United States v. DeLeon

• Court: Court of Appeals for the First Circuit
• Decided: July 19, 1999
• Docket: 98-2172
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2172



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                         RUBEN I. DELEON,



                      Defendant, Appellant.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



           [Hon. Francis J. Boyle, U.S. District Judge]

           [Hon. Ernest C. Torres, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                                

                 Noonan, Senior Circuit Judge,*

                                

                     Lynch, Circuit Judge.


Stephanie S. Browne, Assistant U.S. Attorney, with whom

Margaret E. Curran, U.S. Attorney, was on brief, for government.

     Angel Taveras, with whom Brown, Rudnick, Freed & Gesmer, was

on brief, for appellant.


July 19, 1999


*Of the Ninth Circuit, sitting by designation.


LYNCH, Circuit Judge.  After a successful sting

operation, the government charged Ruben I. DeLeon with conspiracy

to possess and distribute cocaine, in violation of 21 U.S.C.  846,

and the attempt to possess with intent to distribute cocaine, in

violation of 18 U.S.C.  841(a)(1).  DeLeon and his three co-

conspirators were tried together.  The jury convicted DeLeon and

two of his co-defendants, but acquitted co-defendant David Scialo

of all charges.  DeLeon now appeals his conviction and challenges

his sentence.  We affirm.

                                I

  In the fall of 1994, Rhode Island police detective Fred

Rocha met with Andrew Beagan, later DeLeon's co-defendant, to

arrange a large cocaine sales transaction.  They agreed that Rocha,

who was supplying the cocaine, would pick up a "drop car," load it

with ten kilograms of cocaine, drive it to an undisclosed location,

and then meet Beagan at a separate location to collect the payment. 

Detective Rocha delivered the car and contraband as planned and

then went to a Days Inn Hotel parking lot where he waited for

Beagan.  Beagan arrived with DeLeon, who was carrying the money for

the buy.  DeLeon brought the money to Detective Rocha and observed

Rocha as he inspected the money, which was bundled in packages of

$5,000.  As Detective Rocha examined the money, he conversed with

DeLeon and, unbeknownst to DeLeon, recorded their conversation. 

Meanwhile, co-defendants Charles Rogers and David Scialo were

retrieving the drop car and the cocaine.  All of the defendants

were soon arrested, indicted, and tried together.

                                II

  DeLeon has raised three objections to his conviction, and

one to his resentencing.  First, he says that the district court

abused its discretion by refusing to sever his trial from those of

his co-defendants, particularly Beagan, and that this error had a

significant prejudicial effect on him.  Second, he argues that the

court abused its discretion in allowing the jury to use an

unauthenticated transcript and translation of his recorded

conversation with Detective Rocha in the Days Inn parking lot. 

Third, he contends that the court abused its discretion by allowing

the government to conduct ex parte in camera interviews with two

jurors, nineteen months after his conviction, in order to further

investigate allegations of jury tampering as to co-defendant

Scialo.  Finally, DeLeon says that at resentencing the court

incorrectly believed that it lacked the authority to depart

downward (from the guideline sentencing range) on the basis of

DeLeon's status as a deportable alien, and so this court should

vacate his sentence and remand for resentencing.

A.  Denial of Severance Motions

  DeLeon argues that the district court abused its

discretion by refusing to sever his trial from those of his co-

defendants in light of the following three combined factors: first,

defense counsel's repeated inquiries, on direct examination, into

third-party "generalized fear" of Beagan's potential for violence;

second, the government's six references to Beagan's prior

conviction for possession of cocaine with intent to deliver --

evidence admitted in response to character evidence introduced on

Beagan's behalf; and third, the potential "spillover" prejudice to

DeLeon due to the significant disparity in both the nature and the

amount of evidence introduced against Beagan in comparison to that

introduced against DeLeon.  DeLeon moved to sever his trial on

several occasions; each time, his request was denied.  We review

the district court's denials of severance motions for manifest

abuse of discretion.  See United States v. Boylan, 898 F.2d 230,

246 (1st Cir. 1990).  We note that this court has already rejected

a similar claim made by co-defendant Charles Rogers.  See United

States v. Rogers, 121 F.3d 12, 16 (1st Cir. 1997).

