
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1328                                    UNITED STATES,                                      Appellee,                                          v.                             RAMBERTO HERNANDEZ, AKA RAM,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                           and DiClerico,* District Judge.                                           ______________                                _____________________               H.  Manuel  Hern ndez,  by  Appointment of  the  Court,  for               _____________________          appellant.               Jos   A. Quiles-Espinosa,  Senior  Litigation Counsel,  with               ________________________          whom  Guillermo Gil,  United States  Attorney, and  Nelson P rez-                _____________                                 _____________          Sosa,  Assistant  United  States  Attorney,  were  on  brief  for          ____          appellee.                                 ____________________                                    March 17, 1997                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    TORRUELLA, Chief Judge.   Defendant-appellant  Ramberto                    TORRUELLA, Chief Judge.                               ___________          Hern ndez was  convicted of  (1) conspiring  with five  other co-          defendants  to possess with the intent to distribute in excess of          five  kilograms of cocaine in  violation of 21  U.S.C.   846; and          (2)  along with  three other  co-defendants, aiding  and abetting          each  other in  knowingly and intentionally  distributing twenty-          nine  kilograms of cocaine in violation of 21 U.S.C.    841(a)(1)          and   841(b)(1)(B)  and  18  U.S.C.     2.    Hern ndez  appeals,          challenging the sufficiency of the evidence and claiming that his          Sixth  Amendment rights to confrontation and to a fair trial were          denied because the government was  permitted to convict him based          on the  uncorroborated testimony  of a single  unindicted alleged          coconspirator, William Negr n-Zapata  ("Negr n-Zapata"), who  was          awaiting sentencing in another case.  We affirm.                    At  trial  Negr n-Zapata  testified  as  follows.    He          received   a  call   from  Willie   Maya-Acosta  ("Maya-Acosta"),          inquiring whether Negr n-Zapata knew  of any kilograms of cocaine          available for  purchase.  Negr n-Zapata, in  turn, contacted Jos           Luis V lez-Carrero ("V lez-Carrero").  On October 27, 1991, Maya-          Acosta  delivered $290,000  to  Negr n-Zapata.   Later that  day,          V lez-Carrero and  Negr n-Zapata went to  a fish market  owned by          appellant  Hern ndez  and   delivered  $261,000  to   Hern ndez.1          Hern ndez gave them twenty-nine  kilograms of cocaine.  Hern ndez          was acting as an intermediary in exchange for a commission.                                        ____________________          1   Of the original $290,000, $29,000 was divided between Negr n-          Zapata and V lez-Carrero as a commission.                                         -2-                           I.  Sufficiency of the Evidence                           I.  Sufficiency of the Evidence                    Hern ndez'  first claim  challenges the  sufficiency of          the evidence.  In reviewing such claims, we  view the evidence in          the light most favorable  to the prosecution and ask  whether any          rational factfinder  could have  found guilt beyond  a reasonable          doubt.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United                  ___ _______    ________                            ______          States v. Valle, 72 F.3d 210, 216 (1st Cir. 1995).          ______    _____                    It is well established  that an accomplice is qualified          to  testify  as long  as  any agreements  he  has  made with  the          government are presented to the jury and the "judge gave complete          and  correct instructions  detailing  the special  care the  jury          should take in assessing the testimony."  United States v. Ortiz-                                                    _____________    ______          Arrigoit a,  996 F.2d  436, 438-39  (1st Cir.  1993).   Indeed, a          __________          conviction based  solely upon the uncorroborated  testimony of an          accomplice  can  be  upheld, as  long  as  the  jury is  properly          instructed and the  testimony is  not incredible as  a matter  of          law.   See United States  v. And jar,  49 F.3d 16,  21 (1st  Cir.                 ___ _____________     _______          1995).  As  always, the credibility of a witness  is a matter for          the jury.  See Ortiz-Arrigoit a, 996 F.2d at 439.                     ___ ________________                    The government's  case relied  on the testimony  of its          only witness, Negr n-Zapata.  Negr n-Zapata testified that he was          a long-time  drug dealer,  had already  been convicted twice  for          drug trafficking, had one sentence  reduced from sixty months  to          twenty-four months  because of his willingness to testify for the          government, and was still  awaiting sentencing in a drug  case in          which he  had been convicted over  two and a half  years prior to                                         -3-          his testimony in the instant case.  Negr n-Zapata cooperated with          the  prosecution  in  exchange  for more  lenient  treatment  and          certification of his cooperation  to a judge who was  to sentence          him  after the  Hern ndez trial.   He  was eventually  given time          served in the case for which his sentence was pending.                    Although   these   circumstances  raise   questions  of          credibility  regarding Negr n-Zapata's testimony, this court does          not engage in a  plenary review of the credibility  of witnesses.          A rational  juror could have believed  Negr n-Zapata's version of          events.  Negr n-Zapata testified in considerable detail regarding          the crime and  Hern ndez' role in it.   Viewing the testimony  in          the  light most  favorable to  the verdict,  the jury  could have          concluded that the testimony established that Hern ndez joined in          the conspiracy,  and possessed and distributed  cocaine.  Negr n-          Zapata was cross-examined in  detail regarding both his testimony          and  his credibility.   Finally,  appellant fails  to demonstrate          that there existed  overwhelming evidence to contradict  Negr n's          testimony.   