Escolar Documentos
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Cultura Documentos
No. 95-2013
UNITED STATES,
Appellee,
v.
Defendant - Appellant.
____________________
[Hon. Jos
____________________
Before
_____________________
Guillermo Gil,
_____________
Assistant
United States
United
States
Litigation
Counsel, with
Attorney, and
Nelson P rez_____________
Attorney,
were
on
brief
for
appellee.
____________________
____________________
TORRUELLA,
TORRUELLA,
Chief Judge.
Chief Judge.
____________
Defendant-appellant
Manuel
Gonz lez-Soberal
counts:
(1)
conspiracy to
multi-kilogram
kilograms
nineteen
amounts
kilograms
He
possess
of
of cocaine on
distribution of
1991.
("Gonz lez-Soberal")
cocaine on
affirm.
1991; (3)
October
20,
now appeals,
claiming errors
including sentencing.
We
intent to
deal with
in the
Finding
distribute
of
1991;
eight
and (4)
on October 27,
jury selection
no reversible
in turn,
four
distribution of
each claim
on
(2)distribution
October 13,
of
convicted
with
cocaine;
judge,
was
the trial
error, we
discussing factual
I.
I.
Appellant makes
Jury Selection
Jury Selection
to the jury
selection.
First, he argues
reversible
error when
it removed
juror number
court committed
9.
Second, he
adequately
error.
speak
and
understand
English
was also
reversible
A.
A.
Juror Number 9
Juror Number 9
Federal
Rule of
Criminal
Procedure
23(b) permits
judge finds
it necessary to do
Fed. R. Crim.
"The
judge
has
responsibility
so.
substantial
discretion
Proc. 23(b).
in
exercising
trial
this
-2-
United States v.
_____________
Walsh, 75
_____
F.3d 1, 5
(quoting
United States v. Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992)).
_____________
________
The
circumstances
removed
are
as follows.
charge,
there was
under
While
which
the
disruption in
juror
judge was
the
number
was
delivering the
jury box.
The
judge
I remember
juror
number 9
impaneling
questions,
intelligent
woman,
Her
Treasury.
person
with a
education.
But I
reaction.
having
very
economist.
Department of
she's
lot of
It's
at the
She's --
her
she's
she's an
husband works
from
--
she's a
education, formal
do think that
what I
entirely
possible
some sort
of problem
that
she's
that she's
a juror
that is sitting
She
next to
off
questions
of
his
about the
started to
clothing,
asked
him
problems, something
And when I
I asked
did not
asked her up
her up here
she did
could not
remember the
she
interrupted
the
has some
know what
charge
neighbor.
jury
reasons why
or
And I --
her.
She
Not
in this jury.
-3-
their
be sitting
Tr. II at 449-50.
Based
subsequent
number 9
on
his
observation
investigation,
and to
the
substitute one
of the
incident
judge
decided to
of
the alternate
and
excuse
jurors.
his
juror
He
bench and
explained to
felt
compassion
responded
she had
that
asked juror
her his
for
those
number 9
intention to
to approach
excuse her.
involved.
Upon
case.
She
that she
questioning,
she
She also
colloquy ensued:
the
The following
The
Court:
seizures
Have
and
you
things
had
like
problems,
that
in the
past?
Juror:
The Court:
Juror:
have anything.
The Court:
Juror:
Tr. II at 455-56.
I see.
The Court:
Juror:
The Court:
When I
was instructing
jury --
-4-
the
Juror:
The
Uh-huh.
Court:
-- You
decided to
talk to
Do you remember
that?
Juror:
No.
The Court:
Juror:
No.
The Court:
his
I see.
name tag
away,
Do
you
remember that?
Juror:
No.
Tr. II at 456-57.
Finally, in
explaining his
decision to the
you,
all
out, that
of a
sudden she
I was
watching.
like blanked
She
could
not
saying.
logic
and
It
the right
to talk to him.
understand
didn't
was not
what
seem
she
to have
was
much
said
she grabbed
something
neck,"
or
about,
his name
tag and
"what's on
something along
your
those words.
She
is
medication.
problem,
--
she's
taking
some
physical
problem.
She
takes
jury, the
that
under
okay.
But I do
the circumstances,
leave her in
not right.
Tr. II at 459-60.
-5-
evidence
duties.
judge in
matters such
remove the
judge's
juror.
9 was no longer
as this
We add
one, we
affirm the
that there is
decision to
no evidence
that the
Although the juror stated that she found the case to be difficult
these
her
Tr. II at 453,
from the
contends,
at
jury.
Furthermore,
demonstrate
whether or not
Brief
15.
that "she
they
had
appellant should be
A juror
might find
do not,
reasonable
found guilty."
as
appellant
doubts as
to
Appellant's
case difficult
for many
reasons,
and
to
conclude
that
she
favored
acquittal
is
speculative.
