U.S. v. De Jongh

• Decision Date: 07 May 1991
• Docket Number: No. 90-2060,90-2060
• Citation: 937 F.2d 1
• Parties: 33 Fed. R. Evid. Serv. 132 UNITED STATES of America, Appellee, v. Maria Enriqueta Cirila Trinidad DE JONGH, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

937 F.2d 1

33 Fed. R. Evid. Serv. 132

UNITED STATES of America, Appellee, v. Maria Enriqueta Cirila Trinidad DE JONGH, Defendant, Appellant.

No. 90-2060.

United States Court of Appeals First Circuit.

Heard May 7, 1991.

Decided June 5, 1991.

Jeffrey M. Williams, Santurce, P.R., for defendant, appellant.

Ernesto Hernandez-Milan, Asst. U.S. Atty., Guaynabo, P.R., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., and Jeanette Mercado-Rios, Asst. U.S. Atty., San Juan, P.R., were on brief, for appellee.

Before SELYA and CYR Circuit Judges, and BOWNES, Senior Circuit Judge.

SELYA, Circuit Judge.

A Caribbean cruise having brought her to an undesired destination--a federal penitentiary--defendant-appellant Maria Enriqueta Cirila Trinidad De Jongh appeals her conviction on three counts of aiding and abetting violations of the drug-trafficking laws. ¹ Finding her arguments to be unavailing, we affirm the judgment below.

I. Background

Appellant's assignments of error do not require that we treat the facts of her case in exegetic fashion. To give the flavor of what transpired, we summarize the critical 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 March 19, 1990, De Jongh and a traveling companion, Marilla Constancia Lodowieka Vlyt (Vlyt), a native of Bonaire, arrived in Puerto Rico from Curacao on board a cruise ship, the M/V VICTORIA. Their nervousness was obvious and they were subjected to closer-than-usual scrutiny. A customs inspector asked Vlyt to open the suitcase she was carrying. Vlyt had no key. Appellant furnished it, taking the key from her pocket. The inspector opened the suitcase and discovered just under twenty kilograms of cocaine (which, on later analysis, proved to be 72% pure). The contraband was not manifested on the vessel's official supply list. Both women were promptly arrested, charged, and indicted.

Prior to trial, Vlyt entered into a plea agreement and became the government's star witness. The burden of her testimony put appellant hip-deep in the narcotics venture. According to Vlyt, the cocaine was furnished by an acquaintance of appellant's; the women were to deliver it to a dealer in Puerto Rico; appellant maintained continuous custody of the key to the drug-laden suitcase (although Vlyt carried the valise because appellant had a weak back); and appellant told Vlyt that, if they were apprehended, it would be best to admit nothing.

Based on this, and other evidence, the jury found the appellant guilty on all three counts. On appeal, she floats four assignments of error. None have any enduring buoyancy. We briefly discuss three claimed bevues. ²

II. The Witness Interview

Vlyt, who was fluent only in Papamiento, testified with an interpreter's assistance. She concluded her direct examination on Friday, June 22, 1990. Cross-examination began the following Monday. Early in the cross, it was revealed that Vlyt and the prosecutor had met privately, albeit briefly, on Monday morning, before Vlyt took the witness stand to undergo questioning by the defense. The idea for the conference presumably originated with the prosecutor, although Vlyt testified that, over the weekend, she had recalled "some more things" anent the smuggle.

At the time, the admission engendered no particular controversy. That afternoon, however, defense counsel asked to be heard outside the jury's presence. He then argued that the meeting was improper and prejudicial, stressing that Vlyt had already varied her story once. ³ He requested that Vlyt's testimony be stricken or, alternatively, that a mistrial be declared. The court denied the motion.

We discern no error. To be sure, the district court possesses considerable discretion to make prophylactic orders designed to curb possible trial abuses, "includ[ing] broad power to sequester witnesses before, during, and after their testimony." Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1335, 47 L.Ed.2d 592 (1976); see also Fed.R.Evid. 615. But here, the defendant had not requested that witnesses be sequestered or that any special prophylaxis be employed. Similarly, the court, on its own initiative, had entered no protective orders. We are aware of no rule or ethical principle suggesting, in the absence of a court order, that a prosecutor should refrain from conferring with a government witness before the start of cross-examination. As appellant's counsel admits, a prosecutor--or any other lawyer, for that matter--would be foolhardy to call an important witness without attempting, first, to debrief the witness; and we see no greater or different risk of taint in an interview at the end of the direct. ⁴ There was no sufficient reason to strike Vlyt's testimony. See, e.g., United States v. Rossetti, 768 F.2d 12, 16 (1st Cir.1985) (where no sequestration order was in place, there was no error in district court's refusal to strike testimony of key government witness who met privately with government investigator during trial in respect to apparent inconsistencies between the witness' anticipated testimony and testimony already given by other witnesses).

