United States v. Garcia

• Court: Court of Appeals for the First Circuit
• Decided: October 22, 1992
• Docket: 92-1490
• Status: Published

Opinion

USCA1 Opinion

October 22, 1992    UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                _____________________

        No. 92-1490

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                                     JUAN GARCIA,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

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

                                 Breyer, Chief Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                                 ____________________

            James T. McCormick with  whom McKenna & McCormick was on brief for
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        appellant.
            Zechariah  Chafee,  Assistant United  States  Attorney,  with whom
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        Lincoln C. Almond, United States Attorney, was on brief for appellee.
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Per  Curiam.   Appellant Juan  Garcia challenges  on two
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            grounds  his conviction, following a jury trial in the United

            States District Court  for the District of  Rhode Island, for

            distribution  and  conspiracy   to  distribute  cocaine,   in

            violation  of  21 U.S.C.      841(a)(1),  846.   Garcia  also

            challenges the  district court's  upward departure  under the

            Sentencing  Guidelines.     Finding  no  merit   to  Garcia's

            contentions, we affirm.

                 The  principal  witness  against  Garcia  at  trial  was

            Detective Bonnie Lovell of the Providence Police  Department.

            Detective  Lovell testified as follows.  On July 4, 1991, she

            was  working in  an undercover  capacity.   She drove  to 129

            Moore  Street in  Providence,  Rhode Island,  to meet  Carlos

            Eduardo Pardo, from whom she  intended to purchase a quantity

            of  cocaine.    Detective  Lovell  was  wearing  a  concealed

            microphone  device that transmitted  to a nearby surveillance

            team. 

                 Pardo  was waiting  outside his apartment  building when

            Detective Lovell  arrived.  Detective Lovell  told Pardo that

            she was interested in purchasing cocaine.  Pardo asked her to

            drive  him in her car to a nearby public telephone, which she

            did.   Pardo got out of  the car, made a  telephone call, and

            re-entered the  car, after which Detective  Lovell drove back

            to  the apartment  building.   Soon  thereafter,  a gray  car

            arrived and parked nearby.  Garcia was at the wheel and there

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were no other persons in the car.  Pardo left the detective's

            car  and  went  to   speak  with  Garcia.    After   a  brief

            conversation,  Garcia  drove  off,  and  Pardo  returned   to

            Detective Lovell's car.

                 Pardo  remained  in  Detective  Lovell's   car  awaiting

            Garcia's  return.   When Garcia  returned about  five minutes

            later, he and Pardo got out of their respective cars and  met

            on the front porch of  the apartment building, about  twenty-

            five  to thirty feet from  where Detective Lovell  sat in her

            car.   Detective  Lovell saw  Garcia hand  a small  object to

            Pardo, although  she could  not see exactly  what the  object

            was.

                 Pardo then  returned to Detective Lovell's  car with the

            object in his right hand, and told Detective Lovell to follow

            him  into the building.  Detective Lovell and Pardo went into

            Pardo's apartment, where  Pardo handed her the object that he

            had  been holding in  his right hand,  which Detective Lovell

            observed  to  be  a plastic  bag  containing  a  white powder

            resembling cocaine.   The  plastic bag, upon  later analysis,

            was  shown to contain  a mixture or  substance weighing 35.83

            grams  and   containing  a  detectible  amount   of  cocaine.

            Detective Lovell testified that she did not take her eyes off

            this object  from the time  Garcia handed it to  Pardo to the

            time  Pardo handed  it  to  her.    Upon  receiving  the  bag

            Detective Lovell stated, "Is  this stuff as good as  the last

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stuff?"  This was  a pre-arranged signal to  the surveillance

            team, which then entered the apartment and arrested Pardo.

                 Detective  Michael   Purro,  a  member   of  the  nearby

            surveillance team, also testified  at trial.  Detective Purro

            testified that he  observed Garcia leave the  scene after the

            first  meeting with  Pardo  and drive  to a  nearby apartment

            building.   There,  Garcia got  out of  his car,  entered the

            building,  returned a short time  later, got back  in his car

            and  returned to  the front  of Pardo's building.   Detective

            Pardo  also  testified  that, at  the  same  time that  other

            members  of the  surveillance team  entered the  apartment to

            arrest  Pardo,  Detective  Purro  pulled  alongside  Garcia's

            vehicle, held  up his detective's badge  and yelled "Police!"

            Garcia immediately began backing down  the street, but he was

            quickly stopped by police officers and arrested.  

