United States v. Downs-Moses , 329 F.3d 253 ( 2003 )

United States Court of Appeals
For the First Circuit
Nos. 00-2535
00-2587
00-2589
01-1002
01-1073
01-1091
01-1561
UNITED STATES OF AMERICA,
Appellee,
v.
RADMEN DOWNS-MOSES, RAMÓN SÁNCHEZ-HERNÁNDEZ,
RAÚL SALAZAR-URIANA, GERÓNIMO AMPARO-HERNÁNDEZ,
LARRY WARD-BRYAN, and JERRY WARD-O'NEILL,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Raymond L. Sánchez Maceira for appellant Radmen Downs-Moses.
Rafael F. Castro Lang for appellant Ramón Sánchez-Hernández.
William A. Gilmore, Jr., with whom Azzarito & Gilmore, LLP
was on brief, for appellant Raúl Salazar-Uriana.
Jean Philip Gauthier for appellant Gerónimo Amparo-
Hernández.
H. Ernest Stone for appellant Larry Ward-Bryan.
Terrance J. McCarthy for appellant Jerry Ward-O'Neill.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, were on brief, for appellee.
May 27, 2003
HOWARD, Circuit Judge. In these consolidated appeals,
six defendants challenge their convictions and sentences for aiding
and abetting the possession of cocaine with intent to distribute.
After a careful review of their arguments, we affirm.
I. Factual and Procedural Background
We recite the pertinent facts in the light most favorable
to the verdict, see United States v. Valerio, 48 F.3d 58, 60 (1st
Cir. 1995)(citing United States v. Ortiz, 23 F.3d 21, 23 (1st Cir.
1994)), deferring some details to our analysis of the issues raised
on appeal.
A. One Boat, Twenty-Eight Bales, and Six Men Adrift
On December 26, 1998, at approximately 10:30 a.m., a U.S.
Customs pilot patrolling the waters off the west coast of Puerto
Rico and monitoring a marine emergency radio channel learned that
a vessel had capsized approximately seven and a half nautical miles
west of Cabo Rojo, Puerto Rico. Aided by coordinates provided by
a civilian vessel in the area, the pilot located an overturned
vessel, a twenty-one-foot Grand Prix with a yellow fiberglass
hull.1 The vessel was registered in Puerto Rico, and known by the
1
After locating the vessel and determining there were no
survivors in the immediate vicinity, the pilot circled the area
within a five- to ten-mile radius. Because it was a clear, sunny
day and the water was calm, the pilot and his co-pilots opted to
look for survivors without the aid of infrared equipment or other
devices. None of the Customs pilots noticed the defendants in the
water during their visual inspection.
-3-
name “MARINATHA.”2 Agents of the U.S. Coast Guard later arrived at
the scene by boat. The agents inspected the MARINATHA and, upon
righting the vessel, discovered five bales of a substance later
identified as cocaine. The bales were rectangular parcels wrapped
in brown burlap bags with red and green stripes. Inside, the
cocaine was packaged in bricks, with each brick tightly wrapped in
thick balloons of various colors.
Some distance north of the MARINATHA (the record is
unclear as to the location), a Coast Guard pilot discovered twenty-
one bales floating in the water. A U.S. Border Patrol boat
responded to a call for assistance and recovered these bales, also
later determined to contain cocaine, which were wrapped in the same
manner as those recovered with the MARINATHA.
In the early afternoon, agents with the maritime drug
interdiction unit of the Police of Puerto Rico (known as “FURA”),
acting on information received via police communication radio, went
to yet a third location in the water. Approximately five miles
west of Boquerón, Puerto Rico, FURA agents discovered floating in
the water defendants-appellants Jerry Ward-O'Neill (“Ward-
O'Neill”), his brother Larry Ward-Bryan (“Ward-Bryan”), and Raúl
Salazar-Uriana (“Salazar”). The three men wore life vests.
2
At trial, all parties stipulated to the fact that none of the
six defendants was ever a registered owner of the MARINATHA,
registry number PR-2311-AA. The MARINATHA had been purchased a few
weeks prior to December 26, 1998, and was registered in the name of
a person who was not charged in this case.
-4-
After removing these men from the water, FURA agents
spotted three more people floating in the water approximately 200
feet away. One man in this second group, Radmen Downs-Moses
(“Downs”), was wearing a life vest identical to the life vest worn
by one of the men in the first group. The two other men in this
second group, Ramón Sánchez-Hernández (“Sánchez-Hernández”) and his
cousin Gerónimo Amparo-Hernández (“Amparo-Hernández”) were each
seen clinging to a burlap-covered bale as a flotation device. As
the agents approached, the men pushed the bales away. These bales,
also containing cocaine, were wrapped in the same manner as the
five bales recovered with the MARINATHA by the Coast Guard and the
twenty-one bales recovered by the Border Patrol.
