United States v. Hernandez

• Court: Court of Appeals for the First Circuit
• Decided: March 17, 1997
• Docket: 95-1328
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 95-1328



                                    UNITED STATES,



                                      Appellee,



                                          v.



                             RAMBERTO HERNANDEZ, AKA RAM,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jos  Antonio Fust , U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
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                            Coffin, Senior Circuit Judge,
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                           and DiClerico,* District Judge.
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                                _____________________



               H.  Manuel  Hern ndez,  by  Appointment of  the  Court,  for
               _____________________

          appellant.

               Jos   A. Quiles-Espinosa,  Senior  Litigation Counsel,  with
               ________________________

          whom  Guillermo Gil,  United States  Attorney, and  Nelson P rez-
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          Sosa,  Assistant  United  States  Attorney,  were  on  brief  for
          ____

          appellee.


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                                    March 17, 1997

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          *  Of the District of New Hampshire, sitting by designation.



TORRUELLA, Chief Judge.   Defendant-appellant  Ramberto
                    TORRUELLA, Chief Judge.
                               ___________



          Hern ndez was  convicted of  (1) conspiring  with five  other co-



          defendants  to possess with the intent to distribute in excess of



          five  kilograms of cocaine in  violation of 21  U.S.C.   846; and



          (2)  along with  three other  co-defendants, aiding  and abetting



          each  other in  knowingly and intentionally  distributing twenty-



          nine  kilograms of cocaine in violation of 21 U.S.C.    841(a)(1)



          and   841(b)(1)(B)  and  18  U.S.C.     2.    Hern ndez  appeals,



          challenging the sufficiency of the evidence and claiming that his



          Sixth  Amendment rights to confrontation and to a fair trial were



          denied because the government was  permitted to convict him based



          on the  uncorroborated testimony  of a single  unindicted alleged



          coconspirator, William Negr n-Zapata  ("Negr n-Zapata"), who  was



          awaiting sentencing in another case.  We affirm.



                    At  trial  Negr n-Zapata  testified  as  follows.    He



          received   a  call   from  Willie   Maya-Acosta  ("Maya-Acosta"),



          inquiring whether Negr n-Zapata knew  of any kilograms of cocaine



          available for  purchase.  Negr n-Zapata, in  turn, contacted Jos 



          Luis V lez-Carrero ("V lez-Carrero").  On October 27, 1991, Maya-



          Acosta  delivered $290,000  to  Negr n-Zapata.   Later that  day,



          V lez-Carrero and  Negr n-Zapata went to  a fish market  owned by



          appellant  Hern ndez  and   delivered  $261,000  to   Hern ndez.1



          Hern ndez gave them twenty-nine  kilograms of cocaine.  Hern ndez



          was acting as an intermediary in exchange for a commission.



                              
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          1   Of the original $290,000, $29,000 was divided between Negr n-

          Zapata and V lez-Carrero as a commission.



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I.  Sufficiency of the Evidence
                           I.  Sufficiency of the Evidence



                    Hern ndez'  first claim  challenges the  sufficiency of



          the evidence.  In reviewing such claims, we  view the evidence in



          the light most favorable  to the prosecution and ask  whether any



          rational factfinder  could have  found guilt beyond  a reasonable



          doubt.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
                  ___ _______    ________                            ______



          States v. Valle, 72 F.3d 210, 216 (1st Cir. 1995).
          ______    _____



                    It is well established  that an accomplice is qualified



          to  testify  as long  as  any agreements  he  has  made with  the



          government are presented to the jury and the "judge gave complete



          and  correct instructions  detailing  the special  care the  jury



          should take in assessing the testimony."  United States v. Ortiz-
                                                    _____________    ______



          Arrigoit a,  996 F.2d  436, 438-39  (1st Cir.  1993).   Indeed, a
          __________



          conviction based  solely upon the uncorroborated  testimony of an



          accomplice  can  be  upheld, as  long  as  the  jury is  properly



          instructed and the  testimony is  not incredible as  a matter  of



          law.   See United States  v. And jar,  49 F.3d 16,  21 (1st  Cir.
                 ___ _____________     _______



