US v. Alicea

• Decision Date: 05 January 2000
• Docket Number: No. 98-1766,98-1766
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. JAIME RIVERA ALICEA, A/K/A PITO PACHANGA, DEFENDANT, APPELLANT. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 480

205 F.3d 480 (1st Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. JAIME RIVERA ALICEA, A/K/A PITO PACHANGA, DEFENDANT, APPELLANT.

No. 98-1766

U.S. Court of Appeals, First Circuit

Heard January 5, 2000

Decided March 06, 2000

[Copyrighted Material Omitted] Vilma Maria Dapena, by appointment of the court, for appellant.

Jeanette Mercado-Ros, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco and Nelson Peerez-Sosa, Assistant United States Attorneys, were on brief, for appellee.

Before Selya, Circuit Judge, Coffin and Campbell, Senior Circuit Judges.

Selya, Circuit Judge.

A jury found defendant-appellant Jaime Rivera-Alicea guilty of various offenses arising out of a surveilled drug transaction and ensuing chase. Rivera-Alicea appeals, challenging the sufficiency of the evidence, the internal consistency of the verdict, the jury instructions, certain sentence-related rulings, and the denial of his motion for a new trial. Discerning no error, we affirm.

We present the facts in the light most favorable to the government, consistent with record support. See United States v. Noah, 130 F.3d 490, 493 (1st Cir. 1997). After receiving word from an informant that a large narcotics transaction was scheduled for May 23, 1996, a task force composed of federal agents and local police officers devised a plan to intercept the drugs and apprehend the participants. But as a Scottish poet warned many years ago, "[t]he best laid schemes o' mice an' men gang aft agley," Robert Burns, "To a Mouse, On Turning Up Her Nest With the Plough" (1785), and the planned interdiction imploded when the transaction occurred approximately twenty minutes ahead of schedule. Thus, only a lone Puerto Rico police officer, Eliezer De Jes££s, actually witnessed the exchange.

De Jes££s sounded the alarm and a cadre of law enforcement officers belatedly set out after a blue Toyota sedan that De Jes££s had observed leaving the scene. Once the Toyota's occupants - five men, including the appellant - became aware that agents were in hot pursuit, the vehicle accelerated, leading to a dangerous high-speed chase through a residential area. In the course of the chase, shots were fired from the back seat of the Toyota in what proved to be a vain attempt to deter the pursuers. Eventually, the Toyota hit another vehicle, then a gate, and ground to a stop. Officers arrested three suspects on the spot. They also recovered two firearms from the Toyota's back seat and retrieved a white nylon bag containing eighteen kilograms of cocaine from the trunk. The appellant and another man fled, exchanging gunshots with two of their pursuers, and eluded immediate capture.

In due season, a federal grand jury returned a multiple-count indictment against a number of persons. The indictment charged the appellant with aiding and abetting the possession with intent to distribute eighteen kilograms of cocaine (count 1); conspiracy to possess the same, intending to distribute (count 2); aiding and abetting the use and carriage of a firearm during and in relation to the commission of a drug-trafficking offense (count 3); and aiding and abetting the use of dangerous weapons in attempts to kill, intimidate, or interfere with law enforcement agents in the performance of their official duties (counts 4 and 5). See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §§ 2, 111, 924(c), 1114. After a four-day trial, the jury returned a mixed verdict; it found the appellant guilty on the first three counts, but acquitted him on the last two.

The appellant subsequently filed a timely motion for a new trial based upon newly discovered evidence. See Fed. R. Crim. P. 33. The district court denied this motion and imposed a thirty-year incarcerative sentence on the drug-trafficking counts and a five-year consecutive sentence on the firearms count. This appeal followed. In it, the appellant advances several claims of error. We address each of them.

1. Sufficiency of the Evidence.

The appellant's principal challenge questions the sufficiency of the evidence. In reviewing for insufficiency, an appellate court must "canvass the evidence (direct and circumstantial) in the light most agreeable to the prosecution and decide whether that evidence, including all plausible inferences extractable therefrom, enables a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime." Noah, 130 F.3d at 494. We follow this prescription.