FURA agents also recovered a white bucket floating in the
water near where the defendants were found. The bucket contained,
among other things, a cellular telephone,3 a protective case for a
global positioning system, razor blades labeled “Gillette of
Colombia, S.A.,” and a laminated piece of paper with writing on it.
The notations on the paper included two sets of coordinates (one
set of which was close to where the capsized MARINATHA was found),
as well as the name “Moreno.” FURA agents found no fishing or
diving gear in the vicinity.
3
According to a stipulation entered into at trial, the
telephone number corresponding to the cellular telephone had never
been assigned to any of the defendants.
-5-
The six men were taken to the FURA office in Boquerón and
placed under arrest. Customs agents read each his Miranda rights,
and each signed a written waiver. In the interviews that followed,
the men told stories that were at times incredible and
contradictory. The three men in the first group, all Colombian
nationals, claimed to know each other, but denied knowing anyone in
the second group. Ward-O'Neill claimed that he and the other two
in the first group had been near Puerto Rico for twenty-four days
on the ALEXANDER,4 allegedly a forty-two-foot fishing vessel under
the command of one Captain Alejandro. He said that he and seven
others (including Ward-Bryan and Salazar) went out on a smaller
twenty-foot fishing boat that had engine problems and capsized. He
could not identify any of the other people who had been with them
in the smaller boat. He denied knowing the men in the second group
picked up by FURA, or knowing anything about the nearby bales of
cocaine.
Ward-Bryan told a similar story, but could not recall the
name of the forty-two-foot vessel on which he had been a passenger
for twenty-four days. Salazar's version of the story differed –-
he stated that a total of five people boarded the smaller boat, and
that they had done so because the larger vessel was having engine
4
A Customs agent testified at trial that he, like agents of
the Coast Guard, Border Patrol, and FURA working in the area on
December 26, 1998, did not see any vessels fitting the alleged
description of the ALEXANDER in the vicinity.
-6-
problems, not to go fishing. According to his story, the small
boat capsized when its passengers attempted to tow the larger
vessel. They then tried to swim back to the larger vessel to be
rescued, but it abandoned the three of them (but apparently not the
other passengers who had been in the small boat) in the water
before they could reach it.
In the second group, Sánchez-Hernández, a Dominican
national residing in Puerto Rico, told agents that he and his
cousin left to go fishing in a small boat the previous evening. He
said their boat took on water and sank that night at approximately
10:00 or 10:30 p.m. He denied knowing any of the four other men
picked up in the water or even where they had come from, but stated
that if any of the other men said he was on "the yellow boat," then
that person was lying. Sánchez-Hernández admitted that he was
known by the nickname "Moreno," a name that appeared on the piece
of paper found in the white bucket. His cousin, Amparo-Hernández,
told a similar story, but said their fishing boat had hit a rock,
and that this was what caused it to sink. Despite being found
using a bale of cocaine to keep him afloat, Amparo-Hernández denied
having any knowledge of the bales found with him and Sánchez-
Hernández.
The third person in the second group was Downs, a
Nicaraguan national who claimed not to know any of the other men
found at sea. He told the agents that he had been a stowaway on a
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Costa Rican container ship, and that when he was discovered on
board the day before, the captain put a life vest on him, brought
the ship close to the coast of Puerto Rico, and threw him
overboard. Downs identified for the agents the life vest he had
been wearing, and signed the life vest in their presence. The life
vest was identical to one of the life vests worn by one of the men
in the first group.
On December 30, 1998, a grand jury indicted the six men
on a single count of aiding and abetting each other in knowingly,
intentionally, and unlawfully possessing with intent to distribute
approximately 978 kilograms of cocaine on board a vessel of the
United States, in violation of 46 U.S.C. app. § 1903(a),(b)(1) and
(f), and 18 U.S.C. § 2.
B. Trial and Sentencing
The defendants were tried before a jury in April 2000,
with testimony offered over the course of six days. In addition to
evidence introduced by the government, the parties stipulated that
the chain of custody of the evidence recovered on December 26, 1998
would be completed through the testimony of certain identified law
enforcement agents. They also stipulated that a forensic chemist
would testify to the fact that the bales contained cocaine
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hydrochloride (a Schedule II narcotic), weighing a total of 975
kilograms, and having a strength or purity of 83 percent.5
On April 11, 2000, the district court read closing
instructions to the jury in open court. Among other things, the
jury was instructed that only a "measurable amount" of cocaine must
be proven by the government beyond a reasonable doubt, not the
actual amount charged in the indictment. Although this stage of
the proceedings was not recorded by the court reporter, the
exchange between the court and counsel immediately thereafter was
transcribed, and reflected that the court gave defense counsel the
opportunity to object to the instructions. Other than an objection
by counsel for Ward-Bryan on the ground that the minimum and
maximum penalty should have been read to the jury (a request denied
5
This stipulation read, in relevant part:
It is hereby stipulated and agreed to by the United
States and the above-captioned defendants with advice of their
respective attorneys that Juan C. Bruna, forensic chemist of
the Drug Enforcement Administration would testify as follows:
1. That he received drug exhibits in this case
. . . from Special Agent Marco Rocco of the United States
Customs Service in three sealed boxes containing samples of
kilograms taken from 28 different bales and placed in three
sealed boxes;
2. That he opened said boxes and performed a chemical
analysis of the samples submitted which reveals the following:
Drug weight of seizure 975 kilograms. Net weight 852.2
kilograms. Strength or purity 83 percent;
3. That cocaine hydrochloride is a Schedule II narcotic
drug controlled substance.