Our decision is
in United States v.
______________
Molinares Charris,
_________________
822 F.2d
decision
1213, 1222-23
distressed by
to be at
risk.
The
juror was
had taken
obviously
a tranquilizer
in
with
the juror's
situation,
health.
After
an
investigation
-6-
into
the
her
not be
than
making
we are
to assess
the severity
of the
situation.
After
the well-being of those called upon to serve the court, the judge
decided that
Id.
___
at 1223.
B. Juror Number 45
B. Juror Number 45
reversible
error by failing to
the investigation of
number 45.
The Court:
My
name
is Byron
Chique.
My
The
Court:
wrong
with
You
the
have
lady
noticed anything
that
started
Juror:
During
Juror:
45.
Yes.
The Court:
Yes.
to
Juror:
Talking
difficult
to
in English,
explain to
it's
you,
very
but this
-- I
can't explain
in English.
The Court:
Which
for?
Juror:
Let me say --
-7-
looking
The Court:
that
Which
you cannot
word are
--
you missing
I'll give
you
the
word.
Juror:
The Court:
Juror:
(In Spanish)
The Court:
he
is
Jaime, there is
having a
problem
a word that
with
he can't
explain.
Juror:
Interpreter:
talking
told
I told
to the
her and
the lady --
I was
and I
she
was --
she was
like
Juror:
The
Yes.
Court:
abnormal?
It struck you
as something
Juror:
The Court:
Juror:
Not normal?
No.
The Court:
then when
Okay.
did in
open court
in the middle
charge
and
to
start
Juror:
fix
the
of the
--
her
The Court:
her when
and
tried to --
Juror:
Yeah.
The Court:
-- fix it?
Juror:
body.
-8-
Interpreter:
She
seemed
to
be
like
The Court:
Oh, I see.
Okay.
Thank you.
Tr. II at 443-46.
Appellant's counsel
about
English
juror
number
language.
thereafter,
45's
The
counsel again
then stated
knowledge and
district
court
raised the
that he
had concerns
understanding
disagreed.
question of
of
the
Shortly
juror number
Number
one, Mr.
English by me.
Chique was
examined in
he
was
clearly in
able
to
English.
express
I have
himself
no doubt in
my mind.
can
tell
you
something,
completely.
I eliminate
from the jury
don't
take
any
He
was
looking
for
word,
And he was
pretty
you
know,
nervous up
to me
something,
and that's
nervous.
He
was,
why he
could not
He's
perfectly
capable
if I
even
be
this case.
had, believe
on
of
the
jury
me, he
to
wouldn't
begin
with,
Tr. II at 449.
-9-
A trial
to determine
when jurors
reverse
should be
removed for
reasoned
conclusion
the
question
of a juror's ability
trial judge is
competency
cause.
of
the
trial
judge on
to
the
of a
We are hesitant
particular juror.
In
juror.
Although
those
portions
of
the
transcript
quoted
suggest that the juror's command of the English language was less
the evidence
and therefore do
our deferential
standard of
available
from the
decision
to retain
transcript, we
juror
number
In light of
limited information
cannot overturn
45.
We
find
the judge's
no
abuse
of
discretion.
C.
C.
Juror No. 1
Juror No. 1
had
been
killed by
a drug
dealer
during a
holdup.
court, having
interviewed the
Defense
The district
he should
-10-
not be excused
for cause.
Defendant eventually
that
the
failure
juror should
to
remove
have been
the juror
juror.
removed
forced
the
for cause,
defendant
that the
to use
trial.
It
is
well
established
that
the
trial
court
has
considerable discretion in
Dennis
______
See
___
"Substantial
deference
handling
situations
involving
potential
juror
bias
or
misconduct."
Cir.
1990).
would be less
inclined to
discretion, absent
cause in the
961
aspects of
disturb a trial
a jury
trial where we
judge's exercise
of
empaneling of a jury."
In the
that his
father had been killed by a drug dealer, the judge asked: "Do you
believe
could
still be a judge of
and impartial?"
Tr.
I at
11A.
this happened
within your
Tr. I at 11A.
family you
Following an exchange
-11-
with counsel,
the judge
been
juror on the
juror, when
extremely
asked if he
assertive
in
his
could be impartial,
answer,
and
that
he
the
had
was
intelligent.
number
1 was
grossly
parties' briefs on
in
error.
The
judge appears
could remain
Neither a
part of the
demonstrated.
on the panel.
judge nor
juror
to
that he
lack of judgment
have
defendant has
on the
been
Because
forcing
the appellant to
use a peremptory
challenge is grounds
II.
II.
A.
A.
Jury Instructions
Jury Instructions
reversible
error when
instruction
it failed
concerning
to give
the impeachment
appellant's requested
of
witnesses by
prior
conviction.
