United States v. Santos-Frias

• Court: Court of Appeals for the First Circuit
• Decided: August 25, 1995
• Docket: 94-1942
• Status: Published

Opinion

USCA1 Opinion

August 25, 1995         [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                                     
                                 ____________________

        No. 94-1942

                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                FIDELINA SANTOS-FRIAS,



                                Defendant, Appellant.



                                                     
                                 ____________________

        No. 94-1943



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                               FRANCISCA DE LEON-PENA,



                                Defendant, Appellant.



                                                     
                                 ____________________

        No. 94-2065



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                               FRANCISCO MATTA-GARCIA,



                                Defendant, Appellant.



                                                     
                                 ____________________


APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________



____________________



                                Selya, Circuit Judge,
                                       _____________



                            Coffin, Senior Circuit Judge,
                                    ____________________



                               and Cyr, Circuit Judge.
                                        _____________



                                                     
                                 ____________________


Rafael Gonzalez Velez for appellant Santos-Frias.
             _____________________

             Jose R. Gaztambide for appellant De Leon-Pena.
             __________________

             Luis A. Plaza for appellant Matta-Garcia.
             _____________

             W. Stephen  Muldrow, Assistant United States  Attorney, with whom
             ___________________

        Guillermo Gil, United States Attorney, Jos  A. Quiles-Espinosa, Senior
        _____________                          _______________________

        Litigation Counsel,  Mar a  Pab n, Assistant  United States  Attorney,
                             ____________

        Jacabed Rodr guez, Assistant United States Attorney, and Sonia Torres,
        _________________                                        ____________

        Assistant United States Attorney, were on brief for appellee.


____________________


____________________


2



Per  Curiam.   Defendants Fidelina  Santos-Frias ("San-
                    Per  Curiam.
                    ___________



          tos"), Francisco  Matta-Garcia ("Matta"), and Francisca  De Leon-



          Pena ("De Leon") appeal the judgments of conviction  and sentence



          entered against  them following their consolidated  jury trial on



          cocaine charges  in  the United  States  District Court  for  the



          District of Puerto Rico.  We affirm the district court judgments.


I
                                          I



                                      BACKGROUND
                                      BACKGROUND
                                      __________



                    We recount the evidence in the light  most favorable to



          the verdicts.   United States  v. Tuesta-Toro, 29  F.3d 771,  773
                          _____________     ___________



          (1st Cir.  1994), cert. denied,  115 S. Ct. 947  (1995).  Santos,
                            _____ ______



          Matta, De Leon, and  Rosalia Sanchez-Vencosme ("Sanchez") resided



          in  the same  apartment  building in  Rio  Piedras, Puerto  Rico.



          Sanchez and  Santos shared an apartment.   On May 8, 1993, Santos



          and De Leon invited Sanchez to another apartment, shared by Matta



          and De Leon,  and offered to  pay Sanchez  $1,700 for carrying  a



          kilogram of cocaine  to New York.  Sanchez  declined the offer at



          the time, but later relented.



                    The  next day, May 9, De Leon helped Santos and Sanchez



          strap cocaine-laden girdles  to their bodies.   Matta then  drove



          Santos and Sanchez  to the airport while De Leon  remained at her



          apartment.  En route to the airport, Matta gave  Santos the money



          with which  to purchase two plane tickets.  Upon their arrival at



          the airport, Santos  and Sanchez proceeded to  the ticket counter



          while Matta remained  at a  discreet distance.   Santos, who  was



          carrying two  kilograms of  cocaine, purchased the  tickets, pro-



                                          3



ceeded toward the departure gate and passed through the  security



          checkpoint without incident.  Sanchez, carrying one kilogram, was



          detained when the checkpoint security alarm sounded as she passed



          through.  After the cocaine was discovered on her person, Sanchez



          was placed under arrest and charged with  possessing cocaine with



          intent  to  distribute.   She  later  pled  guilty  and testified



          against appellants Santos, Matta and De Leon. 


