USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2013

UNITED STATES,

Appellee,

v.

MANUEL GONZALEZ-SOBERAL, AKA RAUL,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos

Antonio Fust , U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and DiClerico,* District Judge.

______________

_____________________

Rafael F. Castro Lang for appellant.

_____________________
Jos
A. Quiles-Espinosa, Senior
_________________________
whom
Sosa,
____

Guillermo Gil,
_____________
Assistant

United States

United

States

Litigation

Counsel, with

Attorney, and

Nelson P rez_____________

Attorney,

were

on

brief

for

appellee.

____________________

March 26, 1997

____________________

____________________

Of the District of New Hampshire, sitting by designation.

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
____________

Defendant-appellant

Manuel

Gonz lez-Soberal

counts:

(1)

conspiracy to

multi-kilogram

kilograms

nineteen

amounts

kilograms

He

possess

of

of cocaine on

distribution of

1991.

("Gonz lez-Soberal")

cocaine on

affirm.

1991; (3)

October

20,

twenty-nine kilograms of cocaine

now appeals,

claiming errors

including sentencing.

We

intent to

deal with

in the

Finding

distribute

of

1991;

eight

and (4)

on October 27,

jury selection

no reversible

in turn,

four

distribution of

and in the actions of

each claim

on

(2)distribution

October 13,

of

convicted

with

cocaine;

process, the jury instructions,

judge,

was

the trial

error, we

discussing factual

details as they become relevant.

I.
I.

Appellant makes

Jury Selection
Jury Selection

three claims with respect

to the jury

selection.

First, he argues

reversible

error when

that the district

it removed

juror number

court committed

9.

Second, he

submits that the failure to remove juror number 45 for failure to

adequately

error.

speak

and

understand

English

was also

reversible

Finally, he contends that the district court's failure to

remove juror number 1 for cause was reversible error.

A.
A.

Juror Number 9
Juror Number 9

Federal

Rule of

Criminal

Procedure

23(b) permits

trial judge to excuse a

juror for just cause if the

judge finds

it necessary to do

Fed. R. Crim.

"The

judge

has

responsibility

so.

substantial

discretion

Proc. 23(b).

in

exercising

trial

this

and may remove the juror when 'convinced that the

-2-

juror's abilities to perform his duties [have] become impaired.'"

United States v.
_____________

Walsh, 75
_____

F.3d 1, 5

(1st Cir. 1996)

(quoting

United States v. Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992)).
_____________
________

The

circumstances

removed

are

as follows.

charge,

there was

under

While

which

the

disruption in

summarized the incident as follows:

juror

judge was

the

number

was

delivering the

jury box.

The

judge

I remember

juror

number 9

impaneling

questions,

intelligent

woman,

Her

Treasury.
person

with a

education.

But I

reaction.

having

very

economist.

Department of

she's

lot of

saw here in court

It's

at the

She's --

her

she's

she's an

husband works

from

--

she's a

education, formal

do think that

what I

today was not a normal

That is not a normal reaction.

entirely

possible

some sort

of problem

not even aware of.

that

she's

that she's

But what she did, she

interrupted the jury charge, and as if we

were not here, as if she was alone with - with
her,

a juror

that is sitting

she started a conversation with him

in a loud tone of voice.

She

touch this juror, tried to

tag

next to

off

questions

of

his

about the

started to

take his name

clothing,

asked

him

problems, something

around his neck or I don't know what.

I stopped, listened, watched,

make an issue.
here, when

And when I

I asked

did not

asked her up

her up here

she did

not remember what had happened, actually.

She

could not

remember the

she

interrupted

the

started to touch her

has some

know what

charge

neighbor.

I honestly think that

I don't

jury

reasons why
or

And I --

she has a problem.

the problem is.

sort of problem with

her.

She
Not

only that, but some of the jurors have -some of the

concern about

jurors have expressed

her ability to

in this jury.