          1995).  As  always, the credibility of a witness  is a matter for



          the jury.  See Ortiz-Arrigoit a, 996 F.2d at 439.
                     ___ ________________



                    The government's  case relied  on the testimony  of its



          only witness, Negr n-Zapata.  Negr n-Zapata testified that he was



          a long-time  drug dealer,  had already  been convicted twice  for



          drug trafficking, had one sentence  reduced from sixty months  to



          twenty-four months  because of his willingness to testify for the



          government, and was still  awaiting sentencing in a drug  case in



          which he  had been convicted over  two and a half  years prior to


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his testimony in the instant case.  Negr n-Zapata cooperated with



          the  prosecution  in  exchange  for more  lenient  treatment  and



          certification of his cooperation  to a judge who was  to sentence



          him  after the  Hern ndez trial.   He  was eventually  given time



          served in the case for which his sentence was pending.



                    Although   these   circumstances  raise   questions  of



          credibility  regarding Negr n-Zapata's testimony, this court does



          not engage in a  plenary review of the credibility  of witnesses.



          A rational  juror could have believed  Negr n-Zapata's version of



          events.  Negr n-Zapata testified in considerable detail regarding



          the crime and  Hern ndez' role in it.   Viewing the testimony  in



          the  light most  favorable to  the verdict,  the jury  could have



          concluded that the testimony established that Hern ndez joined in



          the conspiracy,  and possessed and distributed  cocaine.  Negr n-



          Zapata was cross-examined in  detail regarding both his testimony



          and  his credibility.   Finally,  appellant fails  to demonstrate



          that there existed  overwhelming evidence to contradict  Negr n's



          testimony.   For all of these reasons, we deny the sufficiency of



          the evidence claim.



                            II.  The Confrontation Clause
                            II.  The Confrontation Clause



                    Hern ndez  claims  that  his Sixth  Amendment  right to



          cross-examine Negr n-Zapata was denied.  The    Sixth   Amendment



          states  that "[i]n  all criminal  proceedings, the  accused shall



          enjoy the right . . . to be confronted with the witnesses against



          him."  U.S. Const. amend. VI.  The Sixth Amendment guarantees the



          accused the right to cross-examine government witnesses fully and


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fairly.   See  Delaware  v. Van  Arsdale,  475 U.S.  673,  678-79
                    ___  ________     ____________



          (1985);  United States  v. Rivera-Santiago,  872 F.2d  1073, 1084
                   _____________     _______________



          (1st Cir. 1989).  



                    It  is well established  that "the Confrontation Clause



          guarantees  an opportunity  for effective  cross-examination, not
                         ___________



          cross-examination  that  is effective  in  whatever  way, and  to



          whatever extent, the defense might wish."  Delaware v. Fensterer,
                                                     ________    _________



          474 U.S. 15, 20 (1985).  "[T]he Confrontation Clause is generally



          satisfied  when the defense is given full and fair opportunity to



          probe  and  expose these  infirmities  through cross-examination,



          thereby calling  to the attention  of the factfinder  the reasons



          for giving scant  weight to the witness' testimony."   Id. at 22.
                                                                 ___



          Furthermore,  once  the defendant  is  given  the opportunity  to



          cross-examine   government  witnesses,   the  extent   of  cross-



          examination is within the sound discretion of the trial court and



          we review only for abuse of discretion.  See Rivera-Santiago, 872
                                                   ___ _______________



          F.2d at 1085.



