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,
________________________
whom
Sosa,

Guillermo Gil,
_____________
Assistant

Senior

United States

United

States

Litigation Counsel,

Attorney, and

Attorney,

were

with

Nelson P rez_____________
on

brief

for

____
appellee.

____________________

March 17, 1997

____________________
____________________

Of the District of New Hampshire, sitting by designation.

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

Defendant-appellant

Ramberto

Hern ndez was

defendants

five

convicted of

(1) conspiring

with five

other co-

to possess with the intent to distribute in excess of

kilograms of cocaine in

three other

violation of 21

U.S.C.

(2)

along with

co-defendants, aiding

each

other in

nine

kilograms of cocaine in violation of 21 U.S.C.

and

841(b)(1)(B)

knowingly and intentionally

and

18

U.S.C.

2.

846; and

and abetting

distributing twenty-

Hern ndez

841(a)(1)

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

on the

uncorroborated testimony

permitted to convict him based

of a single

unindicted alleged

coconspirator, William Negr n-Zapata

("Negr n-Zapata"), who

awaiting sentencing in another case.

We affirm.

was

received

At

trial

Negr n-Zapata

testified

call

from

Maya-Acosta

Willie

inquiring whether Negr n-Zapata knew

available for

purchase.

Acosta

delivered $290,000

V lez-Carrero and

appellant

to

and

Hern ndez gave them twenty-nine

("Maya-Acosta"),

turn, contacted Jos

Negr n-Zapata.

delivered

He

On October 27, 1991, Maya-

Negr n-Zapata went to

Hern ndez

follows.

of any kilograms of cocaine

Negr n-Zapata, in

Luis V lez-Carrero ("V lez-Carrero").

as

Later that

a fish market

$261,000

to

kilograms of cocaine.

day,

owned by

Hern ndez.1

Hern ndez

was acting as an intermediary in exchange for a commission.

____________________

Of the original $290,000, $29,000 was divided between Negr n-

Zapata and V lez-Carrero as a commission.

-2-

I.
I.

Hern ndez'

the evidence.

Sufficiency of the Evidence

Sufficiency of the Evidence

first claim

In reviewing such claims, we

the light most favorable

rational factfinder

doubt.

challenges the

sufficiency of

view the evidence in

to the prosecution and ask

could have

found guilt beyond

whether any

a reasonable

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

to

testify

as long

as

that an accomplice is qualified

any agreements

he

has

made with

the

government are presented to the jury and the "judge gave complete

and

correct instructions

detailing

the special

should take in assessing the testimony."

Arrigoit a,
__________

996 F.2d

conviction based

accomplice

can

be

1995).

upheld, as

testimony is

See United States

___ _____________

As

the jury.

(1st Cir.

long

as

1993).

the

Indeed, a

testimony of an

jury is

not incredible as

v. And jar,
_______

jury

United States v. Ortiz_____________

______

solely upon the uncorroborated

instructed and the

law.

436, 438-39

care the

49 F.3d 16,

always, the credibility of a witness

See Ortiz-Arrigoit a, 996 F.2d at 439.

___ ________________

properly

a matter

21 (1st

of

Cir.

is a matter for

The government's

case relied

only witness, Negr n-Zapata.

a long-time

drug dealer,

had already

been convicted twice

reduced from sixty months

for

to

because of his willingness to testify for the

government, and was still

which he

of its

Negr n-Zapata testified that he was

drug trafficking, had one sentence

twenty-four months

on the testimony

awaiting sentencing in a drug

had been convicted over

-3-

two and a half

case in

years prior to

his testimony in the instant case.

the

prosecution

in

exchange

for more

certification of his cooperation

him

after the

Negr n-Zapata cooperated with

Hern ndez trial.

lenient

treatment

to a judge who was

He

and

to sentence

was eventually

given time

served in the case for which his sentence was pending.

Although

credibility

events.

raise

plenary review of the credibility

juror could have believed

questions

of

of witnesses.

Negr n-Zapata's version of

Negr n-Zapata testified in considerable detail regarding

the crime and

the

circumstances

regarding Negr n-Zapata's testimony, this court does

not engage in a

A rational

these

light most

Hern ndez' role in it.

favorable to

Viewing the testimony

the verdict,

the jury

in

could have

concluded that the testimony established that Hern ndez joined in

the conspiracy,

and possessed and distributed

Zapata was cross-examined in

and

his credibility.

that there existed

testimony.

cocaine.

