USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 96-2280

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL GONZALEZ-GONZALEZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

___________________

____________________

Before

Lynch, Circuit Judge,

_____________

Coffin and Cyr, Senior Circuit Judges.

_____________________

____________________

Laura H. Parsky, Trial Attorney, with whom John C. Keeney, Acti

_______________
______________

Assistant Attorney General, and Theresa M.B. Van Vliet, Chief of th

______________________
Narcotics and Dangerous Drugs Section, Department of Justice, were
brief, for appellee.
Lawrence E. Besser for appellant.
__________________
Manuel Gonzalez-Gonzalez on brief pro se.
________________________

____________________

February 5, 1998
____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge
_____________

convicted

of

a major

drug

Manuel Gonzalez-Gonzalez was

smuggling and

conspiracy based in Puerto Rico.

was that

part of

such a conspiracy

it.

admittedly

in closing

instruction on

defendant.

but that he

argues through

was not

counsel that

an

improper definition of reasonable doubt argued by

the prosecutor

jury

Gonzalez' defense at trial

did exist,

Gonzalez now

money laundering

requires a new

the effect of

trial, as

a guilty

does a

plea by

Gonzalez also filed a brief pro se, arguing

the district court

erred for

motion for a new trial.

other reasons

in denying

a co-

that

his

We affirm.

I.

Gonzalez

was charged

on

November

2,

1994

with

conspiracy to possess

with intent to distribute

marijuana, possession

with intent

possession with intent to

marijuana

and

laundering of

cocaine,

monetary

trial, the jury found

was

cocaine and

to distribute

marijuana,

distribute cocaine, importation of

and

aiding

and

instruments.

abetting

After a

in

the

nineteen-day

Gonzalez guilty as charged.

Gonzalez

sentenced on September 20, 1996 to life imprisonment and

was fined.

Because

this appeal

involves

admittedly improper

remarks by the prosecutor, and because the verdict could have

been tainted by

in

the light

these remarks, we do not

most favorable

description of the facts is

to

consider the facts

the jury's

verdict.

"designed to provide a

Our

balanced

picture of

the evidence appropriate for

the remarks were harmless or

Hardy,
_____

37 F.3d

753,

755

determining whether

prejudicial."

(1st Cir.

United States v.
_____________

1994).

See
___

Arrieta________

Agressot v. United States, 3 F.3d 525, 528 (1st Cir. 1993).

________
_____________

Several witnesses

Gonzalez'

drug

smuggling

testified that they

and

money laundering

This extensive testimonial evidence

belonged to

operation.

was corroborated by tape

recorded

conversations,

entries,

travel

Rivero

surveillance

records, and

photographs, passport

telephone

("Rivero") testified that

records.

Ricardo

Gonzalez recruited

him to

retrieve

and repackage 900 pounds of marijuana imported from

Colombia

in 1991.

Rivero

testified

that Gonzalez

stored

cocaine and marijuana at a house belonging to Manuel Garrido,

which

other

witnesses,

a co-defendant

and

an

FBI agent,

subsequently confirmed.

Gonzalez transported 125

Puerto

Rico to

New

Rivero.

Gonzalez

Alberto

Maysonet to

that

Gonzalez

came

York for

also

kilograms of cocaine from

distribution

hired Roberto

transport cocaine.

to

his house

to

with help

Garraton-Rivera

from

and

Garraton testified

deliver

cocaine

to

Maysonet.

Garraton and

Maysonet

August of 1991 to deliver cocaine to

York,

Gonzalez instructed Ricardo

cocaine and resolved

a dispute over

-33

traveled to

Gonzalez.

on how to

New York

in

While in New

distribute the

payment for the

drugs.

After

the success of

this deal, Gonzalez

purchased several

cars before returning to Puerto Rico.

Witnesses

described

drug

transactions

Co-defendant

helped

Gonzalez import 6,500 pounds of marijuana into Puerto

Rico.

Gonzalez stored

in Puerto

marijuana shipment.

Marina-Giraldo testified

in

1992.

sold it

Luz

other

the marijuana at

Rico.

