US v. Nicolai-Cabassa
Case Date: 07/14/2004
Docket No: UNITEDSTATESOFAMERICA,
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Nos. 02-1677, 02-1717 UNITED STATES OF AMERICA, Appellee, v. ANGEL CASAS, Defendant, Appellant. No. 02-1708 UNITED STATES OF AMERICA, Appellee, v. JOSÉ BONILLA-LUGO, Defendant, Appellant. No. 02-1716 UNITED STATES OF AMERICA, Appellee, v. JOHN CORREY, A/K/A EARTH, Defendant, Appellant. No. 02-1996 UNITED STATES OF AMERICA, Appellee, v. ANGEL LUIS PIZARRO-MORALES, A/K/A WEE, Defendant, Appellant. No. 02-1997 UNITED STATES OF AMERICA, Appellee, v. RAMÓN FLORES-PLAZA, Defendant, Appellant. No. 02-2124 UNITED STATES OF AMERICA, Appellee, v. RAYMOND NICOLAI-CABASSA, A/K/A RAY, Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Vargas de Cerezo and Hon. Héctor M. Laffitte, U.S. District Judges] Before Torruella, Lynch and Lipez, Circuit Judges. Luis M. Cháves-Ghigliotty, for appellant Angel Casas. Terrance J. McCarthy, for appellant José Bonilla-Lugo. Donna R. Newman, for appellant John Correy. Mauricio Hernández-Arroyo, for appellant Angel Luis Pizarro-Morales. Rodney S. Dowell, with whom Berman & Dowell, was on brief, for appellant Ramón Flores-Plaza. Linda George, for appellant Raymond Nicolai-Cabassa. Miguel A. Fernández, with whom Lisa Snell-Rivera, Assistant United States Attorneys, and H.S. García, United States Attorney, were on brief, for appellee. October 7, 2005 TORRUELLA, Circuit Judge. Appellants were convicted of conspiracy to possess with intent to distribute approximately 1400 grams of heroin and 9445 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. They now challenge their convictions and their sentences. We affirm their convictions but vacate their sentences and remand for re-sentencing. I. Background On May 21, 1994, Special Agents Jay Stoothoff ("Agent
Stoothoff") of the Drug Enforcement Administration ("DEA") and
Richard Escalera of the Immigration and Naturalization Service were
conducting surveillance at the Luis Muñoz Marín International
Airport in Carolina, Puerto Rico. They saw two vehicles, a Pontiac
TransAm carrying four people and an Isuzu Trooper carrying two
people, pull up to the departure area together. After observing
suspicious interactions between certain passengers of the vehicles
and American Airlines employees, the agents approached the vehicles
and identified themselves as police officers. One of the
individuals fled on foot, while two individuals sped away in the
TransAm. The Trooper was left with the doors open and engine
running, and the agents detained the other three individuals. The
agents secured four suitcases from the scene. These suitcases were
found to contain eighty-one kilograms of cocaine. One of the
detained individuals, Héctor Martínez-Medina ("Martínez-Medina"),
accompanied the agents to a house where all six individuals met
prior to going to the airport. The house belonged to the father of
Israel Pérez-Delgado ("Pérez"). The Isuzu Trooper was registered
to Pérez.
This series of events eventually led to the exposure of the drug conspiracy that gave rise to this case. On August 8, 1996, the grand jury returned a six-count superseding indictment against sixty defendants, including appellants. Count One of the indictment charged all the defendants with conspiracy to possess with intent to distribute approximately 1400 grams of heroin and 9445 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. Count Two charged appellant Angel Luis Pizarro ("Pizarro") and various co-defendants not part of this appeal with possession with intent to distribute approximately eighty-one kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Three did not charge any of the appellants. Count Four charged appellants John Correy ("Correy") and Raymond Nicolai-Cabassa ("Nicolai"), as well as co-defendant Thomas Martínez ("Martínez"), who is not part of this appeal, with possession with intent to distribute approximately thirty-six kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Counts Five and Six charged Correy and Nicolai with the intentional killings of José Miguel Blanco-Rodríguez ("Blanco") and Ramón de Jesús-Molina ("de Jesús"). United States District Judge Carmen Consuelo Vargas de Cerezo presided over a jury trial for ten of the co-defendants, including appellants, in the United States District Court for the District of Puerto Rico. Trial began on May 12, 1999 and lasted approximately seven months. The jury convicted all of the appellants of Count One, convicted Pizarro of Count Two, acquitted Correy of Count Four, and acquitted Correy and Nicolai of Counts Five and Six. On April 17, 2002, pursuant to an order of the First Circuit Judicial Council, the case was reassigned to the Honorable Héctor M. Laffitte for sentencing. Judge Laffitte sentenced the appellants on various dates between May 7, 2002 and July 18, 2002. Appellants have timely appealed both their convictions and their sentences to this court. II. Discussion Appellants challenge their convictions and sentences on
numerous grounds. We address each of these grounds in turn.