-3-

their

be sitting

Tr. II at 449-50.

Based

subsequent

number 9

on

his

observation

investigation,

and to

the

substitute one

of the

incident

judge

decided to

of

the alternate

and

excuse

jurors.

his

juror

He

offered defense counsel the opportunity to choose between the two

alternate jurors, and counsel chose alternate number 1.

The judge then

bench and

explained to

stated that she

felt

compassion

responded

she had

that

asked juror

her his

had found the

for

those

that she had not

number 9

intention to

to approach

excuse her.

case very difficult and

involved.

Upon

slept well the

been thinking about the

case.

She

that she

questioning,

she

night before because

She also

she took medication to control her epilepsy.

colloquy ensued:

the

told the court

The following

The

Court:

seizures

Have

and

you

things

had

like

problems,

that

in the

past?

Juror:

The people says.

The Court:

Juror:

People say that?

But I say that I have -- I don't

have anything.

The Court:

Juror:

Tr. II at 455-56.

I see.

Because my reactions are normal.

And a few moments later:

The Court:

Do you remember what prompted

you to talk to your neighbor?

Juror:

What you say?

The Court:

When I

was instructing

jury --

-4-

the

Juror:

The

Uh-huh.

Court:

-- You

decided to

your next door neighbor.

talk to

Do you remember

that?

Juror:

No.

The Court:

Juror:

No.

The Court:
his

You don't remember that?

I see.

name tag

away,

And you tried to take

this one.

Do

you

remember that?

Juror:

No.

Tr. II at 456-57.

Finally, in

explaining his

decision to the

judge made the following remarks:

noticed that when I was instructing

you,

all

out, that

of a

sudden she

I was

watching.

like blanked
She

here anymore and she turned to

to her neighbor, started
I

could

not

saying.
logic
and

It

the right

to talk to him.

understand
didn't

was not

what

seem

she

to have

was
much

to what she was saying, the words,

then

said

she grabbed

something

neck,"

or

about,

his name

tag and

"what's on

something along

your

those words.

She doesn't remember that.

She

is

medication.
problem,

--

she's

taking

some

I think she has some sort of

physical

problem.

She

takes

medication, anticonvulsive medication.

jury, the

honestly hope that she's

think

that

under

okay.

But I do

the circumstances,

think it would be unfair -- I don't think

it would be right for me to
the

leave her in

-- in the jury panel, because that's

not right.

Tr. II at 459-60.

-5-

In light of all of the above, we do not find reversible

error in the decision to excuse the juror.

There was significant

evidence

that juror number

duties.

Considering the deference that we must accord the trial

judge in

matters such

remove the

judge's

juror.

9 was no longer

as this

We add

one, we

able to perform her

affirm the

that there is

decision to

no evidence

that the

decision was influenced by the juror's view of the case.

Although the juror stated that she found the case to be difficult

and that she

these

her

Tr. II at 453,

statements were made after the judge had decided to remove

from the

contends,

at

jury.

Furthermore,

demonstrate

whether or not

Brief

had "compassion for these people,"

15.

that "she

they

had

appellant should be

A juror

might find

do not,

reasonable

found guilty."

as

appellant

doubts as

to

Appellant's

case difficult

for many

reasons,

and

to

conclude

that

she

favored

acquittal

is

speculative.

Our decision is

in United States v.
______________

consistent with this court's

Molinares Charris,
_________________

822 F.2d

decision

1213, 1222-23

(1st Cir. 1987) in which we upheld the decision to excuse a juror

whose health appeared

distressed by

to be at

risk.

the proceedings and

The

juror was

had taken

obviously

a tranquilizer

in

order to calm her nerves.

Similarly, in the instant case, the judge was concerned

with

the juror's

situation,

health.

the judge felt

After

an

investigation

that the stress of

-6-

into

the

the trial posed a

risk to the juror's

health and that

her ability to perform

her

duties had been compromised.