                    In  the instant  case, there  can be  no question  that



          Hern ndez  was permitted  a full and  fair opportunity  to cross-



          examine the witness.  Indeed, the defendant fails to identify any
                                                                        ___



          circumscription  imposed  on  his  cross-examination  of  Negr n-



          Zapata, much less a  restriction that would rise to the  level of



          an abuse of discretion.2  The defense argues that "[t]he jury was

                              
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          2   We add that defense  counsel did not raise  the confrontation

          issue  at trial.   Arguments raised for the  first time on appeal

          are forfeited and reversible only upon a demonstration  of "plain

          error."   United States v.  Sullivan, 98 F.3d  686, 687 (1st Cir.
                    _____________     ________

          1996).  "The  plain error  doctrine of Federal  Rule of  Criminal



                                         -5-



allowed to  hear Negr n-Zapata's testimony unaware  that he would



          be  rewarded with  a sentence  of time  served because  of, among



          other things, his testimony in  this case.  As a result,  defense



          counsel  were denied  a 'full  and fair'  opportunity  to impeach



          Negr n-Zapata   by  showing   his   motivation  to   please   the



          government."  Appellant's Brief at 11.



                    In fact,  the defense  was afforded the  opportunity to



          cross-examine Negr n-Zapata  on every  aspect of  his cooperation



          agreement  with the  government.   On cross-examination,  Negr n-



          Zapata admitted that  he had been  awaiting sentence for  twenty-



          nine  months and  that he  had a  cooperation agreement  with the



          government.  He testified that, in exchange for  his cooperation,



          the  government would recommend a reduced sentence in the case in



          which he  was  awaiting sentencing.   In  addition, the  district



          court  judge read  portions of  the Sentencing Guidelines  to the



          jury  to  make it  clear that  Negr n-Zapata's sentence  could be



          reduced  below the minimum mandatory sentence in exchange for his



          cooperation.



                    Hern ndez argues that the defense could have  impeached



          Negr n-Zapata's testimony more successfully  if it had known that



          he would be  credited for time served and released.  Whether true

                              
          ____________________



          Procedure  52(b) tempers the blow  of a rigid  application of the

          contemporaneous-objection  requirement.  The  Rule authorizes the

          Courts   of  Appeals  to  correct  only  'particularly  egregious

          errors,'  those  errors  that  'seriously  affect  the  fairness,

          integrity or public reputation of judicial proceedings.'"  United
                                                                     ______

          States v. Young, 470 U.S. 1, 15 (1985) (citations omitted).  Even
          ______    _____

          if  we  were to  conclude  that there  had  been  a violation  of

          Hern ndez' right  to cross-examination, appellant  would have  to

          demonstrate plain error in order to win a reversal.



                                         -6-



or not, this contention does not lead to the conclusion that  the



          right  to  cross-examine was  compromised.   At  the time  of the



          testimony,  Negr n-Zapata  had  no  assurance that  he  would  be



          credited for  time served  and released.    He only  knew, as  he



          testified,  that  his  cooperation  would  be  certified  to  the



          sentencing judge.  In  other words, the defense was  permitted to



          present to the jury the conditions  under which Negr n-Zapata was



          testifying.    The jury  was fully  informed  and able  to assess



          Negr n-Zapata's credibility.   We  conclude, therefore,  that the



          defense was granted a full and fair opportunity to  cross-examine



          Negr n-Zapata.



                    Finally, we note that  appellant's appeal to Rule 32(a)



          of  the Federal Rules of Criminal Procedure,3 the Local Rules for



          the  District  of Puerto  Rico,  and  Sixth Amendment  guarantees



          regarding  speedy sentencing  belong  to  the defendant  awaiting



          sentencing, in this case Negr n-Zapata.  Violation of these rules



          does not give Hern ndez grounds for a reversal of his conviction.



                               III.  Jury Instructions
                               III.  Jury Instructions



                    Finally,  Hern ndez objects  to the  jury instructions.



          The relevant portion of the instructions is as follows:



                         You   have    also   heard   testimony

                      regarding   the   Government's   witness'

                      reputation    in   the    community   for

                      truthfulness   or  untruthfulness.     In

                      deciding this case,  you should  consider

                      that  evidence together  with and  in the

                      same manner as all the  other evidence in

                      the case.

                              
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          3   Federal  Rule  of  Criminal  Procedure  32(a)  requires  that

          sentencing should take place without "undue delay."



