
USCA1 Opinion

	




          February 8, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1683                                          JUSTINIANO CUEVAS-BURGOS,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ___________________               Justiniano Cuevas-Burgos on brief pro se.               ________________________               Guillermo  Gil,  United  States  Attorney,  Jose  A.  Quiles               ______________                              ________________          Espinosa, Senior  Litigation Counsel, and Jorge  E. Vega Pacheco,          ________                                  ______________________          Chief Criminal Division, on brief for appellee.                                   __________________                                  __________________                 Per Curiam.    We  have  carefully  reviewed  the  trial                 __________            transcripts and  affirm the  denial  of petitioner's     2255            petition.                 1.  Sufficiency of the Evidence.  The evidence was fully                     ___________________________            sufficient to  support the  convictions.   The  jury was  not            required  to believe  Pagan's testimony  absolving petitioner            and instead was entitled to credit the government's  evidence            that petitioner had  requested Rodriguez Vega  to supply  the            cocaine and had participated in the cocaine negotiations.                   2.  Speedy Trial Act.  Petitioner has not identified any                     ________________            speedy trial  act  violation.   Petitioner's contention  that            only the four  days during which Rodriguez Vega  was actually            being examined by a  physician were excludable is wrong.   18            U.S.C.   3161(h)(1)(A) (excluding  "delay resulting from  any            proceeding,  including  any  examinations,  to  determine the            __________            mental competency . . . of the defendant")  (emphasis added);            United States  v. Anello,  765 F.2d  253, 255-56 (1st  Cir.),            ________________________            cert. denied, 474 U.S. 996  (1985); United States v.  Zielie,            ____________                        ________________________            734  F.2d 1447, 1454 (11th Cir. 1984) (a time exclusion which            applies to one defendant applies to all co-defendants), cert.                                                                    _____            denied, 469 U.S. 1189, 1216 (1985).            ______                 3.  Prejudicial   Publicity.    Petitioner's   claim  of                     _______________________            prejudicial publicity is meritless.  First, the publicity, as            described  by  petitioner,   was  much  less  extensive   and            prejudicial   than  in  other   cases  in  which  prejudicial            publicity  claims  have been  rejected.    See, e.g.,  United                                                       ___  ____   ______            States v. Angiulo, 897 F.2d  1169, 1181-83 (1st Cir.),  cert.            _________________                                       _____            denied, 498 U.S. 845 (1990); United States v. Moreno Morales,            ______                       _______________________________            815 F.2d 725, 730-36  (1st Cir.), cert. denied, 484  U.S. 966                                              ____________            (1987).  Second, prior to trial,  Judge Acosta questioned the            panel  from which the jury was chosen whether anyone had read            or  heard anything about the case.  There were no affirmative            responses.   In view of the lack of response to the voir dire            inquiry, there is no  evidence any juror was exposed  to pre-            trial publicity and hence no basis to find prejudice prior to            trial.  United States  v. Samalot Perez,  767 F.2d 1, 5  (1st                    _______________________________            Cir. 1985) ("[w]hen a  trial judge has conducted a  voir dire            examination with questions effectively designed to unveil any            impartiality, then we will  set aside his action  `only where            juror  prejudice is manifest'").  As for any publicity during            the  trial, Judge  Acosta told  the jurors  not to  listen to            media  accounts and to decide the case solely on the evidence            presented  in   court.     Jurors  are  presumed   to  follow            instructions.   United States v.  Boylan, 898  F.2d 230,  263                            ________________________            (1st Cir.), cert. denied, 498 U.S. 849 (1990).                          ____________                 4.  Jurors' Linguistic Competency.  There is no basis to                     _____________________________            believe  that the  jurors  were not  competent to  understand            English.  During empanelment,  each spoke briefly in English.            Most  had  already served  as jurors  on  at least  one trial            conducted  in  English.   That  the  jury asked  for  further            explanation of technical legal  terms does not show inability                                     _____            to understand English.                          _______                 5.   We  have considered  all of  petitioner's appellate            arguments, including his claims of ineffective assistance                                         -3-            of counsel, and find them meritless.                 Affirmed.                 ________                                         -4-
