USCA1 Opinion

October 22, 1992

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_____________________

No. 92-1490
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JUAN GARCIA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

James T. McCormick with whom McKenna & McCormick was on brief

__________________
___________________
appellant.
Zechariah Chafee, Assistant United States Attorney, with w
_________________
Lincoln C. Almond, United States Attorney, was on brief for appelle
_________________
____________________
____________________

Per Curiam.
___________
grounds

Appellant Juan

Garcia challenges

on two

his conviction, following a jury trial in the United

States District Court

distribution
violation

and

of

challenges the
Sentencing

for the District of

conspiracy

21 U.S.C.

to

Guidelines.

distribute

841(a)(1),

district court's

Rhode Island, for

cocaine,

846.

Garcia

upward departure

Finding

no

merit

in
also

under the

to

Garcia's

contentions, we affirm.
The

principal

witness

against

Garcia

at

Detective Bonnie Lovell of the Providence Police

trial

was

Department.

Detective
was

Lovell testified as follows.

working in

Moore

an undercover

Street in

Providence,

Eduardo Pardo, from whom she

of

cocaine.

microphone

Detective

On July 4, 1991, she

capacity.

She drove

to 129

to meet

Carlos

Rhode Island,

intended to purchase a quantity

Lovell

was

device that transmitted

wearing

concealed

to a nearby surveillance

team.
Pardo

was waiting

Detective Lovell

outside his apartment

arrived.

Detective Lovell

she was interested in purchasing cocaine.

building when
told Pardo that

Pardo asked her to

drive

him in her car to a nearby public telephone, which she

did.

Pardo got out of

re-entered the
to

the car, made a

car, after which Detective

the apartment

building.

arrived and parked nearby.

Soon

telephone call, and

Lovell drove back

thereafter,

a gray

car

Garcia was at the wheel and there

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were no other persons in the car.

car

and

went

to

speak

with

Pardo left the detective's

Garcia.

After

brief

conversation,

Garcia

drove

off,

and

Pardo

returned

to

Detective Lovell's car.

Pardo
Garcia's

remained
return.

in

Detective

When Garcia

Lovell's

car

returned about

awaiting

five minutes

later, he and Pardo got out of their respective cars and

on the front porch of
five
car.

the apartment building, about

to thirty feet from

Detective

Pardo, although

where Detective Lovell

Lovell saw
she could

Garcia hand

twenty-

sat in her

a small

not see exactly

met

object to

what the

object

was.
Pardo then

returned to Detective Lovell's

car with the

object in his right hand, and told Detective Lovell to follow

him

into the building.

Detective Lovell and Pardo went into

Pardo's apartment, where

had

been holding in

observed

to

be

his right hand,

a plastic

resembling cocaine.
was
grams

The

shown to contain
and

Pardo handed her the object that he

containing

bag

which Detective Lovell

containing

plastic bag, upon

a mixture or
a

white powder

later analysis,

substance weighing 35.83

detectible

amount

of

cocaine.

Detective Lovell testified that she did not take her eyes off
this object
time

from the time

Pardo handed

it

to

Detective Lovell stated, "Is

Garcia handed it to
her.

Upon

Pardo to the

receiving

this stuff as good as

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the

bag

the last

stuff?"

This was

a pre-arranged signal to

the surveillance

team, which then entered the apartment and arrested Pardo.

Detective

Michael

Purro,

surveillance team, also testified

testified that he
first

meeting with

building.

There,

building,
and
Pardo

also

members
arrest

vehicle, held

nearby

observed Garcia leave the

scene after the

Pardo

and drive

Garcia got

testified

Pardo,

the

Detective Purro

the front

of the

of

at trial.

nearby apartment

his car,

entered the

later, got back

in his car

of Pardo's building.

Detective

that, at

the

surveillance team
Detective

to a

out of

returned a short time

returned to

member

Purro

same

time that

entered the
pulled

up his detective's badge

Garcia immediately began backing down

other

apartment to

alongside

Garcia's

and yelled "Police!"

the street, but he was

quickly stopped by police officers and arrested.

Pardo and Garcia were indicted jointly but Pardo pleaded
guilty

prior

convicted

to

trial.

following a

sentenced to a

term of

Garcia,

as earlier

by

and

trial

jury,

he

imprisonment of thirty

noted,
was
months.

was
later
In

this appeal, Pardo attacks the sufficiency of the evidence, a

remark

made by the prosecutor

supported by

relating to a

evidence, and the calculation

fact not later

of his sentence.

