United States Court of Appeals For the First Circuit
Nos. 99-1568 00-1764
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL PANIAGUA-RAMOS,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
José R. Franco, with whom David W. Roman and Brown & Ubarri were on brief, for appellant. Nelson Pérez-Sosa, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega- Pacheco, Assistant United States Attorney, were on brief, for appellee. May 30, 2001
SELYA, Circuit Judge. Defendant-appellant Daniel
Paniagua-Ramos (Paniagua) beseeches us to set aside his
conviction for conspiracy to possess, with intent to distribute,
multi-kilogram quantities of cocaine. See 21 U.S.C. §§
841(a)(1), 846. Paniagua rests his entreaty on claims of
instructional error and jury taint.1 Finding neither claim
persuasive, we affirm the judgment below.
I
The details of the alleged conspiracy are of relatively
little import to the issues on appeal, and it would be
pleonastic to rehearse them here. It suffices to say that the
government adduced evidence that Paniagua, acting in concert
with Juan Cubilette-Baez and Rafael del Rosario-Sánchez (del
Rosario), orchestrated a scheme to transport large amounts of
1In his opening brief, Paniagua also mounted a challenge under the banner of Apprendi v. New Jersey, 120 S. Ct. 2348, 2062-63 (2000) (establishing, as a constitutional matter, that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"). Following our explication of Apprendi in United States v. Robinson, 241 F.3d 115, 119 (1st Cir. 2001), Paniagua withdrew this claim.
-2- cocaine from San Juan to New York City. According to the
government's proof, the scheme had mixed results. The
conspirators' first shipment (100 kilograms) went astray. Their
second shipment (200 kilograms) was successful and Cubilette-
Baez received the contraband in New York. Before the third
shipment (scheduled to comprise 200 kilograms) left San Juan,
the authorities intervened.
Paniagua soon was arrested, indicted, and tried. His
quondam accomplice, del Rosario, became a key witness against
him — a witness whose testimony constituted the cornerstone of
the government's case.
The matter was tried twice. On the first occasion, the
jury found Paniagua guilty on the conspiracy count but acquitted
him on a related charge. The trial judge voided the conviction,
however, based on what he retrospectively found to be
prejudicial error in the jury instructions. The government
unsuccessfully appealed the order granting a new trial. See
United States v. Paniagua-Ramos, 135 F.3d 193 (1st Cir. 1998).
Upon retrial, the jury returned a verdict on August 25,
1998. It again found Paniagua guilty of conspiracy.
On March 10, 1999, the court sentenced Paniagua to
serve a 235-month incarcerative term. Paniagua appealed. He
later moved for a new trial on the ground of jury taint. When
-3- the district court rebuffed this effort, a second appeal ensued.2
By order dated June 15, 2000, we consolidated the two appeals
for briefing, argument, and adjudication.
II
Paniagua's first claim of error involves the lower
court's jury instructions. He calumnizes the testimony of the
turncoat witness, del Rosario, and argues that the court erred
in failing sufficiently to emphasize that the jurors should have
received this testimony with caution and scrutinized it with
care. He adds that the court compounded this error by failing
to instruct the jurors that they should not convict on the
unsupported testimony of an accomplice absent a belief "beyond
a reasonable doubt that the accomplice is telling the truth."
United States v. Dailey, 759 F.2d 192, 200 n.8 (1st Cir. 1985).
This claim lacks force.
We do not gainsay the obvious: courts long have
recognized the special pitfalls that accompany accomplice
testimony. In an appropriate case, a criminal defendant is
2 In United States v. Josleyn, 206 F.3d 144, 150-51 (1st Cir. 2000), we left open the question of whether a defendant in a criminal case needs to file a separate notice of appeal from an order denying a post-sentence motion for new trial (or, conversely, whether the original notice of appeal from the judgment of conviction suffices to bring that order before the appellate court). This case does not require us to answer that question.
-4- entitled, upon timely request, to an instruction that calls the
jury's attention to these dangers. E.g., United States v.
Pelletier, 845 F.2d 1126, 1129 (1st Cir. 1988). There are,
however, no magic words that must be spoken in this regard.
This is as it should be. The primary function of a
trial court's instructions is to create a roadmap for the
jurors, limning those legal rules that they must follow in
finding the facts and determining the issues in a given case.
