                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 08-4257

                           UNITED STATES OF AMERICA

                                              v.

                                TIMOTEO UPIA-FRIAS,

                                                   Appellant

                  Appeal from the District Court of the Virgin Islands,
                         Division of St. Thomas and St. John
                             (Crim. No. 3-07-cr-00065-1)
                        District Judge: Hon. Curtis V. Gomez

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                  December 1, 2009

                Before: McKEE, Chief Judge, FUENTES, Circuit Judge,
                        and NYGAARD, Senior Circuit Judge.

                            (Opinion filed:        April 11, 2011)

                                        OPINION


McKEE, Chief Judge.

      Timoteo Upia-Frias appeals the district court‟s judgment of conviction and

sentence. For the reasons that follow, we will affirm.

                                               I.

      Since we are writing primarily for the parties who are familiar with this case, we

need only recite the factual and procedural background necessary for the disposition of
the appeal.

       Upia-Frias argues that the district court erred: 1) by denying his request that a

juror be discharged for improper conduct during the trial; 2) by refusing to allow cross

examination about an informant witness‟s unrelated sentence reduction in a prior

prosecution; 3) by admitting audio and video recordings without a proper foundation; 4)

by denying Upia-Frias‟ request that English transcripts be provided during publishing of

Spanish audio tapes to the jury; 5) by allotting five minutes for the exercise of ten

peremptory strikes during the voir dire, and 6) by failing to find that the government

compelled Upia-Frias to wear prison clothes on the first day of his trial, and by denying

his claim that this violated his Sixth Amendment rights. Finally, Upia-Frias maintains

that the government engaged in prosecutorial misconduct by improperly vouching for the

informant‟s credibility.

       A. Juror Misconduct

       We review a district court‟s response to allegations of juror misconduct for abuse

of discretion. United States v. Boone, 458 F.3d 321, 326 (3d Cir. 2006).

       Sometime in the afternoon of the second day of trial, a note was passed to the

district court stating: “[a]t lunch time a juror announced, „I don‟t care. As far as I am

concerned, all of them are guilty.‟” App. 496. The district court, after consulting with

counsel, decided that a questionnaire should be distributed to the jurors to determine the

extent of any misconduct, and the amount of any prejudice. The court then, in the

presence of counsel, individually questioned the four jurors who had responded

affirmatively to a question asking if they had overhead a juror making such a statement.

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The court also individually questioned the juror who made the statement. After thorough

inquiry, the court concluded that each juror could remain fair and impartial and decided

that no juror would be dismissed. We find that the district court meaningfully inquired

into the incident and determined that whatever had occurred would not prevent Upia-

Frias from receiving a fair trial by an unbiased jury. There was no abuse of discretion in

doing so. See United States v. Kemp, 500 F.3d 257, 305 (3d Cir. 2007).

       B. Limiting Cross Examination

       We also review a court‟s limitation on the scope of cross-examination for abuse of

discretion. United States v. Mussare, 405 F.3d 161, 169 (3d Cir. 2005).

       On the second day of trial, the government elicited testimony from its confidential

informant that he was convicted in 1998 in an unrelated drug conspiracy involving the

distribution of several thousand kilograms of cocaine and heroin, and that he served fifty-

seven months after pleading guilty. Upia-Frias objected to this line of questioning and

requested wide latitude on cross-examination to explore the reduction of the witness‟s

sentence and any pro-government bias that may have resulted. The court disallowed cross

examination on this issue, and instructed the jury that the informant‟s criminal history

was not related to any of the defendants on trial and was presented by way of background

only. App. 378.

       Upia-Frias argues that the informant‟s testimony that he received a mere fifty-

seven months in prison for his offense would lead the jury to assume that Upia-Frias

would be facing far less time in prison because his indictment involved significantly less



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contraband. He therefore claims that his rights under the Sixth Amendment

Confrontation Clause have been infringed.

          To determine if a defendant‟s confrontation rights have been infringed, we ask

“(1) whether the limitation significantly limited the defendant‟s right to inquire into a

witness‟ motivation for testifying; and (2) whether the constraints imposed fell within

reasonable limits that the district court has the authority to impose.” Mussare, 405 F.3d.

at 169.