A. Conviction 1. Delay Appellants Correy, Pizarro, and Nicolai argue that their convictions should be reversed and the indictments against them dismissed because the delay between their indictment and trial violated their rights under the Speedy Trial Act ("STA"), 18 U.S.C. § 3161, and the Sixth Amendment of the Constitution. Appellants were originally indicted on December 13, 1995, and a superseding indictment was filed on August 8, 1996. Trial commenced on May 12, 1999, approximately forty-one months after appellants were indicted. a. Speedy Trial Act We review decisions on issues of fact relevant to the STA
for clear error and review questions of law de novo. United States
v. Maxwell, 351 F.3d 35, 37 (1st Cir. 2003). The STA requires that
trial commence within seventy days of the filing of an indictment,
or the first appearance of the defendant in court, whichever is
later. 18 U.S.C. § 3161(c)(1). Periods of delay arising from the
causes outlined at 18 U.S.C. § 3161(h)(1)-(9) are excluded from the
calculation. Included in these periods of delay are those
"resulting from any pretrial motion, from the filing of the motion
through the conclusion of the hearing on, or other prompt
disposition of, such motion." Id. § 3161(h)(1)(F). If trial does
not commence by the end of seventy days plus the excluded periods,
the "indictment shall be dismissed on motion of the defendant."
Id. § 3162(a)(2). Nicolai moved to dismiss on the basis of an STA
violation on March 3, 1998, and Pizarro claims to have joined the
motion.
Appellants each claim that the STA clock began running on
their respective dates of first appearance, and that the seventy-day deadline was far exceeded. However, among the periods excluded
from the STA limit are "reasonable period[s] of delay when the
defendant is joined for trial with a codefendant as to whom the
time for trial has not run and no motion for severance has been
granted." Id. § 3161(h)(7). The Supreme Court has interpreted
this section to mean that the clock does not, in effect, begin to
run until the date of the most recent defendant's initial
appearance before the court. See Henderson v. United States, 476
U.S. 321, 323 n.2 (1986) (finding that STA clock begins on the date
of last co-defendant's arraignment because "[a]ll defendants who
are joined for trial generally fall within the speedy trial
computation of the latest codefendant") (citing 18 U.S.C. § 3161(h)
(7)); United States v. Barnes, 251 F.3d 251, 257-59 (1st Cir. 2001)
(applying Henderson to find that district court properly reset STA
clock on date superseding indictment was filed to add a new
defendant); see also United States v. Maxwell, 351 F.3d 35, 38 (1st
Cir. 2003) (applying Barnes to find that period between appellant's
arraignment and co-defendant's later arraignment is excluded from
STA calculation). Appellants were among ten defendants severed for
trial from the remaining fifty who were charged in the superseding
indictment. The last of these ten to appear before the court was
Nicolai, on November 6, 1996. Accordingly, the STA clock started
no earlier than that date, 917 days before trial.
Our precedent makes clear that "any defendant's motion
resulting in excludable time toll[s] the STA clock for his
codefendants." United States v. Santiago-Becerril, 130 F.3d 11, 19
(1st Cir. 1997) (collecting cases). Accordingly, the government
argues that delays during the pendency of motions filed by
appellants' co-defendants must be excluded from the STA
calculation. See 18 U.S.C. § 3161(h)(1)(F), (h)(7). The
government argues that once the delays during the pendency of
motions filed by appellants' co-defendants are counted, fewer than
seventy non-excludable days accrued. Unfortunately, the government
neglected to provide this court with the dates or length of any
delays so occasioned during the more than two-year interval between
Nicolai's initial appearance and trial.