As we stated in Molinares Charris, "[w]e should

_________________

not be

quick to second guess a trial judge, who was in a better position

than

making

we are

to assess

the severity

of the

situation.

After

careful inquiries, and recognizing her responsibility for

the well-being of those called upon to serve the court, the judge

decided that

the risk to the juror's health was too great."

Id.
___

at 1223.

B. Juror Number 45
B. Juror Number 45

Appellant next claims that the district court committed

reversible

error by failing to

the investigation of

number 45.

remove juror number

The Court:

My

Your name and number, please.

name

is Byron

Chique.

My

number on the list is 45.

The

Court:

wrong

with

You
the

have
lady

noticed anything
that

started

talking in a loud tone of voice?

Juror:

During

juror number 9, the judge interviewed juror

The exchange went as follows:

Juror:

45.

Yes.

The Court:

Yes.

What have you noticed?

to

Juror:

Talking

difficult

to

in English,

explain to

it's

you,

very

but this

morning not too much important but she -she say

-- I

can't explain

in English.

It's very difficult.

The Court:

Which

word are you

for?

Juror:

Let me say --

-7-

looking

The Court:
that

Which

you cannot

word are
--

you missing

I'll give

you

the

word.

Juror:

I can say it in Spanish.

The Court:

Juror:

What is the word?

(In Spanish)

The Court:
he

is

Jaime, there is

having a

problem

a word that

with

he can't

explain.

Juror:

(Conferring withthe interpreter.)

Interpreter:
talking
told

I told

to the

her and

the lady --

I was

lady this morning

and I

she

was --

she was

like

expectant, she was hesitant in her -- her

actions.

Juror:

The

Yes.

Court:

abnormal?

It struck you

as something

Juror:

Not normal, not exactly normal.

The Court:

Juror:

Not normal?

No.

The Court:
then when

Okay.

What was your reaction

you saw her speak

the way she

did in

open court

in the middle

charge

and

to

start

neighbor's name tag?

Juror:

fix

the

of the
--

her

You saw that?

Would you repeat, please?

The Court:

You saw -- you saw

she grabbed her

her when

neighbor's name tag

and

tried to --

Juror:

Yeah.

The Court:

-- fix it?

Juror:

I see -- I see that is not in his

body.

his body -- she -- likes to sleep.

(Confers with interpreter)

-8-

Interpreter:

She

seemed

to

be

like

asleep, like she was sleepwalking.

The Court:

Oh, I see.

Okay.

Thank you.

Tr. II at 443-46.

Appellant's counsel

about

English

juror

number

language.

thereafter,

45's

The

counsel again

then stated

knowledge and

district

court

raised the

that he

had concerns

understanding

disagreed.

question of

of

the

Shortly

juror number

45's proficiency in English.

Number

The judge responded:

one, Mr.

English by me.

Chique was

examined in

There is a piece of paper

that I gave these people for them to talk

to me in English when I'm selecting them,
and

he

was

clearly in

able

to

English.

express

I have

himself

no doubt in

my mind.

can

tell

you

something,

whenever I have the slightest doubt about

somebody's
that person
the person
pool

English, not only do I excuse

from the panel,
from the list,

completely.

I eliminate
from the jury

don't

take

any

chances with that.

He

was

looking

for

word,

"sleepwalking," and that is not a concept

that you deal with every day.

And he was

pretty

you

know,

nervous up

here trying to explain

to me

something,

and that's

nervous.

find the word.

He

was,

why he

could not

He's

perfectly

capable

understanding the evidence in

I don't have a
And

if I

even

be

this case.

problem with that at all.

had, believe
on

of

the

jury

me, he
to

wouldn't

begin

with,

because I don't take chances with that.

Tr. II at 449.

