
USCA1 Opinion

	




        October 22, 1992    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________        No. 92-1490                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                     JUAN GARCIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            James T. McCormick with  whom McKenna & McCormick was on brief for            __________________            ___________________        appellant.            Zechariah  Chafee,  Assistant United  States  Attorney,  with whom            _________________        Lincoln C. Almond, United States Attorney, was on brief for appellee.        _________________                                 ____________________                                 ____________________                 Per  Curiam.   Appellant Juan  Garcia challenges  on two                 ___________            grounds  his conviction, following a jury trial in the United            States District Court  for the District of  Rhode Island, for            distribution  and  conspiracy   to  distribute  cocaine,   in            violation  of  21 U.S.C.      841(a)(1),  846.   Garcia  also            challenges the  district court's  upward departure  under the            Sentencing  Guidelines.     Finding  no  merit   to  Garcia's            contentions, we affirm.                 The  principal  witness  against  Garcia  at  trial  was            Detective Bonnie Lovell of the Providence Police  Department.            Detective  Lovell testified as follows.  On July 4, 1991, she            was  working in  an undercover  capacity.   She drove  to 129            Moore  Street in  Providence,  Rhode Island,  to meet  Carlos            Eduardo Pardo, from whom she  intended to purchase a quantity            of  cocaine.    Detective  Lovell  was  wearing  a  concealed            microphone  device that transmitted  to a nearby surveillance            team.                  Pardo  was waiting  outside his apartment  building when            Detective Lovell  arrived.  Detective Lovell  told Pardo that            she was interested in purchasing cocaine.  Pardo asked her to            drive  him in her car to a nearby public telephone, which she            did.   Pardo got out of  the car, made a  telephone call, and            re-entered the  car, after which Detective  Lovell drove back            to  the apartment  building.   Soon  thereafter,  a gray  car            arrived and parked nearby.  Garcia was at the wheel and there                                         -2-                                         -2-            were no other persons in the car.  Pardo left the detective's            car  and  went  to   speak  with  Garcia.    After   a  brief            conversation,  Garcia  drove  off,  and  Pardo  returned   to            Detective Lovell's car.                 Pardo  remained  in  Detective  Lovell's   car  awaiting            Garcia's  return.   When Garcia  returned about  five minutes            later, he and Pardo got out of their respective cars and  met            on the front porch of  the apartment building, about  twenty-            five  to thirty feet from  where Detective Lovell  sat in her            car.   Detective  Lovell saw  Garcia hand  a small  object to            Pardo, although  she could  not see exactly  what the  object            was.                 Pardo then  returned to Detective Lovell's  car with the            object in his right hand, and told Detective Lovell to follow            him  into the building.  Detective Lovell and Pardo went into            Pardo's apartment, where  Pardo handed her the object that he            had  been holding in  his right hand,  which Detective Lovell            observed  to  be  a plastic  bag  containing  a  white powder            resembling cocaine.   The  plastic bag, upon  later analysis,            was  shown to contain  a mixture or  substance weighing 35.83            grams  and   containing  a  detectible  amount   of  cocaine.            Detective Lovell testified that she did not take her eyes off            this object  from the time  Garcia handed it to  Pardo to the            time  Pardo handed  it  to  her.    Upon  receiving  the  bag            Detective Lovell stated, "Is  this stuff as good as  the last                                         -3-                                         -3-            stuff?"  This was  a pre-arranged signal to  the surveillance            team, which then entered the apartment and arrested Pardo.                 Detective  Michael   Purro,  a  member   of  the  nearby            surveillance team, also testified  at trial.  Detective Purro            testified that he  observed Garcia leave the  scene after the            first  meeting with  Pardo  and drive  to a  nearby apartment            building.   There,  Garcia got  out of  his car,  entered the            building,  returned a short time  later, got back  in his car            and  returned to  the front  of Pardo's building.   Detective            Pardo  also  testified  that, at  the  same  time that  other            members  of the  surveillance team  entered the  apartment to            arrest  Pardo,  Detective  Purro  pulled  alongside  Garcia's            vehicle, held  up his detective's badge  and yelled "Police!"            Garcia immediately began backing down  the street, but he was            quickly stopped by police officers and arrested.                   Pardo and Garcia were indicted jointly but Pardo pleaded            guilty  prior  to  trial.    Garcia,  as earlier  noted,  was            convicted  following a  trial  by  jury,  and  he  was  later            sentenced to a  term of  imprisonment of thirty  months.   In            this appeal, Pardo attacks the sufficiency of the evidence, a            remark  made by the prosecutor  relating to a  fact not later            supported by  evidence, and the calculation  of his sentence.            We address each issue in turn.                 First.     