United States v. Pineda-Paz

Opinion

USCA1 Opinion

April 1, 1994         [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1906

                                    UNITED STATES,

                                      Appellee,

                                          v.

                             FRANCISCO JAVIER PINEDA-PAZ,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge, 
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                          Selya and Boudin, Circuit Judges.
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                                 ____________________

            Neal K. Stillman for appellant.
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            Michael M.  DuBose, Assistant  United States  Attorney, with  whom
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        Jay P. McCloskey, United States Attorney, was on brief for appellee.
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Per Curiam.    A  jury  convicted  the  appellant,
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             Francisco  Javier  Pineda-Paz,  of  possessing  cocaine base

             ("crack")  with  intent  to  distribute it.    The  evidence

             against him was strong.   A coconspirator, Gonzalo Ceballos-

             Mejia  (after  pleading  guilty)  testified that,  in  early

             February 1993:

                       1)   A drug dealer called Manuel met with  Pineda,
                            Ceballos, and  Eduardo Gomez (who  turned out
                            to be a government informant) in Manuel's New
                            Jersey  apartment.    With   Pineda  present,
                            Manuel gave  Ceballos a package of (about 100
                            grams of) crack, told  him it was worth about
                            $21,000, and said he  would pay him $5,000 to
                            take it to Maine.

                       2)   On February 12,  Pineda, Ceballos, and  Gomez
                            took the bus to Maine.   Since the package of
                            drugs was too big to fit into Ceballos's coat
                            pocket,  Pineda ended up carrying the package
                            of  drugs in  his coat  pocket for  the first
                            part of the trip.  Pineda later gave Ceballos
                            his (Pineda's)  coat with the drugs,  so that
                            Ceballos would have  the drugs with  him when
                            they got off the bus in Maine.

                       3)   Upon   their   arrival   in  Maine,   Pineda,
                            Ceballos,  and  Gomez  met another  disguised
                            government  agent, DEA  Agent Brady,  who was
                            pretending  to be  a  drug buyer.   All  four
                            drove  off in  a  car.   Agent Brady,  asking
                            questions   through   Gomez   who  acted   as
                            interpreter,  established  that Ceballos  had
                            the drugs  and  that the  price was  $21,000.
                            Agent Brady  then examined  the cocaine.   He
                            left  the  car,  ostensibly  to  obtain  more
                            money,  at  which   time  government   agents
                            arrested Pineda and Ceballos.

Agent  Brady  corroborated many  of  these  facts.   Indeed,

             Pineda  admitted  most of  them,  including  that he  helped

             Ceballos carry a  "package" to Maine.   Pineda, however, did

             not admit that he  was present when Manuel planned  the drug

             transaction.  And, he testified that the package was covered

             with aluminum foil  and that  he did not  know, nor care  to

             ask, about its contents.   Rather, he said, he was simply  a

             friend of Ceballos  who had  gone along with  him to  Maine,

             helping to carry the package, essentially for the ride.  The

             jury did not believe Pineda's story,  perhaps because of the

             unusual coat-switch; or because  Pineda apparently showed no

             surprise, nor protested, during the drug sale in the car; or

             because Pineda admitted to law enforcement  officials (after

             receiving Miranda  warnings) that he  had come to  Maine "to
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             help  sell the drugs" (though he later said he admitted this

             only because  the officer  "frightened" him  and hurt him  a

             "bit" when he  "touch[ed]"/"hit" him  on the leg).   In  any

             event, the jury convicted Pineda; and the court then imposed

             a sentence of 121 months.

                       Pineda's  arguments on appeal  rather clearly lack

             merit  and do  not warrant  lengthy discussion.   First,  he

             points   out  that   Gomez,  the  government   informer  who

             accompanied him  and Ceballos,  lied before the  grand jury.

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Indeed, the government concedes  that Gomez falsely told the

             grand jury that  Pineda had  told him that  he (Pineda)  had

             previously been  in the drug  business and brought  drugs to

             Maine.  Pineda, however, does not argue that the  government

             knew Gomez would testify falsely or that it acted improperly

             in any other way.   And, the district  court found that  any

             error caused by  the admission of  this false testimony  was

             harmless, see Bank of Nova Scotia v. United States, 487 U.S.
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             250, 256 (1988)  ("customary harmless-error inquiry" applies

             to grand jury stage  errors), for the grand jury  had before

             it   other  evidence   more  than   sufficient  to   warrant
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             indictment.  See United States v.  Maceo, 873 F.2d 1, 3 (1st
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             Cir.) (district  court finding of harmless  error in respect

             to errors at the grand jury stage reviewed only for an abuse

             of  discretion), cert.  denied,  493 U.S.  840  (1989).   We
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             should  also  note  the  obvious, that  since  the  perjured

             testimony was not introduced at trial, it did not affect the

             outcome of the trial.