For the most part, the law provides no set formulae for
converting these legal rules into lay language — and the choice
of what words are to be spoken belongs, within wide margins, to
the trial judge. See United States v. Houlihan, 92 F.3d 1271,
1299 n.31 (1st Cir. 1996) (remarking the trial court's "broad
discretion to formulate jury instructions as it sees fit");
United States v. Nivica, 887 F.2d 1110, 1124 (1st Cir. 1989)
(noting that the trial judge need not parrot proffered
instructions).
It also bears mention that the formulation of jury
instructions in a criminal case is an interactive process. The
trial judge must, of course, pull the laboring oar — but the
parties have a corollary responsibility seasonably to apprise
the judge about what they think the jury should or should not be
told. See Fed. R. Crim. P. 30 (requiring parties to object to
-5- jury instructions before the jury retires, stating specifically
the portion of the instructions to which each objection is
addressed and the ground for the objection). Paniagua
interposed no contemporaneous objection to the district court's
jury instructions, and it is settled beyond peradventure that a
party's failure to object to the charge in strict conformity
with the prerequisites of Rule 30 forfeits most instructional
errors. See United States v. Richardson, 14 F.3d 666, 670-71
(1st Cir. 1994); United States v. Weston, 960 F.2d 212, 216 (1st
Cir. 1992).
We say "most," rather than "all," because there is a
carefully circumscribed exception for plain errors. But the
plain error hurdle, high in all events, nowhere looms larger
than in the context of alleged instructional errors. See United
States v. McGill, 952 F.2d 16, 17 (1st Cir. 1991); see also
United States v. Taylor, 54 F.3d 967, 976 (1st Cir. 1995) ("If
no timely objection has been advanced . . . even an improper
instruction rarely will justify the reversal of a criminal
conviction.") (citation omitted). To vault this hurdle, a
defendant must make four showings. First, he must show that an
error occurred. Second, he must show that the error was clear
or obvious. Third, he must show that the error affected his
substantial rights. Fourth, he must show that the error so
-6- seriously impaired the fairness, integrity, or public reputation
of the proceedings as to threaten a miscarriage of justice.
Johnson v. United States, 520 U.S. 461, 466-67 (1997); United
States v. Olano, 507 U.S. 725, 732 (1993); United States v.
Brown, 235 F.3d 2, 4 (1st Cir. 2000). Paniagua's claim of error
cannot surmount these barriers.
We agree with Paniagua that, despite the height of the
hurdle, plain error is theoretically possible with respect to an
omitted jury instruction. If, say, a trial court fails to
instruct a criminal jury on a basic point like the government's
burden of proof or the presumption of the defendant's innocence,
the lack of a contemporaneous objection would not foreclose
searching appellate review. E.g., United States v. Howard, 506
F.2d 1131, 1132-34 (2d Cir. 1974) (finding plain error where the
jury was not instructed as to the elements of the offense of
conviction). Here, however, there is no such glaring omission.
The district court correctly (and emphatically) instructed the
jury about the government's burden of proof. The court also
instructed the jurors at considerable length about their
collective responsibility for evaluating the credibility of
witnesses. To cap matters, the court gave a specific
instruction about accomplice testimony, viz:
You have heard testimony of the codefendant Rafael del Rosario. This
-7- witness has a cooperation agreement with the government. The testimony of Rafael del Rosario was given in order for him to hopefully receive a reduction in sentence on act of his cooperation.
In . . . evaluating testimony of a cooperating witness, you should consider whether that testimony may have been influenced by the government's promises and you should consider that testimony with greater caution than that of ordinary witnesses. Cooperation agreements are lawful. The law only requires that you consider testimony given under those circumstances with greater caution than that of ordinary witnesses.
We do not suggest that this instruction is either letter perfect
or insusceptible to any improvement. But reading it against the
backdrop of the charge as a whole, see United States v. Cintolo,
818 F.2d 980, 1003 (1st Cir. 1987), we think that the
instruction constitutes a fair statement of the applicable law
concerning accomplice testimony. In the absence of a
contemporaneous objection, no more was exigible. See United
States v. Fernandez, 145 F.3d 59, 62 (1st Cir. 1998) (finding no
plain error even though district court neglected "to give an
unrequested cautionary instruction [and] the government's case
largely depend[ed] on uncorroborated informant or accomplice
testimony"); United States v. Martin, 815 F.2d 818, 824 (1st
Cir. 1987) (finding no plain error when district court failed to
give an explicit accomplice instruction, but defendant did not
-8- register a contemporaneous objection); see also Fed. R. Crim. P.