  DeLeon's argument is that because his role in the drug

transaction was so minor, the jury should not have been asked to

assess his case alongside Beagan's case for fear that some

spillover prejudice might taint DeLeon's verdict.  See Fed. R.

Crim. P. 14 (stating that if a defendant is prejudiced by a joinder

for trial, then the court may order separate trials).  "The

difficulty with this argument lies in the case law holding to the

contrary."  United States v. Rawwad, 807 F.2d 294, 295 (1st Cir.

1986).  This court's rule is that those "who are indicted together

should be tried together," United States v. O'Bryant, 998 F.2d 21,

25 (1st Cir. 1993), and the district court's joinder in this case

appropriately followed that presumption.  See United States v.

Perkins, 926 F.2d 1271, 1280 (1st Cir. 1991) (noting the "obvious"

reasons to try jointly those persons charged as co-conspirators in

the identical cocaine sale, and citing Fed. R. Crim. P. 8(b)). 

DeLeon has not challenged this initial decision by the district

court.

  To overcome the district court's presumption in favor of

joinder, DeLeon must demonstrate prejudice so pervasive that it

would be likely to effect a miscarriage of justice.  See United

States v. Pierro, 32 F.3d 611, 615 (1st Cir. 1994); United States

v. Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991).  This requirement

means more than establishing that the defendant might have had a

better chance of acquittal in a separate trial.  See Zafiro v.

United States, 506 U.S. 534, 540 (1993).  "This is a difficult

battle for a defendant to win," Boylan, 898 F.2d at 246, and the

circumstances of this case do not equip DeLeon to meet the

challenge.

  DeLeon's best effort is his argument that he was severely

prejudiced when Beagan's counsel repeatedly inquired about

generalized third-party fear of Beagan's potential violence.  The

trial judge, after denying the severance motions filed by all the

co-defendants in response to Beagan's testimony, acknowledged that

he was "getting close to the point where [he was] seriously

considering [granting the motions]."  The judge conceded that

"these [references to third-party fear] are beginning to add up,"

and warned that "if it [didn't] stop," then he would grant the

severance motions.  DeLeon contends that if, at that point, the

court was already wavering, then the government's six subsequent

references to Beagan's prior conviction -- and the additional

potential prejudice they carried -- should have driven the court to

grant the severance motions.

  At bottom, this is simply a disagreement with the

district court's exercise of its considerable discretion.  See

Boylan, 898 F.2d at 246 (stating that the decision whether to grant

or deny a severance motion is committed to the district court's

discretion).  Significant deference is given to a district court's

decision to deny a severance motion.  See Rogers, 121 F.3d at 16. 

That the decision was apparently a close one for the district court

does not divest the district court of its discretion or permit this

court to examine more closely the exercise of that discretion. 

See O'Bryant, 998 F.2d at 25-26 ("[T]he district court is best able

to gauge matters of joinder and severance because its first-hand

exposure to a case gives it a unique ability to evaluate

conflicting arguments, . . . consider all the ramifications

attendant to a defense motion, and strike the delicate balance

between fending off prejudice, on the one hand, and husbanding

judicial resources, on the other hand.").

  Our case law supports the court's decision in this case. 

There is, of course, the ever-present risk of prejudice in such

joint trials.  Cf. Zafiro, 506 U.S. at 539 (explaining that "[w]hen

many defendants are tried together in a complex case and they have

markedly different degrees of culpability, this risk of prejudice

is heightened") (emphasis added).  DeLeon has emphasized this

potential for prejudice in his case, but "ha[s] failed to show

anything greater."  United States v. Cresta, 825 F.2d 538, 555 (1st

Cir. 1987); see also Boylan, 898 F.2d at 246 ("Even where large

amounts of testimony are irrelevant to one defendant, or where one

defendant's involvement in an overall agreement is far less than

the involvement of others, we have been reluctant to secondguess

severance denials.").

