                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-2006

USA v. De Los Santos
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1168




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      No: 05-1168

                          UNITED STATES OF AMERICA

                                              v.

                      AUGUSTIN VERAS DE LOS SANTOS,

                                             Appellant

                 Appeal from the District Court of the Virgin Islands,
                         Division of St. Thomas and St. John
                         (D.C. Criminal No. 03-cr-00040-2)
                      District Judge: Hon. Stanley S. Brotman

                                Argued: December 5, 2005

       Before: SCIRICA, Chief Judge, McKEE, and NYGAARD, Circuit Judges


                          (Opinion filed: January 20, 2006)


George H. Hodge, Jr. (Argued)
P.O. Box 803
Charlotte Amalie, St. Thomas
USVI, 00804
Attorney for Appellant

Kim L. Chisholm (Argued)
Assistant United States Attorney
Ron De Lugo Federal Building &
U.S. Courthouse
5500 Veterans Drive, Suite 260
Charlotte Amalie, St. Thomas
USVI 00802-6424
Attorney for Appellee
                                            OPINION


McKEE, Circuit Judge.

          Augustin Veras de los Santos (“Augustin”) raises three challenges to his criminal

conviction, and we consider each separately. For the reasons stated below, we will

affirm.

                                  I. SUFFICIENCY OF EVIDENCE

          Because we write primarily for the parties, it is not necessary to reiterate the facts

or background of this case except insofar as may be helpful to our brief discussion. In

resolving Augustin’s claim that evidence was insufficient to support his conviction, we

review the evidence “in the light most favorable to the government, and . . . sustain the

verdict if any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)

(citations and internal quotations omitted). The claim carries “a very heavy burden.” See

United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990). Having reviewed the

evidence admitted at trial, we conclude that Augustin has failed to satisfy that burden.1

          In denying Augustin’s motion for a new trial under Fed. R. Crim. P. 29, the

District Court carefully and thoroughly reviewed the evidence and concluded it was


          1
        Augustin’s argument that he cannot be convicted of aiding and abetting wire fraud
because he was not charged under an aiding and abetting statute also fails. See United
States v. Forsythe, 560 F.2d 1127, 1136 n.15 (3d Cir. 1977) (every indictment “must be
read as if 18 U.S.C. §2 were embodied in each count/” The indictment “need not
specifically charge aiding and abetting in order to support a conviction for aiding and
abetting.”).

                                                 2
sufficient to uphold the conviction.2 The standard for granting a Rule 29 motion is

identical to the standard we must apply in resolving his insufficiency claim. Accordingly,

the trial court had to determine whether a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. See United States v. Smith,

294 F.3d 473, 476 (3d Cir 2002). After reviewing the record in the light most favorable

to the government, the District Court concluded that it was sufficient to allow a jury to

find Augustin guilty beyond a reasonable doubt on each of the charges. We will affirm

that ruling substantially for the reasons explained by the District Court in its denial of the

Rule 29 motion.

                                II. DENIAL OF SEVERANCE

       Augustin argues that the District Court should have severed either the co-

defendants or the conspiracy and aiding and abetting charges, because his redacted

statement denied him a fair trial. Augustin’s statement was redacted as follows:

            Original Statement                     Statement Admitted Into Evidence


 Q: Is that address1 under your name?
 A: Under my sister, Ignacia Veras de los                        DELETED
 Santos.
 Q: Do you know if there are any passports
 in your apartment, which do not belong to                         SAME
 anyone residing in the apartment?
 A: Yes.
 Q: To whom do these passports belong?


       2
      See Opinion on Defendants’ Motion for Acquittal Under Fed. R. Crim. P. 29,
Supplemental Appendix 1- 25.

                                              3
 A: They belong to the people who left                            DELETED
 them with my sister Ignacia.
 Q: To whom did you give the money that
 Fernando gave you?
 A: To my sister Hignacia (sic).                  Q: What did you do with that money?
 Q: When did your sister Ignacia come for         A: The next day, I passed it as instructed.
 the money?
 A: The following day.
 Q: What did Fernando tell you [when he           Q:What did Fernando tell you [when he
 brought money for a second time]?                brought money for a second time]?
 A: He told me “I am bringing this money          A: He asked me to give the money as
 so that you can give it to Raquel.”              before.


       We review a denial of a motion for severance for abuse of discretion. United

States v. Hart, 273 F.3d 363 (3d Cir. 2001). However, even if the court abused its

discretion, Augustin is not entitled to relief unless he can establish that he was prejudiced

by the improper joinder. United States v. DeLarosa, 450 F.2d 1057, 1065 (3d Cir. 1971).