In
considering
challenges to
if
"the instruction
substantially
jury;
(1) is
covered in
jury
instructions, the
the charge
actually delivered
important point in
was not
to the
-12-
to
effectively
Gibson,
______
omitted).
726
present a
F.2d
869
given
(1st
Cir.
defense."
1984)
United States
______________
(internal
v.
quotations
The charge "need not follow the exact form and wording
Id.
___
In
the
instant
case,
Gonz lez-Soberal
sought
the
following instruction:
You
have
been
told
that
that
attention
deciding whether to
destroy
credibility.
it
the
does not
witness's
only because
consider it
[e.g.:
A conviction is a factor
witness, but
necessarily
witness
in 19__ of
may consider in
believe
the
you may
wish to
whether you
they did
court, although
following language:
You
have
unindicted
Negr n
heard
testimony
co-conspirator,
Zapata, and
from a
Mr.
from
an
William
defendant in
include the
this
same case
who,
tried
earlier,
have
--
agreements
as you
know,
was
Willy
Maya Acosta,
who
who
both
have
with
the
cooperation
government.
exchange
for
The
was given
promise
by
the
admittedly committed,
including
the ones
in this
case.
The
testimony
In
should
evaluating
consider
this
testimony,
whether that
by the
-13-
you
testimony
government's
promise,
and
you
should consider
legal.
Such
than that
agreements
requires that
that
with greater
under those
caution than
Tr. II at 406-07.
Although the
contain
"there is
the specific
instructions given
instruction
not reversible
error if
sought
by the judge
by
the jury
did not
Gonz lez-Soberal,
charge taken
as a
instruction."
conclude that
issues of
credibility
with
in question.
had
government.
cooperation
agreements
with
the
He
gave
jury
is no
reason to
believe that
the jurors
were misled
There
by these
additional skepticism
convictions.
the testimony
Accordingly, we
instructions.
B. Reasonable Doubt
B. Reasonable Doubt
find
of witnesses who
no
error
in
had prior
these
jury
-14-
Gonz lez-Soberal
jury
instructions
also
regarding
claims that
reasonable
the
doubt
trial court's
impermissibly
Second.
government
case.
until
The
prove
the
defendant has
his innocence
evidence
very
or
to
or
end
no
of the
burden to
to present
any
Since
the
testify.
from
considering
whether
the
Third.
case
The
against
reasonable
further
government must
the
defendant
doubt.
instructions at
prove a
beyond
will
give
the end
a
you
of the
who participated in
civil cases,
different.
In
the
a case
the evidence.
by a
In the
preponderance of
criminal case the
government prevails
a case beyond
a reasonable
doubt.
If
for
were to
purposes
of
graphically illustrate
an
initial
charge or
the
before,
say this.
we bring a
type
not
used
any
evidence
on
defendant's
will see
one
old
more,
of
evidence
how well
In the
balance, scale
in
I'm
drugstores
you
will
put
case plaintiff's
the
plates
on the
and
other, you
If
the
plaintiff's side,
has prevailed.
That is
the plaintiff
preponderance of
the evidence.
When
we
say
"beyond
reasonable
-15-
reasonable
doubt, by
the
very words
heavier burden
described.
Because
involved, it's a
therefore
the
I just
liberties
are
burden
is
Tr. I at 11-13.
At
the
end of
the case,
the
judge returned
alone is
And
what
reasonable
is
reasonable
doubt is
a doubt
doubt?
based upon
to the
reason and
from
common
sense and
careful
may
and
arise
impartial
of
evidence.
Proof
beyond
convinced
that the
defendant is
guilty.
If,
and
impartial
jurors of
convinced
beyond
after
careful
reasonable
defendant is
doubt
that
guilty, it is your
the
duty to
Tr. II at 418-19.
This
court has
cautioned against
the risks
that can
v. And jar,
_______
United States
_____________
Campbell,
________
49 F.3d
874 F.2d
16, 23 (1st
838,
843 (1st
Cir. 1995);
Cir.
1989).
v.
Nevertheless,
reversible error.
-16-
our
experience, even
constitutional
imperfect formulations,
requirements when
viewed in
usually meet
the context
the
of the
reasonable
Id.
___
We will
have a
Romero, 32
______
Having
jury.
on
reviewed
the
instructions
in
this
case, we
entirely
the reasonable
served on civil
his
be presumed
guilt
to
final instructions,
must
the judge
innocent
doubt was
repeated that
and that
define reasonable
suggest
the defendant
the government
must prove
likely to
of proof is
-17-
mislead the
jury or
Appellant
next
claims
that
the
district
court
him
partisan
appellant
of
of
his
Appellant's Brief
questions
witnesses
also
the
served
constitutional
at
33.
to
and undermine
argues
that
government's
the
case
right
to
Appellant alleges
bolster
that of
the
thereby
depriving
fair
trial."
that the
judge's
credibility
of
government
defense witnesses.
