DocketNumber： 95-2013
Filed Date： 3/27/1997
Status： Precedential
Modified Date： 3/3/2016
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2013
UNITED STATES,
Appellee,
v.
MANUEL GONZALEZ-SOBERAL, AKA RAUL,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Campbell, Senior Circuit Judge, ____________________
and DiClerico,* District Judge. ______________
_____________________
Rafael F. Castro Lang for appellant. _____________________
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with _________________________
whom Guillermo Gil, United States Attorney, and Nelson P rez- _____________ _____________
Sosa, Assistant United States Attorney, were on brief for ____
appellee.
____________________
March 26, 1997
____________________
____________________
* Of the District of New Hampshire, sitting by designation.
TORRUELLA, Chief Judge. Defendant-appellant Manuel TORRUELLA, Chief Judge. ____________
Gonz lez-Soberal ("Gonz lez-Soberal") was convicted on four
counts: (1) conspiracy to possess with intent to distribute
multi-kilogram amounts of cocaine; (2)distribution of eight
kilograms of cocaine on October 13, 1991; (3) distribution of
nineteen kilograms of cocaine on October 20, 1991; and (4)
distribution of twenty-nine kilograms of cocaine on October 27,
1991. He now appeals, claiming errors in the jury selection
process, the jury instructions, and in the actions of the trial
judge, including sentencing. Finding no reversible error, we
affirm. We deal with each claim in turn, discussing factual
details as they become relevant.
I. Jury Selection I. Jury Selection
Appellant makes three claims with respect to the jury
selection. First, he argues that the district court committed
reversible error when it removed juror number 9. Second, he
submits that the failure to remove juror number 45 for failure to
adequately speak and understand English was also reversible
error. Finally, he contends that the district court's failure to
remove juror number 1 for cause was reversible error.
A. Juror Number 9 A. Juror Number 9
Federal Rule of Criminal Procedure 23(b) permits a
trial judge to excuse a juror for just cause if the judge finds
it necessary to do so. Fed. R. Crim. Proc. 23(b). "The trial
judge has substantial discretion in exercising this
responsibility and may remove the juror when 'convinced that the
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juror's abilities to perform his duties [have] become impaired.'"
United States v. Walsh, 75 F.3d 1, 5 (1st Cir. 1996) (quoting _____________ _____
United States v. Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992)). _____________ ________
The circumstances under which juror number 9 was
removed are as follows. While the judge was delivering the
charge, there was a disruption in the jury box. The judge
summarized the incident as follows:
I remember juror number 9 from her
impaneling questions, she's a very
intelligent woman, she's an economist.
Her husband works at the Department of
Treasury. She's -- she's -- she's a
person with a lot of education, formal
education. But I do think that what I
saw here in court today was not a normal
reaction. That is not a normal reaction.
It's entirely possible that she's
having some sort of problem that she's
not even aware of. But what she did, she
interrupted the jury charge, and as if we
were not here, as if she was alone with -
- with a juror that is sitting next to
her, she started a conversation with him
in a loud tone of voice. She started to
touch this juror, tried to take his name
tag off of his clothing, asked him
questions about the problems, something
around his neck or I don't know what.
I stopped, listened, watched, did not
make an issue. And when I asked her up
here, when I asked her up here she did
not remember what had happened, actually.
She could not remember the reasons why
she interrupted the jury charge or
started to touch her neighbor. And I --
I honestly think that she has a problem.
I don't know what the problem is. She
has some sort of problem with her. Not
only that, but some of the jurors have --
some of the jurors have expressed their
concern about her ability to be sitting
in this jury.
-3-
Tr. II at 449-50.
Based on his observation of the incident and his
subsequent investigation, the judge decided to excuse juror
number 9 and to substitute one of the alternate jurors. He
offered defense counsel the opportunity to choose between the two
alternate jurors, and counsel chose alternate number 1.
