United States v. Santos-Frias ( 1995 )


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    August 25, 1995 [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________
    No. 94-1942
    UNITED STATES OF AMERICA,

    Appellee,

    v.

    FIDELINA SANTOS-FRIAS,

    Defendant, Appellant.

    ____________________
    No. 94-1943

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    FRANCISCA DE LEON-PENA,

    Defendant, Appellant.

    ____________________
    No. 94-2065

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    FRANCISCO MATTA-GARCIA,

    Defendant, Appellant.

    ____________________


    APPEALS FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO

    [Hon. Raymond L. Acosta, U.S. District Judge] ___________________
















    ____________________

    Selya, Circuit Judge, _____________

    Coffin, Senior Circuit Judge, ____________________

    and Cyr, Circuit Judge. _____________

    ____________________



    Rafael Gonzalez Velez for appellant Santos-Frias. _____________________
    Jose R. Gaztambide for appellant De Leon-Pena. __________________
    Luis A. Plaza for appellant Matta-Garcia. _____________
    W. Stephen Muldrow, Assistant United States Attorney, with whom ___________________
    Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, Senior _____________ _______________________
    Litigation Counsel, Mar a Pab n, Assistant United States Attorney, ____________
    Jacabed Rodr guez, Assistant United States Attorney, and Sonia Torres, _________________ ____________
    Assistant United States Attorney, were on brief for appellee.


    ____________________


    ____________________
























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    Per Curiam. Defendants Fidelina Santos-Frias ("San- Per Curiam. ___________

    tos"), Francisco Matta-Garcia ("Matta"), and Francisca De Leon-

    Pena ("De Leon") appeal the judgments of conviction and sentence

    entered against them following their consolidated jury trial on

    cocaine charges in the United States District Court for the

    District of Puerto Rico. We affirm the district court judgments.


    I I

    BACKGROUND BACKGROUND __________

    We recount the evidence in the light most favorable to

    the verdicts. United States v. Tuesta-Toro, 29 F.3d 771, 773 _____________ ___________

    (1st Cir. 1994), cert. denied, 115 S. Ct. 947 (1995). Santos, _____ ______

    Matta, De Leon, and Rosalia Sanchez-Vencosme ("Sanchez") resided

    in the same apartment building in Rio Piedras, Puerto Rico.

    Sanchez and Santos shared an apartment. On May 8, 1993, Santos

    and De Leon invited Sanchez to another apartment, shared by Matta

    and De Leon, and offered to pay Sanchez $1,700 for carrying a

    kilogram of cocaine to New York. Sanchez declined the offer at

    the time, but later relented.

    The next day, May 9, De Leon helped Santos and Sanchez

    strap cocaine-laden girdles to their bodies. Matta then drove

    Santos and Sanchez to the airport while De Leon remained at her

    apartment. En route to the airport, Matta gave Santos the money

    with which to purchase two plane tickets. Upon their arrival at

    the airport, Santos and Sanchez proceeded to the ticket counter

    while Matta remained at a discreet distance. Santos, who was

    carrying two kilograms of cocaine, purchased the tickets, pro-

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    ceeded toward the departure gate and passed through the security

    checkpoint without incident. Sanchez, carrying one kilogram, was

    detained when the checkpoint security alarm sounded as she passed

    through. After the cocaine was discovered on her person, Sanchez

    was placed under arrest and charged with possessing cocaine with

    intent to distribute. She later pled guilty and testified

    against appellants Santos, Matta and De Leon.


    II II

    DISCUSSION DISCUSSION __________

    A. Opening Statement A. Opening Statement _________________

    Count one charged appellants with conspiring to possess

    cocaine with intent to distribute, from on or about December 1,

    1992, to and including May 9, 1993. In the government's opening

    statement, the prosecutor described various criminal activities,

    as alleged in the indictment, which would be established during __ _______ __ ___ __________

    trial. At side-bar immediately after the opening statement,

    defense counsel moved for mistrial based on unfair prejudice

    allegedly resulting from the prosecutor's references to defen-

    dants' pre-May 8 criminal activities since Sanchez the only

    government witness to the alleged conspiracy had not become

    involved until May 8. Following an evidentiary proffer by the

    government, the district court ruled that the alleged conspiracy

    spanned only the two-day period May 8 through May 9, 1993

    during which Sanchez participated. The court then denied the

    motions for mistrial, on the ground that its curative jury

    instructions would afford adequate protection against unfair

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    prejudice.

    The district court gave a curative instruction immedi-

    ately before Sanchez testified, emphatically directing the jury

    to disregard all prosecutorial references to occurrences during

    the period December 12th, 1992, through May 7th, 1993. At the

    same time the court reiterated its admonition initially stated

    during its preliminary jury instructions that statements made

    by counsel are not evidence. During its final charge the court

    said: I caution you and instruct you that
    . . . any comments that the govern-
    ment made in [its] opening argu-
    ments with respect to anything that
    might have happened prior to May
    8th is to be totally and completely
    disregarded and ignored by you.
    The evidence in this case . . .
    starts on May the 8th, and goes
    over into May the 9th. That's all
    you're concerned with. Anything
    that you might recall or anything
    that was said that went before May
    the 8th, is completely irrelevant
    to you, and may not be considered
    by you.