This case began with sixty co-defendants, a number that
was cut down to ten by the time of trial. The co-defendants filed
numerous motions, and there were also many hearings and appearances
before the district court prior to trial. After carefully
examining the record, we have concluded that such motions and
proceedings tolled the STA for the bulk of the time between
Nicolai's initial appearance and trial. The number of non-excludable days for STA purposes, due to the various motions and
hearings, was far less than seventy.
Appellants Pizarro and Nicolai argue that the exclusion of delays during the pendency of a co-defendant's motion must be reasonable, see 18 U.S.C. § 3161(h)(7), and therefore other considerations -- such as whether the defendant seeking dismissal asserted his speedy trial rights or contributed to the delay -- play a role in calculating the number of excludable days. Defendants rely on Barnes. See 251 F.3d at 259 (finding no STA violation but noting that "[t]he Henderson rule anticipates exceptions" and that "in other, less exigent circumstances, the clock may not prove to be so elastic"). According to appellants, because they did not contribute to their delay and because they asserted their speedy trial rights, their STA clocks should be considered separately from the clocks of their co-defendants. Appellants have not argued that the joining of various co-defendants for trial was unreasonable for STA purposes. Appellants' reliance on Barnes is misplaced, and their claims that they were not responsible for any delays are inaccurate. Barnes involved the re-trial of a defendant after this court vacated her original conviction and ordered her indictment dismissed without prejudice because the government had violated the STA. See id. at 254. A grand jury promptly issued a second indictment. One day before the defendant-appellant's STA deadline, a grand jury issued a superseding indictment that added a second defendant. This court found no STA violation but expressed concern because the government, "after once violating the appellant's STA rights, . . . filed the superseding indictment only one day before the STA clock was to expire again." Id. at 259 (emphasis in original). In other words, the Barnes court was concerned with the appearance of possible manipulation of the STA by the government. In the instant case, however, the causes of delay were the numerous motions filed by the co-defendants, including appellants Pizarro and Nicolai, who between them filed at least thirty-six motions from November 6, 1996 through May 12, 1999, the date trial began. Further, Barnes involved the joining of a co-defendant,
not the filing of pretrial motions, and therefore concerned § 3161
(h)(7), not § 3161(h)(1)(F). The Supreme Court has interpreted §
3161(h)(1)(F) not to have any "reasonableness" requirement such as
the one present in § 3161(h)(7). See Henderson, 476 U.S. at 326-28; Maxwell, 351 F.3d at 38. Therefore, appellants' argument that
delays caused by pretrial motions filed by their co-defendants were
unreasonable finds no support in Barnes and has been rejected by
the Supreme Court in Henderson.
Due to the pendency of motions filed by co-defendants, the number of non-excludable days for STA purposes between Nicolai's indictment and trial was less than seventy. Accordingly, no STA violation occurred. b. Sixth Amendment Although unusual, it is possible for a delay that does not violate the STA to run afoul of the Sixth Amendment's guarantee of a speedy trial. United States v. Salimonu, 182 F.3d 63, 69 (1st Cir. 1999); see also 18 U.S.C. § 3173 (STA not a bar to Sixth Amendment claim). Appellants allege that delays between their indictment and trial, and between their conviction and sentencing, violated the Sixth Amendment's guarantee of "a speedy and public trial." U.S. Const. amend. VI. In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court identified four factors to be considered in determining whether an appellant's speedy trial rights have been violated: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of his speedy trial right, and (4) prejudice to the defendant caused by the delay. Id. at 530-32. However, "none of the four factors . . . [is] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Id. at 533. The length of pretrial delay is calculated from either arrest or indictment, whichever occurs first. See United States v. Muñoz-Amado, 182 F.3d 57, 61 (1st Cir. 1999). Correy and Pizarro were both indicted prior to their arrest, in December 1995. Nicolai was arrested on November 6, 1996, although he was already incarcerated in New York after having pled guilty to unrelated charges. Thus, all three waited over forty months for trial. This time period far exceeds the one-year point at which pretrial delay is generally considered to be presumptively prejudicial. See Santiago-Becerril, 130 F.3d at 21-22 (quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)). Accordingly, the length of delay weighs in favor of appellants' claim of a Sixth Amendment violation. The second factor, however, weighs against appellants.