Rivero

a stash

also testified

that she

house and

about that

According to Rivero, Gonzalez supervised

the unloading and transportation of the marijuana.

Gonzalez

cocaine

witnesses

Both

Rivero

and

was

involved

in

from St.

Martin

Marina-Giraldo

transporting

to

also testified about

and marijuana Gonzalez

Puerto Rico

testified

300

in

that

kilograms

1992.

a major shipment

had imported from Colombia

of

These

of cocaine

to Puerto

Rico

in September of 1992.

Part of this shipment was seized

by the police.

Several

Gonzalez' cousin,

kilograms of

witnesses

Augustin Rivero

cocaine in

testified that Gonzalez

bring

in

the

York.

agreed that

Ricardo

625

Rivero

boat to help

Sierra-Rivera,

paid

Gonzalez provided surveillance for

sold in Puerto Rico

testified that

time one

helped

("Augustin"), import

Roberto

which was later

each

they

supplied a motor for a

shipment.

Sierra-Rivera

that

November of 1992.

informant, testified that

this shipment,

testified

of

-44

Gonzalez and

them brought

in a

and New

Augustin

load

of

cocaine, the other would be

$100,000.

There

was also

given 10 kilograms of cocaine or

testimony

about

later cocaine

smuggling operations conducted by Gonzalez' cousin Augustin.

Angel

Santiago-Mora,

a cooperating

witness,

Martin Suarez, an FBI agent, testified that Gonzalez

and

and his

associates often delivered money to them to be laundered.

On

several

of

separate occasions

Gonzalez

delivered hundreds

thousands of dollars to them.

to Gonzalez also

Other people closely connected

delivered substantial sums

of money to

be

tape recordings

of

laundered.

The government

conversations

Gonzalez

between Gonzalez

admitted his

distribution.

also presented

involvement

This evidence

Gonzalez' associates

and his associates

in

drug

was supplemented

referring to

in which

smuggling

and

by tapes

of

Gonzalez' involvement

in

drug trafficking.

Gonzalez testified and denied it all.

II.

Gonzalez argues that

Amendment right to

he was deprived of

a jury trial because

his Sixth

in the prosecutor's

closing argument the prosecutor said:

[Y]ou heard [defense counsel]

of his

argument, that

doubt as to
am

there was

reasonable

whether he was or was

you will

listen to the instructions from the

judge as

what

to

tell you

not and I

something,

to

going

say at the end

reasonable

doubt

is

--

it

is

something very simple.

If in your

mind you

think

of

that

he

was

-55

member

the

organization,
that he

and in

was a

member

your

heart, you

of the

feel

organization,

then he was a member of the organization, and

you

say so

with your

yourselves be confused

verdict.

Don't

let

by the definition

of

reasonable doubt.

The government

appropriately concedes that

remarks incorrectly

was

no objection

concedes), we

United States
______________

the prosecutor's

defined reasonable doubt.

to

these

remarks

apply a plain

(which

Because there

the

defendant

error standard of review.

v. Crochiere,
_________

129

F.3d 233,

237

See
___

(1st Cir.

1997); United States v. Taylor, 54 F.3d 967, 972-73 (1st Cir.

______________
______

1995).

The "decision

to correct

within the sound discretion of

court

should not exercise

the forfeited

error [is]

the court of appeals, and the

that discretion unless

the error

'seriously

affect[s]

reputation of the

Olano,
_____

the

fairness,

integrity

judicial proceedings.'"

507 U.S. 725,

732 (1993)

or

public

United States v.
______________

(quoting United States v.

______________

Young, 470 U.S. 1, 15 (1985)).

_____

Gonzalez relies on

jury

instructions

standard

require

which

new

a series of cases

misstate

trial.

the

He

holding that

reasonable

argues

that

doubt

the

prosecutor's comments on reasonable doubt are the "functional

equivalent"

of

jury

instructions,

especially

since

the

prosecutor followed his incorrect definition with a statement

that the

reasonable

jury should

doubt.

not be confused

Gonzalez

argues

by the

that

definition of

the

prosecutor

-66

essentially

told the jury to ignore the judge's instructions

on reasonable doubt

instead.

and to follow his "mind

and heart" test

We start with the latter contention.