Garcia   contends  that   Detective  Lovell's                 _____            testimony  was  inherently incredible  and,  accordingly, the                                         -4-                                         -4-            district  court  should have  granted  his motion  for  a new            trial.   He  contends that  Detective  Lovell must  have been            lying  when she testified that  she kept her  eyes on Pardo's            right  hand  and the  object he  was  holding for  the entire            period from the time  the object was received from  Garcia to            the time it was  handed over to the detective.   According to            Garcia,   this  testimony  "defied  physical  laws,"  because            Detective  Lovell's vision  of Pardo's  right hand  must have            been  obstructed at  several  junctures, such  as when  Pardo            entered  and  exited the  car in  which Detective  Lovell was            seated.                   Garcia  also argues  that  Detective Lovell's  testimony            contained inconsistencies on certain  issues (such as whether            Pardo and Garcia met  on the porch of the  apartment building            or  in the driveway) as  well as descriptions  of events that            are  inherently  unbelievable.    As  an  example,  he  cites            Detective  Lovell's testimony  that,  as Pardo  and she  were            exiting  her  vehicle,   she  whispered  directions   to  the            surveillance team through the  hidden microphone just  before            going up to  Pardo's apartment.   Taking all  of the  alleged            flaws  in the  testimony  together, Garcia  contends that  no            reasonable jury could  credit Detective  Lovell's version  of            events.                 While these  arguments were appropriate  during Garcia's            closing  argument to the jury, they have little force on this                                         -5-                                         -5-            appeal.      "It  is   axiomatic  that,   absent  exceptional            circumstances,  issues  of  witness  credibility  are  to  be            decided  by  the jury  .  .  .  .   In  general,  conflicting            testimony  or a question as  to the credibility  of a witness            are not sufficient grounds for granting a new trial."  United                                                                   ______            States  v.  Kuzniar,  881  F.2d  466,  470  (7th  Cir.  1989)            ___________________            (citations omitted).   Courts  have recognized  an "extremely            narrow"  exception to this  general rule:   Where a witness's            testimony is  material and is so  inherently implausible that            it could not be  believed by a reasonable juror,  a court may            grant a  new trial.  Id. at 470-71.  This determination is to                                 __            be made, in the first instance, by the trial judge, who is in            a  far better position to assess the credibility of a witness            than an appellate court.      In    this    case,    Garcia's            "incredibility" argument was expressly rejected  by the trial            judge when  he denied  Garcia's post-trial  motion for a  new            trial.   At the hearing on Garcia's motion, the judge stated,            "[I]n this case . . .  I see no evidence of any misstatements            by any of the witnesses and there is more than ample evidence            to  support the verdict."  The trial judge's determination in            this  regard is  not  to be  overturned  absent an  abuse  of            discretion, see  United States v. Rodriguez, 738  F.2d 13, 17                        ___  __________________________            (1st Cir. 1984); United States v. Thornley, 707 F.2d 622, 626                             _________________________            (1st  Cir. 1983), and we  certainly find no  such abuse here.            Detective Lovell's testimony that she kept her eye on Pardo's                                         -6-                                         -6-            hand during the entire sequence of  events was not inherently            incredible.  She was  working in an undercover capacity  on a            drug  buy  and  had  just observed  an  individual  hand  the            suspected seller a small package.  It is not implausible that            Detective Lovell would  keep her eye on  the package; indeed,            one would expect her to  do just that.  Even if  the hand and            its  contents disappeared  from her  view for  a  few seconds            during the sequence of events, the jury could reasonably have            viewed Detective Lovell's testimony on this point as innocent            exaggeration in a detail, but essentially true.                  As  for the alleged  inconsistencies, Detective Lovell's            testimony was entirely consistent  as to the general sequence            of  events.   There are some  minor discrepancies  within her            testimony, and  between her  testimony and the  transcript of            the surreptitious recording, as to the exact location of some            of  these   events.     Garcia  was   free  to  bring   these            inconsistencies   to  the  jury's   attention  during  cross-            examination and  in closing argument.   The jury  was equally            free to  view  them  --  as  the jury  evidently  did  --  as            relatively insignificant discrepancies which did  not detract            from the substance of the overall testimony.                   Second.  During opening  argument, the prosecutor made a                 ______            single reference  to the  fact that  the evidence  would show            that, at the time of Garcia's arrest, several hundred dollars                                         -7-                                         -7-            in cash was recovered  from his person.1  At  trial, however,            the             government introduced  no evidence  that cash was  taken from            Garcia upon his arrest.  Garcia argues that the  prosecutor's            remark was  prejudicial error.   