                 Pardo and Garcia were indicted jointly but Pardo pleaded

            guilty  prior  to  trial.    Garcia,  as earlier  noted,  was

            convicted  following a  trial  by  jury,  and  he  was  later

            sentenced to a  term of  imprisonment of thirty  months.   In

            this appeal, Pardo attacks the sufficiency of the evidence, a

            remark  made by the prosecutor  relating to a  fact not later

            supported by  evidence, and the calculation  of his sentence.

            We address each issue in turn.

                 First.     Garcia   contends  that   Detective  Lovell's
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            testimony  was  inherently incredible  and,  accordingly, the

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district  court  should have  granted  his motion  for  a new

            trial.   He  contends that  Detective  Lovell must  have been

            lying  when she testified that  she kept her  eyes on Pardo's

            right  hand  and the  object he  was  holding for  the entire

            period from the time  the object was received from  Garcia to

            the time it was  handed over to the detective.   According to

            Garcia,   this  testimony  "defied  physical  laws,"  because

            Detective  Lovell's vision  of Pardo's  right hand  must have

            been  obstructed at  several  junctures, such  as when  Pardo

            entered  and  exited the  car in  which Detective  Lovell was

            seated.  

                 Garcia  also argues  that  Detective Lovell's  testimony

            contained inconsistencies on certain  issues (such as whether

            Pardo and Garcia met  on the porch of the  apartment building

            or  in the driveway) as  well as descriptions  of events that

            are  inherently  unbelievable.    As  an  example,  he  cites

            Detective  Lovell's testimony  that,  as Pardo  and she  were

            exiting  her  vehicle,   she  whispered  directions   to  the

            surveillance team through the  hidden microphone just  before

            going up to  Pardo's apartment.   Taking all  of the  alleged

            flaws  in the  testimony  together, Garcia  contends that  no

            reasonable jury could  credit Detective  Lovell's version  of

            events.

                 While these  arguments were appropriate  during Garcia's

            closing  argument to the jury, they have little force on this

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appeal.      "It  is   axiomatic  that,   absent  exceptional

            circumstances,  issues  of  witness  credibility  are  to  be

            decided  by  the jury  .  .  .  .   In  general,  conflicting

            testimony  or a question as  to the credibility  of a witness

            are not sufficient grounds for granting a new trial."  United
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            States  v.  Kuzniar,  881  F.2d  466,  470  (7th  Cir.  1989)
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            (citations omitted).   Courts  have recognized  an "extremely

            narrow"  exception to this  general rule:   Where a witness's

            testimony is  material and is so  inherently implausible that

            it could not be  believed by a reasonable juror,  a court may

            grant a  new trial.  Id. at 470-71.  This determination is to
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            be made, in the first instance, by the trial judge, who is in

            a  far better position to assess the credibility of a witness

            than an appellate court.      In    this    case,    Garcia's

            "incredibility" argument was expressly rejected  by the trial

            judge when  he denied  Garcia's post-trial  motion for a  new

            trial.   At the hearing on Garcia's motion, the judge stated,

            "[I]n this case . . .  I see no evidence of any misstatements

            by any of the witnesses and there is more than ample evidence

            to  support the verdict."  The trial judge's determination in

            this  regard is  not  to be  overturned  absent an  abuse  of

            discretion, see  United States v. Rodriguez, 738  F.2d 13, 17
                        ___  __________________________

            (1st Cir. 1984); United States v. Thornley, 707 F.2d 622, 626
                             _________________________

            (1st  Cir. 1983), and we  certainly find no  such abuse here.

            Detective Lovell's testimony that she kept her eye on Pardo's

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hand during the entire sequence of  events was not inherently

            incredible.  She was  working in an undercover capacity  on a

            drug  buy  and  had  just observed  an  individual  hand  the

            suspected seller a small package.  It is not implausible that

            Detective Lovell would  keep her eye on  the package; indeed,

            one would expect her to  do just that.  Even if  the hand and

            its  contents disappeared  from her  view for  a  few seconds

            during the sequence of events, the jury could reasonably have

            viewed Detective Lovell's testimony on this point as innocent

            exaggeration in a detail, but essentially true. 

                 As  for the alleged  inconsistencies, Detective Lovell's

            testimony was entirely consistent  as to the general sequence

            of  events.   There are some  minor discrepancies  within her

            testimony, and  between her  testimony and the  transcript of

            the surreptitious recording, as to the exact location of some

            of  these   events.     Garcia  was   free  to  bring   these

            inconsistencies   to  the  jury's   attention  during  cross-

            examination and  in closing argument.   The jury  was equally

            free to  view  them  --  as  the jury  evidently  did  --  as

            relatively insignificant discrepancies which did  not detract

            from the substance of the overall testimony.  