The remark,

the definition of

"Don't let yourselves

be confused

reasonable doubt" is ambiguous,

by

and could

have

at least

three

meanings.

It

could

mean "Don't

be

confused by the definition that I, the

prosecutor, have just

told

be

you."

It

could

mean, "Don't

definition you hear from either

"Don't

be

confused by

the

lawyer."

definition

confused

by

the

And it could mean,

you

hear from

the

judge," with the implication that the prosecutor's definition

governs.

In context, the

likely of the three.1

telling

definition

that the

of

interpretation.

far the least

The prosecutor prefaced his remarks by

the jury to listen

his statement

argument

third meaning is by

to the judge's instructions, and

jury should not

reasonable

doubt

Furthermore, the

is

be confused

subject

to

by the

benign

prosecutor concluded

his

by stating, "You will listen to the instructions of

____________________

We note

prosecutor's

but need

comments

not resort to

are

the rule

ambiguous,

and

that when

there

is

no

contemporaneous objection, the ambiguity is construed in favor of

a proper meaning.

See Taylor, 54 F.3d at 979 ("[W]hen the target

___ ______

of

does

the

comments

objection,

not

it seems especially

the benefit of every plausible

. Given the absence of
to

the

interrupt

government

interpretation

of

and

register

appropriate to 'give

timely

the arguer

interpretation of her words.' . .

a contemporaneous objection, we must cede

the

the

benefit

of

prosecutor's

legitimate,

words.")

plausible

(quoting

States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993)).

______
_________

-77

United
______

the Honorable

Judge, as

decide what the facts

he explains them

to you,

you will

in this case were [and] you will apply

the

law . . . ."

The prosecutor's own comments went a long

way

toward curing

any understanding

of the

comment as

an

admonition to ignore the court's instruction.

The

obviated

problem

by the

which Gonzalez

with

the

prosecutor's

court's instructions

error

on reasonable

was

doubt,

concedes were correct, as well as the court's

admonition to the

jurors that instructions

on the law

come

only from the court, and not from counsel.

We

flatly

reject

Gonzalez'

argument

that

misstatement of the law by a prosecutor should be treated the

same

way as a

misstatement of law

by the judge.

would mistake a prosecutor for a judge.

the

jurors follow

jury

instructions

No juror

Our law assumes that

and

thus

that

they

followed the judge's, not counsel's, definition of reasonable

doubt.

See
___

United States v. Rivera-Gomez, 67

_____________
____________

(1st Cir. 1995)

on

("[O]ur system of trial by

the assumption that

court's

instructions.");

follows

the

especially

jury is premised

jurors will scrupulously

follow the

Refuse & Envtl. Sys., Inc.

______________________________

Industrial Serv. of Am., Inc.,

_______________________________

1991) ("A basic premise

F.3d 993, 999

932 F.2d

37, 40

of our jury system is that

court's instructions.").

so here, since the

That

v.

(1st Cir.

the jury

assumption is

prosecutor also told the jury

to listen to the judge.

-88

Whether

error warranting a

factors: "(1) the

the prosecutor's

remarks amount

new trial depends on

extent to which

and/or deliberate; (2) the extent

to plain

analysis of several

the conduct is

recurrent

to which the trial judge's

instructions

insulated the

jury against, or

palliated, the

possibility of unfair prejudice; and (3) the overall strength

of

the prosecution's

likelihood

case, with

particular

regard to

the

that any prejudice might have affected the jury's

judgment." Taylor, 54 F.3d at 977.

______

We make no determination on the first of the Taylor

______

factors.

We do note a long history of improper statements in

closing argument

from federal

prosecutors

in Puerto

Rico.

See, e.g., United States v. Rodriguez-Carmona, 111 F.3d 122,

__________ _____________
_________________

1997

WL 157738,

Fernandez,
_________

at *4

94 F.3d

(1st

640, 1996

Cir. 1997);

WL 469009,

United States
_____________

at *17

1996); United States v. Cartagena-Carrasquillo,

_____________
______________________

v.

