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USCA1 Opinion
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.
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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
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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.
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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.
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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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Document Info
Docket Number： 95-1328
Filed Date： 3/17/1997
Precedential Status： Precedential
Modified Date： 9/21/2015