United States v. Hernandez

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1328

UNITED STATES,

Appellee,

v.

RAMBERTO HERNANDEZ, AKA RAM,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos Antonio Fust , U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and DiClerico,* District Judge.

H. Manuel Hern ndez, by Appointment of the Court, for

appellant.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with

whom Guillermo Gil, United States Attorney, and Nelson P rez-

Sosa, Assistant United States Attorney, were on brief for

appellee.

March 17, 1997

* Of the District of New Hampshire, sitting by designation.

TORRUELLA, Chief Judge. Defendant-appellant Ramberto
TORRUELLA, Chief Judge.

Hern ndez was convicted of (1) conspiring with five other co-

defendants to possess with the intent to distribute in excess of

five kilograms of cocaine in violation of 21 U.S.C. 846; and

(2) along with three other co-defendants, aiding and abetting

each other in knowingly and intentionally distributing twenty-

nine kilograms of cocaine in violation of 21 U.S.C. 841(a)(1)

and 841(b)(1)(B) and 18 U.S.C. 2. Hern ndez appeals,

challenging the sufficiency of the evidence and claiming that his

Sixth Amendment rights to confrontation and to a fair trial were

denied because the government was permitted to convict him based

on the uncorroborated testimony of a single unindicted alleged

coconspirator, William Negr n-Zapata ("Negr n-Zapata"), who was

awaiting sentencing in another case. We affirm.

At trial Negr n-Zapata testified as follows. He

received a call from Willie Maya-Acosta ("Maya-Acosta"),

inquiring whether Negr n-Zapata knew of any kilograms of cocaine

available for purchase. Negr n-Zapata, in turn, contacted Jos

Luis V lez-Carrero ("V lez-Carrero"). On October 27, 1991, Maya-

Acosta delivered $290,000 to Negr n-Zapata. Later that day,

V lez-Carrero and Negr n-Zapata went to a fish market owned by

appellant Hern ndez and delivered $261,000 to Hern ndez.1

Hern ndez gave them twenty-nine kilograms of cocaine. Hern ndez

was acting as an intermediary in exchange for a commission.

1 Of the original $290,000, $29,000 was divided between Negr n-
Zapata and V lez-Carrero as a commission.

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I. Sufficiency of the Evidence
I. Sufficiency of the Evidence

Hern ndez' first claim challenges the sufficiency of

the evidence. In reviewing such claims, we view the evidence in

the light most favorable to the prosecution and ask whether any

rational factfinder could have found guilt beyond a reasonable

doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United

States v. Valle, 72 F.3d 210, 216 (1st Cir. 1995).

It is well established that an accomplice is qualified

to testify as long as any agreements he has made with the

government are presented to the jury and the "judge gave complete

and correct instructions detailing the special care the jury

should take in assessing the testimony." United States v. Ortiz-

Arrigoit a, 996 F.2d 436, 438-39 (1st Cir. 1993). Indeed, a

conviction based solely upon the uncorroborated testimony of an

accomplice can be upheld, as long as the jury is properly

instructed and the testimony is not incredible as a matter of

law. See United States v. And jar, 49 F.3d 16, 21 (1st Cir.

1995). As always, the credibility of a witness is a matter for

the jury. See Ortiz-Arrigoit a, 996 F.2d at 439.

The government's case relied on the testimony of its

only witness, Negr n-Zapata. Negr n-Zapata testified that he was

a long-time drug dealer, had already been convicted twice for

drug trafficking, had one sentence reduced from sixty months to

twenty-four months because of his willingness to testify for the

government, and was still awaiting sentencing in a drug case in

which he had been convicted over two and a half years prior to

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his testimony in the instant case. Negr n-Zapata cooperated with

the prosecution in exchange for more lenient treatment and

certification of his cooperation to a judge who was to sentence

him after the Hern ndez trial. He was eventually given time

served in the case for which his sentence was pending.

Although these circumstances raise questions of

credibility regarding Negr n-Zapata's testimony, this court does

not engage in a plenary review of the credibility of witnesses.

