the close of

evidence.3 The district court denied the motions. We review Rule

29 determinations de novo. United States v. Moran, 312 F.3d 480,

487 (1st Cir. 2002). More specifically, we examine “whether any

rational factfinder could have found that the evidence presented at

trial, together with all reasonable inferences, viewed in the light

most favorable to the government, established each element of the

particular offense beyond a reasonable doubt.” United States v.

Richard, 234 F.3d 763, 767 (1st Cir. 2000) (quoting United States

v. Gabriele, 63 F.3d 61, 67 (1st Cir. 1995); see also United States

v. Hernandez, 218 F.3d 58, 64 n.4 (challenges to denial of Rule 29

motion and to sufficiency of evidence raise the same question).

3
The Defense rested without producing any evidence.

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 Medina bears a heavy burden in arguing insufficiency of the

evidence. “An appellate court plays a very circumscribed role in

gauging the sufficiency of the evidentiary foundation upon which a

criminal conviction rests. The [C]ourt of [A]ppeals neither weighs

the credibility of the witnesses nor attempts to assess whether the

prosecution succeeded in eliminating every possible theory

consistent with the defendant’s innocence.” United States v. Noah,

130 F.3d 490, 494 (1st Cir. 1997). We “defer, within reason, to

inferences formulated by the jury in the light of its collective

understanding of human behavior in the circumstances revealed by

the evidence.” United States v. Guerrero, 114 F.3d 332, 339 (1st

Cir. 1997). Accordingly, our inquiry is only whether “the guilty

verdict finds support in a ‘plausible rendition of the record.’”

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

(quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.

1992)).

To prove conspiracy in a criminal case, the government must

prove beyond a reasonable doubt that an agreement existed to commit

the underlying substantive offense, and that the defendant elected

to join the agreement, intending that the underlying offense be

committed. See United States v. Gomez, 255 F.3d 31, 35 (1st Cir.

2001); United States v. Barnes, 244 F.3d 172, 175 (1st Cir. 2001);

United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993).4

4
The government must also prove that at least one conspirator
committed an overt act to accomplish the object of the conspiracy.

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“The conspiratorial agreement need not be explicit and the proof

thereof need not be direct.” Gomez, 255 F.3d at 35; see also

Sepulveda, 15 F.3d at 1173 (explaining that “the agreement may be

express or tacit and may be proved by direct or circumstantial

evidence”). Proof of Medina’s involvement in the conspiracy “may

consist of indirect evidence, including reasonable inferences drawn

from attendant circumstances.” Echeverri, 982 F.2d at 679. “In

determining whether a single conspiracy exists, we have considered

whether the participants shared a common goal.” United States v.

Rivera-Ruiz, 244 F.3d 263, 268 (1st Cir. 2001). “The jury may infer

an agreement circumstantially by evidence of, inter alia, a common

purpose ..., overlap of participants, and interdependence of

elements in the overall plan.” United States v. Martinez-Medina,

279 F.3d 105, 113-14 (1st Cir. 2002). Bearing in mind the above

recited standards, we turn to the evidence contained in the record.

Medina disputes the existence of a conspiracy, arguing that

“there are no facts and no circumstances, other than fanciful

imaginings, that lead a rational person to logically conclude that

Mr. Medina-Martinez’s assault on Luis Medina-Colon was part of an

overarching conspiracy involving four other perpetrators in assaults

on two other victims.” App. Br. at 30. Medina relies on trial

testimony from Officer Clemente that assaults are regular

See United States v. Martin, 118 F.3d 1, 11 (1st Cir. 2000).
Medina does not challenge the existence of an overt act.

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occurrences in prisons and “most of the time when the inmates

assault other inmates with a sock, what they put [in the sock] is

a combination lock or something heavy ....” Transcript of October

30, 2002, at 92. Medina urges us to conclude that because these

types of assaults are commonplace in the prison environment, a

rational jury could not find the existence of an agreement.