          Upia-Frias wanted to cross-examine the informant about a sentence reduction he

received for an unrelated 1998 conviction. Upia-Frias had nothing to do with that

prosecution, and the informant was not charged with anything in this case. Because the

unrelated sentence reduction is irrelevant to the witness‟ motivation to testify in this case,

Upia-Fria‟s argument fails and we need not consider prong two of the Mussare test. The

district court gave an appropriate cautionary instruction that correctly informed the jury

that it could not consider the witness‟s prior sentence for anything other than background,

and nothing on this record suggests that the evidence was considered for another purpose.

Accordingly, we reject any attempt to now claim that this testimony entitles Upia-Frias to

relief. Moreover, it would have been impossible to open up the “can of worms” that

defense counsel sought to explore by developing details of the witness‟s sentence.

Undoubtedly the prosecutor would have wanted redirect to establish that the sentence did

not constitute the kind of “windfall” that would have favorably disposed the witness




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toward the prosecution and that would have meant delving into the details of the

witness‟s conduct in a completely irrelevant and unrelated crime.1

       C. Admitting Recordings into Evidence

       We review a district court‟s decision to admit or exclude evidence for abuse of

discretion. United States v. Green, 556 F.3d 151, 155 (3d Cir. 2009).

       Upia-Frias argues that the trial court erred in admitting recordings that had not

been properly authenticated. Specifically, he asserts that the government failed to satisfy

two of the seven “Starks factors.” These factors are that the recordings were authentic

and correct; and changes, additions, or deletions had not been made. Unites States v.

Starks, 515 F.2d 112, 121 n.11 (3d Cir. 1975).

         At trial, the government presented evidence that the informant listened to the

recordings, identified the speakers, identified the date of the conversations, and asserted

that the recordings accurately represented conversations between the informant and Upia-

Frias. The government also established a sufficient chain of custody to support a finding

that the recording that was introduced had not been tampered with. Accordingly, the

district court did not abuse its discretion an admitting the recordings into evidence.

       D. Translation Transcripts


1
  It is difficult to determine with precision how defense counsel would have used the
information he wanted to develop through an extended cross-examination. In his brief, he
argues:
       Mr. Upia-Frias recognizes that the sentence occurred in a different case then the case at bar,
       however when someone sings for this much supper, one can reasonably assume that there must
       be more than just one concert. Additionally, the confidential informant was still on supervised
       release from this sentence, and thus there was a direct connection between the sentence and the
       case at bar.
Appellant’s Br. at 21

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         The standard of review of the decision to allow the use of a transcript as a listening

aid is for abuse of discretion. United States v. DiSalvo, 34 F.3d 1204, 1220 (3d Cir.

1994).

         Audio tapes played during the trial were in Spanish and were translated for the

jury by the government‟s informant who was present during the conversation. Separate

transcripts with English translations were offered by both the government and Upia-Frias.

There was a dispute over the accuracy of the transcripts provided by each side. The court

resolved the dispute by deciding against the use of either transcript by either party. While

an English transcript may have been helpful for the jury if one could have been agreed

upon, the jury heard the witness‟s translation. The court‟s resolution of the disputed

transcripts was fair to both sides and was not an abuse of discretion. It was far better than

allowing the jury to only have a disputed transcript, or the obvious confusion that would

have resulted from allowing the jury to use two conflicting transcripts of the same

conversation.

   E. Time Allotted for Peremptory Strikes

         In United States v. Ruuska, 883 F.2d 262, 268 (3d Cir. 1989), we held that

impairing one‟s right to exercise preemptory challenges is per se reversible error.

Nevertheless, peremptory strikes are not constitutionally required and trial courts retain

broad discretion over the manner in which those strikes are exercised. See Stilson v.

United States, 250 U.S. 583, 586 (1919). Here, the court imposed a fairly tight time

restriction on everyone‟s exercise of peremptory strikes. However, that restriction was

clearly within the court‟s discretion. Moreover, to the extent that the restriction affected

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the exercise of peremptory strikes, the impact was the same on both the defense and

prosecution. We do not believe the court abused its discretion in setting the challenged

parameters for the exercise of those strikes.