52(b) (directing courts, in substance, to ignore unpreserved
errors not adversely "affecting substantial rights" of
defendants).
Notwithstanding these authorities, Paniagua posits that
more is required here because del Rosario's testimony was
internally inconsistent and largely incredible. See Fernandez,
145 F.3d at 62-63 (leaving open this possibility); United States
v. House, 471 F.2d 886, 888 (1st Cir. 1973) (similar). We need
not probe this point too deeply for Paniagua's premise is woven
out of whole cloth. He has identified no portion of del
Rosario's testimony about the drug-trafficking operation that is
either demonstrably false, internally inconsistent, or
inherently incredible. Perhaps more importantly, our
independent examination of the record reveals no flaw of this
magnitude. The Fernandez exception is, therefore, inapposite.
By like token, the Fifth Circuit's decision in United
States v. Jones, 673 F.2d 115 (5th Cir. 1982), hawked by
Paniagua in his brief and at oral argument, does not assist his
cause. There, as here, the appellant contended "that the
district court committed plain error by failing to give a
cautionary instruction (although not requested to do so) against
conviction upon the uncorroborated testimony of an alleged
-9- accomplice, who was a cooperating government witness." Id. at
117. Jones argued, as does Paniagua, that whenever a conviction
is based upon an accomplice's testimony and that testimony is
uncorroborated or the evidence as to guilt is debatable, plain
error "invariably results, unless the trial court (even in the
absence of request) specially instructs the jury to receive such
accomplice testimony with caution and to require corroboration
of it." Id. at 118. The court of appeals rejected this strait-
jacketed reading of the law, remarking that "in the ordinary
course of criminal trial, one would expect experienced counsel
to request such an [accomplice] instruction should it be thought
desirable to have this express instruction to alert the jury to
the potential unreliability of the accomplice . . . testimony."
Id. Placing the burden elsewhere, the court stated, would
"permit counsel, by knowing inaction, to trap a trial court into
reversible omission of instruction." Id. at 119. As a result,
"the failure to give an instruction in the absence of request
for it may amount to plain error only in egregious instances."
Id. Since the circumstances here hardly are egregious, Jones
provides no support for Paniagua's plaint.
Paniagua's rejoinder of last resort is that the
belatedly challenged instruction denied him a fair trial because
it ignored what he terms an "established safeguard," namely, a
-10- direction to the jurors that they could not convict unless they
"believe beyond a reasonable doubt that [the testifying]
accomplice is telling the truth." Paniagua draws the quoted
language verbatim from a footnote in our opinion in Dailey, 759
F.2d at 200 n.8. Although the quotation is accurate, casting
the direction as an immutable obligation wrests the words from
their contextual moorings and distorts the Dailey court's
meaning.
In Dailey, the government appealed a pretrial order
barring it from using accomplice testimony at Dailey's trial.
759 F.2d at 193. The district court issued the bar order
because it believed that the accomplices' plea agreements were
so likely to incite perjurious testimony that allowing the
accomplices to appear as witnesses would violate Dailey's right
to a fair trial. Id. at 194. We reversed this order, holding
that Dailey's accomplices should be permitted to testify,
subject to "standard procedural safeguards." Id. at 200. We
recounted certain of those safeguards (e.g., "[t]he [plea]
agreements should be read to the jury and made available during
its deliberations; defense counsel [should be allowed to] cross-
examine the accomplices at length about the agreements; and the
jury should be given the standard cautionary instruction
concerning the testimony of accomplices and a special cautionary
-11- instruction concerning the nature of each accomplice's
contingent agreement and the risk that it creates, particularly
in instances where the accomplice's testimony cannot be
corroborated"). Id. Along the way, we quoted extensively from
jury instructions actually used by a different district judge in
a companion case and concluded that those instructions
"adequately admonishe[d] the jury to weigh [the accomplices']
testimony with the greatest of care." Id. at 200 n.8. The
phraseology upon which Paniagua relies is part of this
rendition.