In contrast, the government claims there was ample evidence to

support the conspiracy conviction. We agree. Although there is no

evidence of an explicit agreement,5 the exceptional factual

circumstances of the case are clearly sufficient for a finding of

a tacit agreement. The assaults on Medina-Colon and Parramore

occurred on the same day, at approximately the same time, all within

the 3-Bravo unit of the MDC. The attackers used the same weapons,

socks containing padlocks, and both victims were attacked from

behind.6 The testimony indicates that Medina and Zuniga together

arrived at Medina-Colon’s cell and jointly assaulted him, each using

5
None of the three defendants who pled guilty in this case
testified at Medina’s trial.
6
We also note that inmate Peter Martinez was not beaten with
a “lock and sock,” but was instead punched and kicked. Appellant
would have us conclude that this indicates the whole incident was
just a big prison melee that was not precipitated by an agreement
to attack selected prisoners. By contrast, the government claims
that Martinez was simply in the wrong place at the wrong time, and
was not a targeted victim. We need not reach the substance of this
dispute, as Appellant was not charged with assault of Martinez and
we find the coordinated attacks on Medina-Colon and Mercado to
fully support the conspiracy verdict.

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a lock and sock. This alone is sufficient to find an agreement for

the assault on Medina-Colon. The evidence, however, also provides

ample support for the jury’s conclusion that Medina was a

participant in a larger conspiracy.

Appellant’s assertion that the attack on Medina-Colon was an

isolated incident is unavailing. In determining whether a single

conspiracy exists, we have considered whether there was overlap

among the participants to the conspiracy. See United States v.

Portela, 167 F.3d 687, 695 (1st Cir. 1999). Such overlap exists

“where a conspiracy is marked by the pervasive involvement of a

single core conspirator or hub character.” Rivera-Ruiz, 244 F.3d

at 268 (internal citations and punctuation omitted). It is

undisputed that defendant Zuniga was involved in the assault on

Medina-Colon and in the second assault on Parramore. In addition

to the timed coordination of the attacks and the identical choice

of weapons, Zuniga, as the hub conspirator, draws the assault on

Medina-Colon together with the assault on Parramore.7

Finally, and perhaps most damning to Medina’s challenge to the

evidence supporting the existence of a conspiracy, are his own

words. Prior to his trial, while Medina was being transported by

7
Although Zuniga assaulted Parramore with his fists, the
original assault on Parramore involved a sock and combination lock.
Zuniga’s actions in rushing quickly from the second floor assault
on Medina-Colon to the ground level assault on Parramore allows a
jury to reasonably conclude that Zuniga had knowledge of the timing
and location of both assaults.

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police, Medina stated, “this will give these people a lesson so that

they won’t do it again” and he “assaulted the victims because they

deserve it.” These words, contained in a report signed by the

transporting officer, were offered in evidence by Medina’s trial

counsel and admitted by the district court. Transcript of October

31, 2002, at 87-88. This statement lends support to the jury’s

conclusion that although Medina only physically participated in one

attack, he was aware of, and agreed to join, an agreement to harm

multiple prisoners.

Although “any one factor in evidence, standing alone, might not

itself be proof of knowledge, the combination of all the

circumstances equals ‘more than the sum of its parts.’” United

States v. Guerra-Garcia, 336 F.3d 19, 25 (1st Cir. 2003) (quoting

United States v. De La Cruz, 996 F.2d 1307, 1311 (1st Cir. 1993));

see also United States v. Martin, 228 F.3d 1, 10 (1st Cir. 2000)

(juries need not evaluate pieces of evidence in isolation, but “may

draw conclusions from the sum of an evidentiary presentation”).

Considering the totality of the record, and drawing all reasonable

inferences in favor of the verdict, we affirm the district court’s

denial of Medina’s Rule 29 motions.

B. The Jury Instructions

Having raised no objections to any aspect of the jury

instructions at trial, Medina now claims error in the district

court’s failure to give a requested instruction on the defendant’s

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exercise of his right to remain silent. The following instructions

contain the alleged error:

Now it is a cardinal principle of our system of
justice that every person accused of a crime is
presumed to be innocent unless and until his guilt is
established beyond a reasonable doubt. The
presumption is not a mere formality. It is a matter
of the most important substance. The presumption of
innocence alone may be sufficient to raise a
reasonable doubt and to require the acquittal of the
defendant.

The defendants before you have the benefit of that
presumption throughout the trial, and you are not to
convict them, or each of them, of a particular charge,
unless you are persuaded of their guilt of that charge
beyond a reasonable doubt.

The presumption of innocence until proven guilty
means that the burden of proof is always on the
Government to satisfy you that defendant or
defendants are guilty of the crime with which they
are charged beyond a reasonable doubt. The law does
not require that the Government prove guilt beyond
all possible doubt. Proof beyond a reasonable doubt
is sufficient to convict. This burden never shifts
to defendant. It is always the Government’s burden
to prove each of the elements of the crimes charged
beyond a reasonable doubt by the evidence, and the
reasonable inferences to be drawn from that evidence.