They allege that the delay was caused largely by the unpreparedness
of the government, and the inability of the judicial system to cope
with their case. We disagree. Sixty people were indicted in this
large, complex drug conspiracy case. Well over 350 pretrial
motions were filed between the initial indictment and trial.
Pizarro filed thirteen pretrial motions, including two motions to
continue the trial (Docket No. 504, 531);
Appellants have alleged no bad faith effort by the
government to delay the proceedings. Nor do we agree with
appellants' assertion that the delay was caused by the judicial
system's inability to cope with a case this size. From our review
of the record, the district court disposed of the co-defendants'
numerous motions in a timely manner and moved the case along to
trial. Instead, it appears that delays were due in large part to
the resolution of pre-trial matters concerning appellants and their
co-defendants.
With regard to the third factor, the government concedes that all three appellants asserted their speedy trial rights in motions filed with the district court. We find, therefore, that the third factor weighs in appellants' favor. We evaluate the fourth factor, prejudice, "in the light
of the interests of defendants which the speedy trial right was
designed to protect[:] . . . (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused;
and (iii) to limit the possibility that the defense will be
impaired." Barker, 407 U.S. at 532. All three appellants were
detained for more than forty-one months prior to trial and likely
experienced the disadvantages thereof identified by the Supreme
Court in Barker, such as idleness, loss of employment, and
disruption of family relationships.
The fact that appellants' detention was forty-one months (almost three times the length considered in Santiago-Becerril) causes us great concern. However, we believe that other counterbalancing factors outweigh this deficiency and prevent constitutional error. Appellants have not alleged that the conditions of their confinement were unduly oppressive, and the time served was credited against the sentences they received upon conviction. Cf. Barker, 407 U.S. at 533 (stating that "[i]t is especially unfortunate to impose [the disadvantages of pretrial detention] on those persons who are ultimately found to be innocent"). Moreover, at least some of the delay during appellants' pretrial detention was attributable to their own actions, insofar as the many motions they filed required consideration and disposition by the district court. Appellants also allege that they suffered prejudice in the form of "anxiety and concern," id. at 532, about the outcome of the proceedings. However, "[w]hile this type of prejudice is not to be brushed off lightly, considerable anxiety normally attends the initiation and pendency of criminal charges; hence only undue pressures are considered." United States v. Henson, 945 F.2d 430, 438 (1st Cir. 1991) (internal quotation marks and citations omitted); see also United States v. Colombo, 852 F.2d 19, 25 (1st Cir. 1998) (emphasizing that Barker requires minimization, not elimination, of "the natural consequences of an indictment"). Correy and Nicolai both claim that, because they were indicted on murder charges, they experienced heightened concern that they might have to defend themselves against a death sentence, and Correy claims that he was distracted thereby from preparing his defense on other charges. See 21 U.S.C. § 848(e) (providing for death penalty). The government, however, never filed notice that it would seek the death penalty. See 18 U.S.C. § 3593. Accordingly, we think that the potential anxiety arising from Correy and Nicolai's indictment on a death-eligible charge was minimized and did not exert "undue pressure" upon them. Finally, Nicolai and Pizarro claim that their defense was impaired as a result of the delay between indictment and trial. The Supreme Court identified this as "the most serious [consequence of delay] . . . because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532. In particular, Nicolai notes that government agents' debriefing notes of government witness José Vélez-Román ("Vélez") were unavailable because they had been destroyed by Hurricane George in 1998, and that he was unable to present Alexandra Brocksman as a defense witness because she became ill. We note that the issue of the missing notes came up at trial while Pizarro's counsel, not Nicolai, was cross-examining a government witness. Nicolai does not appear to have ever sought access to the notes and has not explained how the destruction of the notes prejudiced him in any way. Regarding the availability of Alexandra Brocksman, Nicolai has not explained how the passage of time prevented him from calling Brocksman as a witness. We note also that, while Nicolai states in his brief that Brocksman did not appear because she was ill, he alleged below that Pérez had threatened Brocksman prior to her failure to appear as a defense witness. See United States v. Nicolai-Cabassa, No. 95-405 (D. P.R. Dec. 9, 1999) (order requiring transcript of Nicolai's statement regarding alleged threats made by Pérez to Brocksman). Further, the parts of the record Nicolai cites in his brief do not even mention Brocksman at all. For these reasons, we are unable to see how these alleged instances were either tied to passage of time or prejudiced Nicolai in any way. Both Nicolai and Pizarro claim that the principal government witness, Pérez, blamed the passage of time for his inability to recall certain details of the drug conspiracy he ran. However, "the clouded recollection of a key prosecution witness would seem to be helpful, rather than harmful, to the defense." Rashad v. Walsh, 300 F.3d 27, 42-43 (1st Cir. 2002); see also United States