United States v. Rivera-Alicea

United States Court of Appeals
For the First Circuit

No. 98-1766

UNITED STATES OF AMERICA,

Appellee,

v.

JAIME RIVERA ALICEA, a/k/a PITO PACHANGA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

Vilma Maria Dapena, by appointment of the court, for
appellant.
Jeanette Mercado-Ríos, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco and Nelson Pérez-Sosa, Assistant United States
Attorneys, were on brief, for appellee.

March 6, 2000
 SELYA, Circuit Judge. A jury found defendant-appellant

Jaime Rivera-Alicea guilty of various offenses arising out of a

surveilled drug transaction and ensuing chase. Rivera-Alicea

appeals, challenging the sufficiency of the evidence, the

internal consistency of the verdict, the jury instructions,

certain sentence-related rulings, and the denial of his motion

for a new trial. Discerning no error, we affirm.

We present the facts in the light most favorable to the

government, consistent with record support. See United States

v. Noah, 130 F.3d 490, 493 (1st Cir. 1997). After receiving

word from an informant that a large narcotics transaction was

scheduled for May 23, 1996, a task force composed of federal

agents and local police officers devised a plan to intercept the

drugs and apprehend the participants. But as a Scottish poet

warned many years ago, "[t]he best laid schemes o' mice an' men

gang aft agley," Robert Burns, "To a Mouse, On Turning Up Her

Nest With the Plough" (1785), and the planned interdiction

imploded when the transaction occurred approximately twenty

minutes ahead of schedule. Thus, only a lone Puerto Rico police

officer, Eliezer De Jesús, actually witnessed the exchange.

De Jesús sounded the alarm and a cadre of law

enforcement officers belatedly set out after a blue Toyota sedan

that De Jesús had observed leaving the scene. Once the Toyota's

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occupants — five men, including the appellant — became aware

that agents were in hot pursuit, the vehicle accelerated,

leading to a dangerous high-speed chase through a residential

area. In the course of the chase, shots were fired from the

back seat of the Toyota in what proved to be a vain attempt to

deter the pursuers. Eventually, the Toyota hit another vehicle,

then a gate, and ground to a stop. Officers arrested three

suspects on the spot. They also recovered two firearms from the

Toyota's back seat and retrieved a white nylon bag containing

eighteen kilograms of cocaine from the trunk. The appellant and

another man fled, exchanging gunshots with two of their

pursuers, and eluded immediate capture.

In due season, a federal grand jury returned a

multiple-count indictment against a number of persons. The

indictment charged the appellant with aiding and abetting the

possession with intent to distribute eighteen kilograms of

cocaine (count 1); conspiracy to possess the same, intending to

distribute (count 2); aiding and abetting the use and carriage

of a firearm during and in relation to the commission of a drug-

trafficking offense (count 3); and aiding and abetting the use

of dangerous weapons in attempts to kill, intimidate, or

interfere with law enforcement agents in the performance of

their official duties (counts 4 and 5). See 21 U.S.C. §§

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841(a)(1), 846; 18 U.S.C. §§ 2, 111, 924(c), 1114. After a

four-day trial, the jury returned a mixed verdict; it found the

appellant guilty on the first three counts, but acquitted him on

the last two.

The appellant subsequently filed a timely motion for

a new trial based upon newly discovered evidence. See Fed. R.

Crim. P. 33. The district court denied this motion and imposed

a thirty-year incarcerative sentence on the drug-trafficking

counts and a five-year consecutive sentence on the firearms

count. This appeal followed. In it, the appellant advances

several claims of error. We address each of them.

1. Sufficiency of the Evidence. The appellant's

principal challenge questions the sufficiency of the evidence.

In reviewing for insufficiency, an appellate court must "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." Noah,

130 F.3d at 494. We follow this prescription.

The government's case against the appellant hinged on

the testimony of two key witnesses. A federal agent, Montalvo,

positively identified the appellant as the right-front-seat

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passenger in the careening blue Toyota. He also testified that,

at the time of the crash, the appellant nimbly dismounted and

fled, firing a black pistol at three pursuing agents (including

Montalvo). The other important witness against the appellant

was José Alberto Vásquez-Hernández (Vásquez), a cooperating

coconspirator. Vásquez positively identified the appellant as

the principal in the operation (the buyer of the cocaine), and

testified that the appellant made the necessary arrangements for

the transaction at a meeting held three days prior to the

exchange (in the course of which he threatened several of the

other participants with dire consequences should the enterprise

founder).

