Professional Documents
Culture Documents
Plaintiff, Appellee,
v.
GONZALO VELAZQUEZ-ROTGER,
Defendant, Appellant.
_____________________
_____________________
No. 93-2262
Before
Torruella, Chief Judge,
___________
Aldrich, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
ALDRICH,
Senior
Circuit
Judge.
________________________
Appellants
in a
single
meaning of "beyond a
photospread
identifications
motion to suppress
should
have
been
Federal
Rule
insufficient
to
of
Evidence
convict;
reversible errors
(6)
16;
the
(5)
the
evidence
prosecutor
was
committed
(7) the court should have instructed the jury on the defenses
of entrapment and
duress.
We sustain one,
and reject
the
rest.
I.
Background
I.
Background
____________________
Relating the
DeMasi, 40 F.3d
______
L.Ed.2d 890
(1995), in
informant
of the
United
"Gordo,"
responded
to
1306, 1310
(1st
a confidential
States Customs
Service, known
shortwave
request
radio
by
as
a
Colombian
-3-
individuals
in
Puerto
Rico.
telephone conversations
various
which
over
the next
individuals, including
a
narcotics smuggling
suppliers in Colombia
worked closely
monitoring
photographs
of
was hatched.
the plot.
and
over
up until
several
of
the players
arrange
the
transport
proposed utilizing
the
marijuana;
with
during
Cabeza and
his
Velazquez and Pe a
recordings
it finally
arrested.
the drugs
of
their
Gordo agreed
to
Puerto
Colombian ship at
discussions with
numerous
unravelled and
undercover vessel to
contemplated bringing
subsequent
and Pe a,
with
Both
hundred
were
a Customs
and
several months
evidence contains
the moment
conspirators
The
of
meetings
one
discussions
to
Velazquez
venture
receive
This led
Rico
to
and
meet and
sea.
Initially
in 2,000
pounds of
Velazquez
and Pe a
to 5,000 to 6,000
pounds, or more.
discussed as
well.
On
10,000
pounds of
marijuana,
and two
to pick up
kilograms of
cocaine
at
sea.
down,
an
However, the
-4-
to arrange for a
of April.
to
facilitate the
meeting of
the two
sea, and
charges,
Gordo suddenly
left
device to Cabeza
vessels at
Velazquez was
and
as they continued
Puerto
on drug related
Rico, apparently
because he thought
the deal
was dead.
Customs agent
Pe a
replaced Gordo,
marijuana and
thereafter met
5 kilograms of cocaine,
subsequent discussions
Pe a provided
Colombians,
lamps
with agent
Polo Diaz,
several hundred
as
to Pe a that the
continue.
In
Juan
he spoke
kilograms of
Diaz
and, a
week later,
they finalized
He remained
plans to
6,500 pounds of
cocaine.
with another
who
new
shipment of
At a later
code sheet
with a number
meeting
from
the
of emergency
meet the
shipment of
a second
load.
On
picked
up
May
153
30, 1992,
bales
participants
from a
them
their
aboard
of
five undercover
Customs agents
marijuana
two
Colombian ship
undercover
-5-
and
at sea
vessel to
Colombian
and transported
Puerto
Rico,
as
arranged.
Cabeza
contacted
Diaz
to
inquire
about
the
shipment
cocaine.
On
in Puerto Rico,
Salgado.
Salgado
a red
Around
Victor
the beginning
to leave the
his friend
of June,
Rivera instructed
Carolina.
When it
which Rivera
friend.
with another
of delivery.
Plaza
The
would be the
truck from the
and delivered it
back to the
inform him the truck was ready and he would be waiting in his
car
keys
____________________
1. The red dump truck was never returned to Salgado, who
eventually reported it stolen after Rivera proved unable to
provide any information on its whereabouts and advised him to
make out a stolen vehicle report using a false name and phone
number to describe the person to whom he had rented it.
-6-
nephew was
keys.
on his way
As
they were
exchanged
over to
exchange the
talking a young
money for
black man
the
approached,
$30,000 cash with Diaz for the truck keys, and ran
off.
Shortly
driving
thereafter
with
tinted windows,
were
teams
from various
federal
pulled
aside briefly
surveillance
on 65th
followed
by Pe a
agencies.
Monte Carlo
housing complex.
on
tailed
truck,
surveillance
The three
Infantry Avenue,
vehicles
and several
their cover.
down
the
65th Infantry
resumed, it made a
Avenue, heading
Several
toward the
left turn
Monte Hatillo
Avenue in
order to
head back
toward the
Monte Hatillo.
