US v. Velazquez Rotger
Case Date: 05/11/1995
Court: United States Court of Appeals
Docket No: 93-2259
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May 11, 1995 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT ____________________ No. 93-2259 UNITED STATES OF AMERICA, Plaintiff, Appellee, v. HECTOR RODRIGUEZ-PENA, Defendant, Appellant. ____________________ No. 93-2260 UNITED STATES OF AMERICA, Plaintiff, Appellee, v. ANGEL GALINDEZ-RODRIGUEZ, Defendant, Appellant. _____________________ No. 93-2261 UNITED STATES OF AMERICA, Plaintiff, Appellee, v. GONZALO VELAZQUEZ-ROTGER, Defendant, Appellant. _____________________ _____________________ No. 93-2262 UNITED STATES OF AMERICA, Plaintiff, Appellee, v. VICTOR RIVERA a/k/a QUIQUE, Defendant, Appellant. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jose Antonio Fuste, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Aldrich, Senior Circuit Judge, ____________________ and Cyr, Circuit Judge. _____________ ____________________ Rafael F. Castro-Lang for appellants Angel Galindez-Rodriguez and _____________________ Victor Rivera. Rafael Anglada-Lopez for appellant Gonzalo Velazquez-Rotger. ____________________ Harry R. Segarra for appellant Hector Rodriguez-Pena. ________________ Antonio R. Bazan, Assistant United States Attorney, with whom _________________ Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa, _____________ _______________________ ________________________ Senior Litigation Counsel, were on brief for appellee. ____________________ ____________________ ALDRICH, Senior Circuit Judge. Appellants ________________________ Rodriguez Pe a (Pe a), Velazquez Rotger (Velazquez), Galindez Rodriguez (Galindez) and Rivera, co-defendants in a single criminal trial on multiple narcotics-related charges, jointly or severally advance assignments of error on appeal of their convictions: (1) the court erroneously instructed the jury on the meaning of "beyond a reasonable doubt"; (2) motions for severance should have been granted; (3) a motion to suppress pretrial photospread identifications should have been granted; (4) the court abused its discretion in allowing the government to present evidence which it withheld in violation of Federal Rule of Evidence 16; (5) the evidence was insufficient to convict; (6) the prosecutor committed reversible errors in his opening and closing arguments; and (7) the court should have instructed the jury on the defenses of entrapment and duress. We sustain one, and reject the rest. I. Background I. Background ____________________ Relating the essential facts most favorably to the verdict, United States v. DeMasi, 40 F.3d 1306, 1310 (1st ______________ ______ Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 947, 130 _____ ______ L.Ed.2d 890 (1995), in late December, 1991, a confidential informant of the United States Customs Service, known as "Gordo," responded to a shortwave radio request by a Colombian national, identified as Cabeza, to contact certain -3- individuals in Puerto Rico. This led to meetings and telephone conversations over the next several months with various individuals, including Velazquez and Pe a, during which a narcotics smuggling venture with Cabeza and his suppliers in Colombia was hatched. Both Velazquez and Pe a worked closely on the planning and preparation with various undercover agents who became involved to facilitate Customs' monitoring of the plot. The evidence contains numerous photographs and over one hundred recordings of their discussions up until the moment it finally unravelled and several of the players were arrested. Gordo agreed to arrange the transport of the drugs to Puerto Rico and proposed utilizing a Customs undercover vessel to meet and receive the cargo from a Colombian ship at sea. Initially the conspirators contemplated bringing in 2,000 pounds of marijuana; subsequent discussions with Velazquez and Pe a increased the amount to 5,000 to 6,000 pounds, or more. A shipment of up to 300 kilograms of cocaine was discussed as well. On March 27, 1992 Gordo was scheduled to pick up 10,000 pounds of marijuana, and two kilograms of cocaine specifically intended for Velazquez, from the Colombian ship at sea. However, the latter had sailed off course, broken down, and after Pe a provided Gordo with some equipment for an attempt at repair, was eventually forced to jettison its -4- load and return to Colombia. The conspirators were monitored as they continued to arrange for a successful importation throughout the month of April. Velazquez mailed a navigational device to Cabeza to facilitate the meeting of the two vessels at sea, and provided a second code sheet to Gordo. On April 30, however, Velazquez was arrested by local authorities on drug related charges, and Gordo suddenly left Puerto Rico, apparently because he thought the deal was dead. Customs agent Juan Dania, posing as Gordo's boss, communicated to Pe a that the deal was still on and, after some hesitation, Pe a agreed to continue. Pe