-9-
by the district court), counsel made no objections to the jury
instructions.
The jury returned verdicts of guilty as to all
defendants. Sánchez-Hernández and Amparo-Hernández were each
sentenced to a term of imprisonment of 200 months; Ward-Bryan and
Ward-O'Neill (following a 2-point adjustment in his base offense
level on re-sentencing in March 2001) were sentenced to 188 months;
Salazar was sentenced to 180 months; and Downs was sentenced to 172
months. All defendants were sentenced to supervised release terms
of five years, and assigned special monetary assessments of $100.
These appeals followed.
II. Analysis
On appeal, the defendants challenge the sufficiency of
the evidence presented at trial.6 Three of the defendants (Ward-
Bryan, Sánchez-Hernández, and Amparo-Hernández) criticize the use
of the stipulation at trial that described the government chemist's
testimony regarding the nature and weight of the drug evidence,
6
Ward-O'Neill, the only defendant who did not raise this issue
in his principal brief on appeal, adopted the issue in a pro se
supplemental brief by reference to the briefs of co-defendants
Ward-Bryan and Salazar. Most of the defendants attempted to
incorporate by reference the arguments of general application made
by their co-defendants. Finding the arguments raised on appeal
unavailing, we do not address whether the defendants' attempts at
incorporation were effective. See, e.g., United States v. David,
940 F.2d 722, 737 (1st Cir. 1991)("Adoption by reference . . .
cannot occur in a vacuum; to be meaningful, the arguments adopted
must be readily transferrable from the proponent's case to the
adopter's case.").
-10-
although each frames the issue differently on appeal. Ward-O'Neill
alleges that he was denied due process of law because the jury
charge was not transcribed by the court reporter, and that the
district court erred in failing to grant him a greater reduction in
sentence based on his role in the illegal venture. Downs alleges
that his post-arrest statement should have been suppressed at
trial, that he was denied the right to a public trial, that the
prosecution indirectly referenced his failure to testify at trial,
and that he was denied effective assistance of counsel.
A. Sufficiency of the Evidence
The defendants contend that their convictions should be
vacated because the evidence presented at trial was insufficient to
support their guilty verdicts. In reviewing such a challenge, we
consider the record evidence (and any reasonable inferences
therefrom) as a whole and in the light most favorable to the
prosecution, asking whether the evidence would have permitted a
rational jury to find the defendants guilty of the crime charged
beyond a reasonable doubt. United States v. Lopez-Lopez, 282 F.3d
1, 19 (1st Cir. 2002); Ortiz, 23 F.3d at 24.
In so doing, we do not favor direct evidence over
circumstantial evidence, as either type of evidence may
satisfactorily support a conviction. See Ortiz, 23 F.3d at 24; see
also United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir.
1993)("A conviction may be premised in whole or part on
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circumstantial evidence."). Nor do we weigh the evidence or judge
credibility; these determinations are the province of the jury.
See Mena-Robles, 4 F.3d at 1031. A verdict that is "supported by
a plausible rendition of the record" will not be disturbed on
appeal. United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992).
The defendants argue that the case for a finding of
innocence is at least equally as compelling as the case for a
finding of guilt, and thus reversal of their convictions is
mandated. See United States v. Flores-Rivera, 56 F.3d 319, 323
(1st Cir. 1995)(quoting United States v. Sanchez, 961 F.2d 1169,
1173 (5th Cir. 1992)(conviction cannot stand if evidence provides
"equal or nearly equal circumstantial support to a theory of guilt
and a theory of innocence on the crime charged")). We disagree.
The indictment charged the defendants with aiding and
abetting, on board a vessel of the United States, the possession
with intent to distribute approximately 978 kilograms of cocaine.
See 46 U.S.C. app. §§ 1903(a), (b)(1). To prove aiding and
abetting, the government must demonstrate that each defendant
participated in the illegal venture and sought by his actions to
make it succeed. United States v. Guerrero, 114 F.3d 332, 341 (1st
Cir. 1997). "Mere presence at the scene or even knowledge that the
crime is being committed is generally insufficient to establish
aiding and abetting." Id. at 342.