    Appellants contend that the district court erred in

    denying their motion for mistrial, as no curative instruction

    could overcome the unfair impression conveyed by the prosecutor's

    statement that appellants were involved in a more extensive

    conspiracy than the government would establish at trial. Appel-

    lants assert that "a curative instruction would not suffice"

    because the jury clearly understood the prosecutor and, coming

    from the government, the statement would be given weight "not-

    withstanding any instructions from the court."

    Although the assurances that the government would

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    establish criminal activities predating the commencement of any

    provable conspiracy posed a considerable potential for unfair

    prejudice to appellants, any actual prejudice was self-inflicted

    by their failure to mount a pretrial challenge to the indictment,

    based on overbreadth, see Fed. R. Crim. P. 12(b)(2), and their ___

    failure to request the district court in advance to limit prose-

    cutorial references in the government's opening statement to the

    temporal scope of the provable conspiracy.1 Furthermore, at no

    time did the defense suggest to the district court that the

    opening statement involved intentional misconduct by the prosecu-

    tor.

    Even under a "plain error" analysis, appellants'

    argument fails. The denial of a timely motion for mistrial is

    reviewed for manifest abuse of discretion. United States v. _____________

    Romero-Carrion, 54 F.3d 15, 17 (1st Cir. 1995); United States v. ______________ _____________

    ____________________

    1At bottom, of course, the challenge to the temporal breadth
    of the alleged conspiracy described in the opening statement
    represented a challenge to the indictment. "Defenses and objec-
    tions based on defects in the indictment" are to be raised prior
    to trial, Fed. R. Crim. P. 12(b)(2), and are deemed waived
    pursuant to Fed. R. Crim. P. 12(f) unless the court affords
    relief for "cause shown." As appellants failed to avail them-
    selves of a full and fair opportunity to mount a pretrial chal-
    lenge to the indictment, and now offer no justification for their
    failure, the present claim is deemed waived. See United States ___ _____________
    v. Rodriguez, 738 F.2d 13, 15 (1st Cir. 1984) (motion to dismiss _________
    indictment during trial untimely under Rule 12(b)); Flying Eagles _____________
    Publications, Inc. v. United States, 273 F.2d 799, 803 (1st Cir. ___________________ _____________
    1960) (declining to address merits of nonjurisdictional challenge
    to indictment at close of evidence because "under Criminal Rule
    12(b)(2) it should have been asserted by motion before trial.");
    see also United States v. Smith, 866 F.2d 1092, 1098 (9th Cir. ___ ____ _____________ _____
    1989) (finding that defendants waive all but jurisdictional
    claims of error regarding an indictment unless they raise their
    claims prior to trial).

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    Pierro, 32 F.3d 611, 617 (1st Cir. 1994), cert. denied, 115 S. ______ _____ ______

    Ct. 919 (1995). And absent a clear showing of prejudice by

    appellants the denial must be upheld. United States v. Hahn, 17 ______________ ____

    F.3d 502, 508 (1st Cir. 1994) (citing United States v. Sclamo, ______________ ______

    578 F.2d 888, 890-91 (1st Cir. 1978)).

    We evaluate the potential for prejudice by assessing

    the likely impact of the challenged conduct upon the jury as

    viewed in the context of the entire trial, including prosecutori-

    al culpability, the nature and timeliness of the defendant's

    response and any curative measures undertaken by the trial court.

    See United States v. Moreno, 991 F.2d 943, 947-49 (1st Cir.) ___ _____________ ______

    (evaluating government's opening and closing statements), cert. _____

    denied, 114 S. Ct. 457 (1993); see also United States v. Mac- ______ ___ ____ ______________ ____

    cini, 721 F.2d 840, 842-43 (1st Cir. 1983). Ultimately, of ____

    course, the acid test is whether the defendant received a fair

    trial. Moreno, 991 F.2d at 949. ______

    A careful review of the record demonstrates that any

    potential prejudice to appellants was averted by the district

    court's firm curative instructions and by its ruling limiting the

    temporal reach of the government's evidence at trial to the two-

    day period May 8 and 9, 1993. Nor have appellants suggested a

    sufficient basis for their conjecture that the jury failed to

    follow the specific curative instructions repeatedly given by the

    district court. See United States v. Paiva, 892 F.2d 148, 160 ___ _____________ _____

    (1st Cir. 1989) (court normally presumes that jury follows its

    instructions).


