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[NOT FOR PUBLICATION]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 w

Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, Sen

_____________
_______________________
Litigation Counsel,

Mar a Pab n, Assistant

____________

United States

Attorn

Jacabed Rodr guez, Assistant United States Attorney, and Sonia Torr
_________________
__________
Assistant United States Attorney, were on brief for appellee.

____________________

____________________

Per Curiam.
Per Curiam.
___________

tos"), Francisco

Defendants Fidelina

Santos-Frias ("San-

Matta-Garcia ("Matta"), and Francisca

Pena ("De Leon") appeal the judgments of conviction

entered against

them following their consolidated

cocaine charges

in

the United

States

De Leon-

and sentence

jury trial on

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

the verdicts.

(1st Cir.

United States
_____________

in

v. Tuesta-Toro, 29
___________

1994), cert. denied,

_____ ______

Matta, De Leon, and

the same

Sanchez and

most favorable to

115 S. Ct. 947

F.3d 771,

(1995).

773

Santos,

Rosalia Sanchez-Vencosme ("Sanchez") resided

apartment

building in

Rio

Santos shared an apartment.

Piedras, Puerto

Rico.

On May 8, 1993, Santos

and De Leon invited Sanchez to another apartment, shared by Matta

and De Leon,

and offered to

kilogram of cocaine

pay Sanchez

to New York.

Sanchez

$1,700 for carrying

declined the offer at

the time, but later relented.

The

next day, May 9, De Leon helped Santos and Sanchez

strap cocaine-laden girdles

Santos and Sanchez

to their bodies.

to the airport while De Leon

apartment.

En route to the airport, Matta gave

with which

to purchase two plane tickets.

the airport, Santos

while Matta remained

carrying two

Matta then

kilograms of

remained at her

Santos the money

Upon their arrival at

and Sanchez proceeded to

at a

discreet distance.

the ticket counter

Santos, who

cocaine, purchased the

drove

was

tickets, pro-

ceeded toward the departure gate and passed through the

checkpoint without incident.

security

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

intent

to

distribute.

She

later

pled

possessing cocaine with

guilty

against appellants Santos, Matta and De Leon.

II
II

DISCUSSION
DISCUSSION
__________

A.

Opening Statement

and testified

A.

Opening Statement
_________________

Count one charged appellants with conspiring to possess

cocaine with intent to

distribute, from on or about

1992, to and including May 9,

statement,

In the government's opening

the prosecutor described various criminal activities,

as alleged in
__ _______ __

the indictment, which would

___ __________

trial.

At

defense

counsel moved

side-bar

allegedly resulting

dants' pre-May

immediately after

for

the opening

prejudice

prosecutor's references

to defen-

since Sanchez

the alleged conspiracy

Following an evidentiary

government, the district court

statement,

on unfair

8 criminal activities

until May 8.

be established during

mistrial based

from the

government witness to

involved

1993.

December 1,

had not

the only

become

proffer by the

ruled that the alleged conspiracy

spanned

only the two-day period

during which

motions for

instructions

May

Sanchez participated.

mistrial,

on

would afford

the

The

8 through May 9, 1993

court then

ground that

adequate

its

protection

denied the

curative

against

jury

unfair

prejudice.

The district court gave

ately before Sanchez

a curative instruction immedi-

testified, emphatically directing the

jury

to

disregard all prosecutorial

the period

references to occurrences during

December 12th, 1992, through

May 7th, 1993.

same time the court reiterated its admonition

during its preliminary jury

by counsel are

said:

instructions

not evidence.

initially stated

that statements made

During its final

charge the court

I caution you and instruct you that

. . . any comments that the government

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
The

and

ignored

evidence in

starts

on

May the

8th,

over into May the 9th.

you're

concerned

that you might

that was said
the

8th, is

to you, and
by you.

by

this case

with.

recall or

you.
. .

and goes
That's all
Anything
anything

that went before May

completely irrelevant
may not be

At the

considered

Appellants

denying

contend that

their motion

the district

for mistrial,

as no

court

erred in

curative instruction

could overcome the unfair impression conveyed by the prosecutor's

statement

that

conspiracy

lants

appellants were

in

a more

extensive

than the government would establish at trial.

assert that

because the

from the

involved

"a

curative instruction

jury clearly

would not

understood the prosecutor

government, the statement

would be given

Appel-

suffice"

and, coming

weight "not-

withstanding any instructions from the court."