II
                                          II



                                      DISCUSSION
                                      DISCUSSION
                                      __________



          A.   Opening Statement
          A.   Opening Statement
               _________________



                    Count one charged appellants with conspiring to possess



          cocaine with intent to  distribute, from on or about  December 1,



          1992, to and including May 9,  1993.  In the government's opening



          statement,  the prosecutor described various criminal activities,



          as alleged in  the indictment, which would  be established during
          __ _______ __  ___ __________



          trial.   At  side-bar  immediately after  the opening  statement,



          defense  counsel moved  for  mistrial based  on unfair  prejudice



          allegedly resulting  from the  prosecutor's references  to defen-



          dants' pre-May  8 criminal activities  since Sanchez     the only



          government witness to  the alleged conspiracy     had not  become



          involved  until May 8.   Following an evidentiary  proffer by the



          government, the district court  ruled that the alleged conspiracy



          spanned  only the two-day period    May  8 through May 9, 1993   



          during which  Sanchez participated.   The  court then  denied the



          motions for  mistrial,  on  the  ground that  its  curative  jury



          instructions  would afford  adequate  protection  against  unfair



                                          4



prejudice.  



                    The district court gave  a curative instruction immedi-



          ately before Sanchez  testified, emphatically directing the  jury



          to  disregard all prosecutorial  references to occurrences during



          the period  December 12th, 1992, through  May 7th, 1993.   At the



          same time the court reiterated its admonition    initially stated



          during its preliminary jury  instructions    that statements made



          by counsel are  not evidence.  During its final  charge the court



          said:          I caution you and instruct you that

                         . . . any comments that the govern-

                         ment  made  in [its]  opening argu-

                         ments with respect to anything that

                         might  have  happened prior  to May

                         8th is to be totally and completely

                         disregarded  and  ignored  by  you.

                         The  evidence in  this case  . .  .

                         starts  on  May the  8th,  and goes

                         over into May the 9th.   That's all

                         you're  concerned  with.   Anything

                         that you might  recall or  anything

                         that was said  that went before May

                         the  8th, is  completely irrelevant

                         to you, and  may not be  considered

                         by you.



                    Appellants  contend that  the district  court  erred in



          denying  their motion  for mistrial,  as no  curative instruction



          could overcome the unfair impression conveyed by the prosecutor's



          statement  that  appellants were  involved  in  a more  extensive



          conspiracy  than the government would establish at trial.  Appel-



          lants  assert that  "a  curative instruction  would not  suffice"



          because the  jury clearly  understood the prosecutor  and, coming



          from the  government, the statement  would be given  weight "not-



          withstanding any instructions from the court." 



                    Although  the  assurances  that  the  government  would



                                          5



establish criminal  activities predating the commencement  of any



          provable  conspiracy posed  a considerable  potential for  unfair



          prejudice to appellants, any actual  prejudice was self-inflicted



          by their failure to mount a pretrial challenge to the indictment,



          based  on overbreadth, see Fed.  R. Crim. P.  12(b)(2), and their
                                 ___



          failure  to request the district court in advance to limit prose-



          cutorial references in the  government's opening statement to the



          temporal scope of  the provable conspiracy.1  Furthermore,  at no



          time  did  the defense  suggest to  the  district court  that the



          opening statement involved intentional misconduct by the prosecu-



          tor.  



                    Even  under  a   "plain  error"  analysis,  appellants'



          argument fails.  The  denial of a timely  motion for mistrial  is



          reviewed for  manifest  abuse of  discretion.   United States  v.
                                                          _____________



          Romero-Carrion,  54 F.3d 15, 17 (1st Cir. 1995); United States v.
          ______________                                   _____________



                              
          ____________________



               1At bottom, of course, the challenge to the temporal breadth

          of  the alleged  conspiracy  described in  the opening  statement

          represented a challenge to the  indictment.  "Defenses and objec-

          tions based on defects  in the indictment" are to be raised prior

          to  trial, Fed.  R.  Crim. P.  12(b)(2),  and are  deemed  waived

          pursuant  to  Fed. R.  Crim. P.  12(f)  unless the  court affords

          relief  for "cause shown."   As appellants failed  to avail them-

          selves of a full  and fair opportunity to mount  a pretrial chal-

          lenge to the indictment, and now offer no justification for their

          failure, the present claim  is deemed waived.  See  United States
                                                         ___  _____________

          v. Rodriguez, 738 F.2d 13, 15 (1st  Cir. 1984) (motion to dismiss
             _________

          indictment during trial untimely under Rule 12(b)); Flying Eagles
                                                              _____________

          Publications,  Inc. v. United States, 273 F.2d 799, 803 (1st Cir.
          ___________________    _____________

          1960) (declining to address merits of nonjurisdictional challenge

          to indictment at close  of evidence because "under Criminal  Rule

          12(b)(2) it should have been  asserted by motion before trial.");

          see  also United States  v. Smith, 866 F.2d  1092, 1098 (9th Cir.
          ___  ____ _____________     _____

          1989)  (finding  that  defendants waive  all  but  jurisdictional

          claims of error  regarding an indictment unless they  raise their

          claims prior to trial). 