-12-
The government's evidence at trial was persuasive,
particularly when viewed in its totality. Ortiz, 966 F.2d at 711("[J]uries are not required to examine the evidence in isolation,
for individual pieces of evidence, insufficient in themselves to
prove a point, may in cumulation prove it. The sum of an
evidentiary presentation may well be greater than its constituent
parts." (quoting Bourjaily v. United States, 483 U.S. 171, 179-80
(1987)(internal quotation omitted)). Contrary to the defendants'
contentions on appeal, the jury could have inferred far more than
the defendants' "mere presence" at the scene of the crime.
On the evidence presented, a reasonable jury could have
found that all twenty-eight bales of cocaine, elaborately and
similarly packaged, had been part of the same shipment; that the
size of the shipment (weighing 975 kilograms, or more than 2100
pounds) necessitated that a number of individuals participate in
its transport; that the six defendants had been aboard the
MARINATHA with the contraband; and that the MARINATHA was a vessel
of the United States.
Further, the jury could have credited the testimony of
the Customs agent who interviewed the defendants, including his
description of the stories told by the defendants and the
inculpatory comment by Sánchez-Hernández that if any of the other
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men said he was in "the yellow boat," he was lying.7 The jury
could have rejected the defendants' stories as fabricated,
concluding that each defendant was attempting to conceal his active
participation in a venture he knew to be illegal. This type of
concealment may have further incriminated the defendants:8
[T]he jury could certainly have chosen to believe
that the converging circumstances pointed toward a
more sinister truth and been persuaded thereby of
appellants' guilt. And that conclusion, once
reached, would be self-reinforcing; if the jury
disbelieved defendants' story, it could
legitimately have presumed that the fabrication was
all the more proof of their guilt.
United States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir. 1989). On
these facts, we cannot say that the jury's conclusion was
irrational. See, e.g. United States v. Corchado-Peralta, 318 F.3d
255, 258 (1st Cir. 2003).
7
For a jury to credit the defendants, it would have had to
believe that the defendants encountered each other in the sea by
serendipity. The jury would have to believe that two unrelated
fishing boats sank near each other for reasons inconsistently
described by the members of the purported fishing parties; that one
of the groups of fishermen had the misfortune of drifting alongside
two bales of cocaine wrapped in the same manner as some bales
floating near a capsized boat a few miles away; that near the two
groups floated a bucket nobody knew about, but which contained
known tools of the drug trade and a paper bearing (1) the nickname
of one of the men, and (2) the coordinates of a location very near
the capsized, drug-laden boat; and that a sixth unlucky stranger
passing through on a container ship was outfitted with a life vest
identical to one worn by one of the other fishermen floating in the
water, and thrown overboard in that same location.
8
Even if Downs's statement was disregarded, there was, as
discussed below, sufficient evidence to convict him.
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B. Stipulation Relating to Drug Amount
Three of the defendants contend that the stipulation
regarding the testimony of the government's forensic chemist was
used improperly at trial. Each of these defendants attempts to
draw on the principles set forth in Apprendi v. New Jersey, 530
U.S. 466 (2000). Apprendi stands for the proposition that, other
than a fact of a prior conviction, "any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
both be charged in the indictment and submitted to a jury for a
determination under the beyond-a-reasonable-doubt standard."
United States v. Eirby, 262 F.3d 31, 36 (1st Cir. 2001)(citing
Apprendi, 530 U.S. at 490). Ward-Bryan makes an express Apprendi
claim, alleging that weight of the cocaine involved should have
been submitted to the jury. Without referencing Apprendi directly,
Sánchez-Hernández argues that the stipulation was used in a manner
that violated his rights to due process and a jury trial, and
Amparo-Hernández alleges that he was denied effective assistance of
counsel in connection with the stipulation.
1. Apprendi (Ward-Bryan)
Ward-Bryan alleges that because his sentence was based on
the weight of the cocaine involved in the crime, the failure to
submit this issue to the jury for determination beyond a reasonable
doubt violated his rights under Apprendi. Having failed to object
to his sentence on this basis, Ward-Bryan's argument is reviewed on
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appeal for plain error only. United States v. Olano, 507 U.S. 725,
731-32 (1993). Accordingly, Ward-Bryan bears the burden of proving
(1) an error, (2) that is plain, and (3) that affects substantial
rights. Johnson v. United States, 520 U.S. 461, 466-67
(1997)(quoting Olano, 507 U.S. at 732). Even if he meets this
burden, this court will only exercise its discretion to notice the
error if "the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings." Id. at 467.