-9-

A trial

judge has substantial discretion

to determine

when jurors

reverse

should be

removed for

reasoned

conclusion

the

question

of a juror's ability

trial judge is

competency

cause.

of

the

trial

judge on

to

the

to understand English because the

in a much better position to

of a

We are hesitant

particular juror.

assess the language

See Molinares Charris, 822

___ __________________

F.2d at 1222-23; Walsh, 75 F.3d at 5.

_____

In

the instant case, the juror in question had met the

statutory linguistic competency standard under the Jury Selection

and Service Act, 28 U.S.C.

1865, and had undergone voir dire --

during which defense counsel had

the opportunity to question the

juror.

Although

those

portions

of

the

transcript

quoted

suggest that the juror's command of the English language was less

than that of a native speaker, they do not warrant the conclusion

that the juror was unable to follow the proceedings or understand

the evidence

and therefore do

our deferential

standard of

available

from the

decision

to retain

not merit reversal.

review and the

transcript, we

juror

number

In light of

limited information

cannot overturn

45.

We

find

the judge's

no

abuse

of

discretion.

C.
C.

Juror No. 1
Juror No. 1

During voir dire, juror number 1 stated that his father

had

been

killed by

a drug

dealer

during a

holdup.

counsel sought to have the juror excused for cause.

court, having

interviewed the

Defense

The district

juror, determined that

he should

-10-

not be excused

for cause.

Defendant eventually

peremptory challenges to strike the

that

the

failure

juror should

to

remove

have been

the juror

juror.

removed

forced

the

used one of his

Appellant now argues

for cause,

defendant

that the

to use

peremptory challenge, and that this constitutes grounds for a new

trial.

It

is

well

established

that

the

trial

court

has

considerable discretion in

Dennis
______

ruling on challenges for cause.

v. United States, 339 U.S. 162, 168 (1950).

_____________

See
___

"Substantial

deference

is due the trial court's exercise of its discretion in

handling

situations

involving

potential

juror

bias

or

misconduct."

United States v. Angiulo, 897 F.2d 1169, 1185 (1st

_____________
_______

Cir.

"There are few

1990).

would be less

inclined to

discretion, absent

cause in the

961

aspects of

disturb a trial

a jury

trial where we

judge's exercise

of

clear abuse, than in ruling on challenges for

empaneling of a jury."

United States v. McCarthy,

______________
________

F.2d 972, 976 (1st Cir. 1992) (internal quotations omitted).

"We review a trial judge's exercise of discretion in empaneling a

jury for 'clear abuse.'"

United States v. Bartelho, 71 F.3d 436,

_____________
________

443 (1st Cir. 1995).

In the

instant case, after

the juror stated

that his

father had been killed by a drug dealer, the judge asked: "Do you

believe

could

that even though

still be a judge of

and impartial?"

Tr.

I at

11A.

this happened

within your

the facts in a drug

Tr. I at 11A.

family you

case and be fair

The juror responded "yes, I can."

Following an exchange

-11-

with counsel,

the judge

decided to leave the

fact that the

been

juror on the

juror, when

extremely

panel, citing as reasons

asked if he

assertive

in

his

could be impartial,

answer,

and

that

he

the

had

was

intelligent.

Nothing in either the record or the

appeal suggests that the

number

1 was

grossly

parties' briefs on

trial court's decision to retain

in

error.

The

judge appears

concluded, after considering

the suitably of the juror,

could remain

Neither a

part of the

demonstrated.

on the panel.

judge nor

juror

to

that he

lack of judgment

prejudice toward the

have

defendant has

on the

been

We find no "clear abuse."

Because

we find no clear abuse

to remove the juror,

in the judge's refusal

we need not address the question of whether

forcing

the appellant to

use a peremptory

challenge is grounds

for a new trial.

II.
II.

A.
A.

Jury Instructions
Jury Instructions

Appellant's Requested Jury Instruction

Appellant's Requested Jury Instruction

Appellant next claims that the district court committed

reversible

error when

instruction

it failed

concerning

to give

the impeachment

appellant's requested

of

witnesses by

prior

conviction.