The government's case against the appellant hinged on the testimony of two key witnesses. A federal agent, Montalvo, positively identified the appellant as the right-front-seat passenger in the careening blue Toyota. He also testified that, at the time of the crash, the appellant nimbly dismounted and fled, firing a black pistol at three pursuing agents (including Montalvo). The other important witness against the appellant was Josee Alberto Vaasquez-Hernaandez (Vaasquez), a cooperating coconspirator. Vaasquez positively identified the appellant as the principal in the operation (the buyer of the cocaine), and testified that the appellant made the necessary arrangements for the transaction at a meeting held three days prior to the exchange (in the course of which he threatened several of the other participants with dire consequences should the enterprise founder).

This testimony was more than enough to ground the jury's verdict. To be sure, the appellant, ably represented, attacks Montalvo's and Vaasquez's credibility, but these attacks constitute more cry than wool. Appellate courts routinely resolve credibility issues in favor of jury verdicts, see United States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998); United States v. Winter, 663 F.2d 1120, 1127 (1st Cir. 1981), and the record here contains no principled basis for making an exception to this salutary rule. Montalvo was a percipient witness to the events of May 23, and two Puerto Rico police officers, Morales and Ortiz, although unable positively to identify the appellant, nonetheless confirmed Montalvo's testimony in salient respects. For his part, Vaasquez was a member of the ring, whose turncoat status did not strip his testimony of probative value. It is settled beyond cavil that a defendant's former cohorts may testify against him as long as all pertinent agreements with the government are disclosed and the judge, if requested, instructs the jury about the special care that must be taken in evaluating accomplice testimony. ¹ See United States v. Hernandez, 109 F.3d 13, 15 (1st Cir. 1997); United States v. Ortiz-Arrigoita, 996 F.2d 436, 438-39 (1st Cir. 1993).

The appellant makes a special entreaty in regard to Montalvo, arguing that the verdict on counts 4 and 5 evinces the jury's negative appraisal of Montalvo's testimony. We do not agree. Except in the most unusual circumstances (not extant here), credibility determinations are for the jury, not for an appellate court - and it is hazardous to attempt to intuit specific judgments about credibility from a general verdict (or from a series of general verdicts, for that matter). In all events, a jury has the prerogative to credit some parts of a witness's testimony and disregard other potentially contradictory portions. See United States v. Lara, 181 F.3d 183, 204 (1st Cir. 1999); United States v. O'Brien, 14 F.3d 703, 707 (1st Cir. 1994).

We see nothing to be gained by belaboring these points. Read, as need be, in the light most hospitable to the government the record contains more than enough evidence to support the jury's determination that the appellant committed the two related drug-trafficking offenses and aided and abetted the use and carriage of one or more firearms -those transported in the Toyota and/or the one that Montalvo said the appellant fired during the foot chase - during the commission of those offenses. See United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992) (stating that the court of appeals will not disturb a jury verdict that is supported by a plausible rendition of the record).

2. Inconsistent Verdicts.

The appellant perceives an irreconcilable tension between the guilty verdict on the firearms charge (count 3) and the acquittal on the intimidation counts (counts 4 and 5). Despite the appellant's hairsplitting, this boils down to a straightforward claim that the jury verdict is internally inconsistent. As such, the claim is essentially unreviewable. See United States v. Powell, 469 U.S. 57, 66 (1984); Dunn v. United States, 284 U.S. 390, 393-94 (1932); Lara, 181 F.3d at 206. In a single, multi-count trial, acquittal on one or more counts does not preclude conviction on other counts based upon the same evidence, as long as that evidence is legally sufficient to support a finding of guilt on the count(s) of conviction. See Powell, 469 U.S. at 67; United States v. Bucuvalas, 909 F.2d 593, 597 (1st Cir. 1990); see also 3 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 514 (1982 & Supp. 1999). It would serve no useful purpose to repastinate this well-ploughed ground, and we therefore reject the appellant's claim on the basis of Powell and its progeny, without further elaboration. ²

3. Use and Carriage.

The appellant contends that the lower court improperly instructed the jury on the firearms count by failing to define the terms "use" and "carry." Because the appellant did not contemporaneously object to the jury instructions on this basis, we review for plain error. See United States v. Olano, 507 U.S. 725, 731 (1993); United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987). This type of review entails inquiry into whether affirmance would "skew[] the fundamental fairness or basic integrity of the proceeding below in some major respect," so as to result in a miscarriage of justice. United States v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995).

We need not linger over this assignment of error. Although...