v. Casas, 356 F.3d 104, 113 (1st Cir. 2004) (holding that diminished witness recall resulting from delay "'is a two-edged sword . . . [because] [i]t is the Government that bears the burden of proving its case beyond a reasonable doubt'") (quoting United States v. Loud Hawk, 474 U.S. 302, 315 (1986)). Indeed, two of Pérez's eight references to the time lapse identified by appellants are taken from cross-examinations that focused specifically on discrediting Pérez's testimony on the basis of his inability to recall specific details. (TT 6/7/99: 84-89; TT 6/9/99: 51-53). We cannot conclude that appellants suffered any prejudice as a result of Pérez's limited recollection. The forty-one months that passed between appellants' initial indictment and trial constituted an unusually long wait, particularly for defendants held in pretrial detention. Nevertheless, under the circumstances, we find that the large and complex nature of the proceedings and the district court's obligation to consider the multitude of pretrial matters filed by appellants and their co-defendants are compelling reasons for the lengthy delay, and that appellants did not suffer prejudice of a constitutional dimension as a result thereof. We conclude that there was no violation of the Sixth Amendment as a result of pretrial delay. Finally, Pizarro and Nicolai argue that the delay between their conviction and sentencing resulted in a denial of their Sixth Amendment rights. They were sentenced on July 11 and July 31, 2002, respectively, approximately thirty-one months after their December 14, 1999 convictions. While "[t]he Supreme Court has not definitively held that [the right to a speedy trial] extends to the sentencing phase," United States v. Nelson-Rodríguez, 319 F.3d 12, 60 (1st Cir. 2003) (citing Pollard v. United States, 352 U.S. 354, 361 (1957)), we will assume, without deciding, that it does. See id.; see also Fed. R. Crim. P. 32(b)(1) (sentence must be imposed "without unnecessary delay"). While the delay between conviction and sentence was, again, unusually long in this case, it was not without good reason. It was necessary for transcripts of the seven-month trial to be prepared and reviewed in order to produce pre-sentence reports (PSRs) for the defendants. In addition, a number of post-trial motions were filed by appellants and their co-defendants. Nicolai filed twenty-two motions following his conviction, at least three of which requested continuances or extensions of time. Pizarro filed seventeen motions, requesting seven continuances or extensions of time. Neither appellant claims to have asserted a constitutional right to a speedy sentence. Nor do they explain what prejudice resulted from the delay, except to suggest that they were prejudiced by having to wait to file the instant appeal. We are not convinced that they were prejudiced, especially since some of the sentencing delay was to give defendants the opportunity to file Rule 29 motions for acquittal and motions for a new trial, which might have mooted the appeal had they been successful. Thus, we find that the delay between appellants' conviction and sentencing caused no violation of their rights under the Sixth Amendment. c. Motion to sever Nicolai filed two motions for severance (Docket Nos. 532, 1040), one of which was noted but never ruled on (Docket No. 540), while the other was denied without prejudice pending refiling on December 29, 1998. (Docket No. 1074). The renewed motion was again denied on March 12, 1999 for failure to comply with the order providing an opportunity to amend the earlier motion. Nicolai claims that the district court erred in denying his motions for severance. We review the denial of a motion to sever for abuse of discretion. United States v. Soto-Beníquez, 356 F.3d 1, 29 (1st Cir. 2004). To demonstrate abuse of discretion, defendants must show that joinder deprived them of a fair trial, resulting in a miscarriage of justice. Because the general rule is that those indicted together are tried together to prevent inconsistent verdicts and to conserve judicial and prosecutorial resources, severance is particularly difficult to obtain where, as here, multiple defendants share a single indictment. Id. (internal citations omitted). See generally Zafiro v. United States, 506 U.S. 534, 537 (1993) (noting "a preference in the federal system for joint trials of defendants who are indicted together"). Nicolai claims to have been prejudiced by delay that resulted from being tried jointly with multiple co-defendants and points to the faster resolution of the trials of other co-defendants who were severed before trial. Regardless of whether Nicolai's trial might have been speedier had it been severed, the delays did not cause significant prejudice, nor did they result in the denial of a fair trial or a miscarriage of justice. See United States v. LiCausi, 167 F.3d 36, 48-49 (1st Cir. 1999) (determining that appellant must show "'prejudice greater than that which necessarily inheres whenever multiple defendants . . . are jointly tried'") (quoting United States v. Walker, 706 F.2d 28, 30 (1st Cir. 1983)). We therefore find no abuse of discretion in the district court's denial of Nicolai's motions to sever. 2. Grand jury proceedings Casas and Bonilla-Lugo ("Bonilla") seek dismissal of the
indictment, arguing that the prosecutor engaged in misconduct
before the grand jury by failing to disclose the existence of
alleged secret agreements with Pérez and Martínez for immunity for
the Blanco and de Jesús murders, and by knowingly presenting false
testimony. Casas argues that the false testimony came in the form
of conflicting accounts of the murders from Pérez and Martínez,
while Bonilla bases his argument on statements Martínez made at
trial that were not made in his grand jury testimony.