The indictment specified that approximately 978 kilograms
of cocaine were involved in the crime, a charge that exposed Ward-
Bryan to a sentence of ten years to life. See 46 U.S.C. app. §
1903(g)(1); 21 U.S.C. § 960(b). He concedes in his brief that he
stipulated at trial that the weight of the cocaine was 975
kilograms (an amount carrying the same penalties as the amount
charged in the indictment) and that this may have been a tactical
decision intended to limit juror prejudice by avoiding "prolonged
testimony focusing on the contraband itself."9
9
Ward-Bryan now contends that it is "entirely likely" that the
stipulation to the drug amount (entered into in April 2000, prior
to the Apprendi decision in June 2000) was made with the
expectation that, consistent with then-existing practice, the jury
would be instructed that it need not make a determination as to the
quantity of cocaine involved. Thus Ward-Bryan would have had less
of an incentive pre-Apprendi to dispute the drug quantity in front
of the jury. Ward-Bryan now wishes to be relieved of the
consequences of the stipulation (which he acknowledges may have
provided some tactical advantage to him at trial). The failure to
submit this stipulated issue to the jury does not constitute an
"error."
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Ward-Bryan has not demonstrated any error on these facts.
He was sentenced to 188 months' imprisonment, a term less than the
statutory maximum (in this case, a life sentence). In such a case,
"Apprendi is irrelevant." Eirby, 262 F.3d at 37. Ward-Bryan
concedes this point in his brief, but urges us to find that
Apprendi extends to circumstances in which a defendant is sentenced
to more than the mandatory minimum sentence. This suggested
expansion of Apprendi is wholly inconsistent with our precedent,
see United States v. Newton, --- F.3d --- , No. 01-2636, 2003 WL
1826135, at *11 (1st Cir. Apr. 9, 2003); Lopez-Lopez, 282 F.3d at
22; United States v. Robinson, 241 F.3d 115, 119 (1st Cir. 2001),
and we are not empowered to revisit the issue. See United States
v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991)("[I]n a multi-panel
circuit, prior panel decisions are binding upon newly constituted
panels in the absence of supervening authority sufficient to
warrant disregard of established precedent."). We find no error in
Ward-Bryan's sentencing.
2. Erroneous Jury Instruction (Sánchez-Hernández)
In his pro se supplemental brief, Sánchez-Hernández also
alleges that the stipulation regarding the forensic chemist's
testimony was used in a manner that violated his rights, referring
generally to his right to due process and to his Sixth Amendment
right to a speedy and public jury trial. Sánchez-Hernández argues
that he stipulated only to what the forensic chemist would testify
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to, not to the accuracy of the witness's testimony. He contends
that the district court erred in (1) failing to explain this
distinction to the jury, and (2) affirmatively misstating the
effect of the stipulation to the jury. The latter alleged error
occurred immediately after the stipulation was read to the jury
when the district court instructed the jury:
Let me advise the jury first that the United States
and the defendants having stipulated to the facts
as stated in that stipulation, those facts stated
in that stipulation as to the drug are facts that
must be taken as true not subject to credibility.
Tr. Apr. 4, 2000, 28:1-5 (emphasis added). Sánchez-Hernández made
no contemporaneous objection to either alleged error, nor did he
later request jury instructions or a form of verdict that would
require the jury to determine the amount of cocaine involved beyond
a reasonable doubt. Having failed to preserve these issues at
trial, Sánchez-Hernández's arguments are reviewed for plain error.
Olano, 507 U.S. at 731-32.
Although Sanchez-Hernandez's argument may be technically
correct that he stipulated to only the chemist's testimony about
the drugs, and the district court therefore erred in characterizing
the stipulation as a stipulation "as to the drug[s]," this error
did not affect Sánchez-Hernández's substantial rights. As a
factual matter, the defendants and their counsel treated the
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stipulation as a stipulation to the quantity of cocaine,10 and no
other evidence was presented that would have contradicted the
testimony of the government's forensic chemist. As a matter of
law, because Sánchez-Hernández was sentenced to less than the
statutory maximum, the failure to present the issue of the drug
amount to the jury has no constitutional significance.11 See
Apprendi, 530 U.S. at 490; see also Section II.B.1., above.
3. Ineffective Assistance of Counsel (Amparo-
Hernández)
Amparo-Hernández contends that he received ineffective
assistance of counsel, both at the time he entered into the
defendants' stipulation, and at the time counsel failed to object
to jury instructions that did not require the jury to determine the
10
Prior to sentencing, Sánchez-Hernández, Amparo-Hernández, and
Salazar each moved for a new trial or for sentencing at the
mandatory minimum, alleging a violation of Apprendi because the
amount of drugs involved was not determined by the jury. At their
sentencing hearings on October 27, 2000, these defendants, through
counsel, withdrew their motions after reviewing a copy of the
stipulation regarding the testimony that would be offered by the
government's forensic chemist. Similarly, at Downs's sentencing
(which occurred three days before), Downs's counsel reviewed the
motion filed on behalf of Sánchez-Hernández and asked that the same
issues be preserved for his client. He later conceded, however,
that the drug amount "was agreed and stipulated."
11
Sánchez-Hernández also argues that the district court erred
in instructing the jury that it need not determine the amount of
cocaine as charged in the indictment. This argument is identical
in all relevant respects to the Apprendi argument made by Ward-
Bryan, and is rejected for the reasons discussed in Section
II.B.1., above.
