
USCA1 Opinion

	




          April 1, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1906                                    UNITED STATES,                                      Appellee,                                          v.                             FRANCISCO JAVIER PINEDA-PAZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                          ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Neal K. Stillman for appellant.            ________________            Michael M.  DuBose, Assistant  United States  Attorney, with  whom            __________________        Jay P. McCloskey, United States Attorney, was on brief for appellee.        ________________                                 ____________________                                 ____________________                       Per Curiam.    A  jury  convicted  the  appellant,                       __________             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                       _______             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.                                         -3-                                          3             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.                       ___ ___________________    _____________             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                  _____             indictment.  See United States v.  Maceo, 873 F.2d 1, 3 (1st                          ___ _____________     _____             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                              _____  ______             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                                         -4-                                          4             this evidence left the jury with  the "false impression that             he  had been to Maine  [before] to do  drug deals" (emphasis                                             _________________             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,                                                ______________    ______             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                              _______             elicited purposefully,  for its supposed  impeachment value.                      ____________             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                                         -5-                                          5             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                                         -6-                                          6                       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.                                                     ___ _____________             Wright, 625 F.2d  1017, 1019  (1st Cir. 1980)  (a new  trial             ______             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                                         -7-                                          7             basis for the  increase.   See U.S.S.G    3C1.1  application                                        ___             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)                                                __             (same for "providing materially false information to a judge             or magistrate");  see also United  States v. Biyaga,  9 F.3d                               ___ ____ ______________    ______             204 (1st Cir. 1993).                       Appellant's  remaining  claims are  without merit.             For the reasons stated,  the judgment of the district  court             is                       Affirmed.                       _________                                         -8-                                          8