(1st Cir.

70 F.3d 706,

713 (1st Cir. 1995);

United States v. Levy-Cordero, 67

_____________
____________

1002, 1009 (1st Cir. 1995);

(citing

F.3d

Arrieta-Agressot, 3 F.3d at 527

________________

cases); United States v. Ortiz-Arrigoita,

______________
_______________

996 F.2d

436, 441 (1st Cir. 1993) ("We do not understand, however, why

after

numerous warnings

attorneys in the

from

this

court, the

District of Puerto Rico

prosecuting

persist in spiking

their arguments with comments that put their cases at risk.")

(collecting cases).

In light of this history, the government

gains no advantage under the first factor.

-99

As to the second factor, we are persuaded the

was

not

led

astray.

That

is

because

of

the

concededly correct jury instructions on reasonable

the

direction to

counsel.

As

disregard statements

about

strong case against Gonzalez.

court's

doubt and

the law

to the third factor, the government

jury

from

had a very

Given these considerations, we

do not think the jury's judgment was affected and a new trial

is not warranted.

Cf. Levy-Cordero, 67 F.3d at 1008 (holding

___ ____________

that several "obviously improper"

prosecutorial comments did

not warrant a new trial).

III.

In

district

his

counselled

court committed

regarding

the

Giraldo.2

guilty

Gonzalez

in

jury

error

plea

Specifically,

appeal,

of

its

co-defendant

Gonzalez argues

says

the

instructions

Luz

Marina-

that the

court's

____________________

Before Marina-Giraldo testified as a

witness, the court

instructed the jury:

[T]he government

must establish

each case

against each defendant separately.

Now, the

fact

that

testify,

this

co-defendant

is

going

to

you are going to hear from her that

she did enter a plea of guilty and now she is

testifying for the government.
that

a co-defendant

has entered

Now the fact

a

plea of

guilty

to

the

offense

charged, that

fact

also, the entering of a plea of guilty in and

of itself is not evidence of any guilt of any
other of
The

the co-defendants.

fact that

plea

repeat that.

a co-defendant has

entered a

of guilty to the offense charged is not

evidence in and of itself of the guilt of any

other

co-defendant

and I

cannot

emphasize

that enough.

-1010

statement

that his co-defendant's guilty plea is not "in and

of itself"

proof of

Gonzalez' guilt

implies that

the plea

could be considered as evidence of guilt in conjunction

other

evidence in the case.

There was no objection to these

instructions, so we apply the plain error standard

(which

Gonzalez

with

concedes).

See
___

Taylor, 54
______

F.3d

of review

at 976;

United States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir. 1993).

_____________
___________

The

phrase "in and of itself," in isolation, could

be understood to

alone, the

mean what Gonzalez

guilty

plea

evidence of guilt of the

such other evidence,

the defendant's guilt.

of

posits:

co-defendant

that

could

standing

not

be

defendant, but, in combination with

the plea could be taken

as evidence of

That is, of course, not the law, nor,

we are sure, was that the trial judge's intended meaning when

he gave the instructions.

____________________

The guilty
not

be

plea of Luz

regarded

evidence of the

by

Marina-Giraldo may

you

as

substantive

other defendant's guilt

nor

may you draw any inference of guilt as to the

remaining co-defendants.
pled
be

The fact

that she

is what I am talking about, that cannot

used

as

defendants

evidence

nor may

you

against
draw any

the

other

inference

from the fact that she pled guilty. . . .

[W]hat you cannot consider is the fact that
she has entered
cannot

a plea of guilty,

be considered.

against the

It

is not

other defendants and

inference or suggestion
other defendants.

-1111

of guilt

that fact
evidence
affords no
as to

the

The trial judge may have relied on dicta in

States
______

v. Rivera-Santiago, 872
_______________

F.2d 1073, 1083

United
______

(1st Cir.),

cert. denied, 492 U.S. 910 (1989), and cert. denied, 493 U.S.
____________
________________

832

(1989).