a thereafter met with agent Polo Diaz, who replaced Gordo, to discuss importing around 6,500 pounds of marijuana and 5 kilograms of cocaine, and was photographed. In subsequent discussions he spoke of another shipment of several hundred kilograms of cocaine. At a later meeting Pe a provided Diaz with another new code sheet from the Colombians, and, a week later, with a number of emergency lamps for the ship. He remained in close contact with Diaz as they finalized plans to meet the shipment of a second load. On May 30, 1992, five undercover Customs agents picked up 153 bales of marijuana and two Colombian participants from a Colombian ship at sea and transported them aboard their undercover vessel to Puerto Rico, as -5- arranged. Cabeza contacted Diaz to inquire about the shipment and to discuss another shipment of 300 kilograms of cocaine. On or about June 1st they arrived in Puerto Rico, and Diaz telephoned Pe a to obtain keys to a truck onto which Diaz was supposed to load the narcotics for delivery to Pe a. Pe a had obtained a red dump truck from his friend Victor Rivera, who had rented it from an acquaintance named Martin Salgado. Around the beginning of June, Rivera instructed Salgado to leave the truck at the Plaza Carolina. When it proved unusable, Pe a enlisted Rivera to help obtain a second one, which Rivera partially financed together with another friend. On June 2, Rivera and the friend together delivered a white enclosed truck to Plaza Carolina.1 Pe a and Diaz arranged that June 4th would be the date of delivery. The agents retrieved the truck from the Plaza Carolina, loaded it up, and delivered it back to the Plaza Carolina, as arranged. On June 4th Diaz phoned Pe a to inform him the truck was ready and he would be waiting in his car at a nearby Burger King parking lot for Pe a to deliver the money he owed for the shipment in exchange for the keys to the marijuana- laden truck. At around noon Diaz received a call on his car phone from Pe a, who informed him that his ____________________ 1. The red dump truck was never returned to Salgado, who eventually reported it stolen after Rivera proved unable to provide any information on its whereabouts and advised him to make out a stolen vehicle report using a false name and phone number to describe the person to whom he had rented it. -6- nephew was on his way over to exchange the money for the keys. As they were talking a young black man approached, exchanged $30,000 cash with Diaz for the truck keys, and ran off. Shortly thereafter the truck, followed by Pe a driving a gray Volvo, followed by a burgundy silhouette van with tinted windows, were tailed by several surveillance teams from various federal agencies. The three vehicles pulled aside briefly on 65th Infantry Avenue, and several surveillance vehicles had to pass ahead in order not to blow their cover. When the convoy resumed, it made a left turn down Monte Carlo Avenue, heading toward the Monte Hatillo housing complex. Several surveillance vehicles made u-turns on 65th Infantry Avenue in order to head back toward the Monte Hatillo. When the first of these, occupied by three federal agents, turned right onto Monte Carlo Avenue in pursuit of the convoy, the burgundy van suddenly pulled diagonally in front of their vehicle and raked it with machine gun fire. The ambush severely wounded the three agents. A second undercover car pulled up and several agents emerged to return fire. Shooting was also coming from elsewhere, apparently from within or around the housing complex. A third surveillance vehicle, driven by agent Montalvo and carrying two other federal agents, pulled up and observed the van and -7- truck fleeing the scene. Pe a's Volvo was nowhere in sight. Montalvo pursued the van and truck, but was slowed by automatic weapons fire from several individuals on foot. They lost sight of the two vehicles and stopped to pull on bullet-proof vests. As they were doing so, three individuals approached firing automatic or semi-automatic weapons. After some exchange of fire, Montalvo managed to hit one of them and the others retreated carrying the wounded man. Montalvo and his fellow agents then returned to the site of the first shooting incident to assist the injured agents. The truck was later found parked in the housing complex. The owner of the van reported it stolen some hours later. The friend with whom Rivera had purchased the white truck reported it stolen around 3:30 that afternoon. Pe a was arrested later that day when he went to local police to report that he had been kidnapped and handcuffed at gunpoint, and his car had been stolen, a story he later recanted in favor of cooperating with the government. Velazquez was already in custody, and was indicted on information gleaned from surveillance of his activities before his arrest. Rivera was arrested some months later on information provided by Salgado. Galindez was arrested in December of 1992 on other charges and was indicted in February, 1993 