Defendants have the right to rely upon the failure or
inability of the Government to establish beyond a
reasonable doubt any essential element of the offense
charged against them.

If after fair and impartial consideration of all the
evidence you have a reasonable doubt as to
defendant’s guilt of a particular offense, it is your
duty to acquit him of that offense. On the other
hand, if after fair and impartial consideration of
all the evidence you are satisfied beyond reasonable
doubt of defendant’s guilt of a particular offense,
you should convict him.

Transcript of November 4, 2002, at 61-62.

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 Medina claims that the district court should have given the

following requested instruction concerning his right not to

testify: “[Defendant] has a constitutional right not to testify and

no inference of guilt, or of anything else, may be drawn from the

fact that [defendant] did not testify. For any of you to draw such

an inference would be wrong; indeed, it would be a violation of

your oath as a juror.”8 The district court gave a no-adverse-

presumption instruction during its initial instructions prior to

the opening of the evidentiary record, but did not repeat the

instruction in its final charge.9 Because Medina did not raise an

objection to the charge prior to the time the jury retired to

8
This instruction is a verbatim recitation of section 3.03 of
the Pattern Criminal Jury Instructions for the First Circuit.

9
In its preliminary jury instructions, given prior to the
opening of the evidentiary record, the district court instructed
the jury as follows:

[T]he burden of proof is on the Government until the
very end of the case. The defendant has no burden to
prove his or their innocence or to present any
evidence. They don’t have to present evidence or to
testify. The don’t even have to take the stand.

Since defendants have a right to remain silent, the law
prohibits you from arriving at your verdict by
considering that the defendants may not have testified.
If they choose not to testify, you are not to take that
into account in reaching a verdict.

Transcript of October 30, 2002, at 21.

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deliberate, see Fed. R. Crim. P. 30,10 we review only for plain

error. See Gabriele, 63 F.3d at 66.

To prevail on a claim of plain error, Medina bears the burden

of showing that (1) an error occurred, (2) the error was clear or

obvious, (3) the error affected his substantial rights, and (4) the

error also seriously impaired the fairness, integrity, or public

reputation of judicial proceedings. Johnson v. United States, 520

U.S. 461, 466-67, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997); United

States v. Olano, 507 U.S. 725, 732; 113 S. Ct. 1770, 123 L. Ed. 2d

508 (1993); Gomez, 255 F.3d at 37. In applying the above standard,

we note that “the plain-error exception is cold comfort to most

defendants pursuing claims of instructional error.” Gomez, 255

F.3d at 37; United States v. Weston, 960 F.2d 212, 216 (1st Cir.

1992) (“while reversal of a conviction predicated on unpreserved

instructional error is theoretically possible, [it is] the rare

case in which an improper instruction will justify reversal of a

criminal conviction when no objection has been made in the trial

court.”) (citation and internal quotation marks omitted).

Although our review is for plain error, we are cognizant of

the fundamental importance of adequate jury instructions. It is a

long recognized principle in this Circuit that “[c]lear, easily

10
Fed. R. Crim. P. 30(d) provides: “A party who objects to any
portion of the instructions or to a failure to give a requested
instruction must inform the court of the specific objection and the
grounds for the objection before the jury retires to deliberate.”

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understood jury instructions are vitally important in assuring that

jurors grasp subtle or highly nuanced legal concepts.” United

States v. DeStefano, 59 F.3d 1, 4 (1st Cir. 1995). Furthermore,

jury instructions are “perhaps nowhere more important than in the

context of the Fifth Amendment privilege against compulsory self-

incrimination, since ‘[too] many, even those who should be better

advised, view this privilege as a shelter for wrongdoers. They too

readily assume that those who invoke it are ... guilty of crime

....’” Carter v. Kentucky, 450 U.S. 288, 302, 101 S. Ct. 1112, 67

L. Ed. 2d 241 (1981) (quoting Ullmann v. United States, 350 U.S.

422, 426, 76 S. Ct. 497, 100 L. Ed. 511 (1956)). “When the

defendant makes a timely request that a prophylactic instruction be

given ... [the court] has the constitutional obligation ... to

minimize the danger that the jury will give evidentiary weight to

a defendant’s failure to testify.” Id. at 305; see also United

States v. Brand, 80 F.3d 560, 567 (1st Cir. 1996) (same).11

The government urges us to find the district court’s final

charge constitutionally sufficient. The government cites to three

instructions given by the district court that it contends satisfy

the charge requirements under Carter: (1) that defendants are

entitled to a presumption of innocence unless and until guilt is

11
The Supreme Court has also held that 18 U.S.C. § 3481
provides defendants the right to a cautionary instruction that
failure to testify in one’s own defense creates no negative
presumption. See Bruno v. United States, 308 U.S. 287, 292-93, 60
S. Ct. 198, 84 L. Ed. 257 (1939).