A rational juror could have believed Negr n-Zapata's version of

events. Negr n-Zapata testified in considerable detail regarding

the crime and Hern ndez' role in it. Viewing the testimony in

the light most favorable to the verdict, the jury could have

concluded that the testimony established that Hern ndez joined in

the conspiracy, and possessed and distributed cocaine. Negr n-

Zapata was cross-examined in detail regarding both his testimony

and his credibility. Finally, appellant fails to demonstrate

that there existed overwhelming evidence to contradict Negr n's

testimony. For all of these reasons, we deny the sufficiency of

the evidence claim.

II. The Confrontation Clause
II. The Confrontation Clause

Hern ndez claims that his Sixth Amendment right to

cross-examine Negr n-Zapata was denied. The Sixth Amendment

states that "[i]n all criminal proceedings, the accused shall

enjoy the right . . . to be confronted with the witnesses against

him." U.S. Const. amend. VI. The Sixth Amendment guarantees the

accused the right to cross-examine government witnesses fully and

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fairly. See Delaware v. Van Arsdale, 475 U.S. 673, 678-79

(1985); United States v. Rivera-Santiago, 872 F.2d 1073, 1084

(1st Cir. 1989).

It is well established that "the Confrontation Clause

guarantees an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish." Delaware v. Fensterer,

474 U.S. 15, 20 (1985). "[T]he Confrontation Clause is generally

satisfied when the defense is given full and fair opportunity to

probe and expose these infirmities through cross-examination,

thereby calling to the attention of the factfinder the reasons

for giving scant weight to the witness' testimony." Id. at 22.

Furthermore, once the defendant is given the opportunity to

cross-examine government witnesses, the extent of cross-

examination is within the sound discretion of the trial court and

we review only for abuse of discretion. See Rivera-Santiago, 872

F.2d at 1085.

In the instant case, there can be no question that

Hern ndez was permitted a full and fair opportunity to cross-

examine the witness. Indeed, the defendant fails to identify any

circumscription imposed on his cross-examination of Negr n-

Zapata, much less a restriction that would rise to the level of

an abuse of discretion.2 The defense argues that "[t]he jury was

2 We add that defense counsel did not raise the confrontation
issue at trial. Arguments raised for the first time on appeal
are forfeited and reversible only upon a demonstration of "plain
error." United States v. Sullivan, 98 F.3d 686, 687 (1st Cir.

1996). "The plain error doctrine of Federal Rule of Criminal

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allowed to hear Negr n-Zapata's testimony unaware that he would

be rewarded with a sentence of time served because of, among

other things, his testimony in this case. As a result, defense

counsel were denied a 'full and fair' opportunity to impeach

Negr n-Zapata by showing his motivation to please the

government." Appellant's Brief at 11.

In fact, the defense was afforded the opportunity to

cross-examine Negr n-Zapata on every aspect of his cooperation

agreement with the government. On cross-examination, Negr n-

Zapata admitted that he had been awaiting sentence for twenty-

nine months and that he had a cooperation agreement with the

government. He testified that, in exchange for his cooperation,

the government would recommend a reduced sentence in the case in

which he was awaiting sentencing. In addition, the district

court judge read portions of the Sentencing Guidelines to the

jury to make it clear that Negr n-Zapata's sentence could be

reduced below the minimum mandatory sentence in exchange for his

cooperation.

Hern ndez argues that the defense could have impeached

Negr n-Zapata's testimony more successfully if it had known that

he would be credited for time served and released. Whether true

Procedure 52(b) tempers the blow of a rigid application of the
contemporaneous-objection requirement. The Rule authorizes the
Courts of Appeals to correct only 'particularly egregious
errors,' those errors that 'seriously affect the fairness,
integrity or public reputation of judicial proceedings.'" United

States v. Young, 470 U.S. 1, 15 (1985) (citations omitted). Even

if we were to conclude that there had been a violation of
Hern ndez' right to cross-examination, appellant would have to
demonstrate plain error in order to win a reversal.

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or not, this contention does not lead to the conclusion that the

right to cross-examine was compromised. At the time of the

testimony, Negr n-Zapata had no assurance that he would be

credited for time served and released. He only knew, as he

testified, that his cooperation would be certified to the

sentencing judge. In other words, the defense was permitted to

present to the jury the conditions under which Negr n-Zapata was

testifying. The jury was fully informed and able to assess

Negr n-Zapata's credibility. We conclude, therefore, that the

defense was granted a full and fair opportunity to cross-examine

Negr n-Zapata.