When the first of
agents,
the convoy,
front
the burgundy
in pursuit of
diagonally in
raked it with
The ambush
severely
wounded the
three
agents.
second
Shooting was
within
or
around
surveillance vehicle,
two
the
housing
driven by agent
elsewhere, apparently
complex.
third
-7-
truck
Montalvo pursued
automatic
the
van
weapons fire
from
of the two
bullet-proof vests.
truck,
but
was
slowed
several individuals
on
foot.
pull on
by
managed to hit
After
one of them
man.
Montalvo
truck was
later found
parked in
the housing
complex.
later.
truck reported
was arrested
it stolen around
the white
Pe a
of cooperating
already in
from
a story
he later recanted
the government.
surveillance
of
his
Velazquez
in
was
on information gleaned
activities
before
his
arrest.
Galindez was
arrested in December
connection with
this
case after
of 1992
on
1993 on charges
being identified
in a
-8-
II.
Jury Instruction on Reasonable Doubt
II.
Jury Instruction on Reasonable Doubt
_______________________________________________
Appellants
allege
the
court
gave
erroneous
outset, after
-9-
briefly and
It all boils
down to an
impartial
consideration of all the evidence, and
the evidence must
leave you
firmly
___________________
convinced that a particular defendant in
_________
a given context of a particular charge is
guilty.
(Emphasis
claim
supplied).
Defendants
these particular
Federal
statements to
affects "substantial
___,
is
___,
113
rights."
acceptable.
error under
123
error that
Olano, ___
_____
L.Ed.2d 508
182 (1993),
1776-78,
(1st Cir.
v. Louisiana, 113
_________
there is
but
United States v.
_____________
S.Ct 1770,
L.Ed.2d
be plain
is a "clear" or "obvious"
no exceptions,
U.S.
took
a scope
of language
that is
had
rely principally
defined reasonable
on
doubt
United States
_____________
to
mean, among
Rely on it
under what
circumstances?
v.
language clearly
other
person
Id. at 81.
___
small matter?
We
erroneous, since
it
-10-
may have
created the
can convict
[the jury]
vacation."
Id. at
___
addition
that
the
proof
should
be
of
should be willing
such
convincing
to act on it
"in
the
you have to
own
lives
constituted plain
and
for
yourselves,"
the charge
"convincing" was
make in your
in Gordon
______
was by
Cir. 1980).
no means
error.
ideal, the
to the jury
incomplete.
indicated it
The court
would further
the preponderance
as
the court
affirmatively wrong, it
made
that
and
at the
evidence" language
completed
clear,
First,
and amplified
its
fatal here,
remarks on
the
a whole,
the
only
question is
responsibility.
whether,
as
Romero,
______
-11-
32
F.3d
at
651-52
(while
"scale" to
alone,
instructions
"tip
may
as a
suggest
whole did
the government's
diluted
not create
burden
of
doubt
side,"
proof,
obvious likelihood
-13-
On
the other hand, if after a
careful and impartial consideration with
your fellow jurors of all the evidence,
you are convinced, beyond a reasonable
doubt, that the defendant is guilty, it
is your duty to find the particular
defendant related
to that particular
charge guilty.
It all boils down to an impartial
consideration of all the evidence, and
the evidence must
leave you
firmly
______
court
beyond
summing
expressed
a reasonable
it up
by saying
doubt, neat,
that "it
the government's
burden
seven times.
all boils
of
Did
down to"
the
The
might convince
them to
go shopping.
that
"is
each
defendant
importance.
guilty,"
of
government's
burden.
1994);
"firmly convinced"
matter
of
ultimate
Colon______
the
court's
burden
to
repeated
have
The
improperly
of
diminished
the
that
-14-
We
lengthy
strongly
as
we
explanations of reasonable
See,
___
observe,
have
before,
that
v. Olmstead,
________
832
U.S. 1009,
Solicitude
for the
phrase,
let alone
to embellish.
Victor
______
v.
Nebraska, 114
________
They
Galindez and
error
claim
in
Rivera contend
denying
as ground
for
their
motions
reversal a
the court
for
highly
prosecutor's
stood charged.3
Severance
is
warranted
only
when
there
is
2.
Fed.R.Crim.P. 14.
3. Velazquez also contends that joinder was not proper to
begin with because he had nothing to do with the shoot-out.
As he was not charged with any offense arising from the
shoot-out, and does not contend he was improperly joined for
trial on the offenses for which he was charged, we find this
argument without merit.
-15-
be compromised,
reliable
or that the
judgment
United States,
_____________
about guilt
113 S.Ct
or
933, 938
innocence."
(1993).
to make "a
Zafiro
______
v.
District courts
to secondguess."
(1st Cir.),
United States v.
______________
cert. denied, 498
_____ ______
Boylan, 898
______
U.S. 849,
111
Cir. 1993).
We will interfere
only if
it is "plainly abused."