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drug amount beyond a reasonable doubt.12 Typically we do not
consider claims of ineffective assistance of counsel on direct
appeal. United States v. Soldevila-Lopez, 17 F.3d 480, 485 (1st
Cir. 1994). Such claims usually present mixed questions of law and
fact, and should be addressed at the district court level in the
first instance. See id. Here, however, the key facts are not in
dispute, the record appears "sufficiently developed to allow a
reasoned consideration" of Amparo-Hernández's claim, and both sides
contend that further factfinding is unnecessary. United States v.
Natanel, 938 F.2d 302, 309 (1st Cir. 1991). Accordingly, we
consider Amparo-Hernández's claim of ineffective assistance.
The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel at trial. Strickland v.
Washington, 466 U.S. 668, 686 (1984). To demonstrate a violation
of this right, a defendant must show that counsel's performance was
constitutionally deficient and that prejudice resulted. See id. at
687. The first prong of the analysis, the "performance" prong, is
12
These are the only claims of ineffective assistance discussed
in any detail in Amparo-Hernández's brief, although he makes
references, not developed on appeal, to the fact that (1) counsel
failed to adequately inform him of his rights and the consequences
of the drug stipulation (Amparo-Hernández Br. at 19); and (2) the
stipulation "was forced upon the defendant" (Amparo-Hernández Br.
at 26). These types of fact-based allegations are not suitable for
consideration on direct review. See United States v. Gonzalez-
Vazquez, 219 F.3d 37, 42 (1st Cir. 2000). Accordingly, our
disposition of Amparo-Hernández's remaining ineffective assistance
arguments is without prejudice to Amparo-Hernández raising these
two fact-based allegations in a motion for relief under 28 U.S.C.
§ 2255.
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applied with deference to counsel's professional judgment, and is
based on what counsel knew or should have known at the time counsel
exercised such judgment. See Natanel, 938 F.2d at 309. Counsel's
performance will be deemed deficient only if, considering all
relevant circumstances, counsel's conduct or omissions fell
"outside the wide range of professionally competent assistance."
See Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir. 2002)(quoting
Strickland, 466 U.S. at 690).
Amparo-Hernández's claim fails at the first prong of this
analysis. Accepting Amparo-Hernández's characterization of the
stipulation as one in which he agreed to the quantity of cocaine at
issue (and not a mere agreement to the forensic chemist's
testimony, as Sánchez-Hernández suggests on appeal), this
stipulation spared the defendant the spectacle of twenty-eight
bales of cocaine on parade before the jury. This was an approach
apparently agreed to by all of the defendants, who devoted their
defense to disputing the connection between the defendants and the
cocaine without highlighting the amount of contraband involved.
Under the circumstances, this was a reasonable tactical decision.
Similarly, no objection to the related jury instruction would have
been appropriate in light of the stipulation as it was understood
by the defendants and their counsel at the time. Amparo-Hernández
has demonstrated no deficiency in counsel's performance on these
facts.
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C. Transcription of Jury Charge (Ward-O'Neill)
Ward-O'Neill contends that he was denied due process of
law because the jury charge was not transcribed, and that his
conviction should be reversed because this gap in the transcript
deprived him of the opportunity to seek review of the jury
instructions for substantial error. But "due process does not
automatically require reversal when a defendant is denied a full
verbatim transcript." United States v. Brand, 80 F.3d 560 (1st
Cir. 1996) (citing Bundy v. Wilson, 815 F.2d 125, 135 (1st Cir.
1987)). Here, Ward-O'Neill and his co-defendants do not dispute
that they were provided written copies of the jury instructions,
that the district court read from them, and that all counsel were
afforded the opportunity to make objections on the record. There
has been no due process violation under these facts.13 See Bundy,
815 F.2d at 135 ("A defendant's right to a transcript can be
satisfied by providing him with a written substitute that reports
13
Although raised for the first time only in Ward-O'Neill's
reply brief and therefore not considered on appeal, see Rivera-
Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st Cir. 1992), the
failure to transcribe any portion of the proceedings in open court
is inconsistent with the requirements of the Court Reporters Act,
28 U.S.C. § 753(b)("Each session of the court and every other
proceeding designated by rule or order of the court or by one of
the judges shall be recorded verbatim . . . ")(emphasis added).
Technical noncompliance, without more, does not give rise to
reversible error, but there could be cases in which prejudice
results. The practice of not transcribing the instructions as
actually given is inadvisable.
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the portions of the trial which underlie his appellate
contentions.").
D. Sentencing (Ward-O'Neill)
Ward-O'Neill challenges his sentence, alleging that he
should have received a greater reduction in his offense level under
the federal sentencing guidelines than the two-level reduction as
a "minor" participant he received at a re-sentencing held in March
2001.14 See U.S. Sentencing Guidelines Manual ("U.S.S.G.") §
3B1.2(a) (2002). Specifically, Ward-O'Neill claims he was entitled
to a four-level reduction as a "minimal" participant, see U.S.S.G.
