-
USCA1 Opinion
April 1, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1906
UNITED STATES,
Appellee,
v.
FRANCISCO JAVIER PINEDA-PAZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Boudin, Circuit Judges.
______________
____________________
Neal K. Stillman for appellant.
________________
Michael M. DuBose, Assistant United States Attorney, with whom
__________________
Jay P. McCloskey, United States Attorney, was on brief for appellee.
________________
____________________
____________________
Per Curiam. A jury convicted the appellant,
__________
Francisco Javier Pineda-Paz, of possessing cocaine base
("crack") with intent to distribute it. The evidence
against him was strong. A coconspirator, Gonzalo Ceballos-
Mejia (after pleading guilty) testified that, in early
February 1993:
1) A drug dealer called Manuel met with Pineda,
Ceballos, and Eduardo Gomez (who turned out
to be a government informant) in Manuel's New
Jersey apartment. With Pineda present,
Manuel gave Ceballos a package of (about 100
grams of) crack, told him it was worth about
$21,000, and said he would pay him $5,000 to
take it to Maine.
2) On February 12, Pineda, Ceballos, and Gomez
took the bus to Maine. Since the package of
drugs was too big to fit into Ceballos's coat
pocket, Pineda ended up carrying the package
of drugs in his coat pocket for the first
part of the trip. Pineda later gave Ceballos
his (Pineda's) coat with the drugs, so that
Ceballos would have the drugs with him when
they got off the bus in Maine.
3) Upon their arrival in Maine, Pineda,
Ceballos, and Gomez met another disguised
government agent, DEA Agent Brady, who was
pretending to be a drug buyer. All four
drove off in a car. Agent Brady, asking
questions through Gomez who acted as
interpreter, established that Ceballos had
the drugs and that the price was $21,000.
Agent Brady then examined the cocaine. He
left the car, ostensibly to obtain more
money, at which time government agents
arrested Pineda and Ceballos.
Agent Brady corroborated many of these facts. Indeed,
Pineda admitted most of them, including that he helped
Ceballos carry a "package" to Maine. Pineda, however, did
not admit that he was present when Manuel planned the drug
transaction. And, he testified that the package was covered
with aluminum foil and that he did not know, nor care to
ask, about its contents. Rather, he said, he was simply a
friend of Ceballos who had gone along with him to Maine,
helping to carry the package, essentially for the ride. The
jury did not believe Pineda's story, perhaps because of the
unusual coat-switch; or because Pineda apparently showed no
surprise, nor protested, during the drug sale in the car; or
because Pineda admitted to law enforcement officials (after
receiving Miranda warnings) that he had come to Maine "to
_______
help sell the drugs" (though he later said he admitted this
only because the officer "frightened" him and hurt him a
"bit" when he "touch[ed]"/"hit" him on the leg). In any
event, the jury convicted Pineda; and the court then imposed
a sentence of 121 months.
Pineda's arguments on appeal rather clearly lack
merit and do not warrant lengthy discussion. First, he
points out that Gomez, the government informer who
accompanied him and Ceballos, lied before the grand jury.
-3-
3
Indeed, the government concedes that Gomez falsely told the
grand jury that Pineda had told him that he (Pineda) had
previously been in the drug business and brought drugs to
Maine. Pineda, however, does not argue that the government
knew Gomez would testify falsely or that it acted improperly
in any other way. And, the district court found that any
error caused by the admission of this false testimony was
harmless, see Bank of Nova Scotia v. United States, 487 U.S.
___ ___________________ _____________
250, 256 (1988) ("customary harmless-error inquiry" applies
to grand jury stage errors), for the grand jury had before
it other evidence more than sufficient to warrant
_____
indictment. See United States v. Maceo, 873 F.2d 1, 3 (1st
___ _____________ _____
Cir.) (district court finding of harmless error in respect
to errors at the grand jury stage reviewed only for an abuse
of discretion), cert. denied, 493 U.S. 840 (1989). We
_____ ______
should also note the obvious, that since the perjured
testimony was not introduced at trial, it did not affect the
outcome of the trial.
Second, Pineda complains that the district court
improperly admitted hearsay evidence, namely, Pineda's
affirmative nod (and related translations) in response to
Agent Brady's question, translated by Gomez, whether Pineda
had ever been to Maine before with Ceballos. Defendant says
-4-
4
this evidence left the jury with the "false impression that
he had been to Maine [before] to do drug deals" (emphasis
_________________
added). The defendant did not object to the admission of
the evidence at the time, however. And, it is, therefore,
admissible whether or not it somehow rests upon hearsay.