The judge then asked juror number 9 to approach the
bench and explained to her his intention to excuse her. She
stated that she had found the case very difficult and that she
felt compassion for those involved. Upon questioning, she
responded that she had not slept well the night before because
she had been thinking about the case. She also told the court
that she took medication to control her epilepsy. The following
colloquy ensued:
The Court: Have you had problems,
seizures and things like that in the
past?
Juror: The people says.
The Court: People say that?
Juror: But I say that I have -- I don't
have anything.
The Court: I see.
Juror: Because my reactions are normal.
Tr. II at 455-56. And a few moments later:
The Court: Do you remember what prompted
you to talk to your neighbor?
Juror: What you say?
The Court: When I was instructing the
jury --
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Juror: Uh-huh.
The Court: -- You decided to talk to
your next door neighbor. Do you remember
that?
Juror: No.
The Court: You don't remember that?
Juror: No.
The Court: I see. And you tried to take
his name tag away, this one. Do you
remember that?
Juror: No.
Tr. II at 456-57.
Finally, in explaining his decision to the jury, the
judge made the following remarks:
I noticed that when I was instructing
you, all of a sudden she like blanked
out, that I was watching. She was not
here anymore and she turned to the right
to her neighbor, started to talk to him.
I could not understand what she was
saying. It didn't seem to have much
logic to what she was saying, the words,
and then she grabbed his name tag and
said something about, "what's on your
neck," or something along those words.
She doesn't remember that.
She is -- she's taking some
medication. I think she has some sort of
problem, physical problem. She takes
medication, anticonvulsive medication. I
honestly hope that she's okay. But I do
think that under the circumstances, I
think it would be unfair -- I don't think
it would be right for me to leave her in
the -- in the jury panel, because that's
not right.
Tr. II at 459-60.
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In light of all of the above, we do not find reversible
error in the decision to excuse the juror. There was significant
evidence that juror number 9 was no longer able to perform her
duties. Considering the deference that we must accord the trial
judge in matters such as this one, we affirm the decision to
remove the juror. We add that there is no evidence that the
judge's decision was influenced by the juror's view of the case.
Although the juror stated that she found the case to be difficult
and that she had "compassion for these people," Tr. II at 453,
these statements were made after the judge had decided to remove
her from the jury. Furthermore, they do not, as appellant
contends, demonstrate that "she had reasonable doubts as to
whether or not appellant should be found guilty." Appellant's
Brief at 15. A juror might find a case difficult for many
reasons, and to conclude that she favored acquittal is
speculative.
Our decision is consistent with this court's decision
in United States v. Molinares Charris, 822 F.2d 1213, 1222-23 ______________ _________________
(1st Cir. 1987) in which we upheld the decision to excuse a juror
whose health appeared to be at risk. The juror was obviously
distressed by the proceedings and had taken a tranquilizer in
order to calm her nerves.
Similarly, in the instant case, the judge was concerned
with the juror's health. After an investigation into the
situation, the judge felt that the stress of the trial posed a
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risk to the juror's health and that her ability to perform her
duties had been compromised.
As we stated in Molinares Charris, "[w]e should not be _________________
quick to second guess a trial judge, who was in a better position
than we are to assess the severity of the situation. After
making careful inquiries, and recognizing her responsibility for
the well-being of those called upon to serve the court, the judge
decided that the risk to the juror's health was too great." Id. ___
at 1223.
B. Juror Number 45 B. Juror Number 45
Appellant next claims that the district court committed
reversible error by failing to remove juror number 45. During
the investigation of juror number 9, the judge interviewed juror
number 45. The exchange went as follows:
The Court: Your name and number, please.
Juror: My name is Byron Chique. My
number on the list is 45.
The Court: You have noticed anything
wrong with the lady that started to
talking in a loud tone of voice?
Juror: Yes. Yes.
The Court: What have you noticed?
Juror: Talking in English, it's very
difficult to explain to you, but this
morning not too much important but she --
she say -- I can't explain in English.
It's very difficult.
The Court: Which word are you looking
for?
Juror: Let me say --
-7-
The Court: Which word are you missing
that you cannot -- I'll give you the
word.
Juror: I can say it in Spanish.