In

considering

challenges to

refusal to give a requested instruction is

if

"the instruction

substantially

jury;

(1) is

covered in

and (3) concerns an

jury

instructions, the

reversible error only

substantively correct; (2)

the charge

actually delivered

important point in

was not

to the

the trial so that

-12-

the failure to give it seriously impaired the defendant's ability

to

effectively

Gibson,
______

omitted).

726

present a

F.2d

869

given

(1st

Cir.

defense."

1984)

United States
______________

(internal

v.

quotations

The charge "need not follow the exact form and wording

of the defendant's proposed instructions."

Id.
___

In

the

instant

case,

Gonz lez-Soberal

sought

the

following instruction:

You

have

been

told

that

_______ was convicted

armed robbery].
you

that

attention

deciding whether to

destroy

credibility.

it

the

does not
witness's

It has been brought to your

only because

consider it

[e.g.:

A conviction is a factor

witness, but

necessarily

witness

in 19__ of

may consider in

believe

the

you may

when you decide

wish to

whether you

believe the witness's testimony.

Appellant's Proposed Jury Instruction #1.12.

The jury instructions delivered by the

they did

not contain this

court, although

precise instruction, did

following language:

You

have

unindicted
Negr n

heard

testimony

co-conspirator,

Zapata, and

from a

Mr.

from

an

William

defendant in

include the

this

same case

who,

tried

earlier,

have

--

agreements

as you

know,

was

Willy

Maya Acosta,

who

who

both

have

with

the

cooperation

government.

testimony by Mr. Negr n Zapata

in

exchange

for

The

was given

promise

by

the

government that he will not be prosecuted

for some crimes he

admittedly committed,

including

the ones

in this

case.

The

testimony

by Willy Maya Acosta was given

in order to hopefully receive a reduction

of sentence on account of cooperation.

In
should

evaluating
consider

this

testimony,

whether that

has been influenced

by the

-13-

you

testimony

government's

promise,

and

you

should consider

testimony with greater caution

of ordinary witnesses.
are

legal.

Such

The law only

than that
agreements

requires that

you consider testimony given

circumstances

that

with greater

under those
caution than

that of ordinary witnesses.

Tr. II at 406-07.

Although the

contain

"there is

the specific

instructions given

instruction

not reversible

error if

sought

by the judge

by

the jury

did not

Gonz lez-Soberal,

charge taken

as a

whole substantially covered the issues contained in the requested

instruction."

Angiulo, 897 F.2d at 1207.

_______

Having reviewed the instructions

conclude that

they substantially covered

given to the jury, we

issues of

credibility

with

respect to the witnesses

in question.

The judge reminded

the jury that the two witnesses had been

convicted and that they

had

government.

cooperation

agreements

with

the

He

gave

instructions concerning the credibility of witnesses, telling the

jury

that they should view the testimony of these witnesses with

greater caution than the testimony of an ordinary witness.

is no

reason to

believe that

the jurors

were misled

There

by these

instructions, or that they believed it impermissible to view with

additional skepticism

convictions.

the testimony

Accordingly, we

instructions.

B. Reasonable Doubt
B. Reasonable Doubt

find

of witnesses who

no

error

in

had prior

these

jury

-14-

Gonz lez-Soberal

jury

instructions

also

regarding

claims that

reasonable

the

doubt

trial court's

impermissibly

reduced the government's burden of proof.

In his initial instructions to the jury, the judge made

the following remarks:

Second.

The burden of proof is on the

government
case.

until

The

prove

the

defendant has

his innocence

evidence

very

or

to

or

end
no

of the

burden to

to present

any

Since

the

testify.

defendant has the right to remain silent,

the law prohibits you in arriving at your
verdict

from

considering

whether

the

defendant may or may not have testified.

