United States v. Liberge ( 1993 )

USCA1 Opinion

          July 19, 1993         [NOT FOR PUBLICATION]




                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 92-2482

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   DENNIS LIBERGE,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
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                                        Before

                              Torruella, Selya and Cyr,

                                   Circuit Judges.
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               Valeriano Diviacchi, by Appointment  of the Court, with whom
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          Diviacchi Law Office, was on brief for appellant.
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               F. Mark Terison, Assistant United States Attorney, with whom
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          Richard  S. Cohen, United States  Attorney, and Jonathan A. Toof,
          _________________                               ________________
          Assistant United States Attorney, were on brief for appellee. 



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                    Per Curiam.  Appellant  Dennis Liberge was charged with
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          conspiracy to  possess cocaine  with intent  to distribute  it in

          violation  of  21 U.S.C.      841(a)(1),  841(b)(1)(C), and  846.

          After trial, a jury  found him guilty.  Appellant  challenges the

          conviction,   alleging  that   the  trial   court's  instructions

          regarding  the  statute  of  limitations  constituted  reversible

          error.  We affirm.

                    Appellant  claims  that  he  entered  a  conspiracy  to

          distribute  cocaine with  several  other  individuals during  the

          summer  of 1986, but that his participation ended well before the

          critical date  for the statute  of limitations bar,  February 26,

          1987.  Defense counsel anticipated the importance of  the statute

          of  limitations in  its version  of the  jury instructions.   The

          trial judge rejected the proffered instruction and instructed the

          jury that the government must prove:

                      First,  that on  or  after  February  26,
                      1987, and continuing up until June, 1987,
                      the    agreement    specified   in    the
                      indictment, and not some  other agreement
                      or  agreements  existed  or continued  to
                      exist  between  at  least  two  people to
                      possess  cocaine  with   the  intent   to
                      distribute   it.  .   .  .   Second,  the
                      government must prove that Dennis Liberge
                      intentionally joined in this agreement. .
                      . . In summary,  for Dennis Liberge to be
                      convicted of the crime of conspiracy, the
                      government must prove two things beyond a
                      reasonable  doubt:    first, that  on  or
                      after  February 26, 1987,  and continuing
                      up  until June,  1987,  an  agreement  to
                      possess  cocaine  with   the  intent   to
                      distribute  it  existed  or continued  to
                      exist;  and  second, that  Dennis Liberge
                      intentionally joined in  or continued  in
                      that agreement.

          Appellant  offered  two exceptions  when  queried  by the  judge.















          Neither objection  raised the statute of limitations  issue.  The

          trial court denied the objections.

                    To  preserve  an objection  to  a  jury instruction,  a

          defendant must  make a  contemporaneous exception when  the trial

          court instructs the jury,  which apprises the judge of  the basis

          of  the asserted  error.   United States v.  Mendoza-Acevedo, 950
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          F.2d 1, 4 (1st Cir. 1991); United States v. McGill,  932 F.2d 16,
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          17 (1st Cir. 1991); Fed. R. Crim. P. 30  ("No party may assign as

          error any portion of the charge or omission therefrom unless that

          party  objects thereto  before the jury  retires to  consider its

          verdict, stating  distinctly the matter  to which he  objects and

          the grounds of his objections.").   The rule is not a penalty for

          inartfully phrased objections, see 2 Charles Alan Wright, Federal
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          Practice & Procedure, Crim. 2d    484 (1982 & supp. 1993),  but a
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          frank  recognition that  a trial  judge cannot correct  errors of

          which he is unaware.   The failure to object  clearly, therefore,

          waives the issue.  United States v. Glenn, 828 F.2d 855, 862 (1st
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          Cir. 1987).

                    Appellant contends that in the context of this case and

          based on his previously requested instructions, the court knew or

          should have known  that the critical issue  for the jury  was the

          statute  of limitations requirement that  Liberge was part of the

          conspiracy on or after February 26, 1987.  The argument, however,

          does not serve appellant's cause.  

                    The judge instructed the  jury that the government must

          prove  beyond a reasonable doubt that Liberge joined or continued


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          as  a  member  of a  conspiracy  that  began  or continued  after

          February  26,  1987.    Appellant  failed  to  object  after  the

          instruction was given, as  required by Rule 30 and  First Circuit

          precedent.  Mendoza-Acevedo, 950 F.2d at 4.  The trial judge thus
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          justifiably believed  that he had  addressed appellant's concerns

          regarding  the statute  of limitations  bar.  The  two objections

          that appellant raised did not suggest that appellant continued to

          object to the  instruction on the statute of  limitations ground.

          Appellant argued  that the  instruction should have  required the

          government to prove  the existence of  a conspiracy between  five

          named  individuals on  or  after February  26,  1987.   This,  of

          course, was not the government's burden and does not even vaguely

          suggest   the  judge  erred  with   respect  to  the  statute  of

          limitations.    The  second   objection  addressed  an   entirely

          different point  not relevant here.   The statute  of limitations

          issue therefore is waived.

                    Consequently, we may vacate appellant's conviction only

          if  the instructional  error was  "plain."   Mendoza-Acevedo, 950
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          F.2d at  4; McGill, 932 F.2d  at 17.  "The plain  error hurdle is
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          high."   McGill,  932  F.2d  at  17  (quoting  United  States  v.
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          Hunnewell,  891  F.2d 955,  956 (1st  Cir.  1989)).   Viewing the
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          charge as a whole,  as we must, Glenn, 828 F.2d  at 861, the jury
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          could  not have  been misled  by the  judge's instruction  on the

          government's burden.

                    The conviction is affirmed.
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