This testimony was more than enough to ground the

jury's verdict. To be sure, the appellant, ably represented,

attacks Montalvo's and Vásquez's credibility, but these attacks

constitute more cry than wool. Appellate courts routinely

resolve credibility issues in favor of jury verdicts, see United

States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998); United

States v. Winter, 663 F.2d 1120, 1127 (1st Cir. 1981), and the

record here contains no principled basis for making an exception

to this salutary rule. Montalvo was a percipient witness to the

events of May 23, and two Puerto Rico police officers, Morales

and Ortiz, although unable positively to identify the appellant,

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nonetheless confirmed Montalvo's testimony in salient respects.

For his part, Vásquez was a member of the ring, whose turncoat

status did not strip his testimony of probative value. It is

settled beyond cavil that a defendant's former cohorts may

testify against him as long as all pertinent agreements with the

government are disclosed and the judge, if requested, instructs

the jury about the special care that must be taken in evaluating

accomplice testimony.1 See United States v. Hernandez, 109 F.3d

13, 15 (1st Cir. 1997); United States v. Ortiz-Arrigoitía, 996

F.2d 436, 438-39 (1st Cir. 1993).

The appellant makes a special entreaty in regard to

Montalvo, arguing that the verdict on counts 4 and 5 evinces the

jury's negative appraisal of Montalvo's testimony. We do not

agree. Except in the most unusual circumstances (not extant

here), credibility determinations are for the jury, not for an

appellate court — and it is hazardous to attempt to intuit

specific judgments about credibility from a general verdict (or

from a series of general verdicts, for that matter). In all

events, a jury has the prerogative to credit some parts of a

1These preconditions were fully satisfied here. The
government made full disclosure; the defense vigorously cross-
examined Vásquez as to promises that had been made and benefits
that he hoped to derive; and the district judge gave the jurors
a complete and correct explanation of the guiding legal
principles.

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witness's testimony and disregard other potentially

contradictory portions. See United States v. Lara, 181 F.3d

183, 204 (1st Cir. 1999); United States v. O'Brien, 14 F.3d 703,

707 (1st Cir. 1994).

We see nothing to be gained by belaboring these points.

Read, as need be, in the light most hospitable to the

government, the record contains more than enough evidence to

support the jury's determination that the appellant committed

the two related drug-trafficking offenses and aided and abetted

the use and carriage of one or more firearms — those transported

in the Toyota and/or the one that Montalvo said the appellant

fired during the foot chase — during the commission of those

offenses. See United States v. Ortiz, 966 F.2d 707, 711 (1st

Cir. 1992) (stating that the court of appeals will not disturb

a jury verdict that is supported by a plausible rendition of the

record).

2. Inconsistent Verdicts. The appellant perceives an

irreconcilable tension between the guilty verdict on the

firearms charge (count 3) and the acquittal on the intimidation

counts (counts 4 and 5). Despite the appellant's hairsplitting,

this boils down to a straightforward claim that the jury verdict

is internally inconsistent. As such, the claim is essentially

unreviewable. See United States v. Powell, 469 U.S. 57, 66

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(1984); Dunn v. United States, 284 U.S. 390, 393-94 (1932);

Lara, 181 F.3d at 206. In a single, multi-count trial,

acquittal on one or more counts does not preclude conviction on

other counts based upon the same evidence, as long as that

evidence is legally sufficient to support a finding of guilt on

the count(s) of conviction. See Powell, 469 U.S. at 67; United

States v. Bucuvalas, 909 F.2d 593, 597 (1st Cir. 1990); see also

3 Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 514 (1982 & Supp. 1999). It would serve no useful

purpose to repastinate this well-ploughed ground, and we

therefore reject the appellant's claim on the basis of Powell

and its progeny, without further elaboration.2

3. Use and Carriage. The appellant contends that the

lower court improperly instructed the jury on the firearms count

by failing to define the terms "use" and "carry." Because the

appellant did not contemporaneously object to the jury

instructions on this basis, we review for plain error. See

United States v. Olano, 507 U.S. 725, 731 (1993); United States

2 In adopting this course, we note that there is ample
evidence here to support the appellant's conviction on the
firearms count. See Muscarello v. United States, 524 U.S. 125,
126-27 (1998) (holding that the phrase "carries a firearm"
applies to persons who knowingly possess and transport firearms
in a vehicle); United States v. Bailey, 516 U.S. 137, 148 (1995)
(defining "use" as constituting active employment, including
"brandishing, displaying, bartering, striking with, firing or
attempting to fire" a gun).

