United States Court of Appeals
For the First Circuit
No. 98-2108
UNITED STATES,
Appellee,
v.
WALDEMAR GONZALEZ-VAZQUEZ,
Defendant, Appellant.
No. 98-2109
UNITED STATES,
Appellee,
v.
HECTOR HERNANDEZ-NEGRON,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Lydia Lizarribar-Masini for appellant González-Vázquez.
Mauricio Hernández Arroyo for appellant Hernández-Negrón.
Antonio A. Bazán, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, Chief, Criminal
Division, and Camille Vélez-Rivé, Assistant United States
Attorney, were on brief, for the United States.
July 18, 2000
LIPEZ, Circuit Judge. Hector Hernández-Negrón and
Waldemar González-Vázquez appeal from their convictions
following a trial for conspiracy to distribute controlled
substances and aiding and abetting the distribution of
controlled substances within one thousand feet of a school.
Hernández claims that he received ineffective assistance of
counsel when his trial attorney failed to accept a plea bargain
as instructed, and that the government then violated his
constitutional rights by withdrawing the original plea offer and
offering a new "package deal" plea bargain that Hernández could
only accept if his two remaining co-defendants also pled guilty.
Hernández also argues that the district court misapplied
U.S.S.G. § 3B1.1 in finding him to be a "manager or supervisor"
of the criminal activity. González challenges the sufficiency
of the evidence, arguing that it was based solely on testimony
from the government's confidential informant. We reject these
arguments (as well as several arguments concerning evidentiary
errors) and affirm the convictions and sentence of Hernández and
the convictions of González.
I. Background
We recite the facts in the light most favorable to the
jury's verdict, consistent with record support. See United
States v. Hughes, 211 F.3d 676, 679 (1st Cir. 2000). In January
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1995, FBI Agent Michael Anderson learned that an individual
named Angel González-Ortiz, a.k.a. "Pichi," headed a gang that
distributed illegal drugs at the Luis Palés Matos housing
project in Guayama, Puerto Rico. The distribution point was
within 1000 feet of the Palés Matos Public School. Anderson
opened an investigation, assisted by Agent José Tirado, a Puerto
Rico Police officer who had performed some initial investigation
of the drug ring. Anderson met with a confidential informant
("CI"), Ramonita Massó-Nieves, who had assisted Agent Tirado in
his initial investigation. To corroborate the information
provided by Massó, Anderson set up two video surveillance
cameras at the drug point, recording numerous drug deals.
In February 1996 a Grand Jury returned a two-count
indictment against twenty-two individuals, charging a conspiracy
to distribute controlled substances in violation of 21 U.S.C
§§ 841(a)(1) & 846 and aiding and abetting the distribution of
controlled substances within 1,000 feet of a school in violation
of 21 U.S.C. §§ 841(a)(1) & 860 and 18 U.S.C. § 2. Shortly
after the indictments, the government offered plea bargains to
all of the co-defendants. Nineteen of the twenty-two co-
defendants accepted a plea bargain; Hernández, González, and
Louis Bonano-Serrano went to trial.
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The jury trial lasted seven days. Through surveillance
videotapes, the jury saw drug transactions involving many of the
individuals who had pled guilty. Hernández, González, and
Bonano, however, did not appear in these videos. The government
attempted to link the defendants to the conspiracy through the
testimony of Massó and Agent Tirado. Massó testified that, from
her experience working at the drug point, she knew that
Hernández, González, and Bonano were the "guilterro" or
"triggermen" for Pichi, insuring that the kingpin and his
interests were protected. She further testified that González
had provided drugs to the distribution point and that Hernández
was second in command, after Pichi himself. She also testified
that on one occasion Hernández had used her apartment to package
drugs, and that she called Agent Tirado to inform him. Agent
Tirado confirmed this, testifying that upon arriving at Massó's
apartment, he found Hernández and two others sitting around a
table packaging a powder that a field test indicated was
cocaine. A chemist testified that later laboratory tests also
indicated that the substance was cocaine. Tirado also testified
that when he stopped González for a traffic violation he found
a bag containing drug packaging paraphernalia.
