U.S. v. Nickens, No. 90-1041

• Decision Date: 08 October 1991
• Docket Number: No. 90-1041
• Citation: 955 F.2d 112
• Parties: 34 Fed. R. Evid. Serv. 1306 UNITED STATES of America, Appellee, v. David Lloyd NICKENS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 112

955 F.2d 112

34 Fed. R. Evid. Serv. 1306

UNITED STATES of America, Appellee, v. David Lloyd NICKENS, Defendant, Appellant.

No. 90-1041.

United States Court of Appeals First Circuit.

Heard Oct. 8, 1991.

Decided Jan. 29, 1992.

Gabriel J. Chin, by Appointment of the Court, with whom Janet E. Halley and Skadden, Arps, Slate, Meagher & Flom, Boston, Mass., were on brief, for defendant, appellant.

Joseph C. Wyderko, Dept. of Justice, Washington, D.C., with whom Daniel F. Lopez-Romo, U.S. Atty., and Rosa E. Rodriguez Velez, Asst. U.S. Atty., Hato Rey, P.R., were on brief, for U.S.

Before LEVIN H. CAMPBELL, Circuit Judge, BROWN, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Appellant, David Lloyd Nickens, appeals from his conviction in the United States District Court for the District of Puerto Rico. Nickens was indicted and convicted in a jury trial on three counts: importation of cocaine, in violation of 21 U.S.C. § 952(a); possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and arrival in the United States on board an aircraft in possession of cocaine not entered in the aircraft's manifest, in violation of 21 U.S.C. § 955. The district court sentenced Nickens to 95 months imprisonment on each of the three counts, to be served concurrently, 4 years supervised release, and a special assessment of $150.00. On appeal, Nickens asserts numerous trial errors. We affirm.

I. FACTS

We present the facts in the light most favorable to the government. United States v. Ortiz-Alarcon, 917 F.2d 651, 652 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2035, 114 L.Ed.2d 120 (1991); United States v. Jimenez-Perez, 869 F.2d 9, 10 (1st Cir.1989).

Nickens arrived in Puerto Rico on an Iberia airlines flight originating in Quito, Ecuador. Because his flight was a continuing flight en route to Madrid, Spain, he was required to wait in an "in-transit" lounge and he did not go through customs. While the passengers were waiting, a customs agent conducted a routine inspection of their aircraft's luggage container. During this inspection the agent discovered two false bottom suitcases--one brown and one violet--containing 2,611.1 grams of cocaine (gross weight). The tags attached to the suitcases were in Nickens' name and matched the claim checks attached to Nickens' tickets, indicating that the suitcases were checked-in by Nickens. Nickens was arrested after he told the customs agent that he was the owner of the two suitcases.

The customs agent searched Nickens and found a suitcase key which opened the brown suitcase, $1,300 in cash, a passport, several identification cards and two round trip airline tickets. One of the airline tickets provided for a round trip from Los Angeles to Quito, Ecuador and back to Los Angeles. That ticket indicated that Nickens did not check any baggage on the first leg of his trip from Los Angeles to Quito. The second airline ticket provided for a round trip from Quito to Madrid, Spain and then back to Quito. The customs agents retrieved a Bible belonging to Nickens from the brown suitcase and his insulin and other medical supplies from the violet suitcase.

At trial Nickens testified that he went to Quito for a vacation and that he was continuing to Spain to obtain treatment for his eyes from an eye clinic in Barcelona. Nickens asserted that his eyesight was severely impaired because of his diabetes and, as a result, he was colorblind.

According to Nickens, shortly after arriving in Quito he lost his only pair of glasses, making it difficult for him to see. He testified that he met two young men in Quito who helped him get around and came to his hotel room the morning he was to leave for Spain. Nickens testified that one of the men asked Nickens to accompany him to the hotel gift shop so that he might purchase something while the other man stayed behind. According to Nickens the man who stayed behind must have switched his suitcases for the false bottom suitcases containing the cocaine. Nickens claimed that he did not notice the switch, even though his own suitcases were blue, because of his color blindness. While Nickens acknowledged that some of the contents of the suitcases belonged to him, he stated that they were placed there when the suitcases were switched.

A jury returned a guilty verdict on all counts and the court sentenced Nickens accordingly. This appeal followed.