For all of these reasons, we deny the sufficiency of          the evidence claim.                            II.  The Confrontation Clause                            II.  The Confrontation Clause                    Hern ndez  claims  that  his Sixth  Amendment  right to          cross-examine Negr n-Zapata was denied.  The    Sixth   Amendment          states  that "[i]n  all criminal  proceedings, the  accused shall          enjoy the right . . . to be confronted with the witnesses against          him."  U.S. Const. amend. VI.  The Sixth Amendment guarantees the          accused the right to cross-examine government witnesses fully and                                         -4-          fairly.   See  Delaware  v. Van  Arsdale,  475 U.S.  673,  678-79                    ___  ________     ____________          (1985);  United States  v. Rivera-Santiago,  872 F.2d  1073, 1084                   _____________     _______________          (1st Cir. 1989).                      It  is well established  that "the Confrontation Clause          guarantees  an opportunity  for effective  cross-examination, not                         ___________          cross-examination  that  is effective  in  whatever  way, and  to          whatever extent, the defense might wish."  Delaware v. Fensterer,                                                     ________    _________          474 U.S. 15, 20 (1985).  "[T]he Confrontation Clause is generally          satisfied  when the defense is given full and fair opportunity to          probe  and  expose these  infirmities  through cross-examination,          thereby calling  to the attention  of the factfinder  the reasons          for giving scant  weight to the witness' testimony."   Id. at 22.                                                                 ___          Furthermore,  once  the defendant  is  given  the opportunity  to          cross-examine   government  witnesses,   the  extent   of  cross-          examination is within the sound discretion of the trial court and          we review only for abuse of discretion.  See Rivera-Santiago, 872                                                   ___ _______________          F.2d at 1085.                    In  the instant  case, there  can be  no question  that          Hern ndez  was permitted  a full and  fair opportunity  to cross-          examine the witness.  Indeed, the defendant fails to identify any                                                                        ___          circumscription  imposed  on  his  cross-examination  of  Negr n-          Zapata, much less a  restriction that would rise to the  level of          an abuse of discretion.2  The defense argues that "[t]he jury was                                        ____________________          2   We add that defense  counsel did not raise  the confrontation          issue  at trial.   Arguments raised for the  first time on appeal          are forfeited and reversible only upon a demonstration  of "plain          error."   United States v.  Sullivan, 98 F.3d  686, 687 (1st Cir.                    _____________     ________          1996).  "The  plain error  doctrine of Federal  Rule of  Criminal                                         -5-          allowed to  hear Negr n-Zapata's testimony unaware  that he would          be  rewarded with  a sentence  of time  served because  of, among          other things, his testimony in  this case.  As a result,  defense          counsel  were denied  a 'full  and fair'  opportunity  to impeach          Negr n-Zapata   by  showing   his   motivation  to   please   the          government."  Appellant's Brief at 11.                    In fact,  the defense  was afforded the  opportunity to          cross-examine Negr n-Zapata  on every  aspect of  his cooperation          agreement  with the  government.   On cross-examination,  Negr n-          Zapata admitted that  he had been  awaiting sentence for  twenty-          nine  months and  that he  had a  cooperation agreement  with the          government.  He testified that, in exchange for  his cooperation,          the  government would recommend a reduced sentence in the case in          which he  was  awaiting sentencing.   In  addition, the  district          court  judge read  portions of  the Sentencing Guidelines  to the          jury  to  make it  clear that  Negr n-Zapata's sentence  could be          reduced  below the minimum mandatory sentence in exchange for his          cooperation.                    Hern ndez argues that the defense could have  impeached          Negr n-Zapata's testimony more successfully  if it had known that          he would be  credited for time served and released.  Whether true                                        ____________________          Procedure  52(b) tempers the blow  of a rigid  application of the          contemporaneous-objection  requirement.  The  Rule authorizes the          Courts   of  Appeals  to  correct  only  'particularly  egregious          errors,'  those  errors  that  'seriously  affect  the  fairness,          integrity or public reputation of judicial proceedings.'"  United                                                                     ______          States v. Young, 470 U.S. 1, 15 (1985) (citations omitted).  Even          ______    _____          if  we  were to  conclude  that there  had  been  a violation  of          Hern ndez' right  to cross-examination, appellant  would have  to          demonstrate plain error in order to win a reversal.                                         -6-          or not, this contention does not lead to the conclusion that  the          right  to  cross-examine was  compromised.   At  the time  of the          testimony,  Negr n-Zapata  had  no  assurance that  he  would  be          credited for  time served  and released.    He only  knew, as  he          testified,  that  his  cooperation  would  be  certified  to  the          sentencing judge.  In  other words, the defense was  permitted to          present to the jury the conditions  under which Negr n-Zapata was          testifying.    The jury  was fully  informed  and able  to assess          Negr n-Zapata's credibility.   We  conclude, therefore,  that the          defense was granted a full and fair opportunity to  cross-examine          Negr n-Zapata.                    Finally, we note that  appellant's appeal to Rule 32(a)          of  the Federal Rules of Criminal Procedure,3 the Local Rules for          the  District  of Puerto  Rico,  and  Sixth Amendment  guarantees          regarding  speedy sentencing  belong  to  the defendant  awaiting          sentencing, in this case Negr n-Zapata.  