                       Second, Pineda complains  that the district  court

             improperly  admitted  hearsay  evidence,   namely,  Pineda's

             affirmative nod  (and related translations)  in response  to

             Agent  Brady's question, translated by Gomez, whether Pineda

             had ever been to Maine before with Ceballos.  Defendant says

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this evidence left the jury with  the "false impression that

             he  had been to Maine  [before] to do  drug deals" (emphasis
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             added).   The defendant did  not object to  the admission of

             the evidence at the  time, however.  And, it  is, therefore,

             admissible  whether or  not it  somehow rests  upon hearsay.

             See  United States v. Tabares,  951 F.2d 405,  409 (1st Cir.
             ___  _____________    _______

             1991)   ("[H]earsay,  if   no   objection  is   raised,   is

             admissible.")  (citation omitted); United  States v. Newton,
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             891 F.2d 944, 947-48  (1st Cir. 1989).  Nor  was defendant's

             failure  to  object  surprising,  since  the  testimony  was

             elicited by  the defense,  not the prosecution,  and it  was
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             elicited purposefully,  for its supposed  impeachment value.
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             We add that,  in any event,  given the strength of  the case

             against Pineda, any error on this matter would be harmless.

                       Third,  defendant argues  that the  district court

             should have  granted his post-verdict motion,  under Fed. R.

             Crim. P. 33, for a new trial.   He based that motion on  the

             late  discovery  of  two  documents: (1)  a  Honduran  birth

             certificate  in the name of Sergio Pineda, age 15, and (2) a

             recently-issued Honduran  ID card  in the name  of Francisco

             Javier Pineda, age  19, containing a photograph  of a person

             other  than   the  defendant.    These   two  documents,  in

             defendant's view,  showed that  he was not  Francisco Javier

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Pineda, but Francisco  Javier's 15-year-old younger  brother

             Sergio, and thus he should have been tried as a juvenile.

                       The  district court  concluded, however,  that the

             documents  did not  show that the  defendant was  Sergio and

             that  "the defendant  in  front of  me  is Francisco  Javier

             Pineda-Paz."   The only thing connecting  the "Sergio" birth

             certificate to  the defendant, or  connecting the "Francisco

             Javier"  ID to someone  other than the  defendant, the court

             explained,  was the  defendant's testimony  to  that effect.

             (On the photo ID connection, the Government had explained to

             the court that  it would  have been easy  for some  Honduran

             friend of the  defendant to take the  defendant's real birth

             certificate and use it  to get a "Francisco Javier"  ID with

             the friend's photograph on it.)   And, on issues relating to

             "identification" and "age,"  the court found,  the defendant

             "no longer has any  credibility at all."  The  court pointed

             out:

                       [T]he defendant first identified himself
                       as Francisco Javier Pineda-Paz,  age 19.
                       Sometime thereafter,  in connection with
                       his custody,  he announced that  was age
                       15, . .  . [a claim for which]  a forged
                       birth certificate was provided.

                            Thereafter he  withdrew that claim,
                       and by the time  of trial, testified . .
                       .  under  oath  that  he  was  Francisco
                       Javier  Pineda-Paz, and that  he was age
                       19, and testified that he had  lied when

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he had earlier said that he was 15.  And
                       now  when  sentencing  is imminent,  the
                       defendant again come forward challenging
                       his age  and  this for  the first  time,
                       challenges his identity and claims to be
                       Sergio .  . . , who  previously had been
                       identified as one of his brothers.

                       On the  basis of  all this evidence,  the district

             court's conclusion that defendant's new documentary evidence

             (and  the  testimony  underlying  it) was  not  credible  is

             adequately supportable.  See Veillette v. United States, 778
                                      ___ _________    _____________

             F.2d  899, 902  (1st Cir.  1985) (trial judge's  findings of

             fact are set aside only if clearly erroneous), cert. denied,
                                                            _____ ______

             476  U.S. 1115 (1986).  The district court's decision not to

             grant a new trial is therefore lawful.  See United States v.
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             Wright, 625 F.2d  1017, 1019  (1st Cir. 1980)  (a new  trial
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             motion  is granted  only  if, among  other  things, the  new

             evidence "will probably" lead to a different outcome).

                       Fourth,  Pineda argues  that  the  district  court

             should  not  have  increased  his sentence  (to  121  months

             instead of the 120 months the statute mandatorily imposes, a

             one  month  difference)  for  an "obstruction  of  justice."

             Pineda's presentation  of a forged birth  certificate to the

             magistrate  prior to  trial  (purportedly showing  he was  a

             minor)  and his attempt, based  on the forgery,  to have the

             indictment  dismissed, however,  provide a  sufficient legal

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basis for the  increase.   See U.S.S.G    3C1.1  application
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             note  3(c)  ("[T]his  enhancement applies  [to]  producing a

             false document during an  official investigation or judicial

             proceeding.")  (ellipses omitted); id. application note 3(f)
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             (same for "providing materially false information to a judge

             or magistrate");  see also United  States v. Biyaga,  9 F.3d
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             204 (1st Cir. 1993).

                       Appellant's  remaining  claims are  without merit.

             For the reasons stated,  the judgment of the district  court

             is

                       Affirmed.
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