302,
938 F.2d
was
not allege
violated,
but
overdramatization of the
the jury's ability to
to the
rather
the
this context
chance of acquittal at
affected
They point
prosecutor's
"bloodbath" prejudicially
trial
"means more
prejudice.
than
a separate trial."
just a
But
better
United States v.
______________
Pierro, 32 F.3d 611, 615 (1st Cir. 1994) (quoting Boylan, 898
______
______
F.2d at 246); Zafiro, 113 S.Ct. at 938.
______
While in a trial of multiple defendants the risk of
prejudice is magnified, for
jury
-16-
246.
the
presume juries
irrelevant
to
jury
considered
it against
them.
charges
against
We
where it is
certain
defendants.
the granting of
sound
938.
Limiting
instructions will
any relief to
the
often suffice.
Id.
___
In
adequately did
appellants
so.4
We are
otherwise,
we
particularly loathe to
____________________
4.
find
it
second
guess the district court here, given that the jury manifested
its ability
-18-
to
differentiate
each,
the defendants,
and the
246.
IV.
Pretrial Photo Identifications
IV.
Pretrial Photo Identifications
________________________________________
evidence against
Galindez
assigns
as
error the
admission
of two
based
on
surrounding
them.
the
He
argues
that
identifications were
the
unduly
first named
in February 1993
as the
agents
identified
Montalvo
photospread.
and a hearing
court
adopted
and Diaz
separately
Galindez moved
was held
him in
before a magistrate.
the magistrate's
The
recommendation
district
for denial.
(1st Cir.
cases).
____________________
5. Both Rivera and Galindez
conspiracy charge.
were
-19-
acquitted
of the
main
findings
appeal
677.
relating
motion to
suppress are
evidence to
support it
binding on
finding may
is
to a
if "the
cases).
reviewing court
on the
a mistake
States
______
has been
committed."
Id.
___
(quoting United
______
employ a
identification
(2) whether
was
the totality
very
Unreliability
Id.
___
suggestive," and,
De Jesus-Rios,
_____________
substantial
misidentification."
(1) whether
of the circumstances
nonetheless reliable.
"a
inquiry:
was "impermissibly
(collecting cases).
is
two-part
the
if so,
indicates it
990 F.2d
at 677
likelihood
of
(citations omitted).
918 F.2d 254, 264 (1st
irreparable
See,
___
e.g.,
____
Cir. 1990)
("it is
only
in
evidence should
extraordinary
be withheld
cases
that
to apply
nor
identification
1027 (1991).
unreliability.
cert. denied,
_____ ______
Based
The
found neither
on
the analysis
below, we disagree.
1.
Suggestiveness
____________________
On
February
8,
1993,
agent
Diaz
inspected
-20-
photospread built
around a
photograph of Galindez
uninvolved informant
had identified
had
for
made
Galindez
the money
as
Agent Montalvo
the one
was shown
to
talk
to
anyone
as the person
exchange.
with whom
keys
he
which an
Diaz
had made
the photospread
he heard
identified
the exchange.
the next
day and
the
photospread
not do so.
or
Although
his
Diaz
continued
photospread
examining
it
after Diaz
himself.
had
The
it,
magistrate's
but prior
to
ruling, although
raises
the
examination
possibility
of
the
of
suggestiveness,
circumstances6
in
order to
We believe
requiring
determine
was
June 4,
1992
surveilling
Montalvo, along
the
parking lot
with two
where
other
Diaz
was
but
higher up
and 35
raining heavily,
feet away.
when Montalvo
It
was around
observed a young
noon, and
black male
____________________
6. Galindez does not suggest, nor is there any evidence,
that the procedure used was faulty.
We therefore address
only the circumstances surrounding the identifications.
-21-
running toward
view in
before
Diaz's car.
He disappeared
shopping mall.
the exchange,
immediately
on the
from Montalvo's
side
to 60 seconds
running toward
afterward
radio report
the
made
it, because
confirmed
that
the
the
small radius
surrounding
Diaz's
car for
much
June
observations.
He
Montalvo
prepared
report
of
his
young, black,
The
regarding
co-defendant
description.
time later
as
next
He
day, during
Pe a,
added that he
convoy
preliminary
hearing
Montalvo
repeated
this
youth a
short
riding as passenger in
the truck-Volvo-van
progressed toward
the Monte
photospread,
Montalvo described
him for
the first
time as
his long
-22-
eye
at
the
time was
the
suspect's
long
neck and
"very
report he prepared just three days after the incident nor any
time prior to seeing Galindez' photograph, Montalvo said that
it was
because
Montalvo and
procedure
the
the agent
"refreshed" his
who administered
covered up to the
the
photo
appeared
uniform
--
Montalvo
said he
removed
Galindez's
thus
photograph
the paper
after
labels identifying
be seen and
no necks
Both
the identification
six photos in
memory.
would
covering
he
selected
to
strengthen
it
observable.
the neck
of
but
before
agent
Diaz's
initialling it.