on charges in connection with this case after being identified in a photospread by agents Montalvo and Diaz. -8- II. Jury Instruction on Reasonable Doubt II. Jury Instruction on Reasonable Doubt _______________________________________________ Appellants allege the court gave erroneous definitions of reasonable doubt in its preliminary remarks to the jury at the outset of the case, and in its final charge. At the outset, after defining reasonable doubt briefly and correctly, the court added, -9- It doesn't mean beyond all possible doubt or to an absolute certainty. Simply more ___________ evidence. ________ (Emphasis supplied). In its final instructions, it said, It all boils down to an impartial consideration of all the evidence, and the evidence must leave you firmly ___________________ convinced that a particular defendant in _________ a given context of a particular charge is guilty. (Emphasis supplied). Defendants took no exceptions, but claim these particular statements to be plain error under Federal Rule of Criminal Procedure 52(b). We may find plain error only where there is a "clear" or "obvious" error that affects "substantial rights." United States v. Olano, ___ _____________ _____ U.S. ___, ___, 113 S.Ct 1770, 1776-78, 123 L.Ed.2d 508 (1993); United States v. Romero, 32 F.3d 641, 651 (1st Cir. _____________ ______ 1994). Granted that an erroneous charge on reasonable doubt is plain error, Sullivan v. Louisiana, 113 S.Ct. 2078, 124 ________ _________ L.Ed.2d 182 (1993), there is a scope of language that is acceptable. On the charge as a whole, we hold the words here fell within that scope. Defendants rely principally on United States v. _____________ Colon-Pagan, 1 F.3d 80 (1st Cir. 1993). In Colon the trial ___________ _____ court had defined reasonable doubt to mean, among other things, "proof of such a convincing character that a person . . . would be willing to rely and act upon it." Id. at 81. ___ Rely on it under what circumstances? A small matter? We found this particular language clearly erroneous, since it -10- may have created the "incorrect impression that [the jury] can convict a defendant in a criminal case upon the basis of evidence no stronger than might reasonably support a decision to go shopping or to a movie or to take a vacation." Id. at ___ 81. However, we declined to hold the same language, with the addition that the proof should be of such convincing character that the jury should be willing to act on it "in the most important decisions that you have to make in your own lives and for yourselves," constituted plain error. United States v. Gordon, 634 F.2d 639, 644 (1st Cir. 1980). _____________ ______ Although the charge in Gordon was by no means ideal, the ______ "convincing" was sufficiently defined to signal to the jury the gravity of its task; in Colon it was meaningless. _____ We readily distinguish our case from Colon. First, _____ the preliminary charge here was not affirmatively wrong, it was merely incomplete. The court made that clear, and indicated it would further explain reasonable doubt at the end of the case. The vague "simply more evidence" language the court used to distinguish beyond a reasonable doubt from the preponderance standard is not automatically fatal here, as the court completed and amplified its remarks on the subject in its final charge. Our only question is whether, as a whole, the instructions left the jury with the correct understanding of its responsibility. Romero, 32 F.3d at 651-52 (while ______ -11- preliminary statements that proof beyond a reasonable doubt required "scale" to "tip more to the government's side," taken alone, may suggest diluted burden of proof, instructions as a whole did not create obvious likelihood jury would be misled). In its final charge the court said, Remember what I said at the beginning . . . . [T]he defendants . . . are presumed innocent until proven guilty beyond a reasonable doubt. They had no burden to testify or to present any evidence or prove that they are innocent. The government has the burden of proving every element of the charge or each charge, I guess, against each defendant beyond a reasonable doubt. And, of course, if the government fails to do so, . . . you must return a verdict of not guilty to the particular defendant or charge that the government failed to prove beyond a reasonable doubt. And what is this business of "reasonable doubt"? I gave you, at the beginning, a limited instruction on reasonable doubt; and I compared the standard of the civil case with the standard of a criminal case. Now let me tell you more about it. . . . [R]easonable doubt is a doubt based upon reason and common sense and may arise from a careful, impartial consideration of all the evidence in the case, or from lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that a given _____________________________ defendant is guilty of a given charge. _____________________________________ If after a careful and impartial consideration