González and Bonano did not offer defense witnesses.
Hernández offered one witness: a co-conspirator who had pled
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guilty, and who testified that Hernández had been with him when
Agent Tirado came to Massó's apartment and found them packaging
drugs. The jury found Hernández and González guilty on both
counts. Bonano was acquitted. Hernández was sentenced to 450
months and González was sentenced to 360 months.
We evaluate Hernández's claims first, turn then to the
issues raised by González, and finally address an issue raised
by both appellants.
II. Hernández
A. The Plea Bargain
Hernández raises two arguments related to his
unsuccessful efforts to obtain a plea agreement from the
government. Like all of the twenty-two original co-defendants,
Hernández was offered a plea agreement after he was indicted in
1996. Nineteen of the co-defendants accepted the plea bargain
and were sentenced to between eighteen and forty-six months.
Hernández, however, deferred a decision on the plea offer while
preparing a motion to dismiss. After that motion was denied,
Hernández moved to compel the government to honor the initial
plea agreement. The government responded that there had been no
agreement. Rather, there had only been an offer that Hernández
had not accepted and that was now withdrawn. The government
further stated that it had advised Hernández that "trial
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preparation in this case would be the same against one or
against any of the three co-defendants."
1. Ineffective Assistance of Counsel
Hernández argues that he received ineffective
assistance of counsel because his trial counsel mishandled the
plea bargaining process by grossly underestimating Hernández's
potential sentence if the case were taken to trial, having
stated that Hernández could face a maximum of a ten year prison
term when in reality he faced a life sentence (and in fact
received thirty-seven and a half years). Additionally,
Hernández asserts that his trial counsel failed to accept the
plea offer as instructed, allowing the offer to lapse.
Hernández asserts that he went so far as to call his sisters in
the United States to enlist their help in bypassing his attorney
and communicating to the government that he wanted to accept the
plea bargain.
If true, Hernández's claims would present a serious
ineffective assistance question. See Boria v. Keane, 99 F.3d
492, 496 (1st Cir. 1996) ("A defense lawyer in a criminal case
has the duty to advise his client fully on whether a particular
plea to a charge appears to be desirable."); id. at 496-97 ("The
decision whether to plead guilty or contest a criminal charge .
. . must ultimately be left to the client's wishes."). However,
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"[w]e have held with a regularity bordering on the monotonous
that fact-specific claims of ineffective assistance cannot make
their debut on direct review of criminal convictions, but,
rather, must originally be presented to, and acted upon by, the
trial court." United States v. Berríos, 132 F.3d 834, 841 (1st
Cir. 1998) (quoting United States v. Mala, 7 F.3d 1058, 1062-63
(1st Cir. 1993)); see also United States v. McGill, 952 F.2d 16,
19 (1st Cir. 1991); United States v. Hunnewell, 891 F.2d 955,
956 (1st Cir. 1989); United States v. Costa, 890 F.2d 480,
482-83 (1st Cir. 1989).
While there is an exception to this bar in cases "where
the critical facts are not genuinely in dispute and the record
is sufficiently developed to allow reasoned consideration of the
ineffective assistance claim," United States v. Soldevila-López,
17 F.3d 480, 485 (1st Cir. 1994), Hernández's claims require the
resolution of factual disputes. We thus follow our usual
practice of dismissing this portion of the appeal without
prejudice to Hernández raising the ineffective assistance claim
in a 28 U.S.C. § 2255 petition. See id.
We note, though, that this seems to be one of the "rare
section 2255 cases in which the appointment of counsel [would
be] warranted." Mala, 7 F.3d at 1064. As in Mala, the
allegation of ineffectiveness is serious and the record provides
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some support for the defendant's claim. Under the initial plea
agreement that Hernández's trial counsel allegedly refused to
accept, Hernández would have likely received forty-six months,
given a reduction for acceptance of responsibility and the
government's willingness to drop the aiding and abetting count
and stipulate that Hernández was only responsible for a fraction
of the drugs. Both at the sentencing hearing and in an
affidavit filed on appeal, Hernández stated that he had
instructed his trial attorney to accept the plea bargain because
it was much less severe than the twenty years he was serving on
Puerto Rico charges relating to his involvement in the
conspiracy.1 After trial, Hernández received a sentence of
thirty-seven and half years--almost ten times the sentence he
would have likely received pursuant to the proposed plea
agreement. Moreover, the court ruled that the federal sentence
could not be served concurrently with the related twenty year
Puerto Rico sentence because the local courts were "too
lenient." We therefore "direct the district court, if appellant
petitions for section 2255 relief and demonstrates continued
1Three of Hernández's relatives have also filed affidavits
stating that Hernández telephoned two of his sisters (who lived
in Ohio) to enlist their help in bypassing his attorney and
telling the government directly that he wanted to accept the
offer.