Read in context, Dailey makes clear that the court
considered the quoted instructions to be adequate. The court
did not, however, intimate that those precise instructions were
obligatory. Indeed, in many cases, the Dailey language will not
be appropriate. It is bedrock principle that, in the ordinary
case, a jury need not believe every government witness beyond a
reasonable doubt in order to conclude that the defendant is
guilty beyond a reasonable doubt — and Dailey did not venture to
alter that principle.3 Nor did Dailey purport to constrain the
usual rule that a trial judge has considerable leeway in
3 Even so, where the accomplice's uncorroborated testimony is the only evidence of guilt, an admonition that the testimony must be believed beyond a reasonable doubt, if requested, would be advisable to guide the jury's deliberations.
-12- choosing the language that will best enable him or her to
enlighten the jury as to a particular point. Houlihan, 92 F.3d
at 1299 n.31; Nivica, 887 F.2d at 1124. Accordingly, we reject
Paniagua's effort to convert an example into a mandate.
To sum up, the court's charge in this case adequately
covered the subject of accomplice testimony. Although there
were differences between the language used by the court and the
language that Paniagua now says he would have preferred, we fail
to see how those differences depart in a material way from
standards established in our precedents. We conclude,
therefore, that the absence of a contemporaneous objection dooms
Paniagua's argument. After all, the challenged instructions
contained no clear or obvious error and inflicted no blow to
Paniagua's substantial rights. In these circumstances,
permitting the conviction to stand does not come close to
constituting a miscarriage of justice.
III
Paniagua's remaining assignment of error focuses on the
denial of his motion for new trial. He maintains that he raised
a colorable claim of jury taint; that the lower court's inquiry
into the issue was superficial; and that he was entitled, at the
very least, to a more rigorous investigation. We do not agree.
-13- The relevant facts are as follows. On August 4, 1999
— nearly a year after the jury verdict and nearly five months
after the imposition of sentence — Paniagua moved for a new
trial. See Fed. R. Crim. P. 33. His motion incorporated, and
relied upon, a sworn statement from Paniagua's sister, Maria
Antonina Paniagua-Ramos. The statement, signed on July 30,
1999, related that the affiant had attended the trial
throughout; that she had testified for the defense; and that she
had become thoroughly familiar with the jurors and the
prosecutors. The affiant went on to allege that, near the end
of the trial, she observed two female jurors chatting with
former Assistant United States Attorney José A. Quiles in the
cafeteria area of the courthouse; that the trio separated, but
one of the women soon returned and handed Quiles a document
(perhaps a notebook); and that Quiles pocketed the document.
Based on this alleged ex parte communication, Paniagua requested
a new trial.4
The United States objected to the motion and denied the
factual averments on which the motion was predicated. The
district court ordered both sides to file memoranda explicating
what, if anything, Quiles may have said or done, and how (if at
4 Paniagua nowhere credibly explains why the affiant's observations, allegedly made on August 24, 1998, were not reported to the court until almost a year later.
-14- all) his actions may have tainted the jury. In responding, the
government filed, inter alia, a declaration in which Quiles (who
had served as the lead prosecutor during the first trial and the
ensuing appeal) stated, under the penalties of perjury, that he
had no role in the second trial and no contact with either the
case agent or the prosecutor. He "categorically den[ied] the
statements made by Mrs. Maria Antonina Paniagua-Ramos." He
concluded his declaration by professing ignorance as to the
identity of the persons who served as jurors in the second trial
and affirming that he had "never delivered or received any
documents from any jurors."
After reviewing the parties' submissions, the court
reassembled the discharged jury and convened an evidentiary
hearing. The judge questioned each former juror individually,
under oath, and in the presence of both counsel. The judge
asked each one, in substance, whether he or she had had any
contact with Quiles, and whether he or she knew of any dealings
between Quiles and any other member of the venire. 5 Without
5 A few examples illustrate the tenor of the inquiry. The court queried one juror as to whether she "remember[ed] whether any juror ever talked to a prosecutor, a male prosecutor?" The court asked another, "Do you remember whether ever, at any point in time during that trial when you were not actually in the courtroom, that anybody — . . . could have been an assistant U.S. attorney by the name of José Quiles — ever approached you or any other member of the jury to discuss anything about the case?"
-15- exception, the former jurors answered these inquiries in the
negative. After hearing arguments of counsel, the district
court took the matter under advisement and, in due course,
denied Paniagua's motion.
We review a district court's denial of a motion for new
trial for abuse of discretion. United States v. Huddleston, 194
F.3d 214, 218 (1st Cir. 1999). Similarly, we review claims that
a trial court failed to conduct an appropriate inquiry into
allegations of jury taint for abuse of discretion. United
States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990). The
touchstone is reasonableness: did the trial court fashion, and
then even-handedly implement, a sensible procedure reasonably
calculated to determine whether something untoward had occurred?