with your fellow jurors of all the evidence, you are not convinced beyond a reasonable doubt that a particular defendant is guilty of a -12- particular charge, it is your duty to find that particular defendant not guilty. -13- On the other hand, if after a careful and impartial consideration with your fellow jurors of all the evidence, you are convinced, beyond a reasonable doubt, that the defendant is guilty, it is your duty to find the particular defendant related to that particular charge guilty. It all boils down to an impartial consideration of all the evidence, and the evidence must leave you firmly ______ convinced that a particular defendant in _________________________________________ a given context of a particular charge is _________________________________________ guilty. (Emphasis supplied.) _______ The court expressed the government's burden of proof beyond a reasonable doubt, neat, seven times. Did summing it up by saying that "it all boils down to" the evidence must leave the jury "firmly convinced" of the guilt of each defendant dilute its well-hammered instruction? The court did not leave the impression, as it did in Colon, that _____ members of the jury could convict on the basis of evidence no stronger than might convince them to go shopping. Colon- ______ Pagan, 1 F.3d at 81. The jury had to be "firmly convinced" _____ that each defendant "is guilty," a matter of ultimate importance. We attach weight also to the word "firmly." The common meaning of "firm" is "fixed." We do not consider this summation of the court's repeated articulation of the government's burden to have improperly diminished that burden. Cf. United States v. DeMasi, 40 F.3d 1306 (1st Cir. ___ _____________ ______ 1994); Romero, 32 F.3d 641; United States v. Glenn, 828 F.2d ______ _____________ _____ 855 (1st Cir. 1987). -14- We strongly observe, as we have before, that lengthy explanations of reasonable doubt offer little gain, and much risk. See, e.g., United States v. Olmstead, 832 ___ ____ _____________ ________ F.2d 642, 645 (1st Cir. 1987), cert. denied, 486 U.S. 1009, _____ ______ 108 S.Ct. 1739, 100 L.Ed.2d 202 (1988). Solicitude for the jury is understandable, but there is no duty to explain that phrase, let alone to embellish. Victor v. Nebraska, 114 ______ ________ S.Ct. 1239 (1994). III. Severance III. Severance ___________________ Velazquez, Galindez and Rivera contend the court committed reversible error in denying their motions for severance.2 They claim as ground for reversal a highly prejudicial spillover effect stemming from the prosecutor's relentless emphasis on the shoot-out, for which none of them stood charged.3 Severance is warranted only when there is a manifest and serious risk that a "specific trial right" will ____________________ 2. If it appears that a defendant . . . is prejudiced by a joinder . . . of defendants . . . for trial together, the court may . . . grant a severance of defendants, or provide whatever other relief justice requires. Fed.R.Crim.P. 14. 3. Velazquez also contends that joinder was not proper to begin with because he had nothing to do with the shoot-out. As he was not charged with any offense arising from the shoot-out, and does not contend he was improperly joined for trial on the offenses for which he was charged, we find this argument without merit. -15- be compromised, or that the jury will be unable to make "a reliable judgment about guilt or innocence." Zafiro v. ______ United States, 113 S.Ct 933, 938 (1993). District courts _____________ have wide discretion to decide severance motions, that we are "reluctant to secondguess." United States v. Boylan, 898 ______________ ______ F.2d 230, 246 (1st Cir.), cert. denied, 498 U.S. 849, 111 _____ ______ S.Ct. 139, 112 L.Ed.2d 106 (1990); United States v. O'Bryant, _____________ ________ 998 F.2d 21, 25 (1st Cir. 1993). We will interfere only if it is "plainly abused." United States v. Natanel, 938 F.2d _____________ _______ 302, 308 (1st Cir. 1991), cert. denied, 502 U.S. 1079, 112 _____ ______ S.Ct. 986, 117 L.Ed.2d 149 (1992). Appellants do not allege that any specific trial right was violated, but rather that the prosecutor's overdramatization of the "bloodbath" prejudicially affected the jury's ability to make a reliable judgment. They point to the acquittal of two original codefendants whose motions for severance were successful as evidence of prejudice. But prejudice in this context "means more than just a better chance of acquittal at a separate trial." United States v. ______________ Pierro, 32 F.3d 611, 615 (1st Cir. 1994) (quoting Boylan, 898 ______ ______ F.2d at 246); Zafiro, 113 S.Ct. at 938. ______ While in a trial of multiple defendants the risk of prejudice is magnified, for example, "when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted -16- against a codefendant," Zafiro, 113 S.Ct at 938, severance is ______ not automatically required. Id.; Boylan, 898 F.2d at 246. ___ ______ Though none of the evidence relating