United States v. Sustache Rivera

Opinion

USCA1 Opinion

November 4, 1994      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-1669

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                                DAVID SUSTACHE RIVERA,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________

                            Bownes, Senior Circuit Judge,
                                    ____________________

                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________

            Benny  Frankie  Cerezo,  by  Appointment  of  the Court,  and  Law
            ______________________                                         ___
        Offices of Benny Frankie Cerezo on brief for appellant.
        _______________________________
            Miguel  A. Pereira,  Assistant United  States Attorney,  Guillermo
            __________________                                       _________
        Gil,  United  States Attorney,  and  Jose  A. Quiles-Espinosa,  Senior
        ___                                  ________________________
        Litigation Counsel, on brief for the United States.

____________________

____________________


Per Curiam.  In December 1992, David Sustache Rivera was
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            indicted  for armed car jacking  in violation of  18 U.S.C.  

            2119(1).   In January 1993, Sustache  was indicted separately

            for two  additional car  jackings  in violation  of the  same

            statute.  In one of these two, serious injury had resulted to

            a victim, and the government also invoked 18 U.S.C.   2119(2)

            providing for an additional penalty in such cases.

                 On  March 9, 1993,  Sustache appeared to  enter a guilty

            plea  in all  three  cases which  had  been consolidated  for

            trial.   By then Sustache had been examined by a psychologist

            who  reported   that  he   was  competent  to   stand  trial.

            Nevertheless, when defense counsel expressed some reservation

            about   Sustache's   "thorough  understanding   of   all  the

            proceedings," the court asked Sustache why he wanted to plead

            guilty, and Sustache replied:  "I don't remember."

                 The district court then said that it was satisfied based

            on the  psychologist's report that Sustache  was competent to

            stand trial.  The court said that it was unwilling to  accept

            a guilty plea  from a  defendant who said  that he could  not

            remember  why he was  pleading guilty.   When defense counsel

            again urged the  court to  inquire about a  guilty plea,  the

            court questioned the defendant further.  Ultimately defendant

            asserted  that he had not committed the crimes charged in the

            indictments.

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The  court  then ordered  the jury  to be  summoned and,

            without  any  objection  from  defense  counsel,   the  trial

            commenced.  There was  extensive testimony as to each  of the

            three car jackings including an eye witness identification of

            Sustache by a different  witness in each of the  three cases.

            On  March 11,  1993, the  jury found  Sustache guilty  on all

            counts.  In May 1993, the district court sentenced him to 444

            months' imprisonment.

                 On  this appeal, Sustache's  appellate counsel, who also

            represented Sustache at trial, makes two main arguments.  The

            first is that two of the three identifications of Sustache at

            trial were flawed.  The flaws, according to the counsel, were

            violations of  provisions of Puerto Rico's  Rules of Criminal

            Procedure.    The  provisions  in question  are  designed  to

            prevent  suggestive identifications  and preserve  records of

            the identification process. 

                 The government responds that none of these objections to

            the identifications were made in advance of trial as required

            by Fed. R. Crim. P. 12(b)(3), which specifies that motions to

            suppress  evidence be  raised prior  to  trial.   Among other

            reasons, this requirement protects  the government's right to

            appeal the  grant of  the suppression motion  before jeopardy

            has  attached.   Consonantly, the  failure to  raise such  an

            issue  by pre-trial  motion  waives the  claim.   See  United
                                                              ___  ______

            States v. Gomez-Benabe, 985 F.2d 607 (1st Cir. 1993).
            ______    ____________

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In  a  reply  brief,  Sustache's  counsel  argues  "that

            defendant was not granted the opportunity to file a motion to

            suppress";  the gist of the argument is that Sustache and his

            counsel  came to court on  March 9, 1993,  expecting to plead

            guilty  and were surprised to find the case was proceeding to

            trial at once.  Defense counsel refers us to Fed. R. Crim. P.

            12(f)'s  provision allowing  the  district  court "for  cause

            shown" to relieve any defendant from waiver.

                 Rule 12(f)  gives authority  to the district  court, and

            there is no indication  that defendant ever sought  to invoke

            it  there.  Further, when the district court ordered the case

            to trial  forthwith, defense counsel  did not object  that he

            was  unprepared or  needed additional  time to  file motions.

            Nothing in the  reply brief  in this court  even attempts  to

            describe  the  deadlines  for  pre-trial  motions  that  were

            applicable  to this  case.  So  far as  we can  tell from the

            record, the claimed "lack of opportunity" to move to suppress

            is an afterthought.