The Court: What is the word?
Juror: (In Spanish)
The Court: Jaime, there is a word that
he is having a problem with he can't
explain.
Juror: (Conferring withthe interpreter.)
Interpreter: I told the lady -- I was
talking to the lady this morning and I
told her and she was -- she was like
expectant, she was hesitant in her -- her
actions.
Juror: Yes.
The Court: It struck you as something
abnormal?
Juror: Not normal, not exactly normal.
The Court: Not normal?
Juror: No.
The Court: Okay. What was your reaction
then when you saw her speak the way she
did in open court in the middle of the
charge and start to fix the -- her
neighbor's name tag? You saw that?
Juror: Would you repeat, please?
The Court: You saw -- you saw her when
she grabbed her neighbor's name tag and
tried to --
Juror: Yeah.
The Court: -- fix it?
Juror: I see -- I see that is not in his
body. his body -- she -- likes to sleep.
(Confers with interpreter)
-8-
Interpreter: She seemed to be like
asleep, like she was sleepwalking.
The Court: Oh, I see. Okay. Thank you.
Tr. II at 443-46.
Appellant's counsel then stated that he had concerns
about juror number 45's knowledge and understanding of the
English language. The district court disagreed. Shortly
thereafter, counsel again raised the question of juror number
45's proficiency in English. The judge responded:
Number one, Mr. Chique was examined in
English by me. There is a piece of paper
that I gave these people for them to talk
to me in English when I'm selecting them,
and he was able to express himself
clearly in English. I have no doubt in
my mind.
I can tell you something, . . .
whenever I have the slightest doubt about
somebody's English, not only do I excuse
that person from the panel, I eliminate
the person from the list, from the jury
pool completely. I don't take any
chances with that.
He was looking for a word,
"sleepwalking," and that is not a concept
that you deal with every day. And he was
pretty nervous. He was, you know,
nervous up here trying to explain to me
something, and that's why he could not
find the word.
He's perfectly capable of
understanding the evidence in this case.
I don't have a problem with that at all.
And if I had, believe me, he wouldn't
even be on the jury to begin with,
because I don't take chances with that.
Tr. II at 449.
-9-
A trial judge has substantial discretion to determine
when jurors should be removed for cause. We are hesitant to
reverse the reasoned conclusion of the trial judge on the
question of a juror's ability to understand English because the
trial judge is in a much better position to assess the language
competency of a particular juror. See Molinares Charris, 822 ___ __________________
F.2d at 1222-23; Walsh, 75 F.3d at 5. _____
In the instant case, the juror in question had met the
statutory linguistic competency standard under the Jury Selection
and Service Act, 28 U.S.C. 1865, and had undergone voir dire --
during which defense counsel had the opportunity to question the
juror.
Although those portions of the transcript quoted
suggest that the juror's command of the English language was less
than that of a native speaker, they do not warrant the conclusion
that the juror was unable to follow the proceedings or understand
the evidence and therefore do not merit reversal. In light of
our deferential standard of review and the limited information
available from the transcript, we cannot overturn the judge's
decision to retain juror number 45. We find no abuse of
discretion.
C. Juror No. 1 C. Juror No. 1
During voir dire, juror number 1 stated that his father
had been killed by a drug dealer during a holdup. Defense
counsel sought to have the juror excused for cause. The district
court, having interviewed the juror, determined that he should
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not be excused for cause. Defendant eventually used one of his
peremptory challenges to strike the juror. Appellant now argues
that the juror should have been removed for cause, that the
failure to remove the juror forced the defendant to use a
peremptory challenge, and that this constitutes grounds for a new
trial.