Evidence
identification
viewing
tending
of Galindez also
of the photospread.
Shortly after
dated
July
20,
1992.
This
report
contains
no
physical description of
black
jeans.
he was
identification
whether
he had
provided the
investigating agent
with more
-23-
days
testified before
after
he
a grand jury
identified
Galindez,
Diaz
he recalled
months
he had
eyes, big
identified Galindez
he was
that when he
certain because he
would "never
mouth.
It then emerged on
cross
taken
contemporaneous
"rough
notes"
of
his
participation
in the
undercover operation.
been provided
to defense
These
had not
his request,
establish
the
the
suspect but Diaz could not recall any details other than
that
he was
black and
wearing a
some description of
black printed
tee shirt,
the first
black, with
brown
eyes, short
hair,
long neck,
heavy
____________________
7. The agent, Juan Dania, a six year veteran, testified that
it would have been his practice to report all descriptions
provided by the agents he interviewed.
-24-
eyebrows
and recessed
eyes, 5'
6-8" and
age 18-22.
Diaz
these
notes before
unable to
the
suppression hearing,
yet had
been
questioned by the
suspect as,
among other things, having a long neck and recessed eyes, and
that
several
weeks
investigating agent,
later
and
when
after reviewing
for
the
express
identification
at the
interviewed
purpose
suppression
those
by
the
notes,
he
testifying
hearing,
about
he
was
his
again
unable to recall any of their detail; and that when they were
finally revealed at
out to contain
in totality,
the circumstances
indicate a
he and Diaz
that
918
Although
mitigates
F.2d
at
susceptibility
263,
the
-25-
to
suggestiveness,
pre-viewing
conversation
below,
which
hoc doctoring
consider
the
improper
it creates a "very
irreparable misidentification."
677 (citations
"whether
under
omitted).
the
identification was
procedure was
199 (1972).
This
'totality
reliable
suggestive."
substantial likelihood of
De Jesus-Rios, 990 F.2d
_____________
prong of the
of
the
even though
Neil
____
test questions
circumstances'
the
at
the
confrontation
v. Biggers, 409
_______
U.S. 188,
Biggers, 409
_______
U.S. at
factors, we
had
distance of,
at best, 35
admitted his
subsequent viewing of
passenger
seat
of
the
Applying these
truck was
feet elevated.
He
the same
person in
the
somewhat
obstructed
--
-26-
although he claims
he recognized the
appearance --
fleeting, as
and
vehicle past
it
general
he
was
This
may
Second,
attentive.
Third, his
Montalvo
photograph,
just days
begins to
reported description
photospread.
several
he testified
Fourth, although it
minutes
to
that
he was
pick
out
only
Galindez's
confused because
he
remembered
down," whereas
the photo
very short
hair.
Finally, eight months elapsed between the crime and
the
identification.
identifications
after
the
8, 28
greater
but this
Court
See,
___
(1st Cir.
than
has allowed
occurred
has
considerably
identification.
F.2d
that have
crime,
strengthened
This
as much
been
the
photospread
as five
where
other factors
reliability
would ordinarily
years
of
the
Drougas, 748
_______
gap was
"very much
be permissible,"
but unlike
who
had
spent
considerable
time
he was
with
-27-
defendant).
a
had spent
half an
hour with
-28-
witness, a rape
her assailant,
light
Montalvo prior
alterations
of
the
to Montalvo's
in both
suspicion that
conversation
viewing
of their
between
Diaz and
the photospread,
subsequent
the
descriptions, the
were composed
the fact (and the ease with which the prosecutor could
was
Id. at 200.
___
In
after
least Montalvo's
district
negative weight of
the third,
and the
the jury.
B.
Was the Error Harmless Beyond a Reasonable
___________________________________________________
Doubt?
______
Next, we assess whether the district
was harmless beyond a reasonable
F.2d at
doubt.
court's error
De Jesus-Rios,
_____________
In overturning
990
a district
court's
finding
impermissibly
court has
what
that
suggestive,
pretrial
was
identification,
nonetheless
role
the impermissible
reliable,
this
uncertainty concerning
identification
played
in the
In De Jesus-Rios, as
_____________
identifications, and no
though
defendant to
-29-
the
crime.8
unreliable.
The
In ruling
court
found
only
one
identification
doubt, the court noted that it was possible that the jury had
relied significantly upon the unreliable identification.
The
court was "concerned that the jury may have been persuaded to
convict
identified
[the defendant]."
Id.
___
that the jury rested its decision to convict on the fact that
there were two identifications.
reasonable
doubt
that
the
We
district
court's
error
was
harmless.