Negr n-

detail regarding both his testimony

Finally,

appellant fails

to demonstrate

overwhelming evidence to contradict

Negr n's

For all of these reasons, we deny the sufficiency of

the evidence claim.

II.
II.

Hern ndez

The Confrontation Clause

The Confrontation Clause

claims

that

his Sixth

cross-examine Negr n-Zapata was denied.

states

that "[i]n

all criminal

The

Amendment

right to

Sixth

Amendment

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.

(1985);

See
___

Delaware
________

United States
_____________

v. Van Arsdale,
____________

v. Rivera-Santiago,
_______________

475 U.S.

872 F.2d

673,

678-79

1073, 1084

(1st Cir. 1989).

It

guarantees

is well established

an opportunity
___________

that "the Confrontation Clause

for effective

cross-examination, not

cross-examination

that

is effective

in

whatever extent, the defense might wish."

474 U.S. 15, 20 (1985).

satisfied

probe

whatever

way, and

to

Delaware v. Fensterer,
________
_________

"[T]he Confrontation Clause is generally

when the defense is given full and fair opportunity to

and

expose these

thereby calling

to the attention

for giving scant

Furthermore,

cross-examine

infirmities

once

through cross-examination,

of the factfinder

the reasons

weight to the witness' testimony."

Id. at 22.
___

the defendant

government

is

witnesses,

given

the

the opportunity

extent

of

to

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

examine the witness.

circumscription

a full and

to cross-

Indeed, the defendant fails to identify any

___

imposed

Zapata, much less a

fair opportunity

on

his

cross-examination

of

restriction that would rise to the

an abuse of discretion.2

Negr n-

level of

The defense argues that "[t]he jury was

____________________

We add that defense

issue

at trial.

counsel did not raise

Arguments raised for the

the confrontation

first time on appeal

are forfeited and reversible only upon a demonstration

error."
1996).

United States v.
_____________
"The

plain error

Sullivan, 98 F.3d
________
doctrine of Federal

-5-

of "plain

686, 687 (1st Cir.

Rule of

Criminal

allowed to

be

hear Negr n-Zapata's testimony unaware

rewarded with

a sentence

of time

other things, his testimony in

counsel

were denied

Negr n-Zapata

government."

by

showing

his

the defense

cross-examine Negr n-Zapata

with the

Zapata admitted that

nine

and fair'

of, among

As a result,

opportunity

motivation

to

defense

to impeach

please

the

Appellant's Brief at 11.

In fact,

agreement

served because

this case.

a 'full

that he would

months and

on every

government.

he had been

that he

was afforded the

had a

aspect of

opportunity to

his cooperation

On cross-examination,

Negr n-

awaiting sentence for

twenty-

cooperation agreement

with the

government.

the

He testified that, in exchange for

his cooperation,

government would recommend a reduced sentence in the case in

which he

court

jury

was

awaiting sentencing.

judge read

to

reduced

make it

portions of

clear that

In

addition, the

district

the Sentencing Guidelines

Negr n-Zapata's sentence

to the

could be

below the minimum mandatory sentence in exchange for his

cooperation.

Hern ndez argues that the defense could have

Negr n-Zapata's testimony more successfully

he would be

impeached

if it had known that

credited for time served and released.

Whether true

____________________

Procedure

52(b) tempers the blow

contemporaneous-objection
Courts
errors,'

of

Appeals

those

to

errors

of a rigid

requirement.
correct
that

only

'seriously

The

application of the

Rule authorizes the

'particularly
affect

the

egregious

fairness,

integrity or public reputation of judicial proceedings.'"

United
______

States v. Young, 470 U.S. 1, 15 (1985) (citations omitted).

______
_____
if

we

were to

Hern ndez' right

conclude

that there

had

been

Even

a violation

of

would have

to

to cross-examination, appellant

demonstrate plain error in order to win a reversal.

-6-

or not, this contention does not lead to the conclusion that

right

to

testimony,

cross-examine was

Negr n-Zapata

had

compromised.

no

At

the time

assurance that

he

the

of the

would

be

credited for

testified,

time served

that

sentencing judge.

his

In

and released.

cooperation

would

He only

be

knew, as

certified

other words, the defense was

to

he

the

permitted to

present to the jury the conditions

under which Negr n-Zapata was

testifying.

informed

The jury

was fully

Negr n-Zapata's credibility.

We

and able

conclude, therefore,

defense was granted a full and fair opportunity to

to assess

that the

cross-examine

Negr n-Zapata.