Finally, we note that appellant's appeal to Rule 32(a)

of the Federal Rules of Criminal Procedure,3 the Local Rules for

the District of Puerto Rico, and Sixth Amendment guarantees

regarding speedy sentencing belong to the defendant awaiting

sentencing, in this case Negr n-Zapata. Violation of these rules

does not give Hern ndez grounds for a reversal of his conviction.

III. Jury Instructions
III. Jury Instructions

Finally, Hern ndez objects to the jury instructions.

The relevant portion of the instructions is as follows:

You have also heard testimony
regarding the Government's witness'
reputation in the community for
truthfulness or untruthfulness. In
deciding this case, you should consider
that evidence together with and in the
same manner as all the other evidence in
the case.

3 Federal Rule of Criminal Procedure 32(a) requires that
sentencing should take place without "undue delay."

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You have also heard testimony from an
unindicted co-conspirator who has a
cooperation agreement with the
Government. That testimony was given in
exchange for a promise by the Government
that the witness will not be prosecuted
for some crimes he has admittedly
committed, including the ones in this
case. The Government will also certify
his cooperation to another judge who will
sentence him in another case in the
future.

In evaluating this testimony, you
should consider whether that testimony
may have been influenced by the
Government's promise and you should
consider that testimony with greater
caution than that of an ordinary witness.
Such agreements are legal. The only --
the law only requires that you consider
testimony given under those circumstances
with greater caution than that of an
ordinary witness.

Trial Transcript, vol. VI, at 896.

The entirety of appellant's argument with respect to

the jury instructions is to quote the last two paragraphs of the

above excerpt and to state that "the trial judge, in giving the

legally required instruction to the jury on the care with which

it must consider the testimony of an accomplice, minimized the

importance of the charge by adding the word 'only.'" Appellant's

Brief at 11.

Because appellant failed to object to the jury

instructions at trial, we review only for plain error. See

Sullivan, 98 F.3d at 687. "Our principal focus in reviewing jury

instructions is to determine whether they tended to confuse or

mislead the jury on the controlling issues." See Service

Merchandise Co. v. Boyd Corp., 722 F.2d 945, 950 (1st Cir. 1983).

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We do not believe that the instructions provided by the trial

judge confused or misled the jury. The judge accurately summed

up the conditions under which Negr n-Zapata testified and added

that jurors should "consider whether the testimony may have been

influenced by the government's promise and you should consider

the testimony with greater caution than that of an ordinary

witness." Tr. IV, at 896. Because the jury was informed that

Negr n-Zapata's testimony should be viewed with caution, we do

not believe there was error in the instructions and certainly not

"plain error."4

Although appellant's claims cannot justify a reversal

in this case, we add that we find troubling certain practices

brought to light in this case. In particular, we are concerned

with the practice of incarcerating an individual for an extended

period of time without sentencing, while holding out a promise

that his or her cooperation will lead to a more lenient sentence.

At least two aspects of this practice are problematic. First,

although the government's offer may be attractive to an

individual defendant, we do not believe that the right to prompt

sentencing exists merely as a bargaining chip for defendants. It

is inappropriate to hold a defendant in prison for long periods

of time pending sentencing, in this case two and a half years,

while the government tries to extract information from him.

4 We add that Hern ndez not only fails to point to error in the
instructions, but concedes that they were "perhaps technically
correct." Appellant's Brief at 12.

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The second problem is that this practice increases the

likelihood that innocent individuals will be implicated by

defendants trying to placate the government. This is obviously a

concern whenever a defendant cooperates with the government in

exchange for lenience, but we feel that as the period of

incarceration increases unduly, the risk of false statements

intended to appease the defendant's captors becomes too great.

Although this is not the case for corrective action by

this court, suffice it to say that we caution the government

against abuse of this practice and that we will view with

suspicion its continued use. Nothing in this opinion should be

taken to support such conduct.

IV. Conclusion
IV. Conclusion

For the reasons stated herein, appellant's conviction

is affirmed.
affirmed

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