947 F.2d 520 (1st Cir. 1991), 90-2202, United States v. Maraj

Docket Nº90-2202, 90-2203.
Citation947 F.2d 520
Party NameUNITED STATES of America, Appellee, v. Michael MARAJ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Sterling FUENTES, Defendant, Appellant.
Case DateOctober 16, 1991
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 520

947 F.2d 520 (1st Cir. 1991)

UNITED STATES of America, Appellee,

v.

Michael MARAJ, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Sterling FUENTES, Defendant, Appellant.

Nos. 90-2202, 90-2203.

United States Court of Appeals, First Circuit

October 16, 1991

Heard Sept. 10, 1991.

Page 521

Yolanda A. Collazo Rodriguez, Los Angeles, Cal., for appellant Maraj.

Thomas R. Lincoln, San Juan, P.R., for appellant Fuentes.

Jose A. Quiles, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., San Juan, P.R., was on brief for appellee.

Before SELYA, Circuit Judge, COFFIN and TIMBERS, [*] Senior Circuit Judges.

SELYA, Circuit Judge.

Upon their arrival in the United States from Trinidad and Tobago, appellants Michael Maraj and Sterling Fuentes were greeted with something less than unreserved cordiality. In rapid succession, the two men were arrested, indicted, tried, and convicted on three counts of aiding and abetting violations of the drug-trafficking laws. 1 Having reviewed the record below,

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we find the evidence sufficient to convict; the trial judge's empanelment of two juries in succession to have been acceptable; and the judge's handling of a jury note, to the extent erroneous, to have been entirely harmless. Hence, we affirm the convictions.

I.

Background

Appellants' assignments of error do not require that we treat the facts of this case in exegetic fashion. Instead, we summarize the salient events in traditional post-conviction fashion, taking the evidence in the light most flattering to the prosecution. See United States v. Jimenez-Perez, 869 F.2d 9, 10 (1st Cir.1989); United States v. Mejia-Lozano, 829 F.2d 268, 270 (1st Cir.1987).

On June 8, 1990, Maraj and Fuentes arrived in Puerto Rico on board American Airlines Flight 755. Routine inspection of Fuentes' suitcase and valise revealed three cans of what Fuentes said was tea. In fact, the cans contained 2,414 grams of a cocaine mixture (67% pure). The contraband was not manifested on the aircraft's official supply list. When the cat came free of the bag, Fuentes stated that he was carrying the cans at the behest of his traveling companion, Maraj. Maraj was then detained and interviewed. He denied knowing Fuentes. Nevertheless, the appellants' customs declarations showed the same Miami address as their proposed destination. Moreover, inside Fuentes' suitcase, customs agents found a strap belonging to Maraj and a key which fit Maraj's luggage.

At trial, Fuentes presented a graphologist, who testified that, in his opinion, the labels and baggage receipts for Fuentes' luggage were written by Maraj. Fuentes' mother testified that her son did not own any suitcases; that Maraj had been a visitor at her home in Trinidad and Tobago; that she had given permission for her son to accompany Maraj on business trips; that her son had done so on various occasions, using tickets bought by Maraj; and that Maraj paid her son to undertake the jaunt to Miami by way of San Juan. Fuentes himself corroborated much of this testimony. In addition, he denied knowing that he was carrying contraband. 2

Maraj also testified. He said it was pure coincidence that he and Fuentes were aboard the same flight. He attempted to explain away the handwriting expert's testimony. He also stated that Fuentes admitted serving as a courier, transporting tea cans that he (Fuentes) thought in all probability contained drugs. Maraj denied owning the luggage that Fuentes was carrying and denied having told the authorities that he and Fuentes were strangers.

The jury convicted the defendants on all counts.

II.

Sufficiency of the Evidence

Appellant Maraj contends that the evidence was insufficient to support his conviction. Appellant Fuentes eschews a comparable challenge. Maraj's contention lacks merit.

The standard of review for sufficiency challenges is whether the total evidence,

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taken in the light most amicable to the prosecution, together with all reasonable inferences favorable to it, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant was guilty as charged. See, e.g., United States v. Victoria-Peguero, 920 F.2d 77, 86-87 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2053, 114 L.Ed.2d 458 (1991); United States v. Luciano Pacheco, 794 F.2d 7, 10 (1st Cir.1986). The government may prove its case in whole or in part by circumstantial evidence. See, e.g., Victoria-Peguero, 920 F.2d at 86; Jimenez-Perez, 869 F.2d at 10-11. Moreover, the proof "need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt." Victoria-Peguero, 920 F.2d at 86-87.