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financial eligibility, to appoint counsel for him under 18
U.S.C. § 3006A(a)(2)(B)." Id.
2. The "Package Deal" Objection
Hernández argues that the government violated his
constitutional rights by withdrawing the original plea offer and
replacing it with a "package deal" plea that Hernández could
only accept if his two remaining co-defendants also pled guilty.
Because his co-defendants wanted a jury trial, Hernández says he
was unable to accept the agreement and was thus "forced" to go
to trial.
Hernández's objections have no merit. First, the
government was under no obligation to leave its original plea
offer open. At the sentencing hearing, Hernández's counsel
conceded that he had never accepted the initial plea offer,
instead hoping for success on a motion to dismiss. He further
conceded that "while we were waiting for disposition of those
motions . . . at that point, between all that, the government
withdrew." It is axiomatic that a prosecutor may withdraw a
plea offer before a defendant accepts it. See United States v.
Papaleo, 853 F.2d 16, 19-20 (1st Cir. 1988); see also Mabry v.
Johnson, 467 U.S. 504, 507 (1984).
Given that the government was entitled to withdraw the
initial plea offer, the question becomes whether the government
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could offer a new "package deal" plea bargain that would be
available to Hernández only if his two co-defendants also gave
up their right to a jury trial. Assuming that a "package deal"
offer was made2, it would not violate Hernández's constitutional
rights. Although we have expressed concerns with package deal
plea agreements, those concerns have no application here. The
difficulty with "package deal" plea offers is not the fear that
a defendant, like Hernández, will be "forced" to go to trial.
Rather, it is the opposite fear that the defendant will
involuntarily waive his right to a jury trial because his
codefendants will coerce him to accept the plea agreement. See
United States v. Martínez-Molina, 64 F.3d 719, 732 (1st Cir.
1995). We have held that "[p]ackage plea deals therefore impose
special obligations: the prosecutor must alert the district
court to the fact that codefendants are entering a package deal,
and the district court must carefully ascertain the
2
While the record is not entirely clear, it suggests that
the government did offer Hernández a "package deal." In response
to Hernández's motion to compel the government to accept its
original plea offer, the government stated that "[Hernández's]
[c]ounsel was advised in no uncertain terms that . . . trial
preparation in this case would be the same against one or
against any of the three co-defendants." Moreover, when
Hernández informed the trial court that the government had
offered a "package deal" arrangement, the trial court seems to
have accepted this characterization in deciding that such an
arrangement was unproblematic, and the government did nothing to
challenge this characterization.
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voluntariness of each defendant's plea." Id. at 733 (internal
citations omitted) (vacating package deal guilty plea when
district court did not determine if it was voluntary); see also
United States v. Daniels, 821 F.2d 76, 78-79 (1st Cir. 1987)
(vacating package deal guilty plea when government did not
inform trial court about nature of agreement).
The "voluntariness" concern that the defendant may have
been coerced into giving up his right to go to trial obviously
does not apply when the defendant does go to trial. It is
difficult, then, to understand the constitutional right at stake
here. While the "package deal" did limit Hernández's ability to
obtain a plea bargain (since the other defendants would also be
required to plead guilty), the fact remains that "there is no
constitutional right to plea bargain; the prosecutor need not do
so if he prefers to go to trial. It is a novel argument that
constitutional rights are infringed by trying the defendant
rather than accepting his plea of guilty." Weatherford v.
Bursey, 429 U.S. 545, 561 (1977); see also United States v.