to the shoot-out would have been admissible had appellants been tried separately, it was not offered to prove any charges they faced, and there is no indication the jury considered it against them. We presume juries capable of disregarding evidence where it is irrelevant to the charges against certain defendants. Pierro, 32 F.3d at 616. ______ Rule 14 leaves the granting of any relief to the sound discretion of the district court. Zafiro, 113 S.Ct at ______ 938. Limiting instructions will often suffice. Id. In ___ denying the motions, the district court promised to take care of any potential prejudice through appropriate instructions and, although appellants urge otherwise, we find it adequately did so.4 We are particularly loathe to second ____________________ 4. The court's instructions were as follows: A separate crime is charged against one or more of the defendants in each count. The charges have been joined for trial. You must decide the case for each defendant on each crime charged against that defendant separately. Your verdict on any count as to any defendant should not control your verdict on any other count or as to any other defendant. In other words, the rule to be followed is a separate consideration of each person that is named as a defendant and of each charge that appears in the indictment. -17- guess the district court here, given that the jury manifested its ability -18- to differentiate the defendants, and the evidence against each, by returning several acquittals.5 Boylan, 898 F.2d at ______ 246. IV. Pretrial Photo Identifications IV. Pretrial Photo Identifications ________________________________________ Galindez assigns as error the admission of two pretrial photospread identifications, as well as the in-court identifications based on them. He argues that the circumstances surrounding the identifications were unduly suggestive, and unreliable. Galindez was first named in February 1993 as the person who exchanged payment with agent Diaz for keys to the marijuana-laden truck on June 4, 1992. He was indicted after agents Montalvo and Diaz separately identified him in a photospread. Galindez moved to suppress the identifications and a hearing was held before a magistrate. The district court adopted the magistrate's recommendation for denial. Galindez now appeals. A. Standard of Review _______________________ We "uphold a district court's denial of a motion to suppress if any reasonable view of the evidence supports it." United States v. De Jesus-Rios, 990 F.2d 672, 677 (1st Cir. _____________ ______________ 1993). See, also, United States v. McLaughlin, 957 F.2d 12, ___ ____ _____________ __________ 16 (1st Cir. 1992) (collecting cases). The district court's ____________________ 5. Both Rivera and Galindez were acquitted of the main conspiracy charge. -19- findings relating to a motion to suppress are binding on appeal unless clearly erroneous. De Jesus-Rios, 990 F.2d at _____________ 677. See McLaughlin, 957 F.2d at 17 (collecting cases). A ___ __________ finding may be clearly erroneous, however, even where there is evidence to support it if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. (quoting United ___ ______ States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, ______ _______________ 542, 92 L.Ed. 746 (1948)). We employ a two-part inquiry: (1) whether the identification was "impermissibly suggestive," and, if so, (2) whether the totality of the circumstances indicates it was nonetheless reliable. De Jesus-Rios, 990 F.2d at 677 _____________ (collecting cases). Unreliability is found only where there is "a very substantial likelihood of irreparable misidentification." Id. (citations omitted). See, e.g., ___ ___ ____ United States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990) _____________ _______ ("it is only in extraordinary cases that identification evidence should be withheld from the jury"), cert. denied, _____ ______ 501 U.S. 1234, 111 S.Ct. 2861, 115 L.Ed.2d 1027 (1991). The magistrate purported to apply this test, and found neither suggestiveness nor unreliability. Based on the analysis below, we disagree. 1. Suggestiveness ____________________ On February 8, 1993, agent Diaz inspected a -20- photospread built around a photograph of Galindez which an uninvolved informant had identified as the person he heard had made the money for keys exchange. Diaz identified Galindez as the one with whom he had made the exchange. Agent Montalvo was shown the photospread the next day and also identified Galindez. Diaz testified that he was ordered not to talk to anyone about the photospread or his identification, and that he did not do so. Although Diaz continued to deny it at trial, Montalvo admitted both at the suppression hearing and at trial to speaking with Diaz about the photospread after Diaz had viewed it, but prior to examining it himself. The magistrate's ruling, although detailed, inexplicably fails to note and consider this strong hint of collusion between the