In describing

court's opinion referred

the

the events

at the

trial, this

to the following language

given by

trial judge as a "standard accomplice" instruction: "the

fact that an accomplice has

entered a plea of guilty

to the

offense charged is not evidence in and of itself of the guilt

of any other person."

was not at

ruled

The language of the instruction itself

issue in Rivera-Santiago3 and this

_______________

on the

instruction.

propriety of

in an

accomplice

We do so now and discourage the use of such "in

and of itself" language.

as

such language

Court has not

the pattern

There is no need for such language,

jury instructions

from other

jurisdictions

make evident.4

____________________

3
itself"
F.2d 250

The

Fifth Circuit also

described a similar

"in and of

accomplice instruction in United States v. Abravaya, 616

_____________
________
(5th Cir. 1980).

The new District Court

Pattern Jury Instructions for this

Criminal Law

circuit do not address guilty

pleas by accomplices or co-defendants.

The

pattern instructions

straightforward

of

and do not contain

other circuits

are

more

"in and of itself" language.

For example, Sixth Circuit pattern jury instruction 7.08 reads as

follows:
(3)

The

guilty

fact

that

to a crime

________ has

is not evidence

defendant is guilty,

pleaded
that the

and you cannot consider

_______________________

this against the defendant in any way.

_____________________________________
The Seventh Circuit's pattern jury instruction 3.23 reads:
The witness, ________,
a crime

arising out

has pleaded guilty to

of the same

occurrence

for which the defendant is now on trial.

You

may

you

give his

testimony such

-1212

weight as

Despite

"in and

here.

the potentially

of itself"

The

repeatedly

misleading nature

language, a new

trial is

district court instructions,

and unequivocally told

of the

not warranted

taken as

the jury not

a whole,

to consider

the co-defendant's guilty plea as evidence of the defendant's

guilt.5

____________________

feel

it deserves,

must

be considered

care.

keeping in
with

mind that

caution and

it

great

Moreover, his guilty plea is not to be

______________________________________

considered as evidence against the defendant.

____________________________________________
Pattern jury instruction 2.19 from the Eighth Circuit states:
You have

heard evidence that

witness (name)

has pleaded guilty to a crime which arose out

of the same events for which the defendant is
on

trial here.

You must not consider that

___________________________

guilty
plea
as any
evidence
of this
_____________________________________________
defendant's guilt.
__________________

You

may consider

witness' guilty plea only for

that

the purpose of

determining how much, if at all, to rely upon

that witness' testimony.
Finally, Ninth Circuit pattern instruction 4.12 reads:
The witness, _________, has pleaded guilty to
a

crime arising out

of the same

which the defendant is on trial.

events for
This guilty
___________

plea is not evidence against the defendant

_____________________________________________
and you may consider it only in determining
_____________________________________________
this witness' believability.
You should
_____________________________________________
consider this witness' testimony with great
_____________________________________________
caution, giving it the weight you feel it
_____________________________________________
deserves.
________

The court also instructed the jury:

Now,

the case

against

Luz Marina-Giraldo

has

been disposed of

before

you.

realize

It

that

yourselves

and will no

is very important

you

cannot

that you

guess or

concern

or speculate as to the reason for

the disposition of her case.

cannot and should not
with

longer be

reference to

The disposition

influence your verdict

the remaining

defendants

that are on trial here.

-1313

We

charge

as

examine jury instructions in the context of the

whole

to

determine

whether

the

court's

____________________

If you recall, I think I advised you on the

first day that each defendant, although being
tried

together, has a right to have the jury

consider

his case

separately

defendants and considering

applies

or

that

is

of the

other

the evidence that

admitted

as

to

that

defendant specifically. . . . [A]lthough [the

defendants]
must

give

are

being tried

separate

together,

consideration

to

you
each

defendant. . . . I repeat that you cannot and

you

must

not

Marina-Giraldo

consider the
is

not

fact

here

that

again

and

Luz
it

should not enter into your deliberations. . .

. [The

disposition of

her case] should

enter whatsoever in your

not

deliberations as to

the other two defendants.