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You  have also heard testimony from an

                      unindicted   co-conspirator  who   has  a

                      cooperation     agreement    with     the

                      Government.   That testimony was given in

                      exchange for a  promise by the Government

                      that  the witness will  not be prosecuted

                      for   some   crimes  he   has  admittedly

                      committed,  including  the  ones in  this

                      case.   The Government  will also certify

                      his cooperation to another judge who will

                      sentence  him  in  another  case  in  the

                      future.



                         In  evaluating   this  testimony,  you

                      should  consider  whether that  testimony

                      may   have   been   influenced   by   the

                      Government's   promise  and   you  should

                      consider  that   testimony  with  greater

                      caution than that of an ordinary witness.

                      Such agreements are legal.   The only  --

                      the  law only requires  that you consider

                      testimony given under those circumstances

                      with  greater  caution  than that  of  an

                      ordinary witness.



          Trial Transcript, vol. VI, at 896.



                    The  entirety of appellant's  argument with  respect to



          the jury instructions  is to quote the last two paragraphs of the



          above excerpt and to  state that "the trial judge, in  giving the



          legally required instruction to  the jury on the care  with which



          it  must consider the  testimony of an  accomplice, minimized the



          importance of the charge by adding the word 'only.'"  Appellant's



          Brief at 11.



                    Because   appellant  failed  to   object  to  the  jury



          instructions  at  trial, we  review only  for  plain error.   See
                                                                        ___



          Sullivan, 98 F.3d at 687.  "Our principal focus in reviewing jury
          ________



          instructions is  to determine whether  they tended to  confuse or



          mislead  the  jury  on  the  controlling  issues."   See  Service
                                                               ___  _______



          Merchandise Co. v. Boyd Corp., 722 F.2d 945, 950 (1st Cir. 1983).
          _______________    __________



                                         -8-



We do not  believe that  the instructions provided  by the  trial



          judge confused or misled  the jury.  The judge  accurately summed



          up the  conditions under which Negr n-Zapata  testified and added



          that jurors should  "consider whether the testimony may have been



          influenced by  the government's  promise and you  should consider



          the  testimony with  greater  caution than  that  of an  ordinary



          witness."   Tr. IV, at 896.   Because the jury  was informed that



          Negr n-Zapata's testimony  should be  viewed with caution,  we do



          not believe there was error in the instructions and certainly not



          "plain error."4



                    Although  appellant's claims cannot  justify a reversal



          in this case,  we add  that we find  troubling certain  practices



          brought  to light in this case.   In particular, we are concerned



          with the practice of incarcerating an individual  for an extended



          period of  time without sentencing,  while holding out  a promise



          that his or her cooperation will lead to a more lenient sentence.



          At  least two aspects of  this practice are  problematic.  First,



          although  the   government's  offer  may  be   attractive  to  an



          individual  defendant, we do not believe that the right to prompt



          sentencing exists merely as a bargaining chip for defendants.  It



          is inappropriate to hold  a defendant in prison for  long periods



          of time pending  sentencing, in this case  two and a half  years,



          while the government tries to extract information from him.


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          4  We add that Hern ndez not only fails to point to error  in the

          instructions, but  concedes that they  were "perhaps  technically

          correct."  Appellant's Brief at 12.



                                         -9-



The second problem is  that this practice increases the



          likelihood  that  innocent  individuals  will  be  implicated  by



          defendants trying to placate the government.  This is obviously a



          concern whenever  a defendant  cooperates with the  government in



          exchange  for lenience,  but  we  feel  that  as  the  period  of



          incarceration  increases  unduly, the  risk  of false  statements



          intended to appease the defendant's captors becomes too great.



                    Although  this is not the case for corrective action by



          this  court, suffice  it to  say that  we caution  the government



          against  abuse  of  this practice  and  that  we  will view  with



          suspicion its continued use.   Nothing in this opinion  should be



          taken to support such conduct.



                                   IV.  Conclusion
                                   IV.  Conclusion



                    For  the reasons stated  herein, appellant's conviction



          is affirmed.
             affirmed
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