identifying agents. We believe it raises the possibility of suggestiveness, requiring examination of the circumstances6 in order to determine whether the ruling can nonetheless stand. On June 4, 1992 Montalvo, along with two other agents, was surveilling the parking lot where Diaz was waiting for the exchange. He could not see Diaz's car, but could see as close as five feet surrounding it from about 6'- 8' higher up and 35 feet away. It was around noon, and raining heavily, when Montalvo observed a young black male ____________________ 6. Galindez does not suggest, nor is there any evidence, that the procedure used was faulty. We therefore address only the circumstances surrounding the identifications. -21- running toward Diaz's car. He disappeared from Montalvo's view in the vicinity of the car for about 30 to 60 seconds before re-emerging on the other side running toward the shopping mall. Montalvo concluded that this person had made the exchange, even though he could not observe it, because immediately afterward a radio report confirmed that the exchange had been completed, and because the suspect remained within the small radius surrounding Diaz's car for much longer than he would have had he simply continued running by. On June 7 Montalvo prepared a report of his observations. He described this suspect as a young, black, Hispanic male, about 13-15 years old, wearing a multi-colored tee-shirt. The next day, during a preliminary hearing regarding co-defendant Pe a, Montalvo repeated this description. He added that he saw the same youth a short time later riding as passenger in the marijuana-laden truck as the truck-Volvo-van convoy progressed toward the Monte Hatillo housing complex. Before a grand jury convened to indict Galindez on February 10, 1993, the day after identifying Galindez in the photospread, Montalvo described him for the first time as having a long neck. At the suppression hearing held in April 1993, Montalvo testified that what caught his attention when observing the suspect running toward Diaz's car was his long neck. Montalvo then testified at trial that what caught his -22- eye at the time was the suspect's long neck and "very protruding Adam's apple." When confronted with the fact that he had never mentioned the long neck and Adam's apple in the report he prepared just three days after the incident nor any time prior to seeing Galindez' photograph, Montalvo said that it was because the photo "refreshed" his memory. Both Montalvo and the agent who administered the identification procedure testified that all six photos in the spread were covered up to the chin -- to assure that labels identifying the persons depicted could not be seen and that the photos appeared uniform -- thus no necks would be observable. Montalvo said he removed the paper covering the neck of Galindez's photograph after he selected it but before initialling it. Evidence tending to strengthen agent Diaz's identification of Galindez also materializes only after his viewing of the photospread. Shortly after the crime, Diaz was interviewed by an investigating case agent who prepared a report, dated July 20, 1992. This report contains no physical description of this suspect other than that he was black and wearing a black tee shirt with printed letters and jeans. Diaz, a Customs agent for seven years and trained in identification techniques, testified that he did not recall whether he had provided the investigating agent with more than this general description, but admitted that had he done -23- so the agent would have reported it.7 Two days after he identified Galindez, Diaz testified before a grand jury that the feature he recalled specifically was a long neck. At the suppression hearing two months later Diaz testified that at the time of the incident he had specifically noted the suspect's long neck, recessed eyes, big lips and age between 18 and 22, and that when he identified Galindez he was certain because he would "never forget" the eyes, nose and mouth. It then emerged on cross examination that Diaz, who was not required to write a report himself, had taken contemporaneous "rough notes" of his participation in the undercover operation. These had not been provided to defense counsel and, despite his request, the magistrate refused to hold up the hearing to obtain them. Defense counsel proceeded without, and managed to establish that (1) Diaz had reviewed them before being interviewed by the case agent, and (2) they contained some description of the suspect but Diaz could not recall any details other than that he was black and wearing a black printed tee shirt, precisely the description contained in the agent's report. The prosecutor produced Diaz's notes on the first day of trial, revealing a detailed description of the suspect as black, with brown eyes, short hair, long neck, heavy ____________________ 7. The agent, Juan Dania, a six year veteran, testified that it would have been his practice to report all descriptions provided