We address each issue in turn.

First.
_____
testimony

Garcia
was

contends

that

inherently incredible

Detective
and,

Lovell's

accordingly, the

-4-4-

district
trial.

court
He

should have

contends that

granted
Detective

lying

when she testified that

right

hand

and the

period from the time

the time it was
Garcia,

this

Detective
been

was

testimony

"defied

eyes on Pardo's

holding for

of Pardo's

several

exited the

physical

the entire

car in

Garcia to

According to
laws,"

right hand

junctures, such

a new

have been

the object was received from

Lovell's vision

and

she kept her

object he

for

Lovell must

handed over to the detective.

obstructed at

entered

his motion

because
must have

as when

Pardo

which Detective

Lovell was

Detective Lovell's

testimony

seated.
Garcia

also argues

that

contained inconsistencies on certain

Pardo and Garcia met

issues (such as whether

on the porch of the

apartment building

or

in the driveway) as

are

inherently

Detective
exiting

well as descriptions

unbelievable.

As

Lovell's testimony
her

vehicle,

that,

she

flaws

testimony

reasonable jury could

he

directions

Taking all

together, Garcia

credit Detective

cites

and she

hidden microphone just

Pardo's apartment.

in the

example,

as Pardo

whispered

surveillance team through the

going up to

an

of events that

of the

were

to

the

before
alleged

contends that

no

Lovell's version

of

events.
While these
closing

arguments were appropriate

during Garcia's

argument to the jury, they have little force on this

-5-5-

appeal.

"It

circumstances,
decided

by

testimony

is

axiomatic

issues

the jury

of
.

that,

witness
.

or a question as

absent

credibility
In

general,

to the credibility

exceptional
are

v.

Kuzniar,

881

F.2d

466,

470

(7th

be

conflicting
of a witness

are not sufficient grounds for granting a new trial."

States

to

Cir.

United
______
1989)

___________________
(citations omitted).
narrow"

exception to this

testimony is

have recognized

general rule:

material and is so

it could not be
grant a

Courts

an "extremely

Where a witness's

inherently implausible that

believed by a reasonable juror,

new trial.

Id. at 470-71.
__

a court may

This determination is to

be made, in the first instance, by the trial judge, who is in

a

far better position to assess the credibility of a witness

than an appellate court.

In

this

case,

"incredibility" argument was expressly rejected

judge when
trial.

he denied

Garcia's post-trial

Garcia's
by the trial

motion for a

new

At the hearing on Garcia's motion, the judge stated,

"[I]n this case . . .

I see no evidence of any misstatements

by any of the witnesses and there is more than ample evidence

to
this

support the verdict."

regard is

discretion, see
___

not

The trial judge's determination in

to be

overturned

absent an

United States v. Rodriguez, 738

__________________________

abuse

of

F.2d 13, 17

(1st Cir. 1984); United States v. Thornley, 707 F.2d 622, 626
_________________________
(1st

Cir. 1983), and we

certainly find no

such abuse here.

Detective Lovell's testimony that she kept her eye on Pardo's

-6-6-

hand during the entire sequence of

incredible.
drug

buy

She was
and

had

events was not inherently

working in an undercover capacity

just observed

suspected seller a small package.

an

individual

keep her eye on

one would expect her to

do just that.

contents disappeared

hand

the

It is not implausible that

Detective Lovell would

its

on a

from her

the package; indeed,

Even if

view for

the hand and

a

few seconds

during the sequence of events, the jury could reasonably have

viewed Detective Lovell's testimony on this point as innocent
exaggeration in a detail, but essentially true.
As

for the alleged

inconsistencies, Detective Lovell's

testimony was entirely consistent

of

events.

There are some

testimony, and

between her

as to the general sequence

minor discrepancies
testimony and the

within her

transcript of

the surreptitious recording, as to the exact location of some

of

these

events.

inconsistencies

to

examination and
free to

view

Garcia
the

was

jury's

free

attention

in closing argument.
them

--

as

to

the jury

bring

these

during

cross-

The jury
evidently

relatively insignificant discrepancies which did

was equally
did

--

as

not detract

from the substance of the overall testimony.