See United States v. Tabares, 951 F.2d 405, 409 (1st Cir.
___ _____________ _______
1991) ("[H]earsay, if no objection is raised, is
admissible.") (citation omitted); United States v. Newton,
______________ ______
891 F.2d 944, 947-48 (1st Cir. 1989). Nor was defendant's
failure to object surprising, since the testimony was
elicited by the defense, not the prosecution, and it was
_______
elicited purposefully, for its supposed impeachment value.
____________
We add that, in any event, given the strength of the case
against Pineda, any error on this matter would be harmless.
Third, defendant argues that the district court
should have granted his post-verdict motion, under Fed. R.
Crim. P. 33, for a new trial. He based that motion on the
late discovery of two documents: (1) a Honduran birth
certificate in the name of Sergio Pineda, age 15, and (2) a
recently-issued Honduran ID card in the name of Francisco
Javier Pineda, age 19, containing a photograph of a person
other than the defendant. These two documents, in
defendant's view, showed that he was not Francisco Javier
-5-
5
Pineda, but Francisco Javier's 15-year-old younger brother
Sergio, and thus he should have been tried as a juvenile.
The district court concluded, however, that the
documents did not show that the defendant was Sergio and
that "the defendant in front of me is Francisco Javier
Pineda-Paz." The only thing connecting the "Sergio" birth
certificate to the defendant, or connecting the "Francisco
Javier" ID to someone other than the defendant, the court
explained, was the defendant's testimony to that effect.
(On the photo ID connection, the Government had explained to
the court that it would have been easy for some Honduran
friend of the defendant to take the defendant's real birth
certificate and use it to get a "Francisco Javier" ID with
the friend's photograph on it.) And, on issues relating to
"identification" and "age," the court found, the defendant
"no longer has any credibility at all." The court pointed
out:
[T]he defendant first identified himself
as Francisco Javier Pineda-Paz, age 19.
Sometime thereafter, in connection with
his custody, he announced that was age
15, . . . [a claim for which] a forged
birth certificate was provided.
Thereafter he withdrew that claim,
and by the time of trial, testified . .
. under oath that he was Francisco
Javier Pineda-Paz, and that he was age
19, and testified that he had lied when
-6-
6
he had earlier said that he was 15. And
now when sentencing is imminent, the
defendant again come forward challenging
his age and this for the first time,
challenges his identity and claims to be
Sergio . . . , who previously had been
identified as one of his brothers.
On the basis of all this evidence, the district
court's conclusion that defendant's new documentary evidence
(and the testimony underlying it) was not credible is
adequately supportable. See Veillette v. United States, 778
___ _________ _____________
F.2d 899, 902 (1st Cir. 1985) (trial judge's findings of
fact are set aside only if clearly erroneous), cert. denied,
_____ ______
476 U.S. 1115 (1986). The district court's decision not to
grant a new trial is therefore lawful. See United States v.
___ _____________
Wright, 625 F.2d 1017, 1019 (1st Cir. 1980) (a new trial
______
motion is granted only if, among other things, the new
evidence "will probably" lead to a different outcome).
Fourth, Pineda argues that the district court
should not have increased his sentence (to 121 months
instead of the 120 months the statute mandatorily imposes, a
one month difference) for an "obstruction of justice."
Pineda's presentation of a forged birth certificate to the
magistrate prior to trial (purportedly showing he was a
minor) and his attempt, based on the forgery, to have the
indictment dismissed, however, provide a sufficient legal
-7-
7
basis for the increase. See U.S.S.G 3C1.1 application
___
note 3(c) ("[T]his enhancement applies [to] producing a
false document during an official investigation or judicial
proceeding.") (ellipses omitted); id. application note 3(f)
__
(same for "providing materially false information to a judge
or magistrate"); see also United States v. Biyaga, 9 F.3d
___ ____ ______________ ______
204 (1st Cir. 1993).
Appellant's remaining claims are without merit.
For the reasons stated, the judgment of the district court
is
Affirmed.
_________
-8-
8
Document Info
Docket Number： 93-1906
Filed Date： 4/1/1994
Precedential Status： Precedential
Modified Date： 9/21/2015