Finally, we note that

of

the

appellant's appeal to Rule 32(a)

the Federal Rules of Criminal Procedure,3 the Local Rules for

District

regarding

of Puerto

Rico,

speedy sentencing

and

belong

Sixth Amendment

to

sentencing, in this case Negr n-Zapata.

the defendant

guarantees

awaiting

Violation of these rules

does not give Hern ndez grounds for a reversal of his conviction.

III.
III.

Finally,

Jury Instructions
Jury Instructions

Hern ndez objects

to the

jury instructions.

The relevant portion of the instructions is as follows:

You

have

regarding

also

the

reputation

or

deciding this case,

that

testimony

Government's

in

truthfulness

heard

the

witness'

community

for

untruthfulness.
you should

evidence together

same manner as all the

In

consider

with and

in the

other evidence in

the case.
____________________

Federal

Rule

of

Criminal

Procedure

32(a)

sentencing should take place without "undue delay."

-7-

requires

that

You

have also heard testimony from an

unindicted

co-conspirator

who

cooperation

agreement

with

Government.

the

promise by the Government

that

the witness will

for

some

case.

That testimony was given in

exchange for a

crimes

committed,

has

not be prosecuted

he

including

has
the

The Government

admittedly

ones in

this

will also certify

his cooperation to another judge who will

sentence

him

in

another

case

in

the

testimony,

you

future.

In

evaluating

should
may

consider
have

been

Government's
consider

that

this

whether that

testimony

influenced

promise

and

testimony

by
you

with

the
should

greater

caution than that of an ordinary witness.

Such agreements are legal.

the

law only requires

The only

--

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

the jury instructions

above excerpt and to

state that "the trial judge, in

must consider the

respect to

is to quote the last two paragraphs of the

legally required instruction to

it

argument with

the jury on the care

testimony of an

giving the

with which

accomplice, minimized the

importance of the charge by adding the word 'only.'"

Appellant's

Brief at 11.

Because

instructions

at

appellant

trial, we

Sullivan, 98 F.3d at 687.

failed

to

review only

object

for

to

the

jury

plain error.

See
___

"Our principal focus in reviewing jury

________

instructions is

mislead

the

to determine whether

jury

on

the

they tended to

controlling

issues."

confuse or

See
___

Service
_______

Merchandise Co. v. Boyd Corp., 722 F.2d 945, 950 (1st Cir. 1983).
_______________
__________

-8-

We do not

believe that

judge confused or misled

the instructions provided

the jury.

The judge

by the

trial

accurately summed

up the

conditions under which Negr n-Zapata

that jurors should

influenced by

the

"consider whether the testimony may have been

the government's

testimony with

witness."

testified and added

greater

Tr. IV, at 896.

Negr n-Zapata's testimony

promise and you

caution than

that

Because the jury

should be

should consider

of an

ordinary

was informed that

viewed with caution,

we do

not believe there was error in the instructions and certainly not

"plain error."4

Although

in this case,

brought

appellant's claims cannot

we add

that we find

to light in this case.

justify a reversal

troubling certain

In particular, we are concerned

with the practice of incarcerating an individual

period of

practices

time without sentencing,

for an extended

while holding out

a promise

that his or her cooperation will lead to a more lenient sentence.

At

least two aspects of

although

individual

the

this practice are

government's

offer

may

problematic.

be

attractive

First,

to

an

defendant, we do not believe that the right to prompt

sentencing exists merely as a bargaining chip for defendants.

is inappropriate to hold

of time pending

a defendant in prison for

sentencing, in this case

It

long periods

two and a half

years,

while the government tries to extract information from him.

____________________

We add that Hern ndez not only fails to point to error

instructions, but
correct."

concedes that they

Appellant's Brief at 12.

-9-

were "perhaps

in the

technically

The second problem is

likelihood

that

innocent

that this practice increases the

individuals

will

defendants trying to placate the government.

concern whenever

exchange

a defendant

for lenience,

incarceration

increases

but

be

feel

unduly, the

that

risk

by

This is obviously a

cooperates with the

we

implicated

as

government in

the

of false

period

of

statements

intended to appease the defendant's captors becomes too great.

Although

this

court, suffice

this is not the case for corrective action by

it to

say that

we caution

the government

against

abuse

of

this practice

suspicion its continued use.

and

that

we

will view

Nothing in this opinion

with

should be

taken to support such conduct.

IV.
IV.

For

is affirmed.
affirmed
________

Conclusion
Conclusion

the reasons stated

herein, appellant's conviction

-10-