
USCA1 Opinion

	




          November 4, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        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                 __________            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.                                         -2-                                         -2-                 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).            ______    ____________                                         -3-                                         -3-                 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                                         -4-                                         -4-            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).            ______    ___________                                         -5-                                         -5-                 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                                         -6-                                         -6-            one  condemned in Colon-Pagan.  As that case makes clear, the                              ___________            problem in Colon-Pagan was not with the word "convincing" but                       ___________            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                                         -7-                                         -7-            motion, but we do  decline either to docket or  consider this            impermissible filing.                 Affirmed.                 ________                                         -8-                                         -8-