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v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987). This type of

review entails inquiry into whether affirmance would "skew[] the

fundamental fairness or basic integrity of the proceeding below

in some major respect," so as to result in a miscarriage of

justice. United States v. Taylor, 54 F.3d 967, 973 (1st Cir.

1995).

We need not linger over this assignment of error.

Although explicit definition of statutory terms and other legal

parlance sometimes may be helpful in jury instructions, we

repeatedly have held such elaboration to be unnecessary when,

taken in the context of the charge as a whole and the evidence

in the case, the tenor of a word or phrase is reasonably clear.

See, e.g., United States v. De La Cruz, 902 F.2d 121, 123 (1st

Cir. 1990); United States v. Littlefield, 840 F.2d 143, 146-47

(1st Cir. 1988). This precept applies with especial force

where, as here, the defendant makes no contemporaneous request

for clarification. In the circumstances of this case, we find

no error, plain or otherwise, in the jury instructions.

4. Sentencing. The appellant alleges that the lower

court committed three separate errors related to sentencing. We

consider each allegation.

A

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 In computing the guideline sentencing range (GSR), the

district court increased the appellant's aggregate offense level

by three levels due to his role in the offense. The appellant

asserts that this enhancement was arbitrary and without

underlying record support.

The government bears the burden of proving the

legitimacy of an upward role-in-the-offense adjustment by a

preponderance of the evidence. See United States v. Cruz, 120

F.3d 1, 3 (1st Cir. 1997) (en banc). As we have noted, "battles

over a defendant's status . . . will almost always be won or

lost in the district court." United States v. Graciani, 61 F.3d

70, 75 (1st Cir. 1995). Once the sentencing judge has ruled,

further inquiry proceeds deferentially; appellate review of a

sentencing court's fact-specific determination of a defendant's

role in the offense is limited to clear error. See, e.g., Cruz,

120 F.3d at 3; Graciani, 61 F.3d at 75.

To justify a three-level role-in-the-offense increase,

the government must show that the defendant was a manager or

supervisor of criminal activity that involved five or more

participants or was otherwise extensive. See USSG §3B1.1(b).

In this instance, Judge Laffitte made detailed findings at the

disposition hearing. He attached decretory significance to

Vásquez's testimony describing the appellant's behavior and

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statements at a pre-transaction meeting with some of his

confederates.3 We perceive no error. The gang plainly numbered

no fewer than five — after all, several witnesses testified

without contradiction that five persons occupied the fleeing

Toyota — and the inference that the appellant was their leader

flows rationally from the evidence that he owned the drugs, that

he gave orders freely, and that he was prepared to use extreme

measures if anything went awry. 4 See Cruz, 120 F.3d at 4

(holding that the sentencing judge is entitled to choose among

any and all reasonable inferences that plausibly can be drawn

from the record).

B

3Judge Laffitte stated in part:

The testimony of Jóse Alberto Vazquez clearly says
that "Pito Pachanga" — that's the defendant — "arrived
in a blue and grey Mustang. He was carrying a firearm
in his hand. It was a long weapon. When he talked to
us, he asked who had the drug[s]. . . . [He then]
asked for the drugs, that he wanted the drugs because
he had to pay for it; that if the drugs were not
recovered, he had to pay for it and that we would pay
with our own lives or the lives of our families." So
that is evidently clear that he is the boss.
4 Citing USSG §3B1.1, comment. (n.4), the appellant argues
that merely characterizing an individual as the "boss" cannot
support a role-in-the-offense enhancement. Here, however, the
court did not rely on a naked conclusion, but spelled out the
evidence from which it determined that the appellant occupied a
position of leadership in the felonious enterprise. The fact
that the court couched this determination in the vernacular does
not deprive it of persuasive force.

