U.S. v. Gomes

• Decision Date: 08 April 1999
• Docket Number: Nos. 97-2193,97-2312,97-2363 and 97-2432,s. 97-2193
• Parties: UNITED STATES of America, Appellee, v. Joao M. GOMES, Defendant, Appellant. United States of America, Appellee, v. Juvenal Quadros, Defendant, Appellant. United States of America, Appellee, v. Julio Serpa, Defendant, Appellant. United States of America, Appellee, v. Joseph Silva, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 76

177 F.3d 76

UNITED STATES of America, Appellee, v. Joao M. GOMES, Defendant, Appellant.

United States of America, Appellee, v. Juvenal Quadros, Defendant, Appellant.

United States of America, Appellee, v. Julio Serpa, Defendant, Appellant.

United States of America, Appellee, v. Joseph Silva, Defendant, Appellant.

Nos. 97-2193, 97-2312, 97-2363 and 97-2432.

United States Court of Appeals, First Circuit.

Heard April 8, 1999.

Decided May 27, 1999.

John C. McBride with whom McBride & Associates was on brief for appellant Joao M. Gomes.

Richard J. Fallon, by appointment of the court, for appellant Juvenal Quadros.

Robert R. Andrew, by appointment of the court, for appellant Julio Serpa.

Stephen B. Hrones, by appointment of the court, with whom Hrones & Garrity was on brief for appellant Joseph Silva.

Elizabeth D. Collery, Department of Justice, with whom Donald K. Stern, United States Attorney, Michael J. Pelgro and Robert L. Peabody, Assistant United States Attorneys, and Demetra Lambros, Department of Justice, were on consolidated brief for the United States.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

BOUDIN, Circuit Judge.

On this appeal, four defendants--Joseph Silva, Julio Serpa, Juvenal Quadros, and Joao Gomes--seek review of their convictions for drug trafficking offenses or of their sentences. The case arises out of a large-scale investigation of drug dealing in and around Lowell, Massachusetts, conducted from the late 1980s until August 1996. Because the sufficiency of the evidence is not disputed, our description of the background and the defendants' actions is abbreviated and focuses upon the specific drug sales charged in the indictment and involving these defendants.

In April 1995, a cocaine dealer named Larry Madsen was arrested for trying to sell cocaine to an undercover policeman and agreed to cooperate with the Drug Enforcement Administration ("DEA"). In gathering information, Madsen patronized a Lowell bar called the Colonial Lounge. There, he saw Silva selling small quantities of cocaine to other patrons. Silva ultimately made a sale of 25.7 grams of cocaine to Madsen on August 7, 1995. Silva's defense at his later trial was that he had been badgered and entrapped into making the sale.

Gomes and Serpa were implicated through a different set of transactions. In June 1995, Madsen approached Gomes and Serpa at the same bar and asked to buy cocaine. Gomes, Serpa, or both then made four sales to Madsen between June and August 1995; the transactions were recorded on audio or videotape in whole or part, and in two of them an undercover officer participated by posing as Madsen's partner. In each of the sales, both Gomes and Serpa were present for some part of the transaction: on three of the four occasions, it was Serpa who handed over the drugs and on the fourth Serpa was described by the police as a lookout or enforcer.

The last defendant, Quadros, was identified by Madsen as another seller of cocaine at the Colonial Lounge. Quadros made one sale of cocaine to Madsen in August 1995. Quadros also introduced Madsen to Alvin Santos, facilitating Santos' later sale of cocaine to Madsen in March 1996. Quadros also acted as an intermediary in a sale to Madsen by Jose Aguiar in May 1996; this sale, on which Quadros' sentence turned, is described in more detail below.

These were among many events that led to the indictment of ten defendants, including the four who are parties to this appeal. In a superseding indictment, all ten were charged with participating in single conspiracy to possess with intent to distribute and to distribute cocaine, 21 U.S.C. § 846, but the links between the defendants are not material here. Each of the four defendants involved in this appeal was also charged with distributing specific amounts of cocaine on specific dates, 21 U.S.C. § 841(a)(1), and with other, related crimes (e.g., criminal forfeiture, 21 U.S.C. § 853; 18 U.S.C. § 982, and money laundering, 18 U.S.C. § 1956(a)(1)(B)(i)).

One of the ten defendants fled, and seven of the others (including Quadros and Gomes) pled guilty to various charges, including the conspiracy charge. At trial, Serpa was convicted on all counts. At a separate trial, Silva was acquitted of conspiracy, but the jury hung on the single distribution count involving Silva. On retrial, Silva was convicted on the distribution count. After sentencing, each of the four appealed. Serpa and Silva challenge their convictions while Quadros and Gomes appeal only on sentencing issues.