Appellant
judge improperly
raised
objections
to
It
participate
F.3d 1040
proper."
Logue
_____
v. Dore, 103
____
see also
_________
Fed.
R.
Evid.
614(b) ("The
court
may
interrogate
There are,
example, the
become
an
advantage
into
judge's participation
advocate or
otherwise
or disadvantage a party
question
of
whether
the
must be balanced;
use
his judicial
unfairly."
Id.;
___
"[F]or
he cannot
powers
to
Id.
___
"An inquiry
turns on the
complaining party
can
show
serious
prejudice."
Id.
___
In his
alleged
brief,
bias on behalf of
appellant cites
the judge.
several
instances
of
-18-
by the
We see no need
to recite at
length
from
appellant's
brief,
choosing
instead
to
comment
Appellant
asserts
credibility of government
reviewed
the
relevant
questioning to be
witnesses
were
that
the
judge
witnesses on two
testimony
and
occasions.
consider
testifying under
bolstered
the
We
the
have
judge's
cooperation agreements
and to
impress on the witnesses the fact that they were required to tell
the truth.
Another instance
government
markings.
a decision by
was introducing
Defense counsel
a photograph
objected
that included
on the
grounds
The
certain
that the
markings
contaminated
appellant's counsel
were
made during
witness
if one
the
photo.
At
bench
the
trial
of
conference,
co-conspirators and
that
the
were
available.
The judge
overruled
the
objection,
stating to the jury that he knew what the marks were and that the
marks
were
elaboration,
explained to
that
these
government's evidence.
counsel.
comments
We disagree.
-19-
Appellant claims,
amount
to
without
bolstering
the
As for the
defense
witnesses
meritless.
and
defense
judge sought to
counsel, we
find
undermine
them
to
be
the judge
delay
bias.
See
___
comments cannot
be taken
to demonstrate
v. Gloucester, 9 F.3d
__________
Finally,
hearsay
appellant
evidence during
argues
testimony.
that
the
judge
Following an
elicited
objection on
hearsay grounds, the judge asked the witness, Negr n-Zapata, "Who
told you that Chanci had said or that Chanci would -- If we would
find kilos he
replied
the
objection.
Even
if
them?"
it
were
determined
that
this
was
Nothing
way prejudicial to
relate
to the
the defendant.
defendant,
The comments
implying that,
if
simply do
error, they
not
were
harmless error.
IV.
IV.
Sentencing
Sentencing
error when it
refused to grant
reduction in
a two-point "minor
on the
basis of his
participant"
role as
courier.1
"We will
that a
____________________
-20-
defendant
clearly
is not a
minimal or minor
erroneous."
United States
_____________
participant only if
v. Paz Uribe,
_________
it is
399 (1st Cir. 1989); see also United States v. Garc a, 954
_________ _____________
______
in-the-offense
determination
defendant bears
downward
only
the burden of
adjustment for
for
clear
court's role-
error.").
proving that he is
his role
in the
F.2d
The
entitled to a
offense.
See United
___ ______
Appellant's
First,
he
argues
claim fails
that
on
"[t]he trial
two independent
evidence
grounds.
indicates
that
the assertion
refers
to
commented
only
one statement
limited to one of
made
by
the
courier.
trial judge,
He
who
was a
money courier."
meet
Tr. II
at 481.
This
in this case,
is insufficient to
and is unconvincing.
do not
courier.
was
suggest that
the judge
other than
a regular
viewed the
defendant as
drug dealer
that was
on
offense,
the
defendant's role
decrease
the offense
in
the
level as
follows:
. . .
(b)
If
the
participant
defendant
in
any
was
criminal
-21-
3B1.2.
that he
arranging drug
____________________
Based
a mere
minor
activity,
transactions like
addition,
the court
defendant's
considered
everybody
role in
his
else was."
made it
the
role
Tr. II
clear that
offense, stating
. .
in
the
it had
at
In
considered the
that "the
context of
481.
the
court has
relative
particular
conspiracy.
account of role."
And I
will not
make an
adjustment on
Tr. II at 488.
Second, even if it
been
no more
entitled to a
than
a courier,
would not
be
965
F.2d 1124, 1131 (1st Cir. 1992); Paz Uribe, 891 F.2d at 399.
_________
"A
downward
has
the
role
at
burden
adjustment,
demonstrating that
automatically
v. L pez-Gil,
_________
defendant
reduction.
he
and
of
proving
can
only
entitlement
prevail
1131
on
(citations omitted).
Appellant
to such
appeal
by
as to his
fails to
present any
a reduction.
Therefore,
to carry
adjustment.
In
posture we
light of
take
the above
analysis, and
toward role-in-the-offense
the deferential
determinations,
we
V.
V.
Conclusion
Conclusion
-22-
court is affirmed.
affirmed
________
-23-