                 Second.  During opening  argument, the prosecutor made a
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            single reference  to the  fact that  the evidence  would show

            that, at the time of Garcia's arrest, several hundred dollars

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in cash was recovered  from his person.1  At  trial, however,

            the 

            government introduced  no evidence  that cash was  taken from

            Garcia upon his arrest.  Garcia argues that the  prosecutor's

            remark was  prejudicial error.   We agree that  the reference

            was  error, but we conclude  that any objection  to the error

            was waived and was, in addition, harmless beyond a reasonable

            doubt.  

                 At the outset, we note that Garcia raised this issue for

            the first time in his motion for a new trial.  His failure to

            raise the issue at the close of the government's case -- when

            it  became apparent  that  the government  had introduced  no

            evidence to  support its  reference  to cash  in the  opening

            statement   --  deprived   the  court   of  the   opportunity

            specifically to  instruct the  jury to ignore  the reference.

            As  it happens, the district court did instruct the jury that

            arguments of  counsel  are not  evidence, and  that the  jury

            should consider only the  testimony of witnesses and exhibits

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                 1Garcia argues  that the prosecutor repeated  during his
            closing argument the allegation that  money was seized at the
            arrest.  We have  examined the transcript of the  closing and
            reach a  different conclusion.  Refuting  any suggestion that
            the police  had tailored  their testimony to  convict Garcia,
            the prosecutor said  that the  police -- "if  they wanted  to
            cook up  a case" -- could  have said that Garcia  was seen to
            exchange money for drugs with Pardo.  We do not  believe that
            this statement  would be  understood as suggesting  that cash
            was in fact taken from Garcia at the time of his arrest.

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introduced into evidence.   If Garcia  wanted a more  pointed

            reference, it was his responsibility to ask for it.

                 Furthermore,  we  regard the  error  as  harmless.   The

            evidence  of  guilt, including  Detective  Lovell's chain-of-

            custody observation and Detective Purro's testimony regarding

            Garcia's attempt to flee, was overwhelming.  The prosecutor's

            reference  to the  money in  the opening  was very  brief and

            nothing was said on the  subject in closing.  Nor do  we have

            any  reason to believe the remark was a deliberate attempt to

            mislead  the  jury.2   For these  reasons, we  conclude that,

            even  apart from  waiver of  the objection,  the prosecutor's

            isolated  remark would not warrant  a new trial.   See United
                                                               ___ ______

            States  v. Sutherland,  929 F.2d 765,  775 (1st  Cir.), cert.
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            denied, 112 S. Ct. 85 (1991).
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                 Third.    It  is  undisputed  that  at  the time  Garcia
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            committed the offenses in this case, there was an outstanding

            bench warrant for  his arrest  for failure to  appear in  New

            York state court on  then-pending charges of possession of  a

            controlled substance.  This fact did  not directly affect the

            calculation of Garcia's criminal history under the Sentencing

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                 2At oral argument, government  counsel, who was also the
            prosecutor  at  trial,  explained  that  he  elected  not  to
            introduce evidence  that $336 dollars was  seized from Garcia
            because he concluded that he had no evidence directly linking
            the money  to the  transaction observed by  Detective Lovell.
            As to the existence of the money, both  the police report and
            the  government's  pre-trial   discovery  letter  to  defense
            counsel noted that $336 was seized from Garcia at the time of
            his arrest.

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Guidelines,  because the  criminal history  calculation takes

            into account  only criminal convictions.   However, the trial

            judge  departed upward  pursuant to  U.S.S.G.    4A1.3, which

            states, in pertinent part:

                 If reliable information indicates that the criminal
                 history  category does  not adequately  reflect the
                 seriousness  of  the   defendant's  past   criminal
                 conduct or  the likelihood that  the defendant will
                 commit  other  crimes,   the  court  may   consider
                 imposing  a sentence  departing from  the otherwise
                 applicable  guideline range.   Such information may
                 include,  but  is   not  limited  to,   information
                 concerning:

                      (d)  whether  the  defendant was  pending
                      trial, sentencing, or  appeal on  another
                      charge   at  the  time   of  the  instant
                      offense[.] 

                 The trial  judge elected,  based upon this  provision in

            the  guidelines,  to  depart  upward  from  Criminal  History

            Category I  to Criminal History Category  II, which increased

            the sentencing range from  twenty-one to twenty-seven  months

            to twenty-four to thirty months.   The judge sentenced Garcia

            to the maximum thirty  months.  Garcia has not  suggested any

            plausible reason why this  was error, and we can  conceive of

            none.  See United States v. Hernandez, 896 F.2d 642, 645 (1st
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            Cir. 1990)  (upholding upward departure  where an individual,

            already on bail or otherwise charged with a criminal offense,

            commits a separate offense).

                 For the foregoing reasons,  the judgment of the district

            court is affirmed.
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