Wheat, 813 F.2d 1399, 1405 (9th Cir. 1987) (rejecting
defendant's claim that package deal plea was unconstitutional
because it "forced" him to go to trial).
B. Upward Adjustment for Supervisor / Manager Role
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Section 3B1.1(b) of the United States Sentencing
Guidelines calls for a three point increase to the base offense
level "[i]f the defendant was a manager or supervisor (but not
an organizer or leader) and the criminal activity involved five
or more participants or was otherwise extensive." U.S.S.G. §
3B1.1(b); see also United States v. Joyce, 70 F.3d 679, 682 (1st
Cir. 1995). Hernández claims that the district court erred in
ordering a two level upward adjustment pursuant to §3B1.1(b)
because he was not a "manager or supervisor." Since the
determination of whether a defendant played this aggravated role
is fact intensive, we will reverse a trial court's determination
only if it is clearly erroneous. See United States v. Shrader,
56 F.3d 288, 293 (1st Cir. 1995); United States v. Morillo, 8
F.3d 864, 871 (1st Cir. 1993).
As the district court noted at the sentencing hearing,
Massó testified that Hernández was second in command at the drug
point. Moreover, Hernández played a leadership role in
arranging with Massó to use her apartment for drug packaging.
Thus, there was sufficient evidence for the district court to
conclude that the "defendant, in committing the crime, exercised
control over, or was otherwise responsible for overseeing the
activities of, at least one other person." United States v.
Cali, 87 F.3d 571, 578 (1st Cir. 1996)(quoting United States v.
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Savoie, 985 F.2d 612, 616 (1st Cir. 1993)). As such, the
imposition of supervisory liability under § 3B1.1(b) was not
clearly erroneous.
There is one other issue related to the § 3B1.1(b)
determination. Although the court found that § 3B1.1(b)
applied, it decided to "give [Hernández] a break on this one"
and increase the offense by only two levels rather than the
three called for by the guideline. This was error. As we noted
in United States v. Rostoff, 53 F.3d 398, 412-14 (1st Cir.
1995), § 3 B1.1 sets forth a precise adjustment scheme 3 that
cannot be modified by the district court. The Sentencing
Commission did not provide for a partial upward adjustment under
§ 3B1.1, in contrast to other provisions where the Commission
authorized the sentencing judge to select an intermediate
adjustment. See, e.g., U.S.S.G. § 2A2.2(b)(3)(D), (E)
(intermediate adjustment allowed for injuries considered to be
"between" specified categories of injuries); § 3B1.2
(intermediate adjustment allowed for mitigating role "falling
3
If a crime involves "five or more participants or was
otherwise extensive," the Guidelines provide for a four level
enhancement for an "organizer or leader," U.S.S.G. § 3B1.1(a),
and three levels for a "manager or supervisor," U.S.S.G §
3B1.1(b). For criminal activity on a smaller scale, the
Guidelines provide for a two level upward adjustment for all
four roles--organizers, leaders, managers or supervisors. See
U.S.S.G. § 3B1.1(c).
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between" minimal and minor participation). Therefore, a court
may not "forgo the three-level increase called for by U.S.S.G.
§ 3B1.1(b) and instead impose a two-level increase" when it
finds mitigating circumstances. United States v. Cotto, 979
F.2d 921, 922 (2d Cir. 1992); see also United States v. Kirkeby,
11 F.3d 777, 778-79 (8th Cir. 1993) ("A trial court's only
options in cases involving a criminal activity with five or more
participants are, therefore, a four-level enhancement under §
3B1.1(a), a three-level enhancement under § 3B1.1(b), or no
enhancement at all . . . .").
Although the district court erred in adjusting
Hernández's offense by two levels rather than three, the
government did not cross-appeal. We therefore deem the issue
waived and affirm the sentence. See generally United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
C. Limits on Hernández's Cross-Examination of Tirado
Hernández objects that the district court improperly
limited his cross-examination of José Tirado, a Puerto Rico
Police officer working (at the time of the conspiracy) for the
Drugs and Narcotics Division in the Guayama area. Agent Tirado
testified that acting on a tip from Massó, he obtained a warrant
and entered her apartment with Guayama officers Laboy Rólon and
Juan Rodríguez. Tirado stated that he found Hernández and two
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of his co-conspirators packaging a white powder, which field
tests indicated was cocaine. The drugs were seized and stored
in Rodriguez's locker.