Violation of these rules          does not give Hern ndez grounds for a reversal of his conviction.                               III.  Jury Instructions                               III.  Jury Instructions                    Finally,  Hern ndez objects  to the  jury instructions.          The relevant portion of the instructions is as follows:                         You   have    also   heard   testimony                      regarding   the   Government's   witness'                      reputation    in   the    community   for                      truthfulness   or  untruthfulness.     In                      deciding this case,  you should  consider                      that  evidence together  with and  in the                      same manner as all the  other evidence in                      the case.                                        ____________________          3   Federal  Rule  of  Criminal  Procedure  32(a)  requires  that          sentencing should take place without "undue delay."                                         -7-                         You  have also heard testimony from an                      unindicted   co-conspirator  who   has  a                      cooperation     agreement    with     the                      Government.   That testimony was given in                      exchange for a  promise by the Government                      that  the witness will  not be prosecuted                      for   some   crimes  he   has  admittedly                      committed,  including  the  ones in  this                      case.   The Government  will also certify                      his cooperation to another judge who will                      sentence  him  in  another  case  in  the                      future.                         In  evaluating   this  testimony,  you                      should  consider  whether that  testimony                      may   have   been   influenced   by   the                      Government's   promise  and   you  should                      consider  that   testimony  with  greater                      caution than that of an ordinary witness.                      Such agreements are legal.   The only  --                      the  law only requires  that you consider                      testimony given under those circumstances                      with  greater  caution  than that  of  an                      ordinary witness.          Trial Transcript, vol. VI, at 896.                    The  entirety of appellant's  argument with  respect to          the jury instructions  is to quote the last two paragraphs of the          above excerpt and to  state that "the trial judge, in  giving the          legally required instruction to  the jury on the care  with which          it  must consider the  testimony of an  accomplice, minimized the          importance of the charge by adding the word 'only.'"  Appellant's          Brief at 11.                    Because   appellant  failed  to   object  to  the  jury          instructions  at  trial, we  review only  for  plain error.   See                                                                        ___          Sullivan, 98 F.3d at 687.  "Our principal focus in reviewing jury          ________          instructions is  to determine whether  they tended to  confuse or          mislead  the  jury  on  the  controlling  issues."   See  Service                                                               ___  _______          Merchandise Co. v. Boyd Corp., 722 F.2d 945, 950 (1st Cir. 1983).          _______________    __________                                         -8-          We do not  believe that  the instructions provided  by the  trial          judge confused or misled  the jury.  The judge  accurately summed          up the  conditions under which Negr n-Zapata  testified and added          that jurors should  "consider whether the testimony may have been          influenced by  the government's  promise and you  should consider          the  testimony with  greater  caution than  that  of an  ordinary          witness."   Tr. IV, at 896.   Because the jury  was informed that          Negr n-Zapata's testimony  should be  viewed with caution,  we do          not believe there was error in the instructions and certainly not          "plain error."4                    Although  appellant's claims cannot  justify a reversal          in this case,  we add  that we find  troubling certain  practices          brought  to light in this case.   In particular, we are concerned          with the practice of incarcerating an individual  for an extended          period of  time without sentencing,  while holding out  a promise          that his or her cooperation will lead to a more lenient sentence.          At  least two aspects of  this practice are  problematic.  First,          although  the   government's  offer  may  be   attractive  to  an          individual  defendant, we do not believe that the right to prompt          sentencing exists merely as a bargaining chip for defendants.  It          is inappropriate to hold  a defendant in prison for  long periods          of time pending  sentencing, in this case  two and a half  years,          while the government tries to extract information from him.                                        ____________________          4  We add that Hern ndez not only fails to point to error  in the          instructions, but  concedes that they  were "perhaps  technically          correct."  Appellant's Brief at 12.                                         -9-                    The second problem is  that this practice increases the          likelihood  that  innocent  individuals  will  be  implicated  by          defendants trying to placate the government.  This is obviously a          concern whenever  a defendant  cooperates with the  government in          exchange  for lenience,  but  we  feel  that  as  the  period  of          incarceration  increases  unduly, the  risk  of false  statements          intended to appease the defendant's captors becomes too great.                    Although  this is not the case for corrective action by          this  court, suffice  it to  say that  we caution  the government          against  abuse  of  this practice  and  that  we  will view  with          suspicion its continued use.   Nothing in this opinion  should be          taken to support such conduct.                                   IV.  Conclusion                                   IV.  Conclusion                    For  the reasons stated  herein, appellant's conviction          is affirmed.             affirmed             ________                                         -10-