Second.
______

During opening

single reference

to the

argument, the prosecutor made a

fact that

the evidence

would show

that, at the time of Garcia's arrest, several hundred dollars

-7-7-

in cash was recovered

from his person.1

At

trial, however,

the
government introduced

no evidence

Garcia upon his arrest.

remark was
was

that cash was

Garcia argues that the

prejudicial error.

error, but we conclude

We agree that

taken from
prosecutor's

the reference

that any objection

to the error

was waived and was, in addition, harmless beyond a reasonable

doubt.
At the outset, we note that Garcia raised this issue for
the first time in his motion for a new trial.

His failure to

raise the issue at the close of the government's case -- when

it

became apparent

evidence to
statement

that

support its
--

specifically to

deprived

the government
reference
the

instruct the

court

had introduced

to cash
of

in the
the

jury to ignore

no

opening

opportunity
the reference.

As

it happens, the district court did instruct the jury that

arguments of

counsel

are not

should consider only the

evidence, and

that the

jury

testimony of witnesses and exhibits

____________________
1Garcia argues that the prosecutor repeated during his
closing argument the allegation that money was seized at the
arrest. We have examined the transcript of the closing and
reach a different conclusion. Refuting any suggestion that
the police had tailored their testimony to convict Garcia,
the prosecutor said that the police -- "if they wanted to
cook up a case" -- could have said that Garcia was seen to
exchange money for drugs with Pardo. We do not believe that
this statement would be understood as suggesting that cash
was in fact taken from Garcia at the time of his arrest.
-8-8-

introduced into evidence.

If Garcia

wanted a more

pointed

reference, it was his responsibility to ask for it.

Furthermore,
evidence

of

we

regard the

guilt, including

error

as

Detective

harmless.

The

Lovell's chain-of-

custody observation and Detective Purro's testimony regarding

Garcia's attempt to flee, was overwhelming.
reference

to the

money in

the opening

The prosecutor's

was very

brief and

nothing was said on the

any

Nor do

we have

reason to believe the remark was a deliberate attempt to

mislead
even

subject in closing.

the

jury.2

apart from

isolated

For these

waiver of

reasons, we

the objection,

remark would not warrant

States v. Sutherland,
_____________________

conclude that,
the prosecutor's

a new trial.

929 F.2d 765,

775 (1st

See United
___ ______
Cir.), cert.
____

denied, 112 S. Ct. 85 (1991).

______
Third.
_____

It

is

undisputed

that

at

the time

Garcia

committed the offenses in this case, there was an outstanding

bench warrant for

his arrest

York state court on

controlled substance.

for failure to

appear in

then-pending charges of possession of

This fact did

New
a

not directly affect the

calculation of Garcia's criminal history under the Sentencing

____________________
2At oral argument, government counsel, who was also the
prosecutor at trial, explained that he elected not to
introduce evidence that $336 dollars was seized from Garcia
because he concluded that he had no evidence directly linking
the money to the transaction observed by Detective Lovell.
As to the existence of the money, both the police report and
the government's pre-trial
discovery letter to defense
counsel noted that $336 was seized from Garcia at the time of
his arrest.
-9-9-

Guidelines,

because the

into account
judge

criminal history

only criminal convictions.

departed upward

pursuant to

calculation takes
However, the trial

U.S.S.G.

4A1.3, which

states, in pertinent part:

If reliable information indicates that the criminal
history category does not adequately reflect the
seriousness of the
defendant's past
criminal
conduct or the likelihood that the defendant will
commit other crimes,
the court may
consider
imposing a sentence departing from the otherwise
applicable guideline range.
Such information may
include, but is
not limited to,
information
concerning:
(d) whether the defendant was
trial, sentencing, or appeal on
charge
at the time
of the
offense[.]
The trial
the

guidelines,

Category I

judge elected,
to

depart

based upon this

upward

to the maximum thirty

months.

plausible reason why this

provision in

Criminal

History

II, which increased

twenty-one to twenty-seven

to twenty-four to thirty months.

none.

from

to Criminal History Category

the sentencing range from

pending
another
instant

months

The judge sentenced Garcia

Garcia has not

was error, and we can

suggested any
conceive of

See United States v. Hernandez, 896 F.2d 642, 645 (1st

___ __________________________

Cir. 1990)

(upholding upward departure

where an individual,

already on bail or otherwise charged with a criminal offense,

commits a separate offense).
For the foregoing reasons,

the judgment of the district

court is affirmed.
________

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