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 At sentencing, the district court hiked the appellant's

aggregate offense level by three levels based on the court's

finding that he assaulted a law enforcement officer and thus

created a substantial risk of bodily injury. See USSG

§3A1.2(b).5 The appellant challenges this enhancement,

castigating what he describes as the district court's

impermissible use of "acquitted" conduct to boost his offense

level (and, thus, increase his eventual sentence).

The Supreme Court has stated with unmistakable clarity

that "a sentencing court may consider conduct of which a

defendant has been acquitted" in determining the length of a

sentence. United States v. Watts, 519 U.S. 148, 154 (1997) (per

curiam). We have consistently applied this principle, see,

e.g., United States v. Berrios, 132 F.3d 834, 839 (1st Cir.

1998); United States v. Meade, 110 F.3d 190, 203 (1st Cir.

5This guideline reads in relevant part:

If — during the course of the offense or immediate
flight therefrom, the defendant or a person for whose
conduct the defendant is otherwise accountable,
knowing or having reasonable cause to believe that a
person was a law enforcement or corrections officer,
assaulted such officer in a manner creating a
substantial risk of serious bodily injury, increase by
3 levels.

USSG §3A1.2(b).

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1997), and we are duty bound to apply it here. Consequently,

the appellant's challenge fails.

C

The appellant accuses the district court of engaging

in impermissible double-counting. In support of this

accusation, the appellant notes that the court increased his

offense level pursuant to USSG §3A1.2(b), see supra note 5,

while at the same time invoking USSG §3C1.2 to add two levels

for recklessly creating a substantial risk of bodily harm in the

course of fleeing from the officers.6 Because the appellant

failed to raise the specter of double-counting at the

disposition hearing, we review this asseveration for plain

error. See United States v. Lilly, 13 F.3d 15, 18 n.6 (1st Cir.

1994) (noting the applicability of plain-error review to an

unpreserved sentencing error).

At bottom, this contention posits that the sentencing

court used the same conduct as the basis for both offense level

increases, notwithstanding that the Sentencing Commission's

commentary contains an express contrary admonition. See USSG

6USSG §3C1.2 provides:

If the defendant recklessly created a substantial risk
of death or serious bodily injury to another person in
the course of fleeing from a law enforcement officer,
increase by 2 levels.

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§3C1.2, comment. (n.1) (directing courts not to apply this

enhancement where, inter alia, another adjustment "results in an

equivalent or greater increase in offense level solely on the

basis of the same conduct") (emphasis supplied). When, and

under what circumstances, double-counting may (or may not) be a

permissible practice in calculating a defendant's GSR is a

complicated question.7 Here, however, we need not enter that

thicket.

The district court had before it evidence of two

distinct sets of facts. On the one hand, the vehicle chase

culminated in the firing of shots in a public plaza. This

behavior put at risk the safety of bystanders as well as law

enforcement officers. This set of events was distinct from the

appellant's firing of a pistol at pursuing officers while

fleeing from the scene of the crash. The latter conduct, in and

of itself, put others in harm's way. Each set of events

independently warranted an upward adjustment under either or

7We do not mean to imply, however, that double-counting is
never permissible. The contrary is true. See, e.g., Lilly, 13
F.3d at 19-20 (approving double-counting not explicitly
prohibited by the sentencing guidelines); United States v.
Zapata, 1 F.3d 46, 47-48 (1st Cir. 1993) (approving double-
counting consistent with particular guidelines "as written").
Indeed, the Sentencing Commission has specifically endorsed the
cumulative application of adjustments drawn from different
guideline sections. See USSG §1B1.1, comment. (n.4); see also
United States v. Rivera-Maldonado, 194 F.3d 224, 234-35 (1st
Cir. 1999).

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both of the guidelines at issue. The district court's

discerning use of these two sets of discrete events to fashion

upward adjustments under both section 3C1.2 and section 3A1.2(b)

did not constitute impermissible double-counting. See United

States v. Matos-Rodriguez, 188 F.3d 1300, 1312 (11th Cir. 1999);

United States v. Balogun, 989 F.2d 20, 24 (1st Cir. 1993).

5. New Trial. The appellant's last assignment of

error involves the denial of his motion for a new trial. We

review such rulings for manifest abuse of discretion. See

United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991).