The petit jury's finding beyond a reasonable doubt that appellants were guilty of the charges alleged in the indictment "demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for which they were convicted." United States v. Mechanik, 475 U.S. 66, 67 (1986). Accordingly, "all but the most serious errors before the grand jury are rendered harmless by a conviction at trial." Soto-Beníquez, 356 F.3d at 25 (internal quotation marks omitted). "'Only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment' is sufficient to invalidate a subsequent conviction." Id. (quoting United States v. Reyes-Echevarría, 345 F.3d 1, 4 (1st Cir. 2003)). None of the alleged errors before the grand jury rose to this level. With regard to the first claim, we note that the government denies the existence of any immunity agreements for the murders prior to the creation of supplemental cooperation agreements during trial. See infra at 33-38. Even if we were to assume that the agreements did exist, the prosecution's failure to notify the grand jury thereof would not warrant dismissal of the indictment. Because of the nature of the grand jury's function, "[t]he prosecutor before a grand jury is not normally under a duty to disclose exculpatory evidence. Nor . . . is the prosecutor obligated to impeach the credibility of his own witnesses." United States v. Latorre, 922 F.2d 1, 7 (1st Cir. 1990) (internal quotations omitted). Moreover, the petit jury's conviction on the conspiracy count, made with knowledge that Pérez and Martínez were immune at trial and believed themselves to have been immune prior to trial for liability for the murders, leads us to seriously doubt "that a similarly informed grand jury would not have found probable cause." United States v. Mangual-Corchado, 139 F.3d 34, 42 (1st Cir. 1998). Next, neither the fact that the accounts of Pérez and
Martínez contradicted each other in certain respects, nor that
Martínez's trial testimony went beyond the scope of his grand jury
testimony, indicate that the prosecutor knowingly presented false
testimony. See United States v. Lebon, 4 F.3d 1, 2 (1st Cir. 1993)
("[T]he fact that a witness contradicts herself or changes her
story does not establish perjury."); United States v. Doherty, 867
F.2d 47, 70 (1st Cir. 1989) (finding no decision that "prohibits a
prosecutor from calling witnesses who will present conflicting
stories"); United States v. Hemmer, 729 F.2d 10, 17 (1st Cir. 1984)
("Simply because there exist[s] inconsistencies between [a
witness's] grand jury and trial testimony does not warrant the
inference that the government knowingly introduced perjurious
testimony."). Absent evidence of "prosecutorial misconduct that
actually biases the grand jury in performing its fact-finding
function," United States v. Maceo, 873 F.2d 1, 3 (1st Cir. 1989),
we can go no further.
3. Prosecutorial misconduct All six appellants claim that the proceedings below were infected with prosecutorial misconduct to such an extent that they were denied a fair trial. In determining "whether prosecutorial misconduct has so poisoned the well that a new trial is required," we weigh several factors: "(1) the severity of the misconduct; (2) the context in which it occurred; (3) whether the judge gave any curative instructions and the likely effect of such instructions; and (4) the strength of the evidence against the defendant." United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994). Taking a "balanced view of the evidence in the record," United States v. Rodríguez-De |
