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USCA1 Opinion
October 22, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1490
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JUAN GARCIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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James T. McCormick with whom McKenna & McCormick was on brief for
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appellant.
Zechariah Chafee, Assistant United States Attorney, with whom
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Lincoln C. Almond, United States Attorney, was on brief for appellee.
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Per Curiam. Appellant Juan Garcia challenges on two
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grounds his conviction, following a jury trial in the United
States District Court for the District of Rhode Island, for
distribution and conspiracy to distribute cocaine, in
violation of 21 U.S.C. 841(a)(1), 846. Garcia also
challenges the district court's upward departure under the
Sentencing Guidelines. Finding no merit to Garcia's
contentions, we affirm.
The principal witness against Garcia at trial was
Detective Bonnie Lovell of the Providence Police Department.
Detective Lovell testified as follows. On July 4, 1991, she
was working in an undercover capacity. She drove to 129
Moore Street in Providence, Rhode Island, to meet Carlos
Eduardo Pardo, from whom she intended to purchase a quantity
of cocaine. Detective Lovell was wearing a concealed
microphone device that transmitted to a nearby surveillance
team.
Pardo was waiting outside his apartment building when
Detective Lovell arrived. Detective Lovell told Pardo that
she was interested in purchasing cocaine. Pardo asked her to
drive him in her car to a nearby public telephone, which she
did. Pardo got out of the car, made a telephone call, and
re-entered the car, after which Detective Lovell drove back
to the apartment building. Soon thereafter, a gray car
arrived and parked nearby. Garcia was at the wheel and there
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were no other persons in the car. Pardo left the detective's
car and went to speak with Garcia. After a brief
conversation, Garcia drove off, and Pardo returned to
Detective Lovell's car.
Pardo remained in Detective Lovell's car awaiting
Garcia's return. When Garcia returned about five minutes
later, he and Pardo got out of their respective cars and met
on the front porch of the apartment building, about twenty-
five to thirty feet from where Detective Lovell sat in her
car. Detective Lovell saw Garcia hand a small object to
Pardo, although she could not see exactly what the object
was.
Pardo then returned to Detective Lovell's car with the
object in his right hand, and told Detective Lovell to follow
him into the building. Detective Lovell and Pardo went into
Pardo's apartment, where Pardo handed her the object that he
had been holding in his right hand, which Detective Lovell
observed to be a plastic bag containing a white powder
resembling cocaine. The plastic bag, upon later analysis,
was shown to contain a mixture or substance weighing 35.83
grams and containing a detectible amount of cocaine.
Detective Lovell testified that she did not take her eyes off
this object from the time Garcia handed it to Pardo to the
time Pardo handed it to her. Upon receiving the bag
Detective Lovell stated, "Is this stuff as good as the last
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stuff?" This was a pre-arranged signal to the surveillance
team, which then entered the apartment and arrested Pardo.
Detective Michael Purro, a member of the nearby
surveillance team, also testified at trial. Detective Purro
testified that he observed Garcia leave the scene after the
first meeting with Pardo and drive to a nearby apartment
building. There, Garcia got out of his car, entered the
building, returned a short time later, got back in his car
and returned to the front of Pardo's building. Detective
Pardo also testified that, at the same time that other
members of the surveillance team entered the apartment to
arrest Pardo, Detective Purro pulled alongside Garcia's
vehicle, held up his detective's badge and yelled "Police!"
Garcia immediately began backing down the street, but he was
quickly stopped by police officers and arrested.
Pardo and Garcia were indicted jointly but Pardo pleaded
guilty prior to trial. Garcia, as earlier noted, was
convicted following a trial by jury, and he was later
sentenced to a term of imprisonment of thirty months. In
this appeal, Pardo attacks the sufficiency of the evidence, a
remark made by the prosecutor relating to a fact not later
supported by evidence, and the calculation of his sentence.
We address each issue in turn.
First. Garcia contends that Detective Lovell's
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testimony was inherently incredible and, accordingly, the
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district court should have granted his motion for a new
trial. He contends that Detective Lovell must have been
lying when she testified that she kept her eyes on Pardo's
right hand and the object he was holding for the entire
period from the time the object was received from Garcia to
the time it was handed over to the detective. According to
Garcia, this testimony "defied physical laws," because
Detective Lovell's vision of Pardo's right hand must have
been obstructed at several junctures, such as when Pardo
entered and exited the car in which Detective Lovell was
seated.
Garcia also argues that Detective Lovell's testimony
contained inconsistencies on certain issues (such as whether
Pardo and Garcia met on the porch of the apartment building
or in the driveway) as well as descriptions of events that
are inherently unbelievable. As an example, he cites
Detective Lovell's testimony that, as Pardo and she were
exiting her vehicle, she whispered directions to the
surveillance team through the hidden microphone just before
going up to Pardo's apartment. Taking all of the alleged
flaws in the testimony together, Garcia contends that no
reasonable jury could credit Detective Lovell's version of
events.
While these arguments were appropriate during Garcia's
closing argument to the jury, they have little force on this
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appeal. "It is axiomatic that, absent exceptional
circumstances, issues of witness credibility are to be
decided by the jury . . . . In general, conflicting
testimony or a question as to the credibility of a witness
are not sufficient grounds for granting a new trial." United
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States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)
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(citations omitted). Courts have recognized an "extremely
narrow" exception to this general rule: Where a witness's
testimony is material and is so inherently implausible that
it could not be believed by a reasonable juror, a court may
grant a new trial. Id. at 470-71. This determination is to
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be made, in the first instance, by the trial judge, who is in
a far better position to assess the credibility of a witness
than an appellate court. In this case, Garcia's
"incredibility" argument was expressly rejected by the trial
judge when he denied Garcia's post-trial motion for a new
trial. At the hearing on Garcia's motion, the judge stated,
"[I]n this case . . . I see no evidence of any misstatements
by any of the witnesses and there is more than ample evidence
to support the verdict." The trial judge's determination in
this regard is not to be overturned absent an abuse of
discretion, see United States v. Rodriguez, 738 F.2d 13, 17
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(1st Cir. 1984); United States v. Thornley, 707 F.2d 622, 626
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(1st Cir. 1983), and we certainly find no such abuse here.