The appellant's trial culminated in a jury verdict on

January 12, 1998. Approximately eleven weeks later, he moved

for a new trial on the ground of newly discovered evidence. See

Fed. R. Crim. P. 33. He premised his motion on the statement of

Raquelina Mejias, an inmate at M.D.C. Guaynabo, attesting to

"many" conversations with Vázquez early in 1998, during which

Vázquez supposedly told her that he did not know the appellant,

but that he was going to testify against him and say what the

government wanted so that his sentence would be reduced. The

district court weighed this proffer, envisioned no need to

convene an evidentiary hearing, and denied the motion. See

United States v. Rivera Alicea, Crim. No. 96-185 (HL), slip op.

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(D.P.R. May 22, 1998). We conclude that the court acted within

the realm of its discretion.

In order to prevail on a motion for new trial based

upon newly discovered evidence, a defendant must show that (1)

the evidence was either unknown or unavailable at the time of

trial; (2) the failure to unearth it was not attributable to a

lack of diligence on his part; (3) the evidence is material (as

opposed to being merely cumulative or impeaching); and (4) the

evidence is sufficiently compelling that it would probably

result in an acquittal should the court order a retrial. See

United States v. Huddleston, 194 F.3d 214, 218 (1st Cir. 1999);

United States v. Slade, 980 F.2d 27, 29 (1st Cir. 1992);

Natanel, 938 F.2d at 313; United States v. Wright, 625 F.2d

1017, 1019-20 (1st Cir. 1980). In this instance, we need not go

beyond the first two prongs of the test.

With only one exception, the conversations described

by Mejias were alleged to have occurred prior to trial;8 yet the

8The exception relates to a conversation in February 1998 in
which Vázquez allegedly told Mejias that he had "won." Although
this piece of evidence obviously could not have been discovered
in advance of trial, it does not profit the appellant. As Judge
Laffitte perspicaciously observed, even if this ambiguous remark
referred to the outcome of the appellant's trial, it merely
reflected Vázquez's satisfaction with the verdict and did not
bear upon the appellant's guilt or innocence. See Rivera
Alicea, slip op. at 3. Accordingly, it was not significantly
probative on any material issue in the case.

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appellant's motion papers said nothing about when or how he had

learned of them. By the same token, the motion papers did not

in any way describe what efforts (if any) the appellant had made

to identify potential witnesses in preparation for trial. In

short, the appellant's entreaty contained nothing that showed

that the evidence on which he relied was either unknown to him

before trial or, at least, was not readily discoverable had he

exercised due diligence. Because the appellant offered the

district court no explanation for his belated proffer of Mejias

as a potential witness, he failed to carry his burden of showing

that the evidence qualified as "newly discovered" within the

first two prongs of the applicable test. See United States v.

Falu-Gonzalez, ___ F.3d ___, ___ (1st Cir. 2000) [No. 98-1749,

slip op. at 17]; United States v. Lowder, 148 F.3d 548, 552 (5th

Cir. 1998); United States v. DeLuca, 137 F.3d 24, 40 (1st Cir.

1998).

The appellant has a fallback position. He asseverates

that, instead of denying his motion outright, the district court

should have held an evidentiary hearing to address all the

issues, including knowledge and discoverability. But

evidentiary hearings on motions in criminal cases are the

exception, not the rule. Before either the government or a

defendant can assign error to the denial of an evidentiary

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hearing on such a motion, the party seeking a hearing must make

"a sufficient threshold showing that material facts [are] in

doubt or dispute." United States v. Panitz, 907 F.2d 1267, 1273

(1st Cir. 1990) (collecting cases). Here, the appellant's

motion did not set forth a factual predicate (even a minimal

factual predicate) to ground an inference that the proffered

evidence was unknown and unavailable prior to the trial. On

this scanty record, we can find no abuse of discretion in the

lower court's refusal to convene an evidentiary hearing. See

Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (requiring

"substantial preliminary showing" antecedent to evidentiary

hearing on motion in criminal case); United States v. McAndrews,

12 F.3d 273, 280 (1st Cir. 1993) (similar).

We need go no further.9 We have combed the record and

uncovered no sign of error. For aught that appears, the

appellant was fairly tried, justly convicted, and appropriately

sentenced.

Affirmed.

9We note in passing that the district court also measured
the substance of Mejias's statement and found it wanting under
the third and fourth prongs of the applicable test. We do not
reach those issues.

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