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established beyond a reasonable doubt; (2) that defendants have the

benefit of that presumption throughout trial and that the jury

cannot convict unless they are persuaded of defendants’ guilt

beyond a reasonable doubt; and (3) that the burden of proof is

always on the government and never shifts to defendants. These

instructions, however, do not sufficiently replace the requested

no-adverse-presumption instruction. Presumption of innocence and

burden of proof instructions are not akin to a no-adverse-

presumption instruction. In Brand, this Court stated, “Carter v.

Kentucky makes clear that, once a request for a no-adverse-

presumption instruction has been made, the full and free exercise

of the constitutionally guaranteed privilege against self-

incrimination requires more than instruction on the right not to

testify and to be presumed innocent until proven guilty.” Brand,

80 F.3d at 567 (internal punctuation omitted); see also Carter, 450

U.S. at 304 (“Without question, the Fifth Amendment privilege and

the presumption of innocence are closely aligned. But these

principles serve different functions, and we cannot say that the

jury would not have derived significant additional guidance from

the instruction requested.” (internal citations omitted)).

As per Olano and Brand, we find that the forfeited error was

plain, clear, and affects substantial rights. This finding,

however, does not end our inquiry. As we stated in Brand, a

finding of plain error under Fed. R. Crim. P. 52(b) resulting from

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a district court’s failure to give a requested cautionary jury

instruction gives this court “discretion to reverse, but no

obligation to do so.” Brand, 80 F.3d at 567. See also Chapman v.

California, 386 U.S. 18, 23, 87 S. Ct. 824, 827-28, 17 L. Ed. 2d

705 (1967) (not all constitutional errors automatically require

reversal). Medina must still meet the fourth element of the plain

error test -- whether the error “‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’” Olano,

507 U.S. at 736 (quoting United States v. Atkinson, 297 U.S. 157,

160, 56 S. Ct. 391, 80 L. Ed. 555 (1936)).

Medina contends that a miscarriage of justice occurred because

“the government”s evidence regarding Count I is feeble, indirect and

more speculative than circumstantial.” As stated supra, we disagree

and find that the conspiracy evidence clearly supports a conviction.

Though the district court failed to include a Carter instruction in

its final charge, we are of the opinion that the contents of the

final charge, when combined with the court’s instructions to the

jury at the beginning of trial,12 sufficiently minimized any risk of

adverse speculation being drawn against Medina. In Brand, we held

that failure to give a requested Carter instruction is simply “error

in the trial process itself” rather than a “structural defect[] in

12
See supra note 9. The initial instruction substantially
complies with Carter. Although the Carter instruction should have
been repeated in the district court’s final instructions, the
inclusion of such a charge at the beginning of the case
significantly lessens any concerns that the jury would speculate
about Medina’s silence in the face of a criminal accusation.

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the trial mechanism which affect[s] the entire conduct of the trial

from beginning to end and without which a criminal trial cannot

reliably serve its function as a vehicle for determination of guilt

or innocence.” Brand, 80 F.3d at 68 (internal citations omitted).

The same standard applies here. We are confident that the evidence

against Medina would have resulted in a guilty verdict irrespective

of the instructional error.

After considering the entire charge and the evidence in the

case, see United States v. Woodward, 149 F.3d 46, 69 (1st Cir.

1998), we find no basis on which to reverse Medina’s conviction.

Although the district court plainly erred in its failure to include

in its final charge an instruction not to draw an adverse inference

based on Medina’s failure to testify, we hold that the error was

not of such a degree as to compromise the fairness, integrity or

public reputation of judicial proceedings. Medina has failed to

meet his burden of demonstrating that the instruction prejudiced

him or that the “outcome would likely have been different if the

error had not occurred.” United States v. Hoyle, 237 F.3d 1, 5

(1st Cir. 2001).

Affirmed.

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