§ 3B1.2(b), on the ground that there was no evidence at trial that
he did anything more than off-load drugs from another vessel. In
challenging the fact-based determination as to his role in the
offense, Ward-O'Neill bears the burden of proving that the district
court's determination was clearly erroneous. United States v.
14
In a crime involving multiple participants, a district court
may decrease a defendant's offense level by two to four levels if
the defendant had a mitigating role in the offense. U.S.S.G. §
3B1.2. A four-level reduction may be granted for a "minimal
participant," which is defined as someone who is "plainly among the
least culpable of those involved in the conduct of a group."
U.S.S.G. § 3B1.2, comment (n.4). A defendant may fit in this
category if he is shown to lack "knowledge or understanding of the
scope or structure of the enterprise and of the activities of
others." Id. A two-level reduction is available for those who are
also less culpable, "but whose role could not be described as
minimal." Id. (n. 5). For those defendants falling between
"minimal" and "minor," a three-level reduction is available.
Sánchez-Hernández, Amparo-Hernández, and Ward-Bryan each received
two-level reductions in their offense level; Salazar and Downs
received three-level reductions.
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Murphy, 193 F.3d 1, 8 (1st Cir. 1999) ("This is normally a fact-
bound decision, reviewed only for clear error and rarely
reversed."); United States v. Gonzalez-Soberal, 109 F.3d 64, 73
(1997); United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir.
1990).
Ward-O'Neill did not present evidence that he had a
minimal role in the offense. In fact, during his testimony at
trial, he denied having any role at all, for the most part
repeating the fishing-trip story he told investigators upon his
arrest. The district court found that, because of the size of the
cocaine shipment, the size of the boat used, and the number of
defendants involved in its transport, the offense involved more
than minimal planning, and was not likely to involve "strangers" to
the transaction who had no role in the enterprise. Despite these
conclusions, the district court gave Ward-O'Neill the benefit of a
two-level reduction in his offense level. Ward-O'Neill has not
shown that the court clearly erred in declining to grant a four-
level reduction, an adjustment that the sentencing guidelines note
should be "used infrequently." U.S.S.G. § 3B1.2, comment (n.4);
see United States v. Munoz, 36 F.3d 1229, 1238 (1st Cir. 1994).
E. Waiver of Miranda Rights (Downs)
Downs contends that his post-arrest statement, including
his admission that he had been wearing a life vest that matched
another defendant’s, should have been suppressed on the ground that
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his waiver of his rights under Miranda v. Arizona, 384 U.S. 436(1966), was not knowingly and intelligently made. Downs raised
this issue below in a May 20, 1999, motion to suppress, which was
denied by the district court in January 2000 at the recommendation
of Magistrate Judge Justo Arenas.
A defendant may make a valid waiver of his rights under
Miranda if he does so voluntarily, knowingly and intelligently.
Miranda, 384 U.S. at 444; United States v. Palmer, 203 F.3d 55, 60
(1st Cir. 2000). The district court must begin with the
presumption that the defendant did not waive his rights. Palmer,
203 F.3d at 60. The government bears the burden of proving a valid
waiver by a preponderance of the evidence. See id.; United States
v. Rosario-Diaz, 202 F.3d 54, 69 (1st Cir. 2000). We review the
district court’s factual findings for clear error, United States v.
Marenghi, 109 F.3d 28, 31 (1st Cir. 1997), recognizing that if
there are two plausible interpretations of the evidence, the
district court’s choice of one of these interpretations cannot be
clearly erroneous. Palmer, 203 F.3d at 60. Conclusions of law,
including the determination as to whether a waiver of rights was
voluntary, engender de novo review. See id.; United States v.
Bienvenue, 632 F.2d 910, 913 (1st Cir. 1980).
The magistrate judge held evidentiary hearings in
November and December 1999 and recommended that Downs's motion to
suppress his post-arrest statement be denied. In reaching his
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decision, the magistrate judge described the findings of the
experts15 and the testimony of one of the Customs agents who
interviewed Downs and witnessed his waiver of his Miranda rights.
The magistrate judge focused almost exclusively on the issue of
whether Downs’s waiver of his rights was voluntary, finding no
indicia that his statement was “the product of force, intimidation,
or fatigue.” As to whether Downs’s waiver was knowingly and
intelligently made, the magistrate judge observed only that there
were "varying opinions in terms of [Downs's] intellectual
capacity," and that
[t]here is enough in his personal history, as well
as the embellished saga of the Costa Rican
containership and the strangers the defendant found
on the high seas, like a scenario from a Clive
Cussler novel, to belie the argument that his
waiver was not intelligently made.
Even were we to assume arguendo that the district court
erred in finding that Downs's waiver was made knowingly and
intelligently, the introduction of the confession at trial would
15
The defense expert testified that Downs had an IQ of 61,
placing him in the extremely low range of intellectual functioning.
