
USCA1 Opinion

	




          February 27, 1995     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1337                                    UNITED STATES,                                      Appellee,                                          v.                                 VIVIENE LEE HOPKINS,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Lydia Lizarribar-Masini, by  Appointment of  the Court,  for               _______________________          appellant.               Jos  A.  Quiles-Espinosa,  Senior Litigation  Counsel,  with               ________________________          whom  Guillermo  Gil, United  States  Attorney,  and Rosa  Emilia                ______________                                 ____________          Rodr guez-V lez, Executive Assistant United States Attorney, were          _______________          on brief for appellee.                                 ____________________                                 ____________________                                      CORRECTED                                 ____________________                    Per Curiam.  Appellant  Viviene Lee Hopkins ("Hopkins")                    Per Curiam.                    __________          challenges her conviction after a  jury trial for importation and          possession with intent to distribute cocaine, in violation  of 21          U.S.C.    841(a)(1), 952(a),  and 955.  Hopkins' appeal  rests on          two  grounds.   First,  she claims  that  her conviction  is  not          supported  by  sufficient  evidence, see  Fed.  R.  Crim.  P. 29.                                               ___          Second,  she  claims  that  the government's  use  during  cross-          examination of information not provided to defense counsel before          trial constituted  prosecutorial misconduct, and deprived  her of          her right to a fair trial.  For the following reasons, we affirm.                                      BACKGROUND                                      BACKGROUND                    We summarize  the evidence in the  light most favorable          to  the government.  United States v.  Abreu, 952 F.2d 1458, 1460                               _____________     _____          (1st Cir.),  cert.  denied, __  U.S.  __, 112  S. Ct.  1695,  118                       _____  ______          L.Ed.2d 406  (1992).   Hopkins arrived  at  the Luis  Mu oz-Mar n          International  Airport in San Juan, Puerto Rico on the morning of          January 4,  1993  on  a  flight  from  St.  Maarten,  Netherlands          Antilles.   When Hopkins  deplaned, United State  Customs Service          Inspector  Stephanie  O'Gorman  asked  Hopkins  for  her  Customs          Declaration  Form.  The form noted Hopkins' purchase of a stereo.          Hopkins  also had  the sales  receipt for  the stereo,  which was          admitted  as evidence  at trial.   Hopkins  was carrying  a large          stereo box, a small bag, and a handbag.  When questioned, Hopkins          claimed that she had not yet opened the stereo box.                      In Inspector O'Gorman's  experience, stereos and  other          electronic  appliances  are  often  used to  hide  and  transport                                         -2-          narcotics.   O'Gorman  became suspicious  because Hopkins  had so          little luggage, had only spent three days in St. Maarten, and did          not  have a  suntan.   Acting on  this experience  and suspicion,          O'Gorman conducted an X-ray examination of the stereo box.                      The  X-ray  examination  revealed  "some  shadow areas"          shaped like packages in the stereo, so O'Gorman decided to search          the stereo box and its contents.  When lifting the  stereo out of          the box, O'Gorman noticed  that it was unusually heavy,  and that          the  view inside  the stereo's  back panel  was blocked  by black          electrical  tape.  Using some keys, O'Gorman touched the area and          felt what  she believed to be a package moving.  She then decided          to  remove the stereo's back panel.  During this search, O'Gorman          noticed that Hopkins seemed to become increasingly nervous.                     As  she  was  pulling  off  the  stereo's  back  panel,          O'Gorman noticed  that the attaching screws were scratched, as if          someone had already tried to remove them.  As she pulled the back          panel  apart, O'Gorman  could see  a  package inside  the stereo.          When  the  panel was  removed,  O'Gorman  found five  rectangular          packages  wrapped in  electrical tape.   The packages,  it turned          out, contained approximately 5.7 kilograms of cocaine.                    Subsequently,  Hopkins  was  arrested and  indicted  on          three  counts  of  importation  and  possession  with  intent  to          distribute.  She pled  not guilty at  her arraignment.  During  a          two-day  jury  trial,  defense  counsel  moved  for  judgment  of          acquittal pursuant to  Fed. R. Crim.  P. 29 at  the close of  the          prosecution's  case.   The defense  did  not, however,  renew its                                         -3-          motion  before  the  close  of  trial  after  presenting  its own          evidence.  The jury found Hopkins guilty on all counts.                                       ANALYSIS                                       ANALYSIS                    A.  Sufficiency of the Evidence                    A.  Sufficiency of the Evidence                        ___________________________                    Hopkins appeals  her conviction on the  ground that the          evidence  was  insufficient  to   convict  her  of  the  charges.          