Third.
case

The

against

reasonable
further

government must
the

defendant

doubt.

instructions at

prove a
beyond

will

give

the end

a
you

of the

case, but in this sense be mindful, those

of you

who participated in

that the standard is

civil cases,

different.

In

the

civil case we say a plaintiff prevails if

he proves

a case

the evidence.

by a

In the

situation we say the

if it proves

preponderance of
criminal case the

government prevails

a case beyond

a reasonable

doubt.

If
for

were to

purposes

of

graphically illustrate
an

initial

charge or

instruction so you have an idea what

talking about, I would
civil case if
of

the

before,

say this.

we bring a

type
not

used
any

evidence

on

defendant's
will see

one

old

more,

of

evidence

how well

In the

balance, scale

in

evidence - in the civil

I'm

drugstores

you

will

put

case plaintiff's
the

plates

on the

and

other, you

the reaction is.

If

the scale just starts moving a little bit

to

the

plaintiff's side,

has prevailed.

That is

the plaintiff

preponderance of

the evidence.

When

we

say

"beyond

reasonable

doubt," proving a defendant guilty beyond

-15-

reasonable

doubt, by

we're implying that

the

very words

the government has a

heavier burden

than the one that

described.

Because

involved, it's a
therefore

the

I just

liberties

are

different kind of case,

government's

burden

is

heavier than that and I will explain that

at the end of the case.

Tr. I at 11-13.

At

the

end of

the case,

the

judge returned

reasonable doubt issue:

The presumption of innocence

alone is

sufficient to find him not guilty and can

only be overcome if the government proves
beyond

a reasonable doubt each and every

essential element of the crimes charged.

And

what

reasonable

is

reasonable

doubt is

a doubt

doubt?

based upon

to the

reason and
from

common

sense and

careful

may

and

arise

impartial

consideration of all the evidence or from

lack

of

evidence.

Proof

beyond

reasonable doubt is proof that leaves you

firmly

convinced

that the

defendant is

guilty.

If,

and

impartial

consideration with your fellow

jurors of

all the evidence,

convinced

beyond

after

careful

you are not

reasonable

defendant is

doubt

that

guilty, it is your

the

duty to

find the defendant not guilty.

Tr. II at 418-19.

This

court has

cautioned against

the risks

that can

accompany attempts to define reasonable doubt.

See United States

___ _____________

v. And jar,
_______

United States
_____________

Campbell,
________

49 F.3d

874 F.2d

16, 23 (1st

838,

843 (1st

Cir. 1995);

Cir.

attempts to define reasonable doubt do

1989).

v.

Nevertheless,

not necessarily result in

reversible error.

And jar, 49 F.3d at 23.

_______

We have said that, in

-16-

our

experience, even

constitutional

imperfect formulations,

requirements when

viewed in

usually meet

the context

the

of the

entire charge to the jury.

When we review a trial court's definition of reasonable

doubt, our concern is whether the instructions have a tendency to

reduce the government's

burden of proof at trial.

find instructions erroneous when,

reasonable

Id.
___

taken as a whole, they

We will

have a

likelihood of leading the jury to believe that it can

convict on some lesser standard of proof than that required under

the reasonable doubt standard.

See United States v.

___ _____________

Romero, 32
______

F.3d 641, 651 (1st Cir. 1994).

Having

believe that there

jury.

on

reviewed

the

instructions

in

this

case, we

is no reasonable likelihood of misleading the

The judge explained

the government, and that

beyond a reasonable doubt.

that the burden of proof is

entirely

the government must

prove its case

The judge contrasted

the reasonable

doubt standard with the preponderance of the evidence standard in

order to avoid any confusion in

served on civil

his

be presumed

guilt

to

juries in the past.

final instructions,

must

the judge

innocent

doubt was

At the end of the trial, in

repeated that

and that

beyond a reasonable doubt.

define reasonable

suggest

the minds of jurors who may have

the defendant

the government

must prove

Nothing in the judge's attempt

likely to

that the government's burden

of proof is

reasonable doubt standard.