Application of these precepts makes short shrift of Maraj's sufficiency challenge. If the jury believed the relevant portions of Fuentes' testimony--and the jury, after all, is responsible for making credibility determinations and empowered to accept parts of a witness' testimony while rejecting other parts of the same testimony, see United States v. Rothrock, 806 F.2d 318, 321 (1st Cir.1986)--that testimony, in conjunction with undisputed facts (e.g., that the tea cans actually contained cocaine; that the contraband was not listed on the aircraft's manifest), was itself enough to warrant conviction. And Fuentes' testimony did not stand unbolstered: the circumstances were damning; the graphologist's evidence was strongly suggestive of Maraj's complicity; and Maraj's own credibility was suspect. On this record, the jury could certainly have disbelieved Maraj's self-serving account 3 and concluded, with the utmost rationality, that he was guilty of the offenses charged.

III.

Back-to-Back Jury Empanelment

Appellant Fuentes complains of unfairness because his counsel was compelled to empanel juries in two criminal cases back to back. Briefly stated, the facts are that on August 28, 1990, the district court summoned a jury pool and gave the pool members preliminary instructions as a group. Then, utilizing the single jury pool, Judge Fuste selected juries in two criminal cases. The first panel was chosen to serve in the instant case; the second panel was chosen to serve in a totally unrelated criminal case brought against one Eric Quesada-Bonilla. 4 The only discernible link between the two cases was that Fuentes and Quesada-Bonilla were represented by the same attorney. As matters turned out, two jurors became members of both panels. Additionally, three of the jurors previously selected to serve on the Maraj/Fuentes jury were dismissed as prospective jurors during the second empanelment. Fuentes asserts, without citation to any authority, that the double empanelment was so unfair as to taint his ensuing conviction. We reject his assertion on two grounds.

In the first place, Fuentes' argument falls victim to procedural default. Although Fuentes' counsel claims that he objected to the dual empanelment during a chambers conference, and may have done so, no transcript of the conference exists (or, at least, none has been supplied). From aught that appears of record--and appellate courts must, of course, decide cases on the record--we can find no sign of any contemporaneous objection. It is crystal clear that "when a trial judge announces a proposed course of action which litigants believe to be erroneous, the parties detrimentally affected must act expeditiously to call the error to the judge's attention or to cure the defect...." Reilly v. United States, 863 F.2d 149, 160 (1st

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Cir.1988); see also United States v. Natanel, 938 F.2d 302, 310-12 (1st Cir.1991). Having failed to demonstrate that the assigned error was properly preserved, Fuentes' stance is severely undercut.

Even if we accept, arguendo, Fuentes' undocumented version of what transpired, it would not profit his cause. Fuentes' counsel claims that he objected to the idea of back-to-back empanelment at the very outset. But, he acknowledges that he never raised timely objections to any individual juror on a basis related to the back-to-back empanelment. Moreover, he fails to pinpoint the occurrence of any prejudicial peculiarity during jury selection either in his case or in Quesada-Bonilla's case. Finally, Fuentes' case was tried before the Quesada-Bonilla case; thus, it is readily evident that nothing which transpired during the latter trial could have interfered with Fuentes' fair-trial rights. In sum, Fuentes has not fashioned--or even attempted to fashion--a specific showing of bias or prejudice. To the contrary, he invites us to promulgate a bright-line rule forbidding a trial judge to empanel criminal juries back to back if any defense attorney is to appear in more than one such case. 5 We have little hesitancy in declining Fuentes' blanket invitation.

While we have been unable to find any cases squarely on point, we think that, in the absence of some founded claim of prejudice on the part of a specific juror or jurors, the mere fact that defense counsel appears before the venire and chooses juries back to back while representing defendants in two different cases will not support a claim of generalized unfairness. See United States v. Graham, 739 F.2d 351, 352 (8th Cir.1984) ("In the absence of some showing of actual prejudice ... we have repeatedly rejected the argument that a juror's service in prior cases involving the same attorneys or witnesses supports a per se theory of implied bias.") (citing other Eighth Circuit cases); United States v. Riebschlaeger, 528 F.2d 1031, 1032-33 (5th Cir.) (per curiam) (the fact that many of the jurors served in other criminal cases which defense counsel had unsuccessfully defended did not taint venire), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976); United States v. Lena, 497 F.Supp. 1352, 1363 (W.D.Pa.1980) (similar; same prosecuting attorney involved in both cases), aff'd, 649 F.2d...

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