Generally, our standard of review for sufficiency of the evidence          appeals requires us to review the record to determine whether the          evidence and  reasonable inferences  therefrom, taken as  a whole          and in the light most favorable to the prosecution, would allow a          rational jury  to determine  beyond a  reasonable doubt  that the          defendant was guilty as charged.  United States v. Mena-Robles, 4                                            _____________    ___________          F.3d 1026, 1031  (1st Cir.  1993).  It  is settled law,  however,          that when a defendant moves for judgment of  acquittal at the end          of the prosecution's  case, but  then fails to  renew the  motion          after presenting her  own case, she  waives the original  motion.          United  States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992).          ______________    ___________          Because the motion is deemed waived, then, the defendant forfeits          the  benefit  of  the  customary  standard  of  review,  "thereby          negating  any claim of evidentiary insufficiency unless affirming          the conviction would work a 'clear and gross injustice'."  Id. at                                                                     __          980 n.2 (quoting United  States v. Cheung, 836 F.2d 729,  730 n.1                           ______________    ______          (1st Cir. 1988) (per curiam)).                    Keeping  this  standard in  mind,  our  reading of  the          record does not reveal any  such injustice.  On the contrary,  it          appears  that, even if we were to apply the customary standard of                                         -4-          review,  Hopkins' conviction  is  amply  supported by  admissible          evidence, particularly the testimony of Inspector O'Gorman.                      Moreover, although  Hopkins argues that  the government          offered  only circumstantial  evidence  of her  knowledge of  the          illegal  contents of her stereo, this argument is unavailing.  We          resolve all credibility issues  in favor of the verdict.   United                                                                     ______          States  v. Cassiere,  4 F.3d  1006, 1011  (1st  Cir. 1993).   The          ______     ________          evidence  may be  entirely  circumstantial and  need not  exclude          every  reasonable hypothesis  of  innocence;  the factfinder  may          decide  among reasonable  interpretations of  the evidence.   Id.                                                                        __          (quoting United States  v. Batista-Polanco, 927 F.2d  14, 17 (1st                   _____________     _______________          Cir.  1991).   Here, the  jury was  entitled to  reasonably infer          Hopkins' knowledge of  the stereo's contents,  and to reject  her          testimony on  her  own behalf  at trial  to the  effect that  she          lacked the requisite knowledge.                      Because  we   find  no  indicia  of   "clear  or  gross          injustice"  surrounding  her   conviction,  and  find  that   her          conviction  is  supported  by  sufficient  evidence,   we  reject          Hopkins' sufficiency of the evidence challenge.                    B.  Prosecutorial Misconduct                    B.  Prosecutorial Misconduct                        ________________________                    Hopkins'  second   claim  on  appeal   involves  events          surrounding the prosecution's cross-examination of Hopkins on the          second day of trial.   Upon taking the stand in her  own defense,          Hopkins testified about buying  the stereo, but averred that  she          did not remember the salesperson  who sold her the stereo in  St.          Maarten.  During its  cross-examination of Hopkins, presumably in                                         -5-          an impeachment attempt, the  government confronted Hopkins with a          document containing information that the salesperson who sold the          stereo  had been  identified,  and remembered  selling it  not to          Hopkins but to a man.1                     This cross-examination continued without objection from          defense counsel.   The government  did not offer  the impeachment          document  into  evidence.    At  the conclusion  of  this  cross-          examination, the government provided  defense counsel with a copy          of the impeachment document, and defense counsel then requested a          bench  conference.    During  the   conference,  defense  counsel          explained to the court that, in conducting its own investigation,          the defense  had interviewed the  salesperson and  had come  away          with a  different story  than that  contained in the  impeachment          document.                      At  counsel's request,  the court  granted the  defense          time,  until  after the  lunch recess,  to either  locate another          witness  to testify or to  decide whether counsel  would take the          stand and  testify  about the  salesperson's  prior  inconsistent          statements.  After the lunch recess, however, defense counsel had          apparently  abandoned  the   matter,  and  called   no  witnesses          regarding  the   salesperson's  statements  or   the  impeachment          document's information.                    Hopkins now claims on  appeal that the government's use          of the impeachment document constituted prosecutorial misconduct,                                        ____________________          1   The government explains that it had just received a facsimile          transmission from the St.  Maartens' police force, reporting this          information, that very morning.                                           -6-          and prejudiced her ability  to obtain a  fair trial.  Because  no          objections to the cross-examination or the use of the impeachment          document were made during trial, however, our standard  of review          is for "plain error."  United States v. Montas, 41  F.3d 775, 779                                 _____________    ______          (1st Cir. 1994); United States v.  Rosales, 19 F.3d 763, 765 (1st                           _____________     _______          Cir. 1994); see Fed. R. Crim.  P. 52(b).  Under this standard, we                      ___          will reverse only if  the error seriously affected  the fairness,          integrity,  or public  reputation  of  the judicial  proceedings,          Rosales, 19 F.3d  at 765, or  where a miscarriage of  justice has          _______          occurred.   United States v. Olivio-Infante, 938  F.2d 1406, 1411                      _____________    ______________          (1st Cir. 1991).                    We find  it difficult to  discern any error  here, much          less  that  rising  to the  level  of  "plain  error."   Hopkins,          somewhat   cryptically,  claims  that   the  government  unfairly          withheld  information  from  the  defense  in  violation  of  the          discovery rule, Fed. R. Crim. P.  16(a)(1)(A), which requires the          government to provide the defense with "the substance of any oral          statment which the government intends to offer in evidence at the                                        ____________________________          trial  .  . .  .  "  (emphasis added).    The  problem with  this          argument,  however, is  that  the government  did  not offer  the          document  or its contents into  evidence; indeed, its  use of the          document  was spurred solely by  Hopkins' testimony on the stand,          the substance of which the government could  not have anticipated          in exact detail.   We have held that although Rule 16 encompasses          statements that the government  believes it will likely introduce          in  rebuttal as well as  in its case-in-chief,  the rule does not                                         -7-          and  cannot  encompass statements  that  the  government, at  the          outset, does not know about,  has no reason to find out  about or          take  note of,  and  would be  unlikely  to introduce  at  trial.          United  States v. Ferrer-Cruz, 899 F.2d 135, 140 (1st Cir. 1990).          ______________    ___________          Similarly, the government cannot  be required to anticipate every          possible defense, assume what the defendant's trial testimony may          be,  and  then  furnish  the defense  with  otherwise  irrelevant          material that might be used for impeachment.  Id. (quoting United                                                        __           ______          States v.  Gleason, 616 F.2d 2, 25  (2d Cir. 1979), cert. denied,          ______     _______                                  _____ ______          444 U.S. 1082  (1980), and cert. denied sub nom. Carter v. United                                 _________ _______________ ______    ______          States,  445  U.S. 931  (1980)).    Because the  government  only          ______          received the  information that morning,2 provided  counsel with a          copy of the document at trial, and did not introduce the document          into evidence but only used  it to impeach Hopkins, we find  that          the government did not violate Rule 16's discovery requirements.                    Finally, we do not agree with Hopkins' contentions that          the  use of the document to impeach her was unfairly prejudicial.          We do not see how  the use of the document could have inflamed or          misled the  jury.  In fact,  if the document had  been introduced                                        ____________________          2  Of course, Rule 16 imposes a continuing duty on the government          to disclose discoverable evidence  that comes to light throughout          the course of the proceedings.  Ferrer-Cruz, 899 F.2d at 140.  In          this case,  the government did  provide defense counsel  with the          document at the trial  that day, after receiving the  document in          the morning.   The defense certainly  received the document  with          ample time to  analyze it.  Its failure to  address or respond to          the government's  use of the document in its own case seems to be          a tactical decision,  rather than  a result  of unfair  surprise.          Indeed, defense counsel never requested a continuance or filed an          objection to the document,  which it would have been  entitled to          do.                                         -8-          into evidence, it may have actually aided Hopkins' defense, as it          would have provided the jury with an alternative theory about who          may  have purchased the  stereo.  In any  event, the document was          only  used to impeach Hopkins'  testimony and was  not offered as          evidence.  We simply do not see any error here.3                                      CONCLUSION                                      CONCLUSION                    For  the  foregoing  reasons,  Hopkins'  conviction  is          affirmed.          ________                                        ____________________          3   As  the government  points  out in  its  brief, even  if  the          government's use of  the document  were error, it  could only  be          termed  harmless error in light  of the abundance  of evidence of          Hopkins' culpability, and  certainly would not rise to  the level          of error required for reversal.                                         -9-