Hernández wanted to cross-examine Tirado about
allegations that Rodríguez and other Guayama area officers were
corrupt. The district court ruled that while questions on the
chain of custody of the drugs would be allowed, "you cannot
benefit from somebody else's corruption, and it is immaterial to
this case." The court reasoned that the corruption was
"immaterial" because Tirado himself had never been accused of
corruption and because the corruption of other officers at the
local level did not implicate the federal prosecution.
The Confrontation Clause of the Sixth Amendment secures
a right to cross-examination in order to test "the believability
of a witness and the truth of his testimony." United States v.
Carty, 993 F.2d 1005, 1009 (1st Cir. 1993). The right to
cross-examine, however, is not unlimited. When a witness's
credibility is at issue, the trial court may limit
cross-examination as long as the court allows "sufficient leeway
to establish a reasonably complete picture of the witness'
veracity, bias, and motivation." United States v.
Laboy-Delgado, 84 F.3d 22, 28 (1st Cir. 1996) (internal
quotation marks omitted). "Confrontation clause challenges are
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reviewed de novo to determine whether defense counsel was
afforded a reasonable opportunity to impeach adverse witnesses;
once that threshold is reached, the trial court's restrictions
on the extent and manner of cross-examination are reviewed only
for abuse of discretion." United States v. Balsam, 203 F.3d 72,
87 (1st Cir. 2000) (citing United States v. Gomes, 177 F.3d 76,
80 (1st Cir. 1999)).
The district court's unwillingness to allow Hernández
to question Tirado about the corruption of other police officers
did not prevent the jury from obtaining "a reasonably complete
picture of the witness' veracity, bias, and motivation."
Laboy-Delgado, 84 F.3d at 28 (emphasis added). While a
magistrate judge's pre-trial report adopted by the district
court contained evidence that some police officers (including
Rodríguez) had behaved corruptly in other drug cases, there was
no allegation that Tirado was himself corrupt. Indeed, Tirado
provided the United States with information that helped
implicate other corrupt officers. Thus, any testimony tending
to show that these other officers were dishonest would not
implicate Tirado's veracity, bias, and motivation. More
concretely, cross-examination that attacked Rodríguez's
integrity would do nothing to cast doubt on Tirado's claims that
(1) he personally saw Hernández packaging a white powder, (2) he
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personally observed a field test indicating that the white
powder was cocaine, and (3) he recognized the drugs from the
laboratory as those seized from Hernández.
Moreover, the district court did not completely bar
Hernández from questioning Tirado about Rodríguez. Rather, the
court allowed extensive questioning as to how Rodríguez handled
the evidence in this case, including the unusually lengthy
storage in Rodríguez's locker and the miscounting of the bags of
drugs. The district court "retains wide latitude to impose
reasonable limits" on cross-examination in order to avoid
confusion of the issues or extended discussion of marginally
relevant material. United States v. Twomey, 806 F.2d 1136, 1139
(1st Cir. 1986). Since Hernández was unable to offer any
evidence that Rodríguez corruptly handled the case against
Hernández, it was not unreasonable for the court to limit
Hernández to questioning Tirado about these concrete factors
relating to storage and quantification rather than allowing a
broad inquiry into the corruption of third party police officers
who were not appearing as witnesses.
III. González
A. Sufficiency of Evidence
González was convicted of conspiracy to distribute
controlled substances, 21 U.S.C. §§ 841(a)(1) & 846, and of
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aiding and abetting the distribution of controlled substances
within one thousand feet of a school, 21 U.S.C. §§ 841(a)(1) &
860 and 18 U.S.C. § 2. The evidence tying him to the drug
operation came primarily from Massó, a paid government
informant. González does not argue that the evidence, taken as
a whole, was insufficient. Rather, González claims that "[t]he
evidence, excluding Ramonita Massó, is legally insufficient to
support appellant's conviction." (emphasis added). We reject
González's sufficiency challenge. His premise that Massó's
testimony must be disregarded as "not trustworthy" because of
her informant status is unsupportable.