Detective Lovell's testimony that she kept her eye on Pardo's
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hand during the entire sequence of events was not inherently
incredible. She was working in an undercover capacity on a
drug buy and had just observed an individual hand the
suspected seller a small package. It is not implausible that
Detective Lovell would keep her eye on the package; indeed,
one would expect her to do just that. Even if the hand and
its contents disappeared from her view for a few seconds
during the sequence of events, the jury could reasonably have
viewed Detective Lovell's testimony on this point as innocent
exaggeration in a detail, but essentially true.
As for the alleged inconsistencies, Detective Lovell's
testimony was entirely consistent as to the general sequence
of events. There are some minor discrepancies within her
testimony, and between her testimony and the transcript of
the surreptitious recording, as to the exact location of some
of these events. Garcia was free to bring these
inconsistencies to the jury's attention during cross-
examination and in closing argument. The jury was equally
free to view them -- as the jury evidently did -- as
relatively insignificant discrepancies which did not detract
from the substance of the overall testimony.
Second. During opening argument, the prosecutor made a
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single reference to the fact that the evidence would show
that, at the time of Garcia's arrest, several hundred dollars
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in cash was recovered from his person.1 At trial, however,
the
government introduced no evidence that cash was taken from
Garcia upon his arrest. Garcia argues that the prosecutor's
remark was prejudicial error. We agree that the reference
was error, but we conclude that any objection to the error
was waived and was, in addition, harmless beyond a reasonable
doubt.
At the outset, we note that Garcia raised this issue for
the first time in his motion for a new trial. His failure to
raise the issue at the close of the government's case -- when
it became apparent that the government had introduced no
evidence to support its reference to cash in the opening
statement -- deprived the court of the opportunity
specifically to instruct the jury to ignore the reference.
As it happens, the district court did instruct the jury that
arguments of counsel are not evidence, and that the jury
should consider only the testimony of witnesses and exhibits
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1Garcia argues that the prosecutor repeated during his
closing argument the allegation that money was seized at the
arrest. We have examined the transcript of the closing and
reach a different conclusion. Refuting any suggestion that
the police had tailored their testimony to convict Garcia,
the prosecutor said that the police -- "if they wanted to
cook up a case" -- could have said that Garcia was seen to
exchange money for drugs with Pardo. We do not believe that
this statement would be understood as suggesting that cash
was in fact taken from Garcia at the time of his arrest.
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introduced into evidence. If Garcia wanted a more pointed
reference, it was his responsibility to ask for it.
Furthermore, we regard the error as harmless. The
evidence of guilt, including Detective Lovell's chain-of-
custody observation and Detective Purro's testimony regarding
Garcia's attempt to flee, was overwhelming. The prosecutor's
reference to the money in the opening was very brief and
nothing was said on the subject in closing. Nor do we have
any reason to believe the remark was a deliberate attempt to
mislead the jury.2 For these reasons, we conclude that,
even apart from waiver of the objection, the prosecutor's
isolated remark would not warrant a new trial. See United
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States v. Sutherland, 929 F.2d 765, 775 (1st Cir.), cert.
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denied, 112 S. Ct. 85 (1991).
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Third. It is undisputed that at the time Garcia
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committed the offenses in this case, there was an outstanding
bench warrant for his arrest for failure to appear in New
York state court on then-pending charges of possession of a
controlled substance. This fact did not directly affect the
calculation of Garcia's criminal history under the Sentencing
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2At oral argument, government counsel, who was also the
prosecutor at trial, explained that he elected not to
introduce evidence that $336 dollars was seized from Garcia
because he concluded that he had no evidence directly linking
the money to the transaction observed by Detective Lovell.
As to the existence of the money, both the police report and
the government's pre-trial discovery letter to defense
counsel noted that $336 was seized from Garcia at the time of
his arrest.
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Guidelines, because the criminal history calculation takes
into account only criminal convictions. However, the trial
judge departed upward pursuant to U.S.S.G. 4A1.3, which
states, in pertinent part:
If reliable information indicates that the criminal
history category does not adequately reflect the
seriousness of the defendant's past criminal
conduct or the likelihood that the defendant will
commit other crimes, the court may consider
imposing a sentence departing from the otherwise
applicable guideline range. Such information may
include, but is not limited to, information
concerning:
(d) whether the defendant was pending
trial, sentencing, or appeal on another
charge at the time of the instant
offense[.]
The trial judge elected, based upon this provision in
the guidelines, to depart upward from Criminal History
Category I to Criminal History Category II, which increased
the sentencing range from twenty-one to twenty-seven months
to twenty-four to thirty months. The judge sentenced Garcia
to the maximum thirty months. Garcia has not suggested any
plausible reason why this was error, and we can conceive of
none. See United States v. Hernandez, 896 F.2d 642, 645 (1st
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Cir. 1990) (upholding upward departure where an individual,
already on bail or otherwise charged with a criminal offense,
commits a separate offense).
For the foregoing reasons, the judgment of the district
court is affirmed.
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Document Info
Docket Number： 92-1490
Filed Date： 10/22/1992
Precedential Status： Precedential
Modified Date： 9/21/2015