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    B. Closing Argument B. Closing Argument ________________

    On appeal, Matta and De Leon contend for the first time

    that the government improperly vouched for Sanchez's credibility

    during closing argument when the prosecutor stated, "She's not a

    perjurer. She's going to do time. She's not going to walk. She

    is truthful." The appellate brief jointly filed by Matta and De

    Leon devotes a single conclusory sentence to their vouching

    claim: "The government also vouched for its principal witness,

    Rosalia Sanchez-Bencosme."2 Their failure to raise the claim

    below and to present developed argumentation on appeal constitut-

    ed a clear waiver. See United States v. Zannino, 895 F.2d 1, 17 ___ _____________ _______

    (1st Cir.), cert. denied, 494 U.S. 1082 (1990). _____ ______

    C. Motions for Judgments of Acquittal C. Motions for Judgments of Acquittal __________________________________

    All three appellants claim there was insufficient

    evidence to support their convictions, hence the district court

    erred in denying their motions for judgments of acquittal. They

    base their claim on the ground that the only testimony supporting

    their convictions was provided by Sanchez and it was not credi-

    ble. See supra pt. II.B. Appellants argue that Sanchez demon- ___ _____

    strated her lack of credibility by giving false information in

    her earlier dealings with the United States Drug Enforcement

    ____________________

    2Santos would be permitted to adopt the arguments presented
    by Matta and De Leon, see Fed. R. App. P. 3(b), but only to the ___
    extent that the adopted arguments themselves are apposite and
    adequately developed. Cf. United States v. David, 940 F.2d 722, ___ _____________ _____
    737 (1st Cir. 1991) (rejecting attempt to adopt materially
    different arguments by reference), cert. denied, 504 U.S. 955 _____ ______
    (1992); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.) ______________ _______
    (similar), cert. denied, 494 U.S. 1082 (1990). _____ ______

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    Administration, and by entering into a sham marriage in order to

    obtain immigrant status.

    It is well settled that all credibility questions must

    be resolved in favor of the verdict when reviewing a trial

    court's denial of a motion for judgment of acquittal. Hahn, 17 ____

    F.3d at 506 (citing United States v. Batista-Polanco, 927 F.2d ______________ _______________

    14, 17 (1st Cir. 1991)). The conclusory assertions supporting

    the instant claim afford no basis for departing from the general

    rule that credibility determinations are for the factfinder. Id. ___

    A careful record review demonstrates that defense counsel, during

    cross-examination and in their closing arguments, ably exposed

    the very serious credibility problems with Sanchez's testimony.

    The record likewise reveals ample evidence crediting Sanchez's

    testimony as we must, see id. to establish beyond a reasonable ___ ___

    doubt each essential element of the crimes charged against

    Santos, Matta and De Leon. D. Sentencing D. Sentencing __________

    Santos and De Leon did not object to their presentence

    reports. Thus, their undeveloped sentencing claims, broached for

    the first time on appeal, were not preserved. See United States ___ _____________

    v. Ocasio-Rivera, 991 F.2d 1, 3 & n.3 (1st Cir. 1993). Indeed, _____________

    the appellate brief submitted by Santos does not explicitly

    present a sentencing claim. Her reliance on a perfunctory

    announcement of joinder under Fed. R. App. P. 3(b) is inadequate

    to entitle her to "piggyback" on the sentencing claims advanced

    by her codefendants. See supra note 2. As for De Leon, the ___ _____

    argumentation in the joint brief submitted by her and Matta


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    merely rests on the bald statement that she should have been

    granted a downward departure, though she purports to adopt

    Matta's arguments by reference. See id. Since neither De Leon ___ ___

    nor Santos discussed their own sentencing claims, nor their

    respective grounds for either a downward departure or adjustment,

    we decline to consider their claims. "[T]he settled appellate

    rule [is] that issues adverted to in a perfunctory manner,

    unaccompanied by some effort at developed argumentation, are

    deemed waived." Zannino, 895 F.2d at 17. _______

    Although Matta has presented a developed claim for a

    downward adjustment, assertedly based on his "minor role" in the

    cocaine transaction, see U.S.S.G. 3B1.2(b), it is frivolous. ___

    The presentence report not only includes no information which

    would warrant a finding that Matta played a minor role in the

    offense but it recommends a four-level upward adjustment for ______

    Matta's supervisory role in the offense. See id. 3B1.1(a). ___________ ____ ___ ___

    Even though the district court rejected this recommendation, the

    uncontroverted evidence that Matta provided the money used to

    purchase the airline tickets for Santos and Sanchez, then re-

    mained in the background as his "mules" proceeded to the airport

    security checkpoint, left little room for a finding that Matta

    played a minor role in the offense.

    The contention that Matta was entitled to a downward

    departure for "aberrant behavior" fares no better. There is no

    basis for concluding that the sentencing court did not understand

    that a downward departure based on aberrant behavior may be


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    permissible in an appropriate case. The district court simply

    refused to depart on the grounds presented by Matta. See United ___ ______

    States v. Catucci, 55 F.3d 15, 19 n.3 (1st Cir. 1995). Conse- ______ _______

    quently, we lack jurisdiction to consider the departure claim.

    See United States v. Ruiz, 905 F.2d 499, 508-09 (1st Cir. 1990). ___ _____________ ____

    Affirmed. Affirmed. ________










































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