II. DISCUSSION

Nickens chiefly makes six claims of error: (1) that two of the jurors at his trial were not proficient in English; (2) that the court's instructions to the jury on the presumption of innocence and reasonable doubt were erroneous; (3) that the prosecutor made numerous improper statements in her rebuttal argument; (4) that the court improperly admitted evidence of his prior conviction; (5) that the district court abused its discretion in not dismissing his case in light of a discovery violation committed by the government; and (6) that his Fifth Amendment privilege against self-incrimination was an absolute defense to prosecution under 21 U.S.C. § 955. We address each of these claims.

A. Presence of Two Non-English Speaking Jurors

Nickens contends that the district court committed reversible error in denying his motion for a new trial based on Nickens' post-trial discovery that two jurors who had served on his jury (Yolanda Torres and Sonia Sanchez) were subsequently stricken for cause by another magistrate judge during jury selection in an unrelated case because of their lack of proficiency in English. The court below gave its reasons for denying the motion in a published order. United States v. Nickens, 729 F.Supp. 1407 (D. Puerto Rico 1989). It was the court's conclusion, having reviewed the transcript of the voir dire in the present case, that "defendant has [not] brought himself within the 'clear injustice' exception which would allow defendant to challenge the qualification of a juror after trial has concluded." Id. at 1408.

Denial of a motion for a new trial will be reversed only for abuse of discretion. Real v. Hogan, 828 F.2d 58, 61 (1st Cir.1987); Codex Corp. v. Milgo Electronic Corp., 717 F.2d 622, 632 (1st Cir.1983), cert. denied, 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 191 (1984). Where the motion rests on a challenge to the qualification of a juror, our standard of review is highly deferential because "the district court is closer to the action and has a better 'feel' for the likelihood that prejudice sprouted." United States v. Uribe, 890 F.2d 554, 562 (1st Cir.1989). In this case we hold that the district court did not abuse its discretion.

At the voir dire, each of Nickens' jurors was questioned in English by the magistrate, ¹ and counsel had the opportunity to hear the two jurors' responses and to observe their demeanor. Nickens, 729 F.Supp. at 1408. After asking a number of questions to all prospective jurors collectively, the magistrate then interviewed each juror individually. ² He introduced this process as follows:

Okay. I'm going to call all the jurors. As your name is called step up to the microphone, and you state your name and your number, and what you do for a living, your occupation for the last five years, the occupation of your spouse for the last five years, where you live and what municipality--that's your home address--it [sic] you served on juries before, how many civil cases and criminal cases you're [sic] served on, and if you're [sic] on more than one criminal case, I want to know if your verdicts have been the same or if they've been different....

When her name was called, juror Yolanda Torres responded, "my name is Yolanda Torres. I live in--my number is 40. I live in Bayamon all my life, not work, and I study In Interamerican University. And I had one criminal case." Juror Sonia Sanchez responded "good morning. My Name is Sonia Sanchez. 37. I live in Miramar. I housewife. I do work in my home, technics attorneys, or secretaries. My husband work on attorney municipal attorney, and one civ--eh--criminal case." The magistrate then asked her "what's the case? one criminal?" and she responded "one criminal sir." Defense counsel raised no question as to either of these two jurors after they had spoken, either by requesting further inquiry into their English proficiency or challenging them for cause on the basis of an inability to speak and understand English. During and after the trial, neither of the jurors indicated any difficulty in understanding the proceedings.

We have held in similar cases where timely objections were not registered that later doubts as to a juror's linguistic competence will not constitute grounds for relief without a showing of "manifest" or "clear" injustice. United States v. Cepeda Penes, 577 F.2d 754, 759 (1st Cir.1978); Thornburg v. United States, 574 F.2d 33, 36 n. 5 (1st Cir.1978); see also United States v. Paz Uribe, 891 F.2d 396, 401 (1st Cir.1989), cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990) (citations omitted). In Cepeda Penes, appellant sought a new trial because, as here, a juror who sat on his trial was dismissed during impanelment in a subsequent unrelated case for inability to understand English. This court held that appellant had waived any objection that could have been appropriately raised during his voir dire. Cepeda Penes, 577 F.2d at 759. As the record identified no patent disqualifying incapacity, and defendant had heard the juror at voir dire and could have then raised the issue of language competence, the court found no clear injustice because, in a later unrelated case, the same juror was dismissed as being linguistically unqualified. Id.

Nickens attempts to distinguish Cepeda Penes on the ground that the juror there may have been needlessly excused in the later case. We noted in our opinion that the juror was excused by a visiting judge whose native language was English and about whose evaluation of the...