by the agents he interviewed. -24- eyebrows and recessed eyes, 5' 6-8" and age 18-22. Diaz admitted on cross examination that he had thoroughly reviewed these notes before the suppression hearing, yet had been unable to recall anything about them when questioned by the defense at that time. It stretches credulity to believe that Diaz wrote contemporaneous notes describing the suspect as, among other things, having a long neck and recessed eyes, and that several weeks later when interviewed by the investigating agent, and after reviewing those notes, he provided none of that detail; that after again reviewing the notes for the express purpose of testifying about his identification at the suppression hearing, he was again unable to recall any of their detail; and that when they were finally revealed at trial those notes turned out to contain the very details tending to confirm the description Diaz gave for the first time at the suppression hearing, and describe the very features he claimed both at the hearing and at trial had most impressed him at the time of the incident. Viewed in totality, the circumstances indicate a possibility that Montalvo was influenced by Diaz prior to his identification of Galindez, and thereafter both he and Diaz supplemented their descriptions to include features prominent in the photograph. Although law enforcement experience is a factor that mitigates susceptibility to suggestiveness, Maguire, 918 F.2d at 263, the pre-viewing conversation _______ -25- between the two agents, and the apparent post hoc doctoring of both their descriptions, destroys that presumption here. The finding below, which did not consider the improper conversation, is clearly erroneous. 2. Reliability __________________ A finding of suggestiveness, however, only requires exclusion when it creates a "very substantial likelihood of irreparable misidentification." De Jesus-Rios, 990 F.2d at _____________ 677 (citations omitted). This prong of the test questions "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, ____ _______ 199 (1972). The following factors are probative: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. De Jesus-Rios, 909 F.2d at 677 (citing Neil v. Biggers, 409 _____________ ____ _______ U.S. at 199-200 (other citations omitted)). Applying these factors, we note, first, that the record indicates Montalvo had but 25 seconds to view the suspect, in heavy rain, at a distance of, at best, 35 feet, and 6-8 feet elevated. He admitted his subsequent viewing of the same person in the passenger seat of the truck was somewhat obstructed -- -26- although he claims he recognized the tee shirt and general appearance -- and fleeting, as it occurred while he was driving his own vehicle past the stopped truck. This may have been adequate to observe and note a long neck. Second, since Montalvo was assigned to surveillance, we may assume he was attentive. Third, his reported description just days after the events contains none of the detail that begins to appear in his descriptions subsequent to speaking with Diaz and then viewing the photospread. Fourth, although it only took Montalvo several minutes to pick out Galindez's photograph, he testified that he was confused because he remembered the hair of the person he saw as "coming straight down," whereas the photo depicted Galindez with very short hair. Finally, eight months elapsed between the crime and the identification. This Court has allowed photospread identifications that have occurred as much as five years after the crime, but this has been where other factors strengthened considerably the reliability of the identification. See, e.g., United States v. Drougas, 748 ___ ____ ______________ _______ F.2d 8, 28 (1st Cir. 1984) (five-year gap was "very much greater than would ordinarily be permissible," but unlike most cases, "the witness was not identifying an assailant . . . he viewed only once under stressful circumstances;" he was co-conspirator who had spent considerable time with -27- defendant). In Biggers itself, the Supreme Court noted that _______ a seven month delay would "be a seriously negative factor in most cases," 409 U.S. at 201, but since the witness, a rape victim, had spent up to half an hour with her assailant, under artificial light, and at least twice -28- "faced him directly and intimately," the identification was allowed. Id. at 200. ___ In light of the conversation between Diaz and Montalvo prior to Montalvo's viewing the photospread, the alterations in both of their subsequent descriptions, the suspicion that Diaz's "contemporaneous" notes were composed after the fact (and the ease with which the prosecutor could have cleared up that problem by promptly providing the notes to defense counsel), and the negative weight of the third, fourth and fifth Biggers factors compels the conclusion that _______ at least Montalvo's identification was unreliable, and the district court was clearly erroneous in allowing it to go to the jury. B. Was