                                          6



Pierro, 32 F.3d 611,  617 (1st Cir.  1994), cert. denied, 115  S.
          ______                                      _____ ______



          Ct.  919 (1995).   And  absent a  clear showing  of  prejudice by



          appellants the denial must be upheld.  United  States v. Hahn, 17
                                                 ______________    ____



          F.3d  502, 508 (1st Cir.  1994) (citing United  States v. Sclamo,
                                                  ______________    ______



          578 F.2d 888, 890-91 (1st Cir. 1978)).  



                    We  evaluate the  potential for prejudice  by assessing



          the  likely impact  of the  challenged conduct  upon the  jury as



          viewed in the context of the entire trial, including prosecutori-



          al  culpability, the  nature  and timeliness  of the  defendant's



          response and any curative measures undertaken by the trial court.



          See  United States  v. Moreno,  991 F.2d  943, 947-49  (1st Cir.)
          ___  _____________     ______



          (evaluating government's  opening and closing  statements), cert.
                                                                      _____



          denied, 114  S. Ct. 457 (1993);  see also  United  States v. Mac-
          ______                           ___ ____  ______________    ____



          cini,  721  F.2d 840,  842-43 (1st  Cir.  1983).   Ultimately, of
          ____



          course,  the acid test is  whether the defendant  received a fair



          trial.  Moreno, 991 F.2d at 949.
                  ______



                    A careful  review of  the record demonstrates  that any



          potential  prejudice to  appellants was  averted by  the district



          court's firm curative instructions and by its ruling limiting the



          temporal  reach of the government's evidence at trial to the two-



          day period    May 8 and 9, 1993.  Nor have appellants suggested a



          sufficient basis  for their  conjecture that  the jury failed  to



          follow the specific curative instructions repeatedly given by the



          district court.  See  United States v. Paiva,  892 F.2d 148,  160
                           ___  _____________    _____



          (1st Cir. 1989)  (court normally presumes  that jury follows  its



          instructions).  


7



B.   Closing Argument
          B.   Closing Argument
               ________________



                    On appeal, Matta and De Leon contend for the first time



          that the government improperly vouched  for Sanchez's credibility



          during closing argument  when the prosecutor stated, "She's not a



          perjurer.  She's going to do time.  She's not going to walk.  She



          is truthful."  The appellate brief jointly filed by  Matta and De



          Leon  devotes  a single  conclusory  sentence  to their  vouching



          claim:  "The  government also vouched for its  principal witness,



          Rosalia  Sanchez-Bencosme."2   Their failure  to raise  the claim



          below and to present developed argumentation on appeal constitut-



          ed a clear waiver.  See United States v. Zannino, 895 F.2d 1,  17
                              ___ _____________    _______



          (1st Cir.), cert. denied, 494 U.S. 1082 (1990).  
                      _____ ______



          C.   Motions for Judgments of Acquittal
          C.   Motions for Judgments of Acquittal
               __________________________________



                    All  three  appellants  claim  there  was  insufficient



          evidence to  support their convictions, hence  the district court



          erred  in denying their motions for judgments of acquittal.  They



          base their claim on the ground that the only testimony supporting



          their convictions was provided  by Sanchez and it was  not credi-



          ble.  See supra pt. II.B.   Appellants argue  that Sanchez demon-
                ___ _____



          strated her  lack of credibility  by giving false  information in



          her  earlier dealings  with  the United  States Drug  Enforcement



                              
          ____________________



               2Santos would be permitted  to adopt the arguments presented

          by  Matta and De Leon, see Fed. R.  App. P. 3(b), but only to the
                                 ___

          extent  that the  adopted arguments  themselves are  apposite and

          adequately  developed.  Cf. United States v. David, 940 F.2d 722,
                                  ___ _____________    _____

          737  (1st  Cir.  1991)  (rejecting attempt  to  adopt  materially

          different  arguments by  reference), cert.  denied, 504  U.S. 955
                                               _____  ______

          (1992);  United  States v.  Zannino, 895  F.2d  1, 17  (1st Cir.)
                   ______________     _______

          (similar), cert. denied, 494 U.S. 1082 (1990).
                     _____ ______



                                          8



Administration,  and by entering into a sham marriage in order to



          obtain immigrant status.  