Silva. On this appeal, Silva's first claim is that the district court erred by rebuking his counsel in front of the jury, thereby depriving Silva of a fair trial. On the second day of the trial, Silva's counsel several times made objections and, after the district court ruled, continued to make arguments or comments. The judge then told counsel simply to object and not offer additional argument unless so requested. The court repeated the request outside the jury's presence, but the next day Silva's counsel made further comments after the district judge overruled a government objection, prompting the court to ask the defense counsel to stop arguing.

Several days later the district court sustained an objection to questioning by Silva's counsel. Counsel continued to argue the matter after the ruling. In front of the jury, the court said that this was unacceptable and that if it happened again defense counsel would be subject to discipline. When defense counsel objected to the remark being made in the presence of the jury, the judge said that defense counsel had previously made inappropriate arguments in front of the jury, had been repeatedly warned, and was now being reprimanded in front of the jury.

At the next break, defense counsel moved for a mistrial, which was denied. In the jury instructions at the end of the trial, the judge told the jury that his directions to witnesses and lawyers, including any statements by the judge that counsel were being argumentative, were not matters for the jury to consider. Silva's counsel objected that the instruction was not specific enough, but the court declined to elaborate. This is the sequence that now leads to Silva's claim of unfair prejudice. See Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Polito, 856 F.2d 414, 418 (1st Cir.1988).

The government defends the district court's rebuke as justified and says that in any event Silva was not prejudiced. One might ask why a rebuke of counsel should ever be delivered in front of the jury since even a justified rebuke to counsel could prejudice the defendant and could instead be delivered at side bar. Cf. Polito, 856 F.2d at 417-18 (rebuke in front of jury disfavored).

Under the case law, whether the rebuke was merited is a relevant but not a controlling consideration. See, e.g., Logue v. Dore, 103 F.3d 1040, 1046 (1st Cir.1997); United States v. Quesada-Bonilla, 952 F.2d 597, 600-01 (1st Cir.1991). In this case, the rebuke does seem to us amply justified (although we add one caution as to form of directions to counsel). Whether and when argument is permitted on routine matters is very largely for the trial judge to decide, see Polito, 856 F.2d at 418; this is especially so because lawyers can use arguments to posture in front of the jury and to insinuate to it that the court's rulings unfairly favor the other side. Here, counsel does appear to have ignored several warnings to stop arguing after rulings had been made, cf. United States v. Pisani, 773 F.2d 397, 403-04 (2d Cir.1985), and the court was fully entitled to emphasize its displeasure.

One caveat is in order. Most of the district court's concerns were with unwarranted argument by Silva's counsel, especially after the court had already ruled on a motion or objection. But once or twice the trial court seemingly directed counsel not to state even the ground of objection unless requested by the court. For example, at one point the court said, "Just simply say 'objection.' I don't want to hear any argument. If I think I don't understand what it is, I'll ask you for something. I understood what it was." This is a direction that, if taken literally, does raise one concern.

Specifically, Fed.R.Evid. 103(a)(1) requires a party to state the specific ground of objection if the ruling admits evidence, and if the ground is not obvious from context, on pain of losing anything but a plain error claim on appeal. Fed.R.Crim.P. 51 requires parties to "make[ ] known" objections to the actions of the court "and the grounds therefor." Accord Fed.R.Civ.P. 46. Normally a ground of objection to evidence can been stated without prolonged argument (e.g., "hearsay," "asked and answered," "not relevant"). At the very least, a lawyer told only to object without stating grounds needs an opportunity if the ruling goes against him to put his grounds on the record within a reasonable time. There is no indication here that such an opportunity was denied.

In all events, no claim of unfair prejudice to Silva is tenable on this record, considering the rebuke in the context of the overall trial. Polito, 856 F.2d at 418. Silva's effort to mount an entrapment defense and the hung jury at the first trial show that Silva's conviction was not preordained. But the judge's rebuke, not itself especially severe, was directed solely to counsel's courtroom conduct and carried no suggestion that the defense case was weak or that the judge sided with the prosecutor. United States v. Edmond, 52 F.3d 1080, 1101 (D.C.Cir.), cert. denied, 516 U.S. 998, 116 S.Ct. 539, 133 L.Ed.2d 443 (1995); United States v. DiTommaso, 817 F.2d 201, 221 (2d Cir.1987).

Indeed, the judge rebuked the prosecutor for procedural missteps on several occasions. United States v. Warner, 955 F.2d 441, 449 (6th Cir.), cert. denied, 505 U.S. 1227, 112 S.Ct. 3050, 120 L.Ed.2d 917, amended and...