It is well established that the trial court has
considerable discretion in ruling on challenges for cause. See ___
Dennis v. United States, 339 U.S. 162, 168 (1950). "Substantial ______ _____________
deference is due the trial court's exercise of its discretion in
handling situations involving potential juror bias or
misconduct." United States v. Angiulo, 897 F.2d 1169, 1185 (1st _____________ _______
Cir. 1990). "There are few aspects of a jury trial where we
would be less inclined to disturb a trial judge's exercise of
discretion, absent clear abuse, than in ruling on challenges for
cause in the empaneling of a jury." United States v. McCarthy, ______________ ________
961 F.2d 972, 976 (1st Cir. 1992) (internal quotations omitted).
"We review a trial judge's exercise of discretion in empaneling a
jury for 'clear abuse.'" United States v. Bartelho, 71 F.3d 436, _____________ ________
443 (1st Cir. 1995).
In the instant case, after the juror stated that his
father had been killed by a drug dealer, the judge asked: "Do you
believe that even though this happened within your family you
could still be a judge of the facts in a drug case and be fair
and impartial?" Tr. I at 11A. The juror responded "yes, I can."
Tr. I at 11A. Following an exchange with counsel, the judge
-11-
decided to leave the juror on the panel, citing as reasons the
fact that the juror, when asked if he could be impartial, had
been extremely assertive in his answer, and that he was
intelligent.
Nothing in either the record or the parties' briefs on
appeal suggests that the trial court's decision to retain juror
number 1 was grossly in error. The judge appears to have
concluded, after considering the suitably of the juror, that he
could remain on the panel. Neither a lack of judgment on the
part of the judge nor prejudice toward the defendant has been
demonstrated. We find no "clear abuse."
Because we find no clear abuse in the judge's refusal
to remove the juror, we need not address the question of whether
forcing the appellant to use a peremptory challenge is grounds
for a new trial.
II. Jury Instructions II. Jury Instructions
A. Appellant's Requested Jury Instruction A. Appellant's Requested Jury Instruction
Appellant next claims that the district court committed
reversible error when it failed to give appellant's requested
instruction concerning the impeachment of witnesses by prior
conviction.
In considering challenges to jury instructions, the
refusal to give a requested instruction is reversible error only
if "the instruction (1) is substantively correct; (2) was not
substantially covered in the charge actually delivered to the
jury; and (3) concerns an important point in the trial so that
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the failure to give it seriously impaired the defendant's ability
to effectively present a given defense." United States v. ______________
Gibson, 726 F.2d 869 (1st Cir. 1984) (internal quotations ______
omitted). The charge "need not follow the exact form and wording
of the defendant's proposed instructions." Id. ___
In the instant case, Gonz lez-Soberal sought the
following instruction:
You have been told that the witness
_______ was convicted in 19__ of [e.g.:
armed robbery]. A conviction is a factor
you may consider in deciding whether to
believe that witness, but it does not
necessarily destroy the witness's
credibility. It has been brought to your
attention only because you may wish to
consider it when you decide whether you
believe the witness's testimony.
Appellant's Proposed Jury Instruction #1.12.
The jury instructions delivered by the court, although
they did not contain this precise instruction, did include the
following language:
You have heard testimony from an
unindicted co-conspirator, Mr. William
Negr n Zapata, and from a defendant in
this same case who, as you know, was
tried earlier, Willy Maya Acosta, who
have -- who both have cooperation
agreements with the government. The
testimony by Mr. Negr n Zapata was given
in exchange for a promise by the
government that he will not be prosecuted
for some crimes he admittedly committed,
including the ones in this case. The
testimony by Willy Maya Acosta was given
in order to hopefully receive a reduction
of sentence on account of cooperation.
In evaluating this testimony, you
should consider whether that testimony
has been influenced by the government's
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promise, and you should consider that
testimony with greater caution than that
of ordinary witnesses. Such agreements
are legal. The law only requires that
you consider testimony given under those
circumstances with greater caution than
that of ordinary witnesses.
Tr. II at 406-07.