  Furthermore, the district court took appropriate measures

to safeguard against potential spillover prejudice by instructing

the jury to consider separately the charges and the evidence as to

each defendant.  See Rogers, 121 F.3d at 16 (acknowledging the

district court's instruction that the jury should consider

separately the evidence and charges against each defendant);

Boylan, 898 F.2d at 246 (approving the district court's use of

"appropriate limiting instructions" as to evidence against

particular defendants); Cresta, 825 F.2d at 555 (same).

  Co-defendant Scialo's acquittal on all charges suggests

that the jury was capable of following the trial judge's

instructions and did so.  See Pierro, 32 F.3d at 616 ("Here, there

is no basis to suppose that the jurors disregarded the trial

judge's admonitions and departed on a frolic of their own."); see

also Cresta, 825 F.2d at 555; Boylan, 898 F.2d at 246; United

States v. Tashjian, 660 F.2d 829, 834 (1st Cir. 1981).

B.  Use of Unauthenticated Transcript and Translation

  During Detective Rocha's testimony at trial, the

government asked him to relate his conversation with DeLeon in the

Days Inn parking lot.  The government also introduced a tape

recording of their conversation.  To help the jury follow the

conversation, which was conducted in both Spanish and English, the

government provided an unauthenticated transcript and translation. 

The district court gave the transcript to the jury as an aid and

properly instructed the jury that the recording, not the

transcript, was the evidence.  See United States v. Ademaj, 170

F.3d 58, 65 (1st Cir. 1999).  The court did not admit the

transcript into evidence.  At that time, DeLeon did not challenge

the accuracy of the transcript or object to its use as a jury aid.

  During its deliberations, the jury asked the court for a

translation of the Spanish portions of the tape-recorded

conversation.  The trial judge, with the agreement of all counsel,

denied this request.  The jury then sought permission to listen to

the tape recording for a second time, and the court granted its

request.  During this playback of the tape recording, the court

gave the government's transcript to the jury for use as an aid and

repeated its earlier instruction that the recording, not the

transcript, constituted the evidence in this case.  At this point,

DeLeon raised his first objection to the use of the transcript as

a jury aid during the jury's deliberations, albeit in the courtroom

and while listening to the tape recording.  (Because the transcript

was not in evidence, the court never sent it into the jury room.) 

His objection was overruled.  Reiterating his challenge on appeal,

DeLeon admits that he should have raised this objection at the

first use of the transcript at trial and acknowledges that this

failure elevates his legal hurdle here to plain error review. 

See United States v. Martinez, 83 F.3d 371, 376 n.5 (11th Cir.

1996) (finding that defendant's objection to testimony as

excludable hearsay was untimely because it came after the defense

had rested, and reviewing trial court's decision for plain error);

cf. United States v. Tse, 135 F.3d 200, 209 (1st Cir. 1997)

(stating that failure to object when a conversation was introduced

into evidence did not preserve issue for appeal even though the

defendant objected at the close of the evidence to a transcript of

the conversation being given to the jury, and reviewing the

admission of the statements for plain error).  DeLeon asserts that

he has met the "plain error" standard.  He has not.

  To warrant a reversal of his conviction, DeLeon "must

show: (1) the occurrence of an error; (2) that the error is obvious

or clear under current law; and (3) that the error substantially

and adversely affect[ed] [his] rights . . . ."  United States v.

Roberts, 119 F.3d 1006, 1014 (1st Cir. 1997) (citing United States

v. Olano, 507 U.S. 725, 732-34 (1993));  see also Fed. R. Crim. P.

