United States v. Marquez-Figueroa , 187 F. App'x 18 ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1069
UNITED STATES,
Appellee,
v.
HÉCTOR LUIS MÁRQUEZ-FIGUEROA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U. S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Carlos Gabriel Santiago-Morales on Anders brief.
Héctor Luis Márquez-Figueroa on brief pro se.
July 6, 2006
Per Curiam. Defendant's counsel has submitted a brief under
Anders v. California, 386 U.S. 738 (1967), which we construe as a
motion to withdraw. Defendant has filed a pro se supplemental
brief. After careful review of the record and these submissions,
we conclude that the appeal presents no non-frivolous issues. We,
therefore, grant the motion to withdraw. We comment briefly on the
issues raised in defendant's pro se brief.
Two of the issues were also raised by co-defendant Rafael
Pagán Santini and were fully disposed of in that appeal. First,
defendant claims, as did Pagán, that the government violated his
due process rights when it obtained his conviction by knowingly
eliciting false testimony from Yamil Kourí Pérez regarding his
jailing in Cuba. We held, "There is no indication on the present
facts that the government's eliciting of the political prisoner
story involved the knowing use of false testimony." United States
v. Pagán-Santini, No. 03-2574, slip op. at 12 (1st Cir. June 14,
2006). That determination dooms defendant's claim. We also find,
as we did in Pagán, that there is no reasonable likelihood the
allegedly false testimony affected the outcome. As we noted in
Pagán, the cause of Kourí's jailing in Cuba "was only marginally
relevant to his credibility," and there was other testimony
supporting defendant's conviction. Second, defendant claims, as
did Pagán, that the trial court abused its discretion by failing to
give their requested "missing witness" instruction with respect to
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Dr. Gloria Ornelas. We held there was no abuse of discretion. Id.
at 17. And, as with Pagán, there is no indication that defendant
even attempted to call Ornelas to testify, further undermining the
requested instruction. Id.
Defendant also argues his indictment was invalid because it
was obtained by the use of testimony known by the prosecution to be
false. He acknowledges that the government "has no obligation to
present exculpatory evidence" to the grand jury, but argues that
the government "provided half-truths as well as outright false
testimony" to the grand jury because it did not present testimony
by other witnesses "which contradicted significant portions of the
testimony of the government's key witness, Dr. Yamil Kouri." The
fact that witnesses contradicted each other in certain respects
does not indicate that the prosecution knowingly presented false
testimony to the grand jury. United States v. Casas, 425 F.3d 23,
38 (1st Cir. 2005). Moreover, "[a]n indictment returned by a
legally constituted and unbiased grand jury is not subject to
challenge on the ground that the grand jury acted on the basis of
inadequate or incompetent evidence." Id. (citations and internal
quotation marks omitted).
Defendant next challenges the validity of his conviction by
arguing that the government "watched in silence" while Dr. Roberto
Unda Gomez committed perjury. Defendant does not identify the
alleged perjury. Presumably he is referring to Unda's admission
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that he accepted and spent a $5,000 cash bribe from Kourí, even
though Unda lied about the cash while testifying as a government
witness at Kourí's trial. To the extent defendant is arguing that
the prosecution should have indicted Unda for perjury, the trial
court corrected ruled that it is an issue for the prosecution to
decide. United States v. Nixon, 418 U.S. 683, 693 (1974) (noting
that "Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case"). And to the
extent defendant is arguing that the prosecution allowed the
presentation of false testimony, his contention is belied by the
record.
Defendant also argues that the government allowed Kourí to
testify falsely on certain matters. He states that (1) Kourí
testified that defendant prepared the phony backdated contracts,
while other witnesses testified otherwise, and (2) Kourí testified
that defendant prepared questions and answers for Héctor Ramírez
Lugo and helped him prepare for his testimony, while Ramírez
testified that Kourí wrote the questions and coached him. Even
taking defendant's characterization of the trial testimony as true,
the government is not prohibited from calling witnesses who present
conflicting stories. Casas, 425 F.3d at 45. "[S]uch conflicts are
a matter to be explored on cross-examination ... and the
credibility of each account is for the jury to determine." Id.Defendant's counsel explored these inconsistencies at trial, and it
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appears defendant was aided, rather than prejudiced, by the
conflicting testimony. He was acquitted of the substantive
offenses of (1) making false declarations to the grand jury by
denying that he prepared the phony backdated contracts, and (2)
suborning Ramírez to commit perjury, thus demonstrating that the
contradictory testimony likely undermined Kourí's credibility on
these points.
Defendant next argues that his conspiracy conviction must be
vacated because it is inconsistent with his acquittal of the
substantive charges underlying the conspiracy. He contends that
the conspiracy and substantive counts "are so interwoven with each
other, as to establish one common set of facts applicable to all
counts." (Emphasis omitted.) This claim was properly rejected by
the trial court in denying defendant's motion to vacate the
verdict. As the lower court noted, in a single, multi-count trial,
acquittal on one count does not preclude conviction on another
court based upon the same evidence, as long as that evidence is
legally sufficient to support a finding of guilt on the count of
conviction. See United States v. Powell, 469 U.S. 57, 66 (1984).
There was ample evidence here to sustain the conspiracy conviction.
Moreover, as the court noted, the jury's verdict is not logically
inconsistent because the offense elements are different. A
reasonable jury could have found defendant guilty of willfully
participating in the conspiracy without finding that defendant
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committed any of the overt acts himself.
Defendant's final argument is that the court erred in
determining the facts underlying the enhancement to his sentence.
"This argument is defeated by Booker, which permits enhancements
based on judge-found facts with advisory guidelines." United
States v. Lata, 415 F.3d 107, 110 (1st Cir. 2005) (citations
omitted).
Accordingly, the judgment of the district court is affirmed.
Defendant's second motion for the appointment of new counsel
is denied as moot.
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