Although the instructions given by the judge did not
contain the specific instruction sought by Gonz lez-Soberal,
"there is not reversible error if the jury charge taken as a
whole substantially covered the issues contained in the requested
instruction." Angiulo, 897 F.2d at 1207. _______
Having reviewed the instructions given to the jury, we
conclude that they substantially covered issues of credibility
with respect to the witnesses in question. The judge reminded
the jury that the two witnesses had been convicted and that they
had cooperation agreements with the government. He gave
instructions concerning the credibility of witnesses, telling the
jury that they should view the testimony of these witnesses with
greater caution than the testimony of an ordinary witness. There
is no reason to believe that the jurors were misled by these
instructions, or that they believed it impermissible to view with
additional skepticism the testimony of witnesses who had prior
convictions. Accordingly, we find no error in these jury
instructions.
B. Reasonable Doubt B. Reasonable Doubt
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Gonz lez-Soberal also claims that the trial court's
jury instructions regarding reasonable doubt impermissibly
reduced the government's burden of proof.
In his initial instructions to the jury, the judge made
the following remarks:
Second. The burden of proof is on the
government until the very end of the
case. The defendant has no burden to
prove his innocence or to present any
evidence or to testify. Since the
defendant has the right to remain silent,
the law prohibits you in arriving at your
verdict from considering whether the
defendant may or may not have testified.
Third. The government must prove a
case against the defendant beyond a
reasonable doubt. I will give you
further instructions at the end of the
case, but in this sense be mindful, those
of you who participated in civil cases,
that the standard is different. In the
civil case we say a plaintiff prevails if
he proves a case by a preponderance of
the evidence. In the criminal case the
situation we say the government prevails
if it proves a case beyond a reasonable
doubt.
If I were to graphically illustrate
for purposes of an initial charge or
instruction so you have an idea what I'm
talking about, I would say this. In the
civil case if we bring a balance, scale
of the type used in old drugstores
before, not any more, you will put
evidence - in the civil case plaintiff's
evidence on one of the plates and
defendant's evidence on the other, you
will see how well the reaction is. If
the scale just starts moving a little bit
to the plaintiff's side, the plaintiff
has prevailed. That is preponderance of
the evidence.
When we say "beyond a reasonable
doubt," proving a defendant guilty beyond
-15-
a reasonable doubt, by the very words
we're implying that the government has a
heavier burden than the one that I just
described. Because liberties are
involved, it's a different kind of case,
therefore the government's burden is
heavier than that and I will explain that
at the end of the case.
Tr. I at 11-13.
At the end of the case, the judge returned to the
reasonable doubt issue:
The presumption of innocence alone is
sufficient to find him not guilty and can
only be overcome if the government proves
beyond a reasonable doubt each and every
essential element of the crimes charged.
And what is reasonable doubt? A
reasonable doubt is a doubt based upon
reason and common sense and may arise
from a careful and impartial
consideration of all the evidence or from
lack of evidence. Proof beyond a
reasonable doubt is proof that leaves you
firmly convinced that the defendant is
guilty.
If, after a careful and impartial
consideration with your fellow jurors of
all the evidence, you are not convinced
beyond a reasonable doubt that the
defendant is guilty, it is your duty to
find the defendant not guilty.
Tr. II at 418-19.
This court has cautioned against the risks that can
accompany attempts to define reasonable doubt. See United States ___ _____________
v. And jar, 49 F.3d 16, 23 (1st Cir. 1995); United States v. _______ _____________
Campbell, 874 F.2d 838, 843 (1st Cir. 1989). Nevertheless, ________
attempts to define reasonable doubt do not necessarily result in
reversible error. And jar, 49 F.3d at 23. We have said that, in _______
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our experience, even imperfect formulations, usually meet the
constitutional requirements when viewed in the context of the
entire charge to the jury.
When we review a trial court's definition of reasonable
doubt, our concern is whether the instructions have a tendency to
reduce the government's burden of proof at trial. Id. We will ___
find instructions erroneous when, taken as a whole, they have a
reasonable likelihood of leading the jury to believe that it can
convict on some lesser standard of proof than that required under
the reasonable doubt standard. See United States v. Romero, 32 ___ _____________ ______
F.3d 641, 651 (1st Cir. 1994).