52(b).  Because the use of a transcript as a jury aid is within the

sound discretion of the trial judge, see United States v. Font-

Ramirez, 944 F.2d 42, 48 (1st Cir. 1991), DeLeon must show that the

judge's discretionary decision was "an error."  He struggles

unsuccessfully to meet even this first requirement.

  On appeal, he argues that the district court's decision

to provide the jury with an unauthenticated transcript and

translation was erroneous per se.  This court has acknowledged the

importance of ensuring that a transcript offered for use as a jury

aid be authenticated "by testimony as to how they were prepared,

the sources used, and the qualifications of the person who prepared

them."  United States v. Carbone, 798 F.2d 21, 26 (1st Cir. 1986);

see also United States v. Rengifo, 789 F.2d 975, 983 (1st Cir.

1986).  It is, unfortunately, clear that the transcript at issue

here was not subjected to this procedure.  It is equally clear,

however, that DeLeon expressed no concern about this fact when the

transcript was first introduced.  And while we have urged district

courts to obtain a stipulated transcript or to rule on the

admissibility of a transcript before the start of trial, that

suggestion "presupposes a timely objection to a transcript by one

of the parties."  Font-Ramirez, 944 F.2d at 48 (emphasis added). 

We will not require trial judges to screen transcripts and to make

objections where the parties themselves have raised none; we leave

such legal advocacy to counsel.  See United States v. Mazza, 792

F.2d 1210, 1226 (1st Cir. 1986) (rejecting an absolute rule that

would require trial judges to review transcripts whenever the

parties fail to stipulate to their accuracy).

  DeLeon provided no alternative transcript for the jury's

benefit, nor did he object to the use of the transcript at trial,

although he argued that there was a material inaccuracy in the

transcript (a contention that he barely mentions in his brief to

this court).  Under these circumstances, we hold that the district

court's decision to allow the use of the transcript, without

sending it into the jury room, was well within its discretion and

was not error, much less plain error.  See Ademaj, 170 F.3d at 65

(finding no abuse of discretion in the trial judge's decision to

permit the use of the government's duly authenticated transcript

during jury deliberations where defendant objected to its use at

trial, but raised no specific objections to its accuracy and did

not offer an alternative transcript); Pion, 25 F.3d at 21, 26-27

(noting the defendant's failure to offer an alternative

transcript); Carbone, 798 F.2d at 26 (emphasizing that the

defendant made no specific objections during the course of the

trial to the English translation transcripts); cf. Rengifo, 789

F.2d at 983 (finding no abuse of discretion in sending duly

authenticated transcript into jury room where the defendant

provided no alternative transcript).

C.  Ex Parte Interview During Jury Tampering Investigation

  In December 1996, nineteen months after DeLeon's

conviction, the government sought the district court's permission

to interview two of the jurors in order to further its

investigation into allegations of jury tampering during the trial. 

The allegations pertained to co-defendant David Scialo, who was

acquitted of all charges.  The court allowed the government to

conduct the interviews, which were transcribed for the record.  At

the beginning of each interview, the court noted for the record

that it had not yet notified defense counsel of the proceedings in

order to avoid compromising the government's investigation.  After

the interviews were completed, the court sent transcripts of the

interviews to defense counsel.

  DeLeon finds two faults with the district court's method. 

First, he says that the district court's failure to invite defense

counsel to the interviews constituted an abuse of discretion. 

Second, he argues that the district court's inquiry during that

"hearing" was inadequate.  Because DeLeon has lodged his first

protest regarding this procedure with this court, rather than with

the district court, he has waived his objections and we review the

district court's actions for plain error.  See Pion, 25 F.3d at 21.

  DeLeon has not established that the district court's

method was plainly erroneous or even an abuse of discretion.  See

Roberts, 119 F.3d at 1014 (describing the "plain error" standard). 