V.
Delayed Discovery
V.
Delayed Discovery
____________________________
Rivera
challenges
the
admission
revealing calls
into
evidence
between his
line
argument below
____________________
8. The only other evidence linking Galindez to the crime are
Diaz's notes containing a description to which Galindez can
be matched. The notes cannot be credited.
-30-
Federal
Rules
defense by
of
Criminal
depriving him
Procedure9 and
prejudiced
of the opportunity
his
to investigate
the calls.
We
review
prejudicial
effect
of
district
a
failure
appeal.
126
L.Ed.2d
Prejudice
109
must be
court allowed
pre-trial
Fed.R.Crim.P.
proven to obtain
reversal on
act in
that no
that the
prejudice
121
agree.
related entirely
____________________
9.
the
(1993);
126
prejudice
provide
on
resulted.
to
ruling
147,
16(d)(2).
court's
The
to linking
him to the
proffers
conspiracy, for
which he was
no additional proof
acquitted, and
of prejudice on
appeal.
he
This
also
challenges
the
admission
of
this
by which
they were
for acquittal
the
challenge
evidence
to the
as
a view to whether a
convicted, having
trial court.
a whole,
the sufficiency
taking
of
the
made timely
On
appeal, we
"all
reasonable
have found
the
defendant guilty
beyond
a reasonable
doubt."
United
______
States v. Vargas, 945 F.2d 426, 427 (1st Cir. 1991) (internal
______
______
quotations omitted);
778 (1st
Cir.
1995) (No.
United States
_____________
v. Montas, 41
______
F.3d 775,
94-8798).
We
United States v.
_____________
4,
issues in
De Jesus Rios,
_____________
990
F.2d at 680.
A.
Galindez
_____________
Although
because of
an
we
are
erroneously admitted
awarding
allowed.
Galindez a
new
identification,
trial
it
is
-32-
viable identification.
this
identification
made
by the
agent
who
dealt
directly
and
closely,
if
briefly,
with
the
suspect,
was
and
convicted
possessing
of
conspiring
with the
intent
to
to
import,
distribute
952(a) and
violation of 21
U.S.C.
firearm during
violation of
843(b)
commission of
18 U.S.C.
the evidence on
to
offense in
and aiding
in the
all counts, we
the
a drug trafficking
respect
evidence
for
possession
with
of
attempts
to
place
sole
responsibility for
scheme,
was
alleging
that it
scope of
controlled
the crime
substance is
they, not
the border.
of importation.
a
he,
Pe a misinterprets
Importation
"continuous crime"
-33-
who actually
that is
of a
not
the
fact
involved at
their intended
destination.
Thus
physically
drugs reach
that
Pe a
the point of
him.
not
present
entry into
by this
and
the United
was
limits of
Court, we
are
offense."
government to show
(1st Cir.
1994).10
that firearms
evidence that
he used
__
v. Reyes-Mercado,
_____________
There
being no
Pe a claims the
or possessed
a drug
22
question
record lacks
a firearm, actually
or
asserting
____________________
10.
18 U.S.C.
-35-
escorted
the
drug-laden
truck
after
he
and
his
co-
government contends
on either
of two
Pe a's conviction
theories:
first, Pe a
aided and
weapons; second,
be held criminally
the
he can
can be
of the
accountable for
others
in
furtherance
of
their
joint
criminal
venture.
1180, 90
18 U.S.C.
as a
("one
who
procures
act as
aids,
abets,
counsels,
commands,
induces,
or
he
committed it
directly");
United States
______________
v.
as
the
law").
government
To prove
must show
the
____________________
11.
_____________
_____
1504, 1520 n.23 (6th Cir. 1985), cert. denied, 474 U.S. 1069,
_____ ______
106 S.Ct. 828, 88 L.Ed.2d 800 (1986).
-36-
defendant associated
way, acted so as to
and sought by
scheme in some
Cir.
1994).
Criminal
intent
accomplice
may be
be
convicted
586, 590-91
inferred
from
it about,
under
924(c)(1)
the
a firearm would be
used or carried
during a qualified
DeMasi, 40 F.3d
______
Cir. 1994);
v. Torres-Maldonado, 14
________________
United States
_____________
1306, 1316
(1st
F.3d 95,
___,
conspiracy, as
well as
and
of
firearms
narcotics
exchange
into
in connection
his
custody.
of $30,000 in cash
Pe a
of marijuana.
consisting of
followed
the
The three
transfer
himself
of the
directed
the
a truck containing
He then rode
in the van to
up his car.