Having reviewed the instructions in this case, we
believe that there is no reasonable likelihood of misleading the
jury. The judge explained that the burden of proof is entirely
on the government, and that the government must prove its case
beyond a reasonable doubt. The judge contrasted the reasonable
doubt standard with the preponderance of the evidence standard in
order to avoid any confusion in the minds of jurors who may have
served on civil juries in the past. At the end of the trial, in
his final instructions, the judge repeated that the defendant
must be presumed innocent and that the government must prove
guilt beyond a reasonable doubt. Nothing in the judge's attempt
to define reasonable doubt was likely to mislead the jury or
suggest that the government's burden of proof is less than the
reasonable doubt standard.
III. Fair Trial III. Fair Trial
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Appellant next claims that the district court
"repeatedly questioned witnesses on his own in a manner that made
him a partisan of the government's case thereby depriving
appellant of his constitutional right to a fair trial."
Appellant's Brief at 33. Appellant alleges that the judge's
questions served to bolster the credibility of government
witnesses and undermine that of defense witnesses. Appellant
also argues that the judge improperly raised objections to
appellant's attorney's questioning and that he elicited improper
hearsay from a witness.
It is well settled that the trial judge has "a perfect
right -- albeit a right that should be exercised with care -- to
participate actively in the trial proper." Logue v. Dore, 103 _____ ____
F.3d 1040 (1st Cir. 1997). A trial judge retains the common law
power to question witnesses and to comment on the evidence. Id.; ___
see also Fed. R. Evid. 614(b) ("The court may interrogate _________
witnesses, whether called by itself or by a party."). There are,
however, limits to the behavior that is permitted judges. "[F]or
example, the judge's participation must be balanced; he cannot
become an advocate or otherwise use his judicial powers to
advantage or disadvantage a party unfairly." Id. "An inquiry ___
into the judge's conduct of the trial necessarily turns on the
question of whether the complaining party can show serious
prejudice." Id. ___
In his brief, appellant cites several instances of
alleged bias on behalf of the judge. After careful review, we
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conclude that these instances were no more than attempts by the
judge to clarify questions, speed the proceedings, or ensure that
all information is before the jury. We see no need to recite at
length from appellant's brief, choosing instead to comment
briefly on his allegations.
Appellant asserts that the judge bolstered the
credibility of government witnesses on two occasions. We have
reviewed the relevant testimony and consider the judge's
questioning to be no more than an effort to make clear that the
witnesses were testifying under cooperation agreements and to
impress on the witnesses the fact that they were required to tell
the truth.
Another instance cited by appellant was a decision by
the judge to overrule an objection by appellant's counsel. The
government was introducing a photograph that included certain
markings. Defense counsel objected on the grounds that the
markings contaminated the photo. At a bench conference,
appellant's counsel stated that he understood that the markings
were made during the trial of co-conspirators and that the
witness could easily make the same markings on an unmarked photo
if one were available. The judge overruled the objection,
stating to the jury that he knew what the marks were and that the
marks were explained to counsel. Appellant claims, without
elaboration, that these comments amount to bolstering the
government's evidence. We disagree.
-19-
As for the claims that the judge sought to undermine
defense witnesses and defense counsel, we find them to be
meritless. In both instances identified by appellant, the judge
was merely attempting to move the trial along without unnecessary
delay and the judge's comments cannot be taken to demonstrate
bias. See Logue, 103 F.3d at 1045; Deary v. Gloucester, 9 F.3d ___ _____ _____ __________
191, 194-95 (1st Cir. 1993).
Finally, appellant argues that the judge elicited
hearsay evidence during testimony. Following an objection on
hearsay grounds, the judge asked the witness, Negr n-Zapata, "Who
told you that Chanci had said or that Chanci would -- If we would
find kilos he would -- he would keep them?" When Negr n-Zapata
replied that Mr. Arroyo had told him this, the judge sustained
the objection. Even if it were determined that this was
improperly admitted hearsay, it would be harmless error. Nothing
in the judge's remarks or the witness's brief response was in any
way prejudicial to the defendant. The comments simply do not
relate to the defendant, implying that, if error, they were
harmless error.