"When a colorable claim of jury misconduct surfaces, the district

court has broad discretion to determine the type of investigation

which must be mounted."  Boylan, 898 F.2d at 258; see also United

States v. Ortiz-Arrigoitia, 996 F.2d 436, 442 (1st Cir. 1993).  The

trial judge's "primary obligation is to fashion a responsible

procedure for ascertaining whether misconduct actually occurred and

if so, whether it was prejudicial."  Boylan, 898 F.2d at 258

(emphasis added).  DeLeon argues that the procedure constituted an

abuse of discretion because defense counsel was not invited to the

interviews.  He relies on Remmer v. United States, 347 U.S. 227

(1954), in which the Supreme Court held that "[t]he trial court

should not decide and take final action ex parte on information

[such as the offering of a bribe to a juror], but should determine

the circumstances . . . in a hearing with all interested parties

permitted to participate."  Id. at 229-30.

  We have consistently reaffirmed that a model inquiry into

jury tampering allegations should include the presence of all

counsel or prior consultation with counsel in order to allow

counsel to help guide the questioning.  See, e.g., United States v.

Cruz, 156 F.3d 22, 28 (1st Cir. 1998), cert. denied, 119 S. Ct.

1781 (1999); United States v. Hunnewell, 891 F.2d 955, 961 (1st

Cir. 1989); Tavares v. Holbrook, 779 F.2d 1, 2-3 (1st Cir. 1985). 

But we have also recognized that "[t]he trial judge is not . . .

shackled to a rigid and unyielding set [of] rules and procedures

that compel any particular form or scope of inquiry."  Ortiz-

Arrigoitia, 996 F.2d at 442.  This rule is both necessary and

sensible "[i]n light of the infinite variety of situations in which

juror misconduct might be discerned and the need to protect jurors

and the jury process from undue imposition."  Id. at 443; see also

Boylan, 898 F.2d at 258.

  The first condition necessary to trigger a hearing is the

existence of a non-frivolous claim of jury tampering.  See Boylan,

898 F.2d at 258.  The trial judge in this case, finding himself in

a difficult position, erected a framework to determine whether this

threshold requirement had been met.  The judge's procedure allowed

the government to examine the validity of the allegations

(allegations which, of course, had to be pursued), maintained the

integrity of the government's investigation, provided prompt notice

of the inquiry and its substance to defense counsel, and protected

the jury process from undue imposition.  This was not a full-blown

hearing to assess the potential prejudice on the jury; this was a

preliminary inquiry that revealed that there was, in fact, no

colorable claim.

  To accept DeLeon's argument that the district court

abused its discretion here would mean that an ex parte interview

during such a preliminary inquiry necessarily constitutes an abuse

of discretion.  Our decision in Mahoney v. Vondergritt, 938 F.2d

1490 (1st Cir. 1991), suggests otherwise.  "Eleven days after a

Massachusetts jury found Matthew Mahoney guilty of manslaughter, a

juror sent the judge a letter suggesting that other jurors may not

have confined their deliberations to the evidence presented at

trial."  Mahoney, 938 F.2d at 1491.  The judge sent a copy of the

letter to counsel for both sides and agreed to interview the juror,

but rejected defense counsel's request to attend the interview. 

See id.  After interviewing the juror, the judge "found beyond a

reasonable doubt that no extraneous prejudicial information or

improper actions occurred during the deliberations."  Id.  The

defendant then filed a writ of habeas corpus claiming that the

court had violated his Sixth Amendment right to counsel by refusing

to allow his lawyer to be present at the juror interview.  See id.

  We held that the juror's "unfocused, unsworn assertions

demanded no more than the preliminary inquiry that the judge agreed

to conduct."  Id. at 1492.  "The judge was responsible for

shielding the jury's deliberative process from unnecessary

scrutiny, and his decision to conduct a private inquiry to

determine if there was anything justifying further intrusion fell

well within his discretion."  Id. (citing United States v. Calbas,

821 F.2d 887, 896 (1st Cir. 1987) ("The court wisely refrained from

allowing the inquiry to become an adversarial evidentiary hearing,

so as to minimize intrusion on the jury's deliberations.")); see

also United States v. Beeler, 648 F.2d 1103, 1103 (6th Cir. 1981)

(per curiam) (upholding district court's refusal to allow counsel

to inspect post-trial letter from juror to judge);  United States

v. Parker, 549 F.2d 998, 1000 (5th Cir. 1977) (finding no abuse of

discretion where district court conducted "an investigation in

which only the judge interrogated those concerned").