Although

the

assurances

that

the

government

would

establish criminal

provable

activities predating the commencement

conspiracy posed

a considerable

prejudice to appellants, any actual

of any

potential for

unfair

prejudice was self-inflicted

by their failure to mount a pretrial challenge to the indictment,

based

on overbreadth, see Fed.

___

failure

temporal scope of

did

12(b)(2), and their

to request the district court in advance to limit prose-

cutorial references in the

time

R. Crim. P.

government's opening statement to the

the provable conspiracy.1

the defense

suggest to

the

Furthermore,

district court

at no

that the

opening statement involved intentional misconduct by the prosecu-

tor.

Even

under

argument fails.

reviewed for

The

error"

denial of a timely

manifest

Romero-Carrion,
______________

"plain

abuse of

analysis,

appellants'

motion for mistrial

discretion.

United States
_____________

is

v.

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

represented a challenge to the

tions based on defects
to

trial, Fed.

pursuant
relief

to

R.

Fed. R.

indictment.

statement

"Defenses and objec-

in the indictment" are to be raised prior

Crim. P.
Crim. P.

for "cause shown."

selves of a full

the opening

12(b)(2),

and are

deemed

12(f)

unless the

As appellants failed

and fair opportunity to mount

waived

court affords

to avail them-

a pretrial chal-

lenge to the indictment, and now offer no justification for their

failure, the present claim

is deemed waived.

v. Rodriguez, 738 F.2d 13, 15 (1st

_________

See
___

United States
_____________

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

12(b)(2) it should have been

see
___
1989)

also United States

____ _____________
(finding

claims of error

that

Rule

asserted by motion before trial.");

v. Smith, 866 F.2d

_____
defendants waive

all

1092, 1098 (9th Cir.

but

jurisdictional

regarding an indictment unless they

raise their

claims prior to trial).

Pierro, 32 F.3d 611,

______

617 (1st Cir.

1994), cert. denied, 115

_____ ______

S.

Ct.

919 (1995).

And

absent a

clear showing

appellants the denial must be upheld.

F.3d

502, 508 (1st Cir.

of

prejudice by

United States v. Hahn, 17

______________
____

1994) (citing United States v. Sclamo,

______________
______

578 F.2d 888, 890-91 (1st Cir. 1978)).

We

the

evaluate the

likely impact

potential for prejudice

of the

challenged conduct

by assessing

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,
______

(evaluating government's

denied, 114
______

991 F.2d

943, 947-49

opening and closing

S. Ct. 457 (1993);

see also
___ ____

(1st Cir.)

statements), cert.
_____

United States v. Mac______________

____

cini,
____

721

course,

trial.

F.2d 840,

842-43 (1st

the acid test is

Cir.

1983).

Ultimately, of

whether the defendant

received a fair

Moreno, 991 F.2d at 949.

______

A careful

potential

review of

prejudice to

the record demonstrates

appellants was

averted by

that any

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.

sufficient basis

for their

Nor have appellants suggested a

conjecture that

the jury failed

to

follow the specific curative instructions repeatedly given by the

district court.

See
___

(1st Cir. 1989)

(court normally presumes

instructions).

United States v. Paiva,

_____________
_____

892 F.2d 148,

160

that jury follows

its

B.
B.

Closing Argument
Closing Argument
________________

On appeal, Matta and De Leon contend for the first time

that the government improperly vouched

during closing argument

perjurer.

for Sanchez's credibility

when the prosecutor stated, "She's not a

She's going to do time.

She's not going to walk.

She

is truthful."

The appellate brief jointly filed by

Leon

a single

devotes

claim:

Rosalia

"The

conclusory

sentence

to their

government also vouched for its

Sanchez-Bencosme."2

Their failure

Matta and De

vouching

principal witness,

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.
C.

Motions for Judgments of Acquittal

Motions for Judgments of Acquittal
__________________________________

All

evidence to

erred

three

appellants

claim

there

support their convictions, hence

was

insufficient

the district court

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.