IV. Sentencing IV. Sentencing
Gonz lez-Soberal argues that the trial court committed
error when it refused to grant a two-point "minor participant"
reduction in his offense level on the basis of his role as a
courier.1 "We will reverse the district court's finding that a
____________________
1 Section 3B1.2 of the Sentencing Guidelines states:
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defendant is not a minimal or minor participant only if it is
clearly erroneous." United States v. Paz Uribe, 891 F.2d 396, _____________ _________
399 (1st Cir. 1989); see also United States v. Garc a, 954 F.2d _________ _____________ ______
12, 18 (1st Cir. 1992) ("[W]e review a sentencing court's role-
in-the-offense determination only for clear error."). The
defendant bears the burden of proving that he is entitled to a
downward adjustment for his role in the offense. See United ___ ______
States v. Ortiz, 966 F.2d 707, 717 (1992). ______ _____
Appellant's claim fails on two independent grounds.
First, he argues that "[t]he trial evidence indicates that
appellant was a mere courier of money and narcotics," Appellant's
Brief at 42, yet he points to no testimony or evidence to support
the assertion that his role was limited to one of courier. He
refers to only one statement made by the trial judge, who
commented that "the evidence has shown so far that the defendant
was a money courier." Tr. II at 481. This is insufficient to
meet the defendant's burden in this case, and is unconvincing.
During sentencing, the judge's comments, taken in their entirety,
do not suggest that the judge viewed the defendant as a mere
courier. For example, the judge stated "I do not think that he
was other than a regular drug dealer that was arranging drug
____________________
Based on the defendant's role in the
offense, decrease the offense level as
follows:
. . .
(b) If the defendant was a minor
participant in any criminal activity,
decrease by two levels.
United States Sentencing Guidelines 3B1.2.
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transactions like everybody else was." Tr. II at 481. In
addition, the court made it clear that it had considered the
defendant's role in the offense, stating that "the court has
considered his role . . . in the context of the relative
culpability of the different defendants that participated in this
particular conspiracy. And I will not make an adjustment on
account of role." Tr. II at 488.
Second, even if it was shown that Gonz lez-Soberal had
been no more than a courier, he would not automatically be
entitled to a reduction. See United States v. L pez-Gil, 965 ___ _____________ _________
F.2d 1124, 1131 (1st Cir. 1992); Paz Uribe, 891 F.2d at 399. "A _________
defendant has the burden of proving entitlement to such a
downward adjustment, and can only prevail on appeal by
demonstrating that the district court's determination as to his
role in the offense was clearly erroneous." L pez-Gil, 965 F.2d _________
at 1131 (citations omitted). Appellant fails to present any
reasons why, on the facts of this case, he should be granted such
a reduction. Therefore, even assuming, arguendo, that appellant
was able to establish that he was merely a courier, he has failed
to carry his burden of showing that he is entitled to a downward
adjustment.
In light of the above analysis, and the deferential
posture we take toward role-in-the-offense determinations, we
find no clear error in the district court's sentencing.
V. Conclusion V. Conclusion
-22-
For the foregoing reasons, the decision of the district
court is affirmed. affirmed ________
-23-
United States v. Andrews Bruce Campbell , 874 F.2d 838 ( 1989 )
United States v. Ruben Ortiz, A/K/A Ruben Ortiz De Jesus, ... , 966 F.2d 707 ( 1992 )
United States v. Walsh , 75 F.3d 1 ( 1996 )
United States v. Gennaro J. Angiulo, Donato F. Angiulo, ... , 897 F.2d 1169 ( 1990 )
United States v. Bartelho , 71 F.3d 436 ( 1995 )
United States v. Andujar , 49 F.3d 16 ( 1995 )
United States v. William E. McCarthy Jr. , 961 F.2d 972 ( 1992 )
United States v. Logan P. Huntress , 956 F.2d 1309 ( 1992 )
United States v. Paul W. Gibson , 726 F.2d 869 ( 1984 )
united-states-v-orlando-molinares-charris-united-states-of-america-v , 822 F.2d 1213 ( 1987 )