the Error Harmless Beyond a Reasonable ___________________________________________________ Doubt? ______ Next, we assess whether the district court's error was harmless beyond a reasonable doubt. De Jesus-Rios, 990 _____________ F.2d at 678 (citation omitted). In overturning a district court's finding that a pretrial identification, though impermissibly suggestive, was nonetheless reliable, this court has focussed on the inevitable uncertainty concerning what role the impermissible identification played in the jury's decision to convict. De Jesus-Rios, 990 F.2d at 679. _____________ In De Jesus-Rios, as here, there were two pretrial _____________ identifications, and no other evidence linking defendant to -29- the crime.8 The court found only one identification unreliable. In ruling nonetheless that the district court's error in admitting both was not harmless beyond a reasonable doubt, the court noted that it was possible that the jury had relied significantly upon the unreliable identification. The court was "concerned that the jury may have been persuaded to convict by the very fact that there were two witnesses who ___ identified [the defendant]." Id. Here, too, it is possible ___ that the jury rested its decision to convict on the fact that there were two identifications. We cannot conclude beyond a reasonable doubt that the district court's error was harmless. V. Delayed Discovery V. Delayed Discovery ____________________________ Rivera challenges the admission into evidence certain telephone records revealing calls between his line and those belonging to others involved in the conspiracy that the government did not provide until the first day of trial. The government admitted to possessing some of them as much as one year before trial. Rivera reasserts his argument below that the government's late disclosure violated Rule 16 of the ____________________ 8. The only other evidence linking Galindez to the crime are Diaz's notes containing a description to which Galindez can be matched. The notes cannot be credited. -30- Federal Rules of Criminal Procedure9 and prejudiced his defense by depriving him of the opportunity to investigate the calls. We review a district court's ruling on the prejudicial effect of a failure to provide pre-trial discovery for abuse of discretion. United States v. Alvarez, _____________ _______ 987 F.2d 77, 85 (1st Cir.), cert. denied, ___ U.S. ___, 114 _____ ______ S.Ct. 147, 126 L.Ed.2d 109 (1993); see Fed.R.Crim.P. ___ 16(d)(2). Prejudice must be proven to obtain reversal on appeal. Alvarez, 987 F.2d at 85. _______ The court allowed the evidence, finding that the government did not act in bad faith and that no prejudice resulted. See, e.g., United States v. Nickens, 955 F.2d 112, ___ ____ _____________ _______ 126 (1st Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 108, _____ ______ 121 L.Ed.2d 66 (1992) (citations omitted). We agree. The prejudice Rivera alleged below related entirely to linking ____________________ 9. Rule 16 provides, in pertinent part: Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, . . . which are within the possession, custody or control of the government and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial . . . Fed.R.Crim. P. 16(a)(1)(C). Rule 16 imposes a continuing duty to disclose such requested material. Fed.R.Crim.P. 16(c). See, e.g., United States v. Tajeddini, 996 F.2d 1278, ___ ____ _____________ _________ 1287 (1st Cir. 1993). -31- him to the conspiracy, for which he was acquitted, and he proffers no additional proof of prejudice on appeal. This verdict itself verifies the court's ruling. Rivera also challenges the admission of this evidence on relevancy grounds. This contention was not made to the district court. VI. Sufficiency of the Evidence VI. Sufficiency of the Evidence _____________________________________ All appellants challenge the sufficiency of the evidence by which they were convicted, having made timely motions for acquittal to the trial court. On appeal, we assess the evidence as a whole, taking "all reasonable inferences, in the light most favorable to the verdict, with a view to whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United ______ States v. Vargas, 945 F.2d 426, 427 (1st Cir. 1991) (internal ______ ______ quotations omitted); United States v. Montas, 41 F.3d 775, _____________ ______ 778 (1st Cir. 1994), petition for cert. filed, (April 4, __________________________ 1995) (No. 94-8798). We resolve all credibility issues in favor of the verdict. United States v. De Jesus Rios, 990 _____________ _____________ F.2d at 680. A. Galindez _____________ Although we are awarding Galindez a new trial because of an erroneously admitted identification, it is still necessary to consider whether his motion for acquittal should have been allowed. Our evidentiary ruling leaves a -32- viable identification. A jury might reasonably conclude that this identification alone, made by the agent who dealt directly and close |