It is well-established that "the testimony of
interested informants is not so inherently unreliable that it
must be excluded." United States v. Cresta, 825 F.2d 538, 546
(1st Cir. 1987). A conviction may be based solely on the
uncorroborated testimony of a confidential informant "so long as
the testimony is not incredible or insubstantial on its face."
United States v. Ciocca, 106 F.3d 1079, 1084 (1st Cir. 1997)
(quoting United States v. Andújar, 49 F.3d 16, 21 (1st Cir.
1995)). While the credibility of an interested informant can be
challenged, the challenge should ordinarily be directed to the
jury, not the appellate court. Thus, when an informant is paid
a contingent fee, "the jury must be informed of the exact nature
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of the contingency agreement; the defense counsel must be
permitted to cross-examine the witness about the agreement; and
the jury must be specifically instructed to weigh the witness'
testimony with care." Cresta, 825 F.2d at 546; see also United
States v. Fernández, 145 F.3d 59, 62 (1st Cir. 1998) (plain
error review when defendant does not request the "special care"
instruction). When these "established safeguards," id., are
met, we will not disturb a conviction based on the testimony of
an interested informant.
Massó's testimony was certainly not "incredible or
insubstantial on its face." Ciocca, 106 F.3d at 1084. She
provided detailed descriptions of González's participation in
the drug distribution operation. González was allowed to--and
did--vigorously cross-examine Massó, suggesting that her
testimony was untruthful. Massó admitted that she had started
working at the drug point before she made a decision to serve as
an informant. González also brought out inconsistencies between
Massó's trial testimony--where she identified González as a
"triggerman" and recalled an incident when he delivered drugs to
the distribution point--and her investigative interviews with
Agent Tirado and Agent Anderson. During the closing, González
argued that Massó was now lying about González's role due to
compensation she had acknowledged on direct: $10,000 for
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expenses, $10,000 for her availability, and the promise of a
"bonus" upon completion of the trial, regardless of its result.
Finally, the trial court instructed the jury to weigh Massó's
testimony with care.4 Despite this admonition, the jury rejected
González's defense that Massó was lying and voted to convict.
We have no reason to disturb the verdict on sufficiency grounds.
B. The Traffic Stop
González argues that the district court erred in
failing to strike Agent Tirado's testimony that he saw González
with drug paraphernalia as he left the distribution point.
Tirado testified that on March 4, 1994, he stopped González for
traffic violations as he left the housing project on his
motorcycle. A consensual search of González's sports bag
revealed a scale, a sieve, plastic containers, and pieces of
aluminum--items Tirado recognized as frequently used to process
4In addition to receiving a general instruction on witness
credibility, the jury was advised that it should consider
whether Massó's pre-trial statements were consistent with her
testimony at trial and that the testimony of "an informer for
pay" must "always be examined and weighed with greater care and
caution than the testimony of an ordinary witness." We assume
for the sake of argument that González properly requested these
instructions, though the record is unclear. See Fernández, 145
F.3d at 62 (plain error review if "special care" instructions
not requested).
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controlled substances. When Tirado told the other officers,
"Look what this guy has in here," González began to run.
After cross-examination of Agent Tirado was complete,
González moved to strike the testimony concerning the traffic
stop on the grounds that the evidence was irrelevant to the
conspiracy charges and, even if relevant, unduly prejudicial
under Fed. R. Evid. 403. The trial court denied the motion to
strike, stating, inter alia, that the evidence was relevant (and
more probative than prejudicial) because "he was at the drug
point within the time frame of the conspiracy and carrying
paraphernalia is consistent with drug trafficking." We review
evidentiary rulings for abuse of discretion. United States v.
Rodríguez, 162 F.3d 135, 142 (1st Cir. 1998).