She testified that, on an intellectual level, Downs is mentally
retarded. She also found that Downs had a limited vocabulary, and
did not have the capacity to make a rational choice because he
lacked an appreciation of the consequences of his decisions. The
government's expert found that Downs's intellectual capacity
"seemed average" despite his lack of formal education. She found
that Downs's memory and recollection also "seemed average" and that
"when lapses were apparent they were more the result of a conscious
denial and not a cognitive deficiency." She concluded, however,
that under the circumstances, Downs's competency to waive his
constitutional rights at the time of his arrest was "questionable."
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constitute a "trial error." Arizona v. Fulminante, 499 U.S. 279,
307-08 (1991). Trial errors -- unlike structural defects in a
prosecution, id. at 309-10, such as the total deprivation of the
right to trial counsel -- occur during the presentation of evidence
to the jury and therefore may be "quantitatively assessed in the
context of other evidence presented in order to determine whether
its admission was harmless beyond a reasonable doubt." Id. at 308.
In reviewing the evidence, we are mindful that
the harmless-error doctrine is essential to
preserve the principle that the central purpose of
a criminal trial is to decide the factual question
of a defendant's guilt or innocence, and promotes
public respect for the criminal process by focusing
on the underlying fairness of the trial rather than
on the virtually inevitable presence of immaterial
error.
Id. (internal quotation omitted).
The admission of Downs's post-arrest statement, including
his story about being on a Costa Rican container ship and his
identification of the life vest he was wearing when he was found at
sea, was insignificant in the context of the other evidence
presented. Without this statement, the government still had
testimony placing Downs in the water beside two defendants afloat
on bales of cocaine. The government had five other defendants who
gave contradictory explanations regarding how they came to be at
sea, and denied knowing most of the other defendants, including
Downs. And contrary to representations made by Downs's counsel at
oral argument, Downs's post-arrest statement was not the sole
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evidence presented at trial linking Downs to the life jacket he
signed; Downs, through trial counsel, volunteered to stipulate that
the signature on the life vest was his. The life vest, with a
distinctive dolphin logo and brand name, was then shown to the
jury, as was a matching life vest worn by one of the other
defendants. On these facts, we find that even if an error occurred
in admitting Downs's statement, it was harmless.
F. Other Assignments of Error (Downs)
In a supplemental pro se brief, Downs raises three
additional issues that may be readily dispatched. First, Downs
alleges a violation of his right to a public trial because, during
voir dire, "the jury venire panel filled every seat in the
courtroom making it virtually impossible to seat anyone who wasn't
a juror." Downs does not reference any portion of the record
supporting his claim that the courtroom was ever closed, nor does
he contend that this arrangement was ever the subject of an
objection or a request for alternative accommodations. Without
more, Downs fails to show any violation of his right to a public
trial. See, e.g. United States v. Kobli, 172 F.2d 919, 923 (3d
Cir. 1949) ("The courts . . . have denied that the constitutional
right to a public trial involves the necessity of holding the trial
in a place large enough to accommodate all those who desire to
attend.").
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Second, Downs argues that the prosecution improperly
referenced his decision not to testify, citing two exchanges during
the cross-examination of Ward-O'Neill by the prosecution. As
support, Downs cites questioning directed at whether Downs spoke
English and at whether Ward-O'Neill knew Downs (Ward-O'Neill
volunteered that he and Downs were held in the same prison pending
trial). Downs complains that these questions put him in a position
where he felt pressured to testify to explain how he learned
English and why he had been incarcerated. In determining whether
there has been an improper reference to a defendant's silence, we
ask "whether, in the circumstances of the particular case, the
language used was manifestly intended or was of such a character
that the jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify." United States
v. Akinola, 985 F.2d 1105, 1111 (1st Cir. 1993)(quoting United
States v. Glantz, 810 F.2d 316, 322 (1st Cir. 1987)). We fail to
see how a jury could have drawn any connection between these
questions and Downs's silence at trial. That Downs would have
liked to give an explanation of his co-defendant's answers (a
sentiment no doubt shared by many defendants who choose not to
testify) does not render the questions improper nor the questioning
constitutionally infirm.
Third, Downs contends that he was denied effective
assistance of counsel, alleging that his counsel was assigned to
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his case only fifteen days before trial and that his performance
was deficient because he failed to (1) discuss the possibilities of
a plea bargain with Downs; (2) seek to plea bargain with the
government; or (3) attempt to minimize Downs's sentence through the
provision of substantial assistance to the government. Unlike the
claims raised by Amparo-Hernández and resolved in this direct
appeal, see Section II.B.3., above, Downs's claim is a mixed
question of law and fact for which we have virtually no record
support. We therefore decline to address this claim on appeal,
without prejudice to Downs asserting it in a motion for relief
under 28 U.S.C. § 2255.
III. Conclusion
For the foregoing reasons, the defendants' convictions
and sentences are AFFIRMED.
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