                 Nor is there any  basis for asserting plain error.   The

            provisions  invoked  by  counsel  related  to identifications

            under  local law,  and identifications  in federal  court are

            governed by federal  law.  United  States v. Sutherland,  929
                                       ______________    __________

            F.2d 765  (1st Cir.), cert. denied, 112 S. Ct. 83 (1991).  In
                                  ____________

            this  case  the identifications  were  carried  out by  local

            officials  before  the   case  was  transferred   to  federal

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authorities.   There is no indication  that federal officials

            were   seeking  to  circumvent   local  protections  or  take

            advantage of any flagrant abuse.  See United States v. Pratt,
                                              ___ _____________    _____

            913 F.2d 982  (1st Cir. 1990),  cert. denied, 111 S.  Ct. 681
                                            ____________

            (1991).

                 The identifications  may or  may not have  been somewhat

            suggestive; the defense version of what happened is not based

            on  any  district  court  findings   since  the  lack  of   a

            suppression  motion meant  no ruling  on the issues  was ever

            required.     The  fact   that  there  were   three  separate

            identifications, one  of  which is  not  even claimed  to  be

            tainted, strongly suggests that  this is not a case  that can

            be  described as a miscarriage of justice.  See United States
                                                        ___ _____________

            v. Olano, 113 S. Ct. 1770 (1993).
               _____

                 Sustache's  other independent  claim  of error  requires

            less discussion.   In  his opening brief,  Sustache's counsel

            says that  the district  court committed reversible  error by

            instructing the  jury that  reasonable doubt meant  "proof of

            such convincing character that  a person would be  willing to

            rely  and act upon  it."  Although no  objection was taken to

            any part of the reasonable  doubt instruction given at trial,

            counsel correctly asserts that the quoted language is akin to

            an instruction found  to constitute plain error.   See United
                                                               ___ ______

            States v. Colon Pagan, 1 F.3d 80 (1st Cir. 1993).
            ______    ___________

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The  difficulty  is  that  we  cannot  find  the  quoted

            language  in  any   portion  of  the  court's  two   sets  of

            instructions   on  reasonable   doubt;   one  was   given  in

            preliminary  instructions prior  to testimony, and  the other

            was  delivered in a somewhat  different form at  the close of

            the  evidence.   Although counsel's  brief uses  the language

            just quoted  and later  paraphrases the  alleged instruction,

            neither reference is accompanied by any record citation.  The

            government's brief asserts that  the alleged language was not

            used, and we have no reason to disagree.

                 Sustache's   brief  also  draws  our  attention  to  the

            district court's  statement that  "[a] reasonable doubt  is a

            doubt  based upon  reason and common  sense."   The statement

            that  a reasonable  doubt is  a doubt  based upon  reason and

            common sense is widely used in pattern instructions, see 1 L.
                                                                 ___

            Sand, J. Siffert, W. Loughlin & S. Reiss, Modern Federal Jury
                                                      ___________________

            Instructions    4.01, at  4-8 (1994), and  Sustache offers no
            ____________

            basis for thinking that  this reference was error, let  alone

            plain error.

                 The  trial  judge  also  said  that  "[p]roof  beyond  a

            reasonable doubt  is proof  that leaves you  firmly convinced

            that the defendant is guilty."  But the fact that one form of

            "convince" was  used both in the  Colon-Pagan instruction and
                                              ___________

            in this case does not assist defense counsel, although it may

            explain  the mistaken claim that  the instruction here is the

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one  condemned in Colon-Pagan.  As that case makes clear, the
                              ___________

            problem in Colon-Pagan was not with the word "convincing" but
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            with the suggestion  that a reasonable doubt  would not exist

            so  long as "a person . . .  would be willing to rely and act

            upon" the proof presented.  See 1 F.3d at 81.
                                        ___

                 The "firmly convinced" phrasing has been used in a Ninth

            Circuit  pattern  instruction  and in  the  Federal  Judicial

            Center's pattern instructions, see Sand, supra,   4.01, at 4-
                                           ___       _____

            15  &  n.33;  and  while its  use  may  be  limited,  we have

            ourselves upheld a somewhat  similar statement that equates a

            reasonable  doubt with  jurors' inability  to "say  that they

            have a settled conviction of the truth of the charge."  E.g.,
                                                                    ____

            United States v. O'Brien, 972 F.2d 12, 15-16 (1st Cir. 1992).
            _____________    _______

            See also Victor  v. Nebraska,  114 S. Ct.  1239, 1253  (1994)
            ________ ______     ________

            (Ginsburg, J., concurring).  We certainly have no occasion to

            revisit  the issue here where  no direct criticism is offered

            of the "firmly convinced" language.

                 Finally, we note  that Sustache's counsel,  having moved

            to dispense with oral  argument on the ground that  there was

            no   need  for  it,  thereafter  submitted  to  the  court  a

            "supplemental brief  in lieu of  oral argument."   This brief

            elaborates a number  of the points  previously argued in  the

            opening and reply briefs.  Since no motion for  leave to file

            this  additional  brief was  submitted,  we  cannot deny  the

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motion, but we do  decline either to docket or  consider this

            impermissible filing.

                 Affirmed.
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