The evidence was plainly admissible as relevant
evidence of the conspiracy: combined with the testimony of
Massó, it suggested that González was a member of the drug ring
at the housing project. Likewise, "it is only unfair prejudice,
not prejudice per se, against which Rule 403 guards." United
States v. Rivera-Gómez, 67 F.3d 993, 997 (1st Cir. 1995).
"Unfairly prejudicial evidence is evidence having some quality
that moves the jury to attribute to it excessive probative
value. It is evidence that 'triggers [the] mainsprings of human
action [in such a way as to] cause a jury to base its decision
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on something other than the established proposition in the
case.'" United States v. Currier, 836 F.2d 11, 18 (1st Cir.
1987) (quoting 1 Weinstein's Evidence § 403[03], 36-39 (1986)).
The items González was carrying did not create a danger of such
unfair prejudice. Rather, a reasonable jury could consider the
testimony concerning these items as circumstantial evidence of
González's involvement in the conspiracy.
IV. Hernández and González
Hernández and González argue that the district court
erred in admitting the testimony of Puerto Rico Police Officer
Gregorio Durán regarding investigations and surveillance at the
Luis Palés Matos housing project. Durán testified that while
investigating drug distribution at the housing project he
observed Hernández, González, and Bonano acting as Pichi's
bodyguards. Cross-examination, however, revealed that Durán was
unsure precisely when he saw the co-defendants. Since some of
Durán's observations were made before the charged conspiracy, he
could not be certain that he had seen the defendants within the
time frame of the conspiracy. Surveillance reports that could
have been used to clarify when Durán saw the defendants, or to
impeach his testimony if the defendants were not mentioned in
them, could not be obtained because they were stored in a Puerto
Rico facility that OSHA had declared highly contaminated.
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In response, Hernández and González requested a
mistrial. Although arguing that no mistrial was necessary, the
government suggested to the district court that it might strike
Agent Durán's testimony and issue a curative instruction. The
trial court reasoned that there was no basis for a mistrial--or
even for striking the testimony--because 1) the reports were
unavailable to the government, 2) there had been no misconduct,
and 3) the defendants "have had the chance to cross-examine this
witness and really attack his credibility on the grounds that he
did not observe the matters within the time frame."
Nonetheless, the court agreed to strike the testimony and issue
the cautionary instruction because "the Government wants to do
that." On appeal, González and Hernández claim that Agent
Durán's testimony impermissibly bolstered Massó's testimony.
Given that Durán's testimony was struck, the only possible legal
argument is that the remedy of striking the testimony and
issuing a cautionary instruction was insufficient to cure the
harms caused by the allegedly inadmissible testimony and that
the mistrial the defendants sought should have been granted.
We find no error in the trial court's denial of a
mistrial, much less the manifest abuse of discretion required
for reversal. See United States v. Rullán-Rivera, 60 F.3d 16,
18 (1st Cir. 1995) ("Mistrial is a last resort, to be employed
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only if the demonstrated harm can be cured by no less drastic
means, such as a contemporaneous jury instruction."). Even
assuming that Agent Durán's testimony was inadmissible (an
assumption we make solely for the sake of argument), the
district court's response--striking the testimony and issuing a
curative instruction--was certainly adequate. The court told
the jury:
Now, the testimony of Agent Gregorio
Durán Malavé concerning his observations
that he saw the three defendants providing
security service, body guarding 'Pichi',
well I am ordering that testimony to be
stricken from the record, and I am
instructing you to erase it from your mind
entirely, the way I told you, the way you
swore to obey my instructions and follow the
law. So again, I repeat, disregard that
testimony , that portion of the testimony,
that portion, entirely from your minds.
We presume that juries follow instructions. See United
States v. Woodward, 149 F.3d 46, 73 (1st Cir. 1998). While this
presumption may be rebutted "on a sufficient showing that the
offending testimony reasonably could not have been ignored and
that serious prejudice likely resulted," Rullán-Rivera, 60 F.3d
at 18, no such showing has been made here. Indeed, Agent
Durán's stricken testimony also implicated co-defendant Bonano
as a bodyguard for Pichi. The jury, however, acquitted Bonano,
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indicating that they were not unduly influenced by the
testimony.
V. Conclusion
For the reasons stated herein, we affirm the
convictions and sentences.
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