See id. We measure Paniagua's asseveration against this
benchmark.
We begin with first principles:
The right to trial by jury in a criminal case is an important feature of the justice system. In turn, the value of the right consists principally in the neutrality of the venire. All would agree that an impartial jury is an integral component of a fair trial. To preserve the integrity of the process, trial courts must jealously safeguard jurors' impartiality.
Neron v. Tierney, 841 F.2d 1197, 1200-01 (1st Cir. 1988)
(citation omitted). A principal purpose for such safeguards is
-16- to insulate jurors from improper ex parte contacts. The
proposition that private communications between jurors and
prosecutors during the course of a criminal trial are absolutely
forbidden is so elementary as to require no citation of
authority. This does not mean, however, that every assertion of
forbidden contact must be accepted as gospel. Experience
teaches that such assertions are more easily made than proven.
Consequently, any such assertion must be tested.
Trial courts have considerable latitude in determining
how best to evaluate such assertions and thus assure jury
impartiality in particular cases. See id. at 1201 (explaining
that "within a given situation, a broad range of alternatives,
each different from the others, may suffice to alleviate due
process concerns" in respect to claims of jury taint). In other
words, while a trial court has an unflagging duty adequately to
probe a nonfrivolous claim of jury taint, see Smith v. Phillips,
455 U.S. 209, 215 (1982); Remmer v. United States, 347 U.S. 227,
229-30 (1954), the court has wide discretion to determine the
scope of the resulting inquiry and the mode and manner in which
it will be conducted.
Here, the measures taken by the district court in
addressing Paniagua's claim of jury taint assured that the
possibility of spoliation was satisfactorily explored and the
-17- record adequately developed. Despite the tardiness of
Paniagua's proffer, see supra note 4, the district court took
his allegations seriously. The court ordered both sides to
submit explanatory memoranda. After receiving these responses,
the court took further steps: it reassembled the jury and
conducted an individualized voir dire, permitting counsel for
both sides to audit the jury interviews and make suggestions.
The court then found, based on the developed facts, that the
events described by Paniagua's sister had not occurred.
This balanced, well-thought-out process easily passes
muster. While the court perhaps could have devised some other
or different plan to test the credibility of the charge (say,
ordering Quiles and Paniagua's sister to testify in person and
to undergo cross-examination), our case law makes clear that
claims of jury taint are almost always case-specific. Thus, the
trial court — which is likely to have a superior "feel" for the
nuances of the case — ought to be accorded considerable
deference in fashioning procedures to deal with such matters.
Neron, 841 F.2d at 1201. Accordingly, we decline Paniagua's
invitation to second-guess the lower court's judgment as to what
-18- methodology was best calculated to get at the truth in this
instance.6
Paniagua has a fallback position. Leaving the district
court's methodology to one side, he says that the court clearly
erred in rejecting Maria Antonina Paniagua-Ramos's specific and
unambiguous affidavit. But a judge is not required to accept a
fact as true simply because a witness swears to it. See, e.g.,
United States v. Tipton, 3 F.3d 1119, 1122 (7th Cir. 1993). In
this instance, the affiant's statement was rendered suspect both
by her evident partiality and by the timing of the submission.
It was flatly contradicted by Quiles's declaration. To cinch
matters, the juror interviews belied the affiant's accusations.
Consequently, the court's finding that no compromising incident
occurred is fully supportable.
The short of it is that Paniagua failed, despite having
been given a fair opportunity, to establish the bona fides of
his claim of jury taint. We hold, therefore, that the district
court did not abuse its discretion either in developing a format
6 We reject Paniagua's contention that the trial court's inquiry was insufficient in light of Remmer, 347 U.S. 227. Remmer involved a situation in which the district court relied on the Federal Bureau of Investigation to check out an instance of possible jury taint, determined that no taint existed based solely on the results of that investigation, and excluded the defendant from any role in the inquiry. See id. at 228. That is a far cry from what transpired here.
-19- for testing that claim or in denying Paniagua's second motion
for a new trial.
IV
We need go no further. For aught that appears,
Paniagua was tried and convicted by a properly instructed jury,
unspoiled by prosecutorial misconduct. His conviction and
sentence must, therefore, be
Affirmed.
-20-