                    It is well settled  that all credibility questions must



          be  resolved in  favor  of the  verdict  when reviewing  a  trial



          court's denial of  a motion for judgment of acquittal.   Hahn, 17
                                                                   ____



          F.3d at  506 (citing United  States v. Batista-Polanco,  927 F.2d
                               ______________    _______________



          14, 17 (1st  Cir. 1991)).   The conclusory assertions  supporting



          the  instant claim afford no basis for departing from the general



          rule that credibility determinations are for the factfinder.  Id.
                                                                        ___



          A careful record review demonstrates that defense counsel, during



          cross-examination  and in their  closing arguments,  ably exposed



          the very  serious credibility problems  with Sanchez's testimony.



          The record likewise reveals ample evidence    crediting Sanchez's



          testimony as we must, see id.    to establish beyond a reasonable
                                ___ ___



          doubt  each  essential  element  of the  crimes  charged  against



          Santos, Matta and De Leon.  D.     Sentencing
                                      D.     Sentencing
                                             __________



                    Santos  and De Leon did not object to their presentence



          reports.  Thus, their undeveloped sentencing claims, broached for



          the first time on appeal, were  not preserved.  See United States
                                                          ___ _____________



          v. Ocasio-Rivera, 991 F.2d 1,  3 & n.3 (1st Cir. 1993).   Indeed,
             _____________



          the  appellate  brief submitted  by  Santos  does not  explicitly



          present a  sentencing  claim.   Her  reliance  on  a  perfunctory



          announcement  of joinder under Fed. R. App. P. 3(b) is inadequate



          to entitle her to  "piggyback" on the sentencing claims  advanced



          by her  codefendants.  See  supra note  2.  As  for De Leon,  the
                                 ___  _____



          argumentation in  the  joint brief  submitted  by her  and  Matta


9



merely  rests on  the bald  statement that  she should  have been



          granted  a  downward  departure,  though she  purports  to  adopt



          Matta's arguments by reference.   See id.  Since neither De  Leon
                                            ___ ___



          nor  Santos  discussed their  own  sentencing  claims, nor  their



          respective grounds for either a downward departure or adjustment,



          we decline  to consider their  claims.  "[T]he  settled appellate



          rule  [is]  that  issues adverted  to  in  a perfunctory  manner,



          unaccompanied  by some  effort  at  developed argumentation,  are



          deemed waived."  Zannino, 895 F.2d at 17.
                           _______



                    Although Matta  has presented  a developed claim  for a



          downward adjustment, assertedly based on  his "minor role" in the



          cocaine transaction,  see U.S.S.G.    3B1.2(b), it  is frivolous.
                                ___



          The  presentence report  not only  includes no  information which



          would  warrant a finding  that Matta played  a minor  role in the



          offense  but it  recommends  a four-level  upward adjustment  for
                                                     ______



          Matta's supervisory role  in the  offense.  See  id.    3B1.1(a).
                  ___________ ____                    ___  ___



          Even though the district  court rejected this recommendation, the



          uncontroverted  evidence that  Matta provided  the money  used to



          purchase  the airline  tickets for Santos  and Sanchez,  then re-



          mained  in the background as his "mules" proceeded to the airport



          security checkpoint,  left little room  for a finding  that Matta



          played a minor role in the offense.



                    The contention  that Matta  was entitled to  a downward



          departure for "aberrant behavior"  fares no better.  There  is no



          basis for concluding that the sentencing court did not understand



          that a  downward  departure based  on  aberrant behavior  may  be


10



permissible in an  appropriate case.   The district court  simply



          refused to depart on  the grounds presented by Matta.  See United
                                                                 ___ ______



          States v.  Catucci, 55 F.3d 15,  19 n.3 (1st Cir.  1995).  Conse-
          ______     _______



          quently, we  lack jurisdiction  to consider the  departure claim.



          See United States v. Ruiz, 905 F.2d 499, 508-09 (1st Cir. 1990).
          ___ _____________    ____



                    Affirmed.
                    Affirmed.
                    ________


11