A coordinated
truck, a
the
for keys to
with
Volvo
driven by
Pe a,
-37-
the
road
together, and
turned
observed talking
evidence
suggesting that
cellular phone
together
into the
truck's passenger
cellular telephones.
the van was
housing
There
also equipped
was
with a
be seen due
to its
darkened windows.
Finally, the
convoy
rational jury
to and
could conclude
provided security
that the
for the
van was
operation, and
arms, and
and that Pe a
immaterial
both knew of
to escape,
it.
It
is
if he was aware
or in relation to
or
be
they would
use during
at 1316,
to see it through.
is sufficient to support
the
the
transaction
would
be
secured
-38-
with
-39-
3.
Aiding and Abetting the Attempt to Kill
______________________________________________
the Agents
__________
The
government
contends
the
same
theories
of
avoid responsibility by
Pe a again seeks to
claiming innocence
the
occupants of
attempt
was
made
kill
There is
the
agents
and intent of
no question
during
that an
the
drug
attempt, or
Pe a that such
was reasonably
foreseeable to
in furtherance
of the conspiracy.
whether it
of the narcotics,
that Pe a was
in telephonic
and that
the ambush of
the agents
was
he benefitted by being
rational jury
therefore could
scene.
the evidence
showed his
desire
that
it
succeed, and
shared
the
The record
also
was
reasonably
firearms would be
used in the
supports
foreseeable
the
conclusion
to Pe a that the
that
it
-40-
successful completion
United States
_____________
of the
drug deal
was
560 (2nd
Cir.), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d
_____ ______
86 (1989).
Pe a's conviction on
nine
legitimate
businessman whose
He
claims he is but a
tangential involvement
in the
scheme was innocent and unknowing, and that the evidence does
not support the verdict.
Proof
of criminal
essential under 18
otherwise
could
973
knowledge and
inferred
U.S.C.
guilty
knowledge is
F.2d at
1010,
be swept
O'Campo,
_______
intent or
within the
F.2d 1015,
statute.
1020
furtherance of
from his
providing
(1st Cir.
1992).
Rivera's
to the
can be
conspirators,
money to help
truck
incident.
ended
reported
Although Rivera
stolen
after
the
could be
____________________
12. It is immaterial that the indictment neither
aiding and abetting nor referred to 18 U.S.C 2.
alleged
United
______
States v. Sanchez, 917 F.2d 607, 611 (1st Cir. 1990), cert.
______
_______
_____
denied, 499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991).
______
-41-
seen as the
innocent pursuit of
the
evidence
is
sufficient
to
sustain
Rivera's
conviction.
D.
Velazquez
_______________
Velazquez
for all
counts
challenges
for which
import marijuana
the sufficiency
he was
and cocaine
in
violation of 21
U.S.C.
convicted: conspiracy
in violation
of evidence
of
to
21 U.S.C.
952(a)
(count
three);
violation of 21 U.S.C.
and
use
of
telephone
in
1.
Conspiracy
_________________
Velazquez attacks his conviction on counts
five
by
claiming
conspiracies,
one
the
evidence
failed
effort
showed
before
two
his
one and
distinct
arrest
and
incarceration on
afterwards.
participation
concedes
in the
the
first,13 but
supports
argues that
his
the second,
____________________
13. Such
evidence
included
taped
meetings
with
a
confidential informant in which he participated in price
negotiations, discussions of secret code sheets, and made an
agreement to pay a certain sum for transportation of the
drugs, as well as evidence that he personally inspected a
U.S. Customs undercover vessel for its suitability for
shipment and provided marine charts and code sheets to others
-42-
ultimately successful
after
out only
claiming
was consummated,
participated in it.
the
one, was
it was impossible
this second
for him
to have
having
conceded the
sufficiency of
only because
he
concede,
and
bears
the district
time on appeal."
makes
argument
it
convict on
discuss
evidence to
an essentially
and three,
on the
question
which he
concerning
We
similar
did not
those
counts.
Whether multiple conspiracies existed is a question
of fact for the jury.
664,
8,
that
____________________
to assist their planning and execution of the deal.
-43-
only
have
showed
found that
that
all
intentionally
the
the
the substantive
their
found
common goal or
offense charged."
that
participated
they
joined
each other.
and
towards
the
overall plan' to
Bello-Perez,
___________
the
"knowingly
efforts
whole adequately
co-conspirators
'directed
accomplishment of a
evidence as
commit
977 F.2d at
conspiracy
together,
was the
after a
replacement of one
first botched
of the
attempt in
government's
March 1992.
The
does the fact that much more marijuana was imported than
in two.
codes were
The
issued for
security reasons.
There
is no
was a
single
conspiracy in
which Velazquez
clearly
played a part.
2.
Use of Telephone to Facilitate the Crime
______________________________________________
Section
communication
the
843(b)
makes
facility, such as
substances.