Nor can the appellant profitably attack the district judge's refusal to declare a mistrial on this basis. We have regularly held that motions for mistrial are "directed primarily to the sound discretion of the trial court." Real v. Hogan, 828 F.2d 58, 61 (1st Cir.1987); accord United States v. Chamorro, 687 F.2d 1, 6 (1st Cir.), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 613 (1982); United States v. Pappas, 611 F.2d 399, 406 (1st Cir.1979). We cannot fault the court's exercise of its discretion in this situation. Vlyt and the prosecutor conferred not in some shadowed corner, but in a witness room at the courthouse. When asked about meetings generally, Vlyt readily volunteered the facts about the mid-trial meeting. She offered a perfectly plausible explanation for the session--an explanation which has not seriously been called into question. She was aggressively cross-examined about the incident.

In short, the defense, the court, and the jury were fully informed of the meeting and its circumstances in ample time to assess their effect, if any, on Vlyt's credibility. The appellant has not shown any actual prejudice. In these circumstances, even the breach of a true sequestration order would not demand that a mistrial be declared. See, e.g., United States v. Ayres, 725 F.2d 806, 812 (1st Cir.) (no mistrial necessary following inadvertent breach of actual sequestration order), cert. denied, 469 U.S. 817, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984); see also United States v. Kindle, 925 F.2d 272, 276 (8th Cir.1991) (mistrial not required when appellant suffered no prejudice from challenged contacts between sequestered witnesses and federal agents); United States v. Arruda, 715 F.2d 671, 684 (1st Cir.1983) (where sequestration order breached, district court had discretion to allow the witness' testimony to stand and to refuse a mistrial). In the absence of some judicial directive limiting contact with the witness, it verges on the frivolous to assert that the court erred in denying appellant's mistrial motion.

III. The Good Conduct Certificate

Appellant contends that the district court committed reversible error when it refused to allow into evidence a good conduct certificate ostensibly issued by the government of Bonaire, a copy of which is annexed as an appendix to this opinion. ⁵ We disagree.

As the court below recognized, the admissibility of the certificate depended, first, on Fed.R.Evid. 902(3). ⁶ In this case, it is pellucidly clear that the rule's conditions for self-authentication were not satisfied. Although the certificate was purportedly signed by a Lieutenant Governor of Bonaire, the signature was in fact illegible; the exhibit was devoid of the final certification contemplated by Rule 902(3); and the consular official called as a witness could not verify it. Where a rule prescribes specific conditions for authenticating a public document, and the document's proponent fails to comply with the specified conditions, the proffer should ordinarily be rejected. See, e.g., Chung Young Chew v. Boyd, 309 F.2d 857, 866-67 (9th Cir.1962) (discussing Fed.R.Civ.P. 44(a)(2) ).

In an effort to avoid the seeming inevitability of exclusion, appellant claims that, in this instance, the court should have relaxed the strictures of the rule. Evidence Rule 902(3) by its terms contemplates that noncompliance may be excused in certain circumstances, and shines two beacons by which trial judges can steer, stating that:

If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

Fed.R.Evid. 902(3). In this case, the certificate's existence was not revealed to the prosecution until the start of the defendant's case and defendant offered it into evidence on the same day. There was no "reasonable opportunity" for investigation. Hence, the exception to Rule 902(3) did not apply.

By the same token, the record reflects no "good cause" for the lack of a final certification. Because the language of the Rule 902(3) exception was appropriated directly from Fed.R.Civ.P. 44(a)(2), see Fed.R.Evid. 902 advisory committee note, we are obliged to read the two rules in pari passu. The notes accompanying Civil Rule 44 inform the use of the good cause exception:

[I]t is recognized that in some situations it may be difficult or even impossible to satisfy the basic requirements of the rule. There may be no United States consul in a particular foreign...