    F. Compulsion to Wear Prison Clothes

        A defendant who is compelled to appear in front of a jury in prison clothes may

not be able to thereafter obtain a fair trial by a jury free of the taint of associating the

defendant with being a prisoner. See Estelle v. Williams, 425 U.S. 501, 512 (1975).

        Upia-Frias argues his right to a fair trial was violated when he was compelled to

appear before a jury in prison clothing during jury selection and his first day of trial. On a

Sunday afternoon, one day before jury selection and trial, Upia-Frias wrote an email to

the government requesting the return of his civilian clothing for trial. The government

responded at 1:30 pm the following day, stating that Upia-Frias already had his civilian

clothes. Upia-Frias denies that. The court heard the parties‟ arguments at the close of the

first day of trial, and decided that if Mr. Upia-Frias was in possession of his civilian

clothes and elected to wear prison garb to trial, the government could not be faulted. On

the other hand, if Upia-Frias was not in possession of his civilian clothes, the court

required the government to make civilian clothing available to the defendant. See App.

310-15. Upia-Frias appeared in civilian attire the next morning and throughout the rest of

the trial.

        On the record before us, we cannot determine if Upia-Frias was compelled to

participate in jury selection or the first day of trial in prison clothes, or whether he simply

decided to do so even though he could have worn civilian clothes. However, it is clear

                                                7
that this issue was not raised until after the jury had been selected and the first day of

testimony concluded. “[A] defendant may not remain silent and willingly go to trial in

prison garb and thereafter claim error.” Gaito v Brierly¸485 F.2d 86, n3 (3rd Cir. 1973)

(internal quotation marks and citation omitted). Thus, even if we assume that this

defendant had no other clothes to wear during jury selection or the first day of the trial,

and even if we further assume that the prison clothes he appeared in were readily

identifiable as prison clothing, it is too late to attempt to raise that to the level of a due

process claim.

    G. Prosecutorial Misconduct

       Finally, Upia-Frias argues that the prosecutor improperly vouched for the

government‟s confidential informant during closing argument.2 Since defense counsel

did not object during trial, we review for plain error. United States v. Walker, 155 F.3d

180, 187-88 (3d Cir. 1998). In order to establish improper vouching, “(1) the prosecutor

must assure the jury that the testimony of a Government witness is credible; and (2) this

assurance is based on either the prosecutor‟s personal knowledge, or other information

not contained in the record.” Id. at 187.

       Upia-Frias‟s argument is based on two statements. However, he did not object to

the first statement which was: “What [the confidential informant] testified to … is that his

experience has given him some advantages. [He] has testified … that because of his

2
 Upia-Frias also argues that both the compulsion to stand trial in his prison garb and the
elicitation of testimony from the confidential informant concerning his criminal history
and sentence amount to prosecutorial misconduct. We have addressed each of these
contentions earlier in the opinion and found them to be without merit. We need not
discuss them again here.
                                                8
experience he is comfortable going into communities where he believes that he can find

others that are involved in the same conduct for which he was convicted and has served

time.” App. 950. That statement does not constitute vouching. The prosecutor was

merely referring to the informant‟s statements and suggesting that his testimony

explained why drug dealers would trust him.

       The second statement was: “He‟s a drug dealer. He‟s had thousands of kilograms

of this and that. Absolutely. And ladies and gentlemen, that‟s why we submit he was able

to infiltrate, because he‟s as good as it gets. He knows the business, and he knows the

people who run in this business.” App. 1027-28. This statement does not rise to the level

of vouching either. It is another attempt to argue that the evidence shows that the witness

knew about illegal drug sales and would be trusted by drug dealers. In fact, rather than

vouching for the witness, stressing his involvement in the drug culture could just as

conceivably undermined the witness‟s credibility. Moreover, the court‟s final instruction

cautioned the jury that matters of credibility were exclusively for the jury to decide and

that lawyers statements were not binding on the jury. This instruction effectively

mitigated any prejudicial effect the prosecution‟s statements could have had on the jury‟s

determinations of credibility.

                                                 III.

       For the foregoing reasons the district court‟s judgment will be affirmed.




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