
USCA1 Opinion

	




          July 19, 1993         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2482                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   DENNIS LIBERGE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                _____________________               Valeriano Diviacchi, by Appointment  of the Court, with whom               ___________________          Diviacchi Law Office, was on brief for appellant.          ____________________               F. Mark Terison, Assistant United States Attorney, with whom               _______________          Richard  S. Cohen, United States  Attorney, and Jonathan A. Toof,          _________________                               ________________          Assistant United States Attorney, were on brief for appellee.                                  ____________________                                 ____________________                    Per Curiam.  Appellant  Dennis Liberge was charged with                    __________          conspiracy to  possess cocaine  with intent  to distribute  it in          violation  of  21 U.S.C.      841(a)(1),  841(b)(1)(C), and  846.          After trial, a jury  found him guilty.  Appellant  challenges the          conviction,   alleging  that   the  trial   court's  instructions          regarding  the  statute  of  limitations  constituted  reversible          error.  We affirm.                    Appellant  claims  that  he  entered  a  conspiracy  to          distribute  cocaine with  several  other  individuals during  the          summer  of 1986, but that his participation ended well before the          critical date  for the statute  of limitations bar,  February 26,          1987.  Defense counsel anticipated the importance of  the statute          of  limitations in  its version  of the  jury instructions.   The          trial judge rejected the proffered instruction and instructed the          jury that the government must prove:                      First,  that on  or  after  February  26,                      1987, and continuing up until June, 1987,                      the    agreement    specified   in    the                      indictment, and not some  other agreement                      or  agreements  existed  or continued  to                      exist  between  at  least  two  people to                      possess  cocaine  with   the  intent   to                      distribute   it.  .   .  .   Second,  the                      government must prove that Dennis Liberge                      intentionally joined in this agreement. .                      . . In summary,  for Dennis Liberge to be                      convicted of the crime of conspiracy, the                      government must prove two things beyond a                      reasonable  doubt:    first, that  on  or                      after  February 26, 1987,  and continuing                      up  until June,  1987,  an  agreement  to                      possess  cocaine  with   the  intent   to                      distribute  it  existed  or continued  to                      exist;  and  second, that  Dennis Liberge                      intentionally joined in  or continued  in                      that agreement.          Appellant  offered  two exceptions  when  queried  by the  judge.          Neither objection  raised the statute of limitations  issue.  The          trial court denied the objections.                    To  preserve  an objection  to  a  jury instruction,  a          defendant must  make a  contemporaneous exception when  the trial          court instructs the jury,  which apprises the judge of  the basis          of  the asserted  error.   United States v.  Mendoza-Acevedo, 950                                     _____________     _______________          F.2d 1, 4 (1st Cir. 1991); United States v. McGill,  932 F.2d 16,                                     _____________    ______          17 (1st Cir. 1991); Fed. R. Crim. P. 30  ("No party may assign as          error any portion of the charge or omission therefrom unless that          party  objects thereto  before the jury  retires to  consider its          verdict, stating  distinctly the matter  to which he  objects and          the grounds of his objections.").   The rule is not a penalty for          inartfully phrased objections, see 2 Charles Alan Wright, Federal                                         ___                        _______          Practice & Procedure, Crim. 2d    484 (1982 & supp. 1993),  but a          ______________________________          frank  recognition that  a trial  judge cannot correct  errors of          which he is unaware.   The failure to object  clearly, therefore,          waives the issue.  United States v. Glenn, 828 F.2d 855, 862 (1st                             _____________    _____          Cir. 1987).                    Appellant contends that in the context of this case and          based on his previously requested instructions, the court knew or          should have known  that the critical issue  for the jury  was the          statute  of limitations requirement that  Liberge was part of the          conspiracy on or after February 26, 1987.  The argument, however,          does not serve appellant's cause.                      The judge instructed the  jury that the government must          prove  beyond a reasonable doubt that Liberge joined or continued                                         -3-          as  a  member  of a  conspiracy  that  began  or continued  after          February  26,  1987.    Appellant  failed  to  object  after  the          instruction was given, as  required by Rule 30 and  First Circuit          precedent.  Mendoza-Acevedo, 950 F.2d at 4.  The trial judge thus                      _______________          justifiably believed  that he had  addressed appellant's concerns          regarding  the statute  of limitations  bar.  The  two objections          that appellant raised did not suggest that appellant continued to          object to the  instruction on the statute of  limitations ground.          Appellant argued  that the  instruction should have  required the          government to prove  the existence of  a conspiracy between  five          named  individuals on  or  after February  26,  1987.   This,  of          course, was not the government's burden and does not even vaguely          suggest   the  judge  erred  with   respect  to  the  statute  of          limitations.    The  second   objection  addressed  an   entirely          different point  not relevant here.   The statute  of limitations          issue therefore is waived.                    Consequently, we may vacate appellant's conviction only          if  the instructional  error was  "plain."   Mendoza-Acevedo, 950                                                       _______________          F.2d at  4; McGill, 932 F.2d  at 17.  "The plain  error hurdle is                      ______          high."   McGill,  932  F.2d  at  17  (quoting  United  States  v.                   ______                                ______________          Hunnewell,  891  F.2d 955,  956 (1st  Cir.  1989)).   Viewing the          _________          charge as a whole,  as we must, Glenn, 828 F.2d  at 861, the jury                                          _____          could  not have  been misled  by the  judge's instruction  on the          government's burden.                    The conviction is affirmed.                                      ________                                         -4-