___ _____

strated her

her

Appellants argue

lack of credibility

earlier dealings

with

that Sanchez demon-

by giving false

the United

information in

States Drug

Enforcement

____________________

2Santos would be permitted

by

Matta and De Leon, see Fed. R.

___

extent

that the

adequately
737

to adopt the arguments presented

(1st

different
(1992);

adopted arguments

developed.
Cir.

1991)

arguments by

App. P. 3(b), but only to the

themselves are

apposite and

Cf. United States v. David, 940 F.2d 722,

___ _____________
_____
(rejecting attempt
reference), cert.
_____

United States v.
______________

Zannino, 895
_______

to

denied, 504
______
F.2d

(similar), cert. denied, 494 U.S. 1082 (1990).

_____ ______

adopt

1, 17

materially

U.S. 955

(1st Cir.)

Administration,

and by entering into a sham marriage in order to

obtain immigrant status.

It is well settled

be

resolved in

court's denial of

F.3d at

of the

verdict

when reviewing

a motion for judgment of acquittal.

506 (citing United States v. Batista-Polanco,

______________
_______________

14, 17 (1st

the

favor

that all credibility questions must

Cir. 1991)).

The conclusory assertions

trial

Hahn, 17
____

927 F.2d

supporting

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

the very

and in their

closing arguments,

serious credibility problems

ably exposed

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

of the

each

essential

element

Santos, Matta and De Leon.

Santos

reports.

D.
D.

charged

against

Sentencing
Sentencing
__________

and De Leon did not object to their presentence

Thus, their undeveloped sentencing claims, broached for

the first time on appeal, were

v. Ocasio-Rivera, 991 F.2d 1,

_____________

the

crimes

appellate

brief submitted

not preserved.

See United States

___ _____________

3 & n.3 (1st Cir. 1993).

by

Santos

does not

Indeed,

explicitly

present a

sentencing

announcement

Her

reliance

on

perfunctory

of joinder under Fed. R. App. P. 3(b) is inadequate

to entitle her to

by her

claim.

"piggyback" on the sentencing claims

codefendants.

argumentation in

the

See
___

supra note
_____

joint brief

2.

As

submitted

advanced

for De Leon,

by her

and

the

Matta

merely

rests on

the bald

statement that

she should

have been

granted

downward

departure,

though she

Matta's arguments by reference.

nor

Santos

discussed their

See id.
___ ___

own

purports

to

adopt

Since neither De

sentencing

claims, nor

Leon

their

respective grounds for either a downward departure or adjustment,

we decline

to consider their

rule

that

[is]

unaccompanied

deemed waived."

claims.

issues adverted

by some

effort

at

"[T]he

to

in

manner,

developed argumentation,

has presented

downward adjustment, assertedly based on

cocaine transaction,

would

a perfunctory

are

Zannino, 895 F.2d at 17.

_______

Although Matta

The

settled appellate

see U.S.S.G.
___

presentence report

warrant a finding

not only

a developed claim

for a

his "minor role" in the

3B1.2(b), it

includes no

that Matta played

is frivolous.

information which

a minor

role in the

offense

but it

recommends

a four-level

in the

Even though the district

court rejected this recommendation, the

purchase

mained

evidence that

the airline

See
___

Matta provided

tickets for Santos

id.
___

for

Matta's supervisory role

___________ ____

uncontroverted

offense.

upward adjustment
______

3B1.1(a).

the money

and Sanchez,

used to

then re-

in the background as his "mules" proceeded to the airport

security checkpoint,

left little room

for a finding

that Matta

was entitled to

a downward

played a minor role in the offense.

The contention

that Matta

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.

refused to depart on

States v.
______

the grounds presented by Matta.

Catucci, 55 F.3d 15,

_______

quently, we

The district court

lack jurisdiction

19 n.3 (1st Cir.

to consider the

simply

See United
___ ______

1995).

Conse-

departure claim.

See United States v. Ruiz, 905 F.2d 499, 508-09 (1st Cir. 1990).
___ _____________
____

Affirmed.
Affirmed.

________

11