  DeLeon's reliance on Remmer does not help him.  As we

explained in Mahoney, Remmer "involved a specific claim of juror

bribery that obviously warranted [a] thorough investigation." 

Mahoney, 938 F.2d at 1492-93.  In Mahoney, the judge was faced with

vague and impressionistic concerns about impropriety, see id. at

1491-93; in the case at hand, the judge was faced with feeble and

unsubstantiated allegations of tampering.  We think the same

concerns of unreliability pervade both situations, and so in this

case, "a Remmer-like hearing would have been premature."  Id. at

1493.

  The district court's method of investigation was a

practical and common sense solution to a difficult problem.  We do

not retreat, of course, from our customary insistence that district

courts involve all interested parties in a jury tampering or

misconduct hearing.  But the juror interviews here constituted a

preliminary inquiry, not a "Remmer-like" hearing, and involved the

unusual circumstance where the continued integrity of that inquiry

was the sole reason for the exclusion of defense counsel.  Under

these circumstances, we find that the court's actions were well

within its discretion and were not plainly erroneous.

  DeLeon has also failed to demonstrate how this procedure

substantially and adversely affected his rights.  See Roberts, 119

F.3d at 1014.  The government's inquiry did not involve DeLeon; it

involved his co-defendant, Scialo, who was acquitted.  DeLeon does

not explain, and it is hard to imagine, how the government's

inquiry could have adversely affected him (given that he was

convicted and the tampering allegations involved threats designed

to induce an acquittal).  See United States v. Doherty, 867 F.2d

47, 71-72 (1st Cir. 1989) (holding that judge's ex parte

conversation with, and excusal of, a juror who was in the middle of

a crisis did not require a retrial even though judge acknowledged

that the unilateral nature of his decision was wrong, because the

decision did not substantially prejudice the appellants).

D.  Resentencing

  DeLeon's final argument is that on resentencing (after

his original sentence was vacated because his counsel had failed to

appeal) the district court incorrectly believed that DeLeon's

status as a deportable alien was not a valid basis for a downward

departure.  DeLeon asks us to vacate his sentence and remand for

resentencing.

  It is well settled that "no appeal lies from a

discretionary refusal to depart" from the Sentencing Guidelines. 

United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995). 

Appellate jurisdiction does attach, however, "where the record

indicates that the trial court's failure to depart was the product

of a mistake of law."  United States v. Grandmaison, 77 F.3d 555,

560 (1st Cir. 1996).  "When determining whether the sentencing

court merely refused to exercise its discretionary power to depart,

we consider the totality of the record and the sentencing court's

actions as reflected therein."  Morrison, 46 F.3d at 130.  "We do

not consider any single statement in a vacuum."  Id. at 131.

  The trial judge believed that a defendant's status as a

deportable alien could not constitute a basis for a downward

departure.  We have not yet decided that question, and we need not

do so now.  The trial judge also explained that even if he did have

the power to depart, he could not find facts sufficient to justify

such a departure.  This finding is clearly a discretionary refusal

to depart.  Such an alternative finding suffices to support the

sentence and deprives this court of jurisdiction to review it. 

See United States v. Williams, 898 F.2d 1400, 1403 (9th Cir. 1990);

cf. Grandmaison, 77 F.3d at 565 (noting that ambiguity in a trial

judge's statements, without more, is not enough to make the

district court's refusal to depart appealable).  Because the trial

judge indicated his refusal to depart even if he had the authority,

we have no jurisdiction to review his sentence.  See United States

v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991).

  The judgments of conviction and sentence are affirmed.