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USCA1 Opinion
August 25, 1995 [NOT FOR PUBLICATION]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.
____________________
____________________
2
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-
3
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
4
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
5
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).
6
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). _____ ______
8
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
9
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
10
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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Document Info
Docket Number： 94-1942
Filed Date： 8/25/1995
Precedential Status： Precedential
Modified Date： 9/21/2015