Cuevas-Burgos v. United States ( 1995 )

USCA1 Opinion

          February 8, 1995      [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


                                 ___________________


          No. 94-1683

            


                              JUSTINIANO CUEVAS-BURGOS,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.


                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

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

                                 ___________________

                                        Before

                               Torruella, Chief Judge,
___________
                          Boudin and Stahl, Circuit Judges.
______________

                                 ___________________

               Justiniano Cuevas-Burgos on brief pro se.
________________________
               Guillermo  Gil,  United  States  Attorney,  Jose  A.  Quiles
______________                              ________________
          Espinosa, Senior  Litigation Counsel, and Jorge  E. Vega Pacheco,
________                                  ______________________
          Chief Criminal Division, on brief for appellee. 



                                  __________________

                                  __________________













                 Per Curiam.    We  have  carefully  reviewed  the  trial
__________

            transcripts and  affirm the  denial  of petitioner's     2255

            petition.

                 1.  Sufficiency of the Evidence.  The evidence was fully
___________________________

            sufficient to  support the  convictions.   The  jury was  not

            required  to believe  Pagan's testimony  absolving petitioner

            and instead was entitled to credit the government's  evidence

            that petitioner had  requested Rodriguez Vega  to supply  the

            cocaine and had participated in the cocaine negotiations.  

                 2.  Speedy Trial Act.  Petitioner has not identified any
________________

            speedy trial  act  violation.   Petitioner's contention  that

            only the four  days during which Rodriguez Vega  was actually

            being examined by a  physician were excludable is wrong.   18

            U.S.C.   3161(h)(1)(A) (excluding  "delay resulting from  any

            proceeding,  including  any  examinations,  to  determine the
__________

            mental competency . . . of the defendant")  (emphasis added);

            United States  v. Anello,  765 F.2d  253, 255-56 (1st  Cir.),
________________________

            cert. denied, 474 U.S. 996  (1985); United States v.  Zielie,
____________                        ________________________

            734  F.2d 1447, 1454 (11th Cir. 1984) (a time exclusion which

            applies to one defendant applies to all co-defendants), cert.
_____

            denied, 469 U.S. 1189, 1216 (1985).
______

                 3.  Prejudicial   Publicity.    Petitioner's   claim  of
_______________________

            prejudicial publicity is meritless.  First, the publicity, as

            described  by  petitioner,   was  much  less  extensive   and

            prejudicial   than  in  other   cases  in  which  prejudicial

            publicity  claims  have been  rejected.    See, e.g.,  United
___  ____   ______

            States v. Angiulo, 897 F.2d  1169, 1181-83 (1st Cir.),  cert.
_________________                                       _____

            denied, 498 U.S. 845 (1990); United States v. Moreno Morales,
______                       _______________________________

            815 F.2d 725, 730-36  (1st Cir.), cert. denied, 484  U.S. 966
____________
















            (1987).  Second, prior to trial,  Judge Acosta questioned the

            panel  from which the jury was chosen whether anyone had read

            or  heard anything about the case.  There were no affirmative

            responses.   In view of the lack of response to the voir dire

            inquiry, there is no  evidence any juror was exposed  to pre-

            trial publicity and hence no basis to find prejudice prior to

            trial.  United States  v. Samalot Perez,  767 F.2d 1, 5  (1st
_______________________________

            Cir. 1985) ("[w]hen a  trial judge has conducted a  voir dire

            examination with questions effectively designed to unveil any

            impartiality, then we will  set aside his action  ``only where

            juror  prejudice is manifest'").  As for any publicity during

            the  trial, Judge  Acosta told  the jurors  not to  listen to

            media  accounts and to decide the case solely on the evidence

            presented  in   court.     Jurors  are  presumed   to  follow

            instructions.   United States v.  Boylan, 898  F.2d 230,  263
________________________

            (1st Cir.), cert. denied, 498 U.S. 849 (1990).
____________

                 4.  Jurors' Linguistic Competency.  There is no basis to
_____________________________

            believe  that the  jurors  were not  competent to  understand

            English.  During empanelment,  each spoke briefly in English.

            Most  had  already served  as jurors  on  at least  one trial

            conducted  in  English.   That  the  jury asked  for  further

            explanation of technical legal  terms does not show inability
_____

            to understand English.
_______

                 5.   We  have considered  all of  petitioner's appellate

            arguments, including his claims of ineffective assistance



                                         -3-















            of counsel, and find them meritless.

                 Affirmed.
________

















































                                         -4-