
USCA1 Opinion

	




        August 25, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1942                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                FIDELINA SANTOS-FRIAS,                                Defendant, Appellant.                                                                                      ____________________        No. 94-1943                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               FRANCISCA DE LEON-PENA,                                Defendant, Appellant.                                                                                      ____________________        No. 94-2065                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               FRANCISCO MATTA-GARCIA,                                Defendant, Appellant.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                                                                      ____________________                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Rafael Gonzalez Velez for appellant Santos-Frias.             _____________________             Jose R. Gaztambide for appellant De Leon-Pena.             __________________             Luis A. Plaza for appellant Matta-Garcia.             _____________             W. Stephen  Muldrow, Assistant United States  Attorney, with whom             ___________________        Guillermo Gil, United States Attorney, Jos  A. Quiles-Espinosa, Senior        _____________                          _______________________        Litigation Counsel,  Mar a  Pab n, Assistant  United States  Attorney,                             ____________        Jacabed Rodr guez, Assistant United States Attorney, and Sonia Torres,        _________________                                        ____________        Assistant United States Attorney, were on brief for appellee.                                                                                      ____________________                                                                                      ____________________                                          2                    Per  Curiam.   Defendants Fidelina  Santos-Frias ("San-                    Per  Curiam.                    ___________          tos"), Francisco  Matta-Garcia ("Matta"), and Francisca  De Leon-          Pena ("De Leon") appeal the judgments of conviction  and sentence          entered against  them following their consolidated  jury trial on          cocaine charges  in  the United  States  District Court  for  the          District of Puerto Rico.  We affirm the district court judgments.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    We recount the evidence in the light  most favorable to          the verdicts.   United States  v. Tuesta-Toro, 29  F.3d 771,  773                          _____________     ___________          (1st Cir.  1994), cert. denied,  115 S. Ct. 947  (1995).  Santos,                            _____ ______          Matta, De Leon, and  Rosalia Sanchez-Vencosme ("Sanchez") resided          in  the same  apartment  building in  Rio  Piedras, Puerto  Rico.          Sanchez and  Santos shared an apartment.   On May 8, 1993, Santos          and De Leon invited Sanchez to another apartment, shared by Matta          and De Leon,  and offered to  pay Sanchez  $1,700 for carrying  a          kilogram of cocaine  to New York.  Sanchez  declined the offer at          the time, but later relented.                    The  next day, May 9, De Leon helped Santos and Sanchez          strap cocaine-laden girdles  to their bodies.   Matta then  drove          Santos and Sanchez  to the airport while De Leon  remained at her          apartment.  En route to the airport, Matta gave  Santos the money          with which  to purchase two plane tickets.  Upon their arrival at          the airport, Santos  and Sanchez proceeded to  the ticket counter          while Matta remained  at a  discreet distance.   Santos, who  was          carrying two  kilograms of  cocaine, purchased the  tickets, pro-                                          3          ceeded toward the departure gate and passed through the  security          checkpoint without incident.  Sanchez, carrying one kilogram, was          detained when the checkpoint security alarm sounded as she passed          through.  After the cocaine was discovered on her person, Sanchez          was placed under arrest and charged with  possessing cocaine with          intent  to  distribute.   She  later  pled  guilty  and testified          against appellants Santos, Matta and De Leon.                                           II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Opening Statement          A.   Opening Statement               _________________                    Count one charged appellants with conspiring to possess          cocaine with intent to  distribute, from on or about  December 1,          1992, to and including May 9,  1993.  In the government's opening          statement,  the prosecutor described various criminal activities,          as alleged in  the indictment, which would  be established during          __ _______ __  ___ __________          trial.   