III. Fair Trial

III. Fair Trial

-17-

mislead the

jury or

less than the

Appellant

next

claims

that

the

district

court

"repeatedly questioned witnesses on his own in a manner that made

him

partisan

appellant

of

of

his

Appellant's Brief

questions

witnesses

also

the

served

constitutional

at

33.

to

and undermine

argues

that

government's

the

case

right

to

Appellant alleges

bolster

that of

the

thereby

depriving

fair

trial."

that the

judge's

credibility

of

government

defense witnesses.

Appellant

judge improperly

appellant's attorney's questioning and

raised

objections

to

that he elicited improper

hearsay from a witness.

It

is well settled that the trial judge has "a perfect

right -- albeit a right that

participate

F.3d 1040

should be exercised with care -- to

actively in the trial

(1st Cir. 1997).

proper."

Logue
_____

v. Dore, 103
____

A trial judge retains the common law

power to question witnesses and to comment on the evidence.

see also
_________

Fed.

R.

Evid.

614(b) ("The

court

may

interrogate

witnesses, whether called by itself or by a party.").

There are,

however, limits to the behavior that is permitted judges.

example, the

become

an

advantage

into

judge's participation

advocate or

otherwise

or disadvantage a party

the judge's conduct of

question

of

whether

the

must be balanced;

use

his judicial

unfairly."

Id.;
___

"[F]or

he cannot

powers

to

Id.
___

"An inquiry

the trial necessarily

turns on the

complaining party

can

show

serious

prejudice."

Id.
___

In his

alleged

brief,

bias on behalf of

appellant cites

the judge.

several

instances

of

After careful review, we

-18-

conclude that these instances

were no more than attempts

by the

judge to clarify questions, speed the proceedings, or ensure that

all information is before the jury.

We see no need

to recite at

length

from

appellant's

brief,

choosing

instead

to

comment

briefly on his allegations.

Appellant

asserts

credibility of government

reviewed

the

relevant

questioning to be

witnesses

were

that

the

judge

witnesses on two

testimony

and

occasions.

consider

no more than an effort to

testifying under

bolstered

the

We

the

have

judge's

make clear that the

cooperation agreements

and to

impress on the witnesses the fact that they were required to tell

the truth.

Another instance

the judge to overrule

government

markings.

cited by appellant was

a decision by

an objection by appellant's counsel.

was introducing

Defense counsel

a photograph

objected

that included

on the

grounds

The

certain

that the

markings

contaminated

appellant's counsel

were

made during

witness

if one

the

photo.

At

bench

stated that he understood

the

trial

of

conference,

that the markings

co-conspirators and

that

the

could easily make the same markings on an unmarked photo

were

available.

The judge

overruled

the

objection,

stating to the jury that he knew what the marks were and that the

marks

were

elaboration,

explained to

that

these

government's evidence.

counsel.

comments

We disagree.

-19-

Appellant claims,

amount

to

without

bolstering

the

As for the

defense

witnesses

meritless.

claims that the

and

defense

judge sought to

counsel, we

find

undermine

them

In both instances identified by appellant,

to

be

the judge

was merely attempting to move the trial along without unnecessary

delay

and the judge's

bias.

See
___

comments cannot

be taken

Logue, 103 F.3d at 1045; Deary

_____
_____

to demonstrate

v. Gloucester, 9 F.3d
__________

191, 194-95 (1st Cir. 1993).

Finally,

hearsay

appellant

evidence during

argues

testimony.

that

the

judge

Following an

elicited

objection on

hearsay grounds, the judge asked the witness, Negr n-Zapata, "Who

told you that Chanci had said or that Chanci would -- If we would

find kilos he

replied

the

would -- he would keep

that Mr. Arroyo had

objection.