We agree that  the reference            was  error, but we conclude  that any objection  to the error            was waived and was, in addition, harmless beyond a reasonable            doubt.                   At the outset, we note that Garcia raised this issue for            the first time in his motion for a new trial.  His failure to            raise the issue at the close of the government's case -- when            it  became apparent  that  the government  had introduced  no            evidence to  support its  reference  to cash  in the  opening            statement   --  deprived   the  court   of  the   opportunity            specifically to  instruct the  jury to ignore  the reference.            As  it happens, the district court did instruct the jury that            arguments of  counsel  are not  evidence, and  that the  jury            should consider only the  testimony of witnesses and exhibits                                            ____________________                 1Garcia argues  that the prosecutor repeated  during his            closing argument the allegation that  money was seized at the            arrest.  We have  examined the transcript of the  closing and            reach a  different conclusion.  Refuting  any suggestion that            the police  had tailored  their testimony to  convict Garcia,            the prosecutor said  that the  police -- "if  they wanted  to            cook up  a case" -- could  have said that Garcia  was seen to            exchange money for drugs with Pardo.  We do not  believe that            this statement  would be  understood as suggesting  that cash            was in fact taken from Garcia at the time of his arrest.                                         -8-                                         -8-            introduced into evidence.   If Garcia  wanted a more  pointed            reference, it was his responsibility to ask for it.                 Furthermore,  we  regard the  error  as  harmless.   The            evidence  of  guilt, including  Detective  Lovell's chain-of-            custody observation and Detective Purro's testimony regarding            Garcia's attempt to flee, was overwhelming.  The prosecutor's            reference  to the  money in  the opening  was very  brief and            nothing was said on the  subject in closing.  Nor do  we have            any  reason to believe the remark was a deliberate attempt to            mislead  the  jury.2   For these  reasons, we  conclude that,            even  apart from  waiver of  the objection,  the prosecutor's            isolated  remark would not warrant  a new trial.   See United                                                               ___ ______            States  v. Sutherland,  929 F.2d 765,  775 (1st  Cir.), cert.            _____________________                                   ____            denied, 112 S. Ct. 85 (1991).            ______                 Third.    It  is  undisputed  that  at  the time  Garcia                 _____            committed the offenses in this case, there was an outstanding            bench warrant for  his arrest  for failure to  appear in  New            York state court on  then-pending charges of possession of  a            controlled substance.  This fact did  not directly affect the            calculation of Garcia's criminal history under the Sentencing                                            ____________________                 2At oral argument, government  counsel, who was also the            prosecutor  at  trial,  explained  that  he  elected  not  to            introduce evidence  that $336 dollars was  seized from Garcia            because he concluded that he had no evidence directly linking            the money  to the  transaction observed by  Detective Lovell.            As to the existence of the money, both  the police report and            the  government's  pre-trial   discovery  letter  to  defense            counsel noted that $336 was seized from Garcia at the time of            his arrest.                                         -9-                                         -9-            Guidelines,  because the  criminal history  calculation takes            into account  only criminal convictions.   However, the trial            judge  departed upward  pursuant to  U.S.S.G.    4A1.3, which            states, in pertinent part:                 If reliable information indicates that the criminal                 history  category does  not adequately  reflect the                 seriousness  of  the   defendant's  past   criminal                 conduct or  the likelihood that  the defendant will                 commit  other  crimes,   the  court  may   consider                 imposing  a sentence  departing from  the otherwise                 applicable  guideline range.   Such information may                 include,  but  is   not  limited  to,   information                 concerning:                      (d)  whether  the  defendant was  pending                      trial, sentencing, or  appeal on  another                      charge   at  the  time   of  the  instant                      offense[.]                  The trial  judge elected,  based upon this  provision in            the  guidelines,  to  depart  upward  from  Criminal  History            Category I  to Criminal History Category  II, which increased            the sentencing range from  twenty-one to twenty-seven  months            to twenty-four to thirty months.   The judge sentenced Garcia            to the maximum thirty  months.  Garcia has not  suggested any            plausible reason why this  was error, and we can  conceive of            none.  See United States v. Hernandez, 896 F.2d 642, 645 (1st                   ___ __________________________            Cir. 1990)  (upholding upward departure  where an individual,            already on bail or otherwise charged with a criminal offense,            commits a separate offense).                 For the foregoing reasons,  the judgment of the district            court is affirmed.                     ________                                         -10-                                         -10-