At  side-bar  immediately after  the opening  statement,          defense  counsel moved  for  mistrial based  on unfair  prejudice          allegedly resulting  from the  prosecutor's references  to defen-          dants' pre-May  8 criminal activities  since Sanchez     the only          government witness to  the alleged conspiracy     had not  become          involved  until May 8.   Following an evidentiary  proffer by the          government, the district court  ruled that the alleged conspiracy          spanned  only the two-day period    May  8 through May 9, 1993             during which  Sanchez participated.   The  court then  denied the          motions for  mistrial,  on  the  ground that  its  curative  jury          instructions  would afford  adequate  protection  against  unfair                                          4          prejudice.                      The district court gave  a curative instruction immedi-          ately before Sanchez  testified, emphatically directing the  jury          to  disregard all prosecutorial  references to occurrences during          the period  December 12th, 1992, through  May 7th, 1993.   At the          same time the court reiterated its admonition    initially stated          during its preliminary jury  instructions    that statements made          by counsel are  not evidence.  During its final  charge the court          said:          I caution you and instruct you that                         . . . any comments that the govern-                         ment  made  in [its]  opening argu-                         ments with respect to anything that                         might  have  happened prior  to May                         8th is to be totally and completely                         disregarded  and  ignored  by  you.                         The  evidence in  this case  . .  .                         starts  on  May the  8th,  and goes                         over into May the 9th.   That's all                         you're  concerned  with.   Anything                         that you might  recall or  anything                         that was said  that went before May                         the  8th, is  completely irrelevant                         to you, and  may not be  considered                         by you.                    Appellants  contend that  the district  court  erred in          denying  their motion  for mistrial,  as no  curative instruction          could overcome the unfair impression conveyed by the prosecutor's          statement  that  appellants were  involved  in  a more  extensive          conspiracy  than the government would establish at trial.  Appel-          lants  assert that  "a  curative instruction  would not  suffice"          because the  jury clearly  understood the prosecutor  and, coming          from the  government, the statement  would be given  weight "not-          withstanding any instructions from the court."                     Although  the  assurances  that  the  government  would                                          5          establish criminal  activities predating the commencement  of any          provable  conspiracy posed  a considerable  potential for  unfair          prejudice to appellants, any actual  prejudice was self-inflicted          by their failure to mount a pretrial challenge to the indictment,          based  on overbreadth, see Fed.  R. Crim. P.  12(b)(2), and their                                 ___          failure  to request the district court in advance to limit prose-          cutorial references in the  government's opening statement to the          temporal scope of  the provable conspiracy.1  Furthermore,  at no          time  did  the defense  suggest to  the  district court  that the          opening statement involved intentional misconduct by the prosecu-          tor.                      Even  under  a   "plain  error"  analysis,  appellants'          argument fails.  The  denial of a timely  motion for mistrial  is          reviewed for  manifest  abuse of  discretion.   United States  v.                                                          _____________          Romero-Carrion,  54 F.3d 15, 17 (1st Cir. 1995); United States v.          ______________                                   _____________                                        ____________________               1At bottom, of course, the challenge to the temporal breadth          of  the alleged  conspiracy  described in  the opening  statement          represented a challenge to the  indictment.  "Defenses and objec-          tions based on defects  in the indictment" are to be raised prior          to  trial, Fed.  R.  Crim. P.  12(b)(2),  and are  deemed  waived          pursuant  to  Fed. R.  Crim. P.  12(f)  unless the  court affords          relief  for "cause shown."   As appellants failed  to avail them-          selves of a full  and fair opportunity to mount  a pretrial chal-          lenge to the indictment, and now offer no justification for their          failure, the present claim  is deemed waived.  See  United States                                                         ___  _____________          v. Rodriguez, 738 F.2d 13, 15 (1st  Cir. 1984) (motion to dismiss             _________          indictment during trial untimely under Rule 12(b)); Flying Eagles                                                              _____________          Publications,  Inc. v. United States, 273 F.2d 799, 803 (1st Cir.          ___________________    _____________          1960) (declining to address merits of nonjurisdictional challenge          to indictment at close  of evidence because "under Criminal  Rule          12(b)(2) it should have been  asserted by motion before trial.");          see  also United States  v. Smith, 866 F.2d  1092, 1098 (9th Cir.          ___  ____ _____________     _____          1989)  (finding  that  defendants waive  all  but  jurisdictional          claims of error  regarding an indictment unless they  raise their          claims prior to trial).                                           6          Pierro, 32 F.3d 611,  617 (1st Cir.  1994), cert. denied, 115  S.          ______                                      _____ ______          Ct.  919 (1995).   And  absent a  clear showing  of  prejudice by          appellants the denial must be upheld.  United  States v. Hahn, 17                                                 ______________    ____          F.3d  502, 508 (1st Cir.  1994) (citing United  States v. Sclamo,                                                  ______________    ______          578 F.2d 888, 890-91 (1st Cir. 1978)).                      We  evaluate the  potential for prejudice  by assessing          the  likely impact  of the  challenged conduct  upon the  jury as          viewed in the context of the entire trial, including prosecutori-          al  culpability, the  nature  and timeliness  of the  defendant's          response and any curative measures undertaken by the trial court.          See  United States  v. Moreno,  991 F.2d  943, 947-49  (1st Cir.)          ___  _____________     ______          (evaluating government's  opening and closing  statements), cert.                                                                      _____          denied, 114  S. Ct. 457 (1993);  see also  United  States v. Mac-          ______                           ___ ____  ______________    ____          cini,  721  F.2d 840,  842-43 (1st  Cir.  1983).   Ultimately, of          ____          course,  the acid test is  whether the defendant  received a fair          trial.  Moreno, 991 F.2d at 949.                  ______                    A careful  review of  the record demonstrates  that any          potential  prejudice to  appellants was  averted by  the district          court's firm curative instructions and by its ruling limiting the          temporal  reach of the government's evidence at trial to the two-          day period    May 8 and 9, 1993.  Nor have appellants suggested a          sufficient basis  for their  conjecture that  the jury failed  to          follow the specific curative instructions repeatedly given by the          district court.  See  United States v. Paiva,  892 F.2d 148,  160                           ___  _____________    _____          (1st Cir. 1989)  (court normally presumes  that jury follows  its          instructions).                                            7          B.   Closing Argument          B.   Closing Argument               ________________                    On appeal, Matta and De Leon contend for the first time          that the government improperly vouched  for Sanchez's credibility          during closing argument  when the prosecutor stated, "She's not a          perjurer.  She's going to do time.  She's not going to walk.  She          is truthful."  The appellate brief jointly filed by  Matta and De          Leon  devotes  a single  conclusory  sentence  to their  vouching          claim:  "The  government also vouched for its  principal witness,          Rosalia  Sanchez-Bencosme."2   Their failure  to raise  the claim          below and to present developed argumentation on appeal constitut-          ed a clear waiver.  See United States v. Zannino, 895 F.2d 1,  17                              ___ _____________    _______          (1st Cir.), cert. denied, 494 U.S. 1082 (1990).                        _____ ______          C.   Motions for Judgments of Acquittal          C.   Motions for Judgments of Acquittal               __________________________________                    All  three  appellants  claim  there  was  insufficient          evidence to  support their convictions, hence  the district court          erred  in denying their motions for judgments of acquittal.  They          base their claim on the ground that the only testimony supporting          their convictions was provided  by Sanchez and it was  not credi-          ble.  See supra pt. II.B.   Appellants argue  that Sanchez demon-                ___ _____          strated her  lack of credibility  by giving false  information in          her  earlier dealings  with  the United  States Drug  Enforcement                                        ____________________               2Santos would be permitted  to adopt the arguments presented          by  Matta and De Leon, see Fed. R.  App. P. 3(b), but only to the                                 ___          extent  that the  adopted arguments  themselves are  apposite and          adequately  developed.  Cf. United States v. David, 940 F.2d 722,                                  ___ _____________    _____          737  (1st  Cir.  1991)  (rejecting attempt  to  adopt  materially          different  arguments by  reference), cert.  denied, 504  U.S. 955                                               _____  ______          (1992);  United  States v.  Zannino, 895  F.2d  1, 17  (1st Cir.)                   ______________     _______          (similar), cert. denied, 494 U.S. 1082 (1990).                     _____ ______                                          8          Administration,  and by entering into a sham marriage in order to          obtain immigrant status.                      It is well settled  that all credibility questions must          be  resolved in  favor  of the  verdict  when reviewing  a  trial          court's denial of  a motion for judgment of acquittal.   Hahn, 17                                                                   ____          F.3d at  506 (citing United  States v. Batista-Polanco,  927 F.2d                               ______________    _______________          14, 17 (1st  Cir. 1991)).   The conclusory assertions  supporting          the  instant claim afford no basis for departing from the general          rule that credibility determinations are for the factfinder.  Id.                                                                        ___          A careful record review demonstrates that defense counsel, during          cross-examination  and in their  closing arguments,  ably exposed          the very  serious credibility problems  with Sanchez's testimony.          The record likewise reveals ample evidence    crediting Sanchez's          testimony as we must, see id.    to establish beyond a reasonable                                ___ ___          doubt  each  essential  element  of the  crimes  charged  against          Santos, Matta and De Leon.  D.     Sentencing                                      D.     Sentencing                                             __________                    Santos  and De Leon did not object to their presentence          reports.  Thus, their undeveloped sentencing claims, broached for          the first time on appeal, were  not preserved.  See United States                                                          ___ _____________          v. Ocasio-Rivera, 991 F.2d 1,  3 & n.3 (1st Cir. 1993).   Indeed,             _____________          the  appellate  brief submitted  by  Santos  does not  explicitly          present a  sentencing  claim.   Her  reliance  on  a  perfunctory          announcement  of joinder under Fed. R. App. P. 3(b) is inadequate          to entitle her to  "piggyback" on the sentencing claims  advanced          by her  codefendants.  See  supra note  2.  As  for De Leon,  the                                 ___  _____          argumentation in  the  joint brief  submitted  by her  and  Matta                                          9          merely  rests on  the bald  statement that  she should  have been          granted  a  downward  departure,  though she  purports  to  adopt          Matta's arguments by reference.   See id.  Since neither De  Leon                                            ___ ___          nor  Santos  discussed their  own  sentencing  claims, nor  their          respective grounds for either a downward departure or adjustment,          we decline  to consider their  claims.  "[T]he  settled appellate          rule  [is]  that  issues adverted  to  in  a perfunctory  manner,          unaccompanied  by some  effort  at  developed argumentation,  are          deemed waived."  Zannino, 895 F.2d at 17.                           _______                    Although Matta  has presented  a developed claim  for a          downward adjustment, assertedly based on  his "minor role" in the          cocaine transaction,  see U.S.S.G.    3B1.2(b), it  is frivolous.                                ___          The  presentence report  not only  includes no  information which          would  warrant a finding  that Matta played  a minor  role in the          offense  but it  recommends  a four-level  upward adjustment  for                                                     ______          Matta's supervisory role  in the  offense.  See  id.    3B1.1(a).                  ___________ ____                    ___  ___          Even though the district  court rejected this recommendation, the          uncontroverted  evidence that  Matta provided  the money  used to          purchase  the airline  tickets for Santos  and Sanchez,  then re-          mained  in the background as his "mules" proceeded to the airport          security checkpoint,  left little room  for a finding  that Matta          played a minor role in the offense.                    The contention  that Matta  was entitled to  a downward          departure for "aberrant behavior"  fares no better.  There  is no          basis for concluding that the sentencing court did not understand          that a  downward  departure based  on  aberrant behavior  may  be                                          10          permissible in an  appropriate case.   The district court  simply          refused to depart on  the grounds presented by Matta.  See United                                                                 ___ ______          States v.  Catucci, 55 F.3d 15,  19 n.3 (1st Cir.  1995).  Conse-          ______     _______          quently, we  lack jurisdiction  to consider the  departure claim.          See United States v. Ruiz, 905 F.2d 499, 508-09 (1st Cir. 1990).          ___ _____________    ____                    Affirmed.                    Affirmed.                    ________                                                      11