Velazquez
was
it
crime
a telephone,
to
use
to facilitate
as importation of controlled
convicted
of
one
count
of
-44-
violating
telephone
discussed
843(b) on the
conversation
details
basis of unrefuted
on
of
the
March
9,
1992,
importation
evidence of a
in
which
he
plans
with
He employs the
-45-
to
We find the
of
attacks his
convictions for
April 30,
participated
after
1992 made
that
by local authorities
it impossible
time,
and that
counts two
for him
evidence
to have
of
his
to
prove
his
guilt
beyond
reasonable
doubt
for
the
substantive counts.
The trial
Velazquez's motion
reconsidered.
court was
for acquittal
abetter."
actions
inclined to
sufficient to support
and
initially
counts, but
the evidence is
Velazquez
comprising counts
contends
two and
that
as an aider
all the
three were
his involvement
in any of
unlawful
committed by
grant
government
the elements
of
either offense.
With
Velazquez
fails
conspiracy.
of
acts
respect
Pinkerton,
_________
his
understand
importation
the scope
of
a conspiracy
of
to
to
is criminally
co-conspirators
328 U.S.
in
law
of
any illegal
furtherance
-46-
the
that a member
responsible for
committed
conviction,
Munoz,
_____
of it.
36 F.3d
1120 (1995).
Thus courts
___, 115
have held
himself.
were
not commit it
import
where he did
S.Ct. 185,
illicit narcotics
in which
conspiracy to
both Velazquez
and Pe a
substantive count of
cannot
make
the
same simple
assertion
with
intent to distribute,
conspiracy
to commit
given that he
this
offense.
again
____________________
14. Velazquez seems to make an argument that his arrest and
incarceration effectively removed him from the conspiracy.
Where membership in a conspiracy is proven, evidence of
simply ceasing one's activities in connection with it, for
whatever reason, is insufficient to constitute withdrawal.
Munoz, 36 F.3d at 1234. An affirmative step, such as a full
_____
confession to authorities or communicating to co-conspirators
abandonment of the enterprise and its goals, is required to
contends that because he was incarcerated at the time his coconspirators possessed
to
have been
in
possession himself,
of 21
U.S.C.
even
constructively,
841(a)(1),
nor could
he
2.
Evidence of Velazquez's association, participation,
and
active promotion of
others' possession of
the drugs is
with
a scheme
that
his possession
specifically designed
and distribution of
to
a substantial
amount of narcotics by
conversations to
refine details
of the plan,
attempting to
travel
to St.
supplying a
Maarten
to pick
up
one of
the
suppliers,
an undercover
Customs
set
of
secret
codes and
the narcotics
down,
and had
merely
as
participate in
device after
en route
jettison its
to Puerto
cargo,
facilitator
an
got lost
to
navigational
new
for
others
with
Rico,
and bringing
he was acting
no
intent
to
On the
-48-
contrary,
there was
evidence
that 2
kilograms of
cocaine
-49-
were
included
specifically
per
his request
and
intended
possession
and
distribution
could have
of the
concluded
drugs
were
the
conviction for
possession
by
possession by
his
at-large
an inmate
on the
co-conspirators
basis of
involved
calls
from prison to his cohorts between the time of his arrest and
their apprehension with a cache
his
apartment.
Cir. 1986).
possess
United States
_____________
Although
cocaine with
court reversed
his
v. Disla, 805
_____
conspiracy to
distribute was
conviction for
the
upheld, the
substantive
count,
incarceration could
not
abetting or a constructive
that
support either
an aiding
and
Id. at 1350-52.
___
____________________
15.
that an inference
that he assisted
the
The
Disla
_____
foreclosed
from considering
the requisite
previously
court was
noted,
instruction.
the
jury
Id. at
___
was
1350.
properly
not been
Here, as
instructed,
Pe a
and the
other
conspirators was
an
the drugs by
act committed
in
continuous
contraband reaches
crime
that
does
its destination.
not
cease
until
the
831 F.2d
final destination in
the
(citing cases).
this case, we
conspirators' taking
Whatever its
possession of
the marijuana-laden
in this
distribute
particular
large
case, possession
cache
of marijuana
incapable
of possessing the
his
conviction for
the
upon
See ante.
___ ____
with intent
to
committed
by
was
it is agreed
that he was
substantive count
can
nonetheless
stand.
-51-
VII.
Prosecutor's Conduct
VII.
Prosecutor's Conduct
______________________________
A.
Opening Statement and Presentation of the
___________________________________________________
Evidence
________
Appellants
creating
the
Rivera
impression
and Galindez
of
contend
"planned,"
that, by
"ambush
type
prosecutor
The crux
possible
aimed to
raise the
of their argument
verdict
is that
passions of
is that
of
by stating "the
guilty,
because of
point to
trial on the
the
the prosecutor's
they stood
They
the
the attempt on
suggest it was
agents.
emphasis throughout
the conspiracy
an
the
charged.
agents.
an element of
Neither
was
begin
by
restating
that it
arbiter of
the facts."
is
improper
to
v.