In

its final instructions

to the jury,

the court

the

said:
[D]uring
instructed

the
you

course
that

of
the

trial,

case against

Marina-Giraldo . . . [had] been

Luz

disposed of,

and

was no

longer

disposition

before

of the case[]

and you

must

solely on the evidence

Gonzalez.

In

separately of

the

should not

reference to . .
base your

verdict

against Mr. Gonzalez-

other

must establish its

And

. . .

influence your verdict with

. Gonzalez

you.

words, the

government

case against Mr. Gonzalez

the disposition

of the

cases

against the other two defendants.

And I

also instructed

co-defendant
plea

Luz

you, the

fact that

Marina-Giraldo

entered

of guilty to the offense charged is not

evidence in and of itself of the guilt of the

defendant

here

emphasize this

on

trial

enough.

and

cannot

The guilty

plea of

Luz Marina-Giraldo may not be regarded by you

as substantive evidence of the guilt [of] Mr.
Gonzalez-Gonzalez.
her

testimony

deserves,

Nonetheless, you may give

such weight

keeping in

as you

mind that

it

think it
must be

considered with caution and great care.

-1414

instructions require a new trial.

104

F.3d 1408,

context

into

1416 (1st

account,

instructions in

also

Cir. 1997).

it

this case do

reject Gonzalez' claim

See United States v. Rose,

___ _____________
____

is

When

apparent

we

that

not warrant a

the

take this

court's

new trial.

that the synergistic

We

effect of

two errors requires a new trial.

IV.

In

his

pro

se brief,

Gonzalez

argues

that the

district court erred in denying

his motion for a new trial.6

The motion based the request for a new trial on claimed newly

discovered

evidence

and claimed

prosecutorial

misconduct,

including presentation of false testimony.7

We review a trial judge's

new

trial for

States v.
______

remedy of a

manifest

abuse of

Brimage, 115 F.3d

_______

ruling on a motion for a

discretion.

73, 79 (1st

new trial is rarely used; it

where there would be a

Andrade, 94
_______

____________________

Cir. 1997).

United
______

"The

is warranted 'only

miscarriage of justice' or 'where the

evidence preponderates heavily against

States v.
______

See
___

F.3d 9, 14

the verdict.'" United

______

(1st Cir.

1996) (quoting

After oral argument in this case, Gonzalez filed a letter

with this

court,

which we

raising issues in

accepted

supplemental

addition to those raised by

We requested the government to

has done.

as a

his able counsel.

file a responsive brief, which it

We reach the merits of Gonzalez' pro se appeal.

Gonzalez also complains

of a

factual error

whether the name "Lin" appeared on any of the drug

Loiza

brief,

beach, an

error contained

argument before us,

in

saying the name did not appear.

-1515

packages from

the transcript.

the government conceded this

concerning

At

oral

factual error,

United States v.
______________

1979)).

Indelicato, 611
__________

See United States

___ _____________

(1st Cir. 1997).

In

F.2d

376, 386

(1st Cir.

v. Montilla-Rivera, 115 F.3d 1060

_______________

a motion

trial based

upon

newly discovered evidence, the defendant must establish

that

"the evidence was: (i) unknown

trial, (ii) despite

for a new

or unavailable at the time of

due diligence, (iii) material,

likely to

result

in an

States v.
______

Tibolt, 72
______

acquittal

F.3d 965,

and (iv)

upon retrial."

971 (1st

United
______

Cir. 1995).

But

Gonzalez' complaints are largely about what happened at trial

and were not newly discovered.

The district

court gave a

careful explanation

of

its denial of Gonzalez' motion, and we affirm for the reasons

stated in the court's Memorandum

1996.

We add only

does not

come close

case

to

as

acquittal

give

and Order dated December 3,

that the "new evidence" Gonzalez presents

to "so

rise

on retrial."

to

undermin[ing] the

a 'reasonable'

Tibolt, 72
______

Sepulveda, 15 F.3d at 1220)).

_________

The judgment is affirmed.

_________

F.3d

government's

probability

at 972

of

(quoting

-1616