Moreover, in reviewing the District Court’s decision, we must remember the “preference

in the federal system for joint trials of defendants who are indicted together.” Zafiro v.

United States, 506 U.S. 534, 537 (1993).

       Augustin argues that the redacted statement replaced specific answers with general

answers that appeared evasive and created the impression that he was attempting to hide

the identity and actions of co-conspirators. However, even if we assume that this is true,

he can not establish prejudice because the totality of the evidence (as summarized by the

District Court), strongly establishes his guilt, even absent the redacted statement.

       Augustin also argues that the removal of references to “Ignacia” eviscerated his


                                              4
defense. In defending against the charges, Augustin argued that Ignacia owned

Apartment B16 and therefore could not refuse any items brought there. This defense was

seriously undermined by Jose Hilario (“Jose”), a government witness who testified that

Augustin proposed Ignacia as someone who could obtain fraudulent travel documents.

S.A. 34, 49. Jose also testified that Augustin arranged the first meeting between Jose and

Ignacia; that it was Augustin who first brought him to B16; and that Augustin provided

assurances about the quality of the travel documents. S.A. 35, 67. As the District Court

pointed out, “[n]o matter what form the confession of Augustin took, it was bound to be

prejudicial.” J.A. 30. Augustin admits, in both versions of the statement, that he

accepted money in exchange for passports that he knew were being altered for travel.

Thus, even if we assume the District Court abused its discretion, Augustin is not entitled

to relief because he cannot establish the required prejudice.

                                 III. JURY INSTRUCTIONS

       Augustin first challenges the “deliberate ignorance” instruction. He claims the

instruction “was specifically geared towards a finding of guilt against Augustin and no

one else.” Appellant’s Br. at 17. The court charged the jury as follows:

                     The government may prove that the defendants acted
              knowingly by proving, beyond a reasonable doubt, that the
              defendants deliberately closed their eyes to what would
              otherwise have been obvious to them. No one can avoid
              responsibility for a crime by deliberately ignoring what is
              obvious. A finding beyond a reasonable doubt of an intent of
              defendants to avoid knowledge or enlightenment would
              permit the jury to find knowledge.
                     Stated in another way, a person’s knowledge of a

                                             5
              particular fact may be shown from a deliberate or intentional
              blindness to the existence of that fact. It is, of course, entirely
              up to you regarding whether you find any deliberate
              ignorance or deliberate closing of the eyes and any inferences
              to be drawn from such evidence.
                     You may not conclude that defendants had knowledge,
              however, from proof of a mistake, negligence, or a belief in
              an inaccurate proposition.


J.A. 189.

       Augustin argues the instruction “neutralized the Court’s earlier instruction

regarding membership in the agreement . . .” Appellant’s Br. At 17. He claims the

instruction allowed him to be convicted based upon his “mere presence.” However, he

does not claim that the instruction misstates the law of deliberate indifference, nor does

he claim that the instruction is not supported by the evidence that was introduced at trial.

Given this record, it is clear that the District Court did not abuse its discretion in giving

the charge, and it is also clear that the charge that was given accurately states the legal

principles the jury had to apply to the evidence that was introduced. Accordingly, we

reject Augustin’s challenge to the deliberate indifference instruction. United States v.

Wert-Ruiz, 228 F.3d 250, 255 (3d Cir. 2000).

       We also reject Augustin’s claim that the District Court erred in giving a “common

defense” instruction. The court charged common defense as follows:

              Counsel for the defendants have sat together here at the trial
              and have [collaborated] in the defense of this case. They are
              entitled to sit together and cooperate and join in a common
              defense, since their clients are charged with crimes in which
              they are each alleged to have participated. This joint or

                                               6
              common defense does not constitute evidence that the
              defendants were previously associated in a conspiracy or
              other crime, and you are to draw no inference from their joint
              efforts undertaken as a matter of right in their defense of this
              case.


J.A. 190. Augustin claims that this instruction “suggests to the jury a unity

of purpose among defendants sharing a common goal.” Appellant’s Br. At

17. The claim is meritless.

              The charge is intended to ensure that jurors do not conclude anything

nefarious about jointly tried defendants because they sit together, interact and appear to

cooperate during their joint trial. Augustin does not argue that the charge incorrectly

states the applicable legal principle; it doesn’t. Moreover, given the joint trial and the

nature of the evidence, we would have been concerned if the court had refused to give

this charge. We need not say any more to dispose of Augustin’s frivolous attempt to

obtain relief based upon that charge.

                                        V. Conclusion

       For the reasons stated above, the judgement of the District Court is affirmed.




                                              7