Appealing to the
to convict is error.
-52-
v. Young,
_____
L.Ed.2d 1 (1985)
17, 105
S.Ct.
to "do
470 U.S. 1,
separating improper
from
While the
behavior in
our
assume
without
deciding
that
to
the
extent
the
those
comments
warrant
F.3d at 574
new
trial,
(citing cases).16
We look
to the
the strength
of
(citing cases).
the evidence
against the
defendant.
Id.
___
We
new trial.
factors in this
case compel a
sustained and
not repeat
it.
No
remedial action
was
____________________
16. Although this line of authority derives from cases
recognizing deterrence of prosecutorial misconduct as an
additional basis for reversal, see United States v. Capone,
___ ________________________
683 F.2d
582, 586 (1st Cir.1982),
the Supreme Court
eliminated this option where the error is harmless. United
______
States v. Hasting, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979,
_________________
76 L.Ed.2d 96 (1983).
-53-
remark.
44 (although urging
it
was
unlikely
F.2d at
error, it was
that
not to
to have
had
lasting
effect.
so confused or
rationally evaluate
the charges
inflamed
and the
evidence.
B.
Misstatement of the Evidence in Closing
_____________________________________________
Galindez
and
materially misstated
Because we
Rivera
allege
the evidence
find Galindez
the
prosecutor
in his closing
deserves
a new
argument.
trial on
another
in which he suggested
of the two trucks
for Mr. Pe a
and advised him to report it stolen, and that these acts show
knowledge.
Rivera
Rivera's
points to
repeatedly
attorney did
the record
called Rivera
up
did
Rivera
not object.
which
about
he would
On
reveals that
his truck,
the owner
and only
return it as
suggest that
appeal,
after
soon as
it
if
the
owner
wasn't
review
for
plain
error.
objection,
we
-54-
Except
a
are uttered."
(1st
129
prosecutor's
usually object
closing
argument goes
"who believes
too
far
must
and as they
Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2714,
_____ ______
L.Ed.2d 840 (1994).
Absent objection it
seems fair to
evidence is
regardless
of
who
telephone number
unequivocal,
truck stolen.
and
Id. at 1187.
___
to use in
the stolen
vehicle report.
in obtaining a
and on the
and
we
do
not
condone
prosecutorial
not
prejudice Rivera's
a fair
trial.
See, id.;
___ ___
S.Ct. 107, 83
L.Ed.2d 51 (1984).
______
Suggesting
that a
pestering or
on
truck be
his
reported stolen,
own initiative,
could
whether after
amount
to
an
-55-
the
jury
coercion or duress.
on his
of
entrapment
defendant is entitled to
and
instruction
supports them.
United States v.
_____________
Rodriguez,
_________
___
A.
Entrapment
_______________
The
measured
by
yardstick."
elements:
defense,
the
time-honored
Id.
___
at
814.
(1) government
activity, and
___
engage
entrapment
like
sufficiency
Entrapment
inducement
Id. at
___
other,
"is
of-the-evidence
has
two
to engage
in such conduct.
any
essential
in criminal
of predisposition to
United States, 485 U.S. 58, 63, 108 S.Ct 883, 886, 99 L.Ed.2d
_____________
54 (1988)).
support
Defendant
both
elements.
When
viewed
in
evidence to
the
light most
reasonable doubt as to
create a
-56-
defendant
to
perform
criminal
act
that
he
was
not
him to
continue.
The
He
until then.
of
conspiracy at least
predisposition
element
and
was
ample
not
the lack
entitled
to
the
instruction.
B.
Coercion or Duress
_______________________
The
Pe a's
district
alternative
coerced
by
venture
which he
convince
defense
government
defendant must
out,
also
that
agents
wished to
denied
he
rational
juror
under
into continuing
abandon.
that
(1)
For this
he
instruction
acted
immediate threat of
had
court
on
duress,
criminal
defense, a
if believed,
to
acted
under
an
or death, (2)
he
would be carried
no reasonable opportunity
to escape or
____________________
17. Of course once defendant meets this entry-level burden,
the government must prove beyond a reasonable doubt that no
entrapment occurred. Rodriguez, 858 F.2d at 815 (collecting
_________
cases).
-57-
(1st
-58-
Pe a
that he
presented
refused to
his
own uncorroborated
continue negotiations to
agent
threatened
his
parents
testimony
consummate the
and that the
with
"the
other
remanded for a
_____________________________________________________________
affirmed.
________
-59-