Even

if

them?"

told him this,

it

were

When Negr n-Zapata

the judge sustained

determined

that

this

improperly admitted hearsay, it would be harmless error.

was

Nothing

in the judge's remarks or the witness's brief response was in any

way prejudicial to

relate

to the

the defendant.

defendant,

The comments

implying that,

if

simply do

error, they

not

were

harmless error.

IV.
IV.

Sentencing
Sentencing

Gonz lez-Soberal argues that

error when it

refused to grant

reduction in

his offense level

the trial court committed

a two-point "minor

on the

basis of his

participant"

role as

courier.1

"We will

reverse the district court's finding

that a

____________________

Section 3B1.2 of the Sentencing Guidelines states:

-20-

defendant

clearly

is not a

minimal or minor

erroneous."

United States
_____________

participant only if

v. Paz Uribe,
_________

it is

891 F.2d 396,

399 (1st Cir. 1989); see also United States v. Garc a, 954
_________ _____________
______

12, 18 (1st Cir.

in-the-offense

determination

defendant bears

downward

1992) ("[W]e review a sentencing

only

the burden of

adjustment for

for

clear

court's role-

error.").

proving that he is

his role

in the

F.2d

The

entitled to a

offense.

See United
___ ______

States v. Ortiz, 966 F.2d 707, 717 (1992).

______
_____

Appellant's

First,

he

argues

claim fails

that

on

"[t]he trial

two independent

evidence

grounds.

indicates

that

appellant was a mere courier of money and narcotics," Appellant's

Brief at 42, yet he points to no testimony or evidence to support

the assertion

refers

to

commented

that his role was

only

one statement

limited to one of

made

by

the

courier.

trial judge,

He

who

that "the evidence has shown so far that the defendant

was a

money courier."

meet

Tr. II

the defendant's burden

at 481.

This

in this case,

is insufficient to

and is unconvincing.

During sentencing, the judge's comments, taken in their entirety,

do not

courier.

was

suggest that

the judge

For example, the

other than

a regular

viewed the

defendant as

judge stated "I do not think

drug dealer

that was

on

offense,

the

defendant's role

decrease

the offense

in

the

level as

follows:
. . .
(b)

If

the

participant

defendant
in

any

was

criminal

decrease by two levels.

United States Sentencing Guidelines

-21-

3B1.2.

that he

arranging drug

____________________

Based

a mere

minor

activity,

transactions like

addition,

the court

defendant's

considered

everybody

role in

his

else was."

made it

the

role

Tr. II

clear that

offense, stating

. .

in

the

it had

at

In

considered the

that "the

context of

481.

the

court has

relative

culpability of the different defendants that participated in this

particular

conspiracy.

account of role."

And I

will not

make an

adjustment on

Tr. II at 488.

Second, even if it

was shown that Gonz lez-Soberal had

been

no more

entitled to a

than

a courier,

would not

be

965

F.2d 1124, 1131 (1st Cir. 1992); Paz Uribe, 891 F.2d at 399.
_________

"A

downward

has

the

role

at

burden

adjustment,

demonstrating that

See United States

___ _____________

automatically

v. L pez-Gil,
_________

defendant

reduction.

he

and

of

proving

can

only

entitlement

prevail

the district court's determination

in the offense was clearly erroneous."

1131

on

(citations omitted).

Appellant

to such

appeal

by

as to his

L pez-Gil, 965 F.2d

_________

fails to

present any

reasons why, on the facts of this case, he should be granted such

a reduction.

Therefore,

even assuming, arguendo, that appellant

was able to establish that he was merely a courier, he has failed

to carry

his burden of showing that he is entitled to a downward

adjustment.

In

posture we

light of

take

the above

analysis, and

toward role-in-the-offense

the deferential

determinations,

we

find no clear error in the district court's sentencing.

V.
V.

Conclusion
Conclusion

-22-

For the foregoing reasons, the decision of the district

court is affirmed.
affirmed
________

-23-