U.S. v. Pujana-Mena

• Citation: 949 F.2d 24
• Decision Date: 25 October 1991
• Docket Number: D,No. 669,PUJANA-MEN,669
• Parties: UNITED STATES of America, Appellee, v. Juan Joseefendant-Appellant. ocket 90-1464.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 24

949 F.2d 24

60 USLW 2343

UNITED STATES of America, Appellee, v. Juan Jose PUJANA-MENA, Defendant-Appellant.

No. 669, Docket 90-1464.

United States Court of Appeals, Second Circuit.

Argued Feb. 13, 1991.

Decided Oct. 25, 1991.

Roanne L. Mann, New York City (Stein, Zauderer, Ellenhorn, Frischer & Sharp, New York, N.Y., of counsel), for defendant-appellant.

Linda B. Lakhdhir, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Susan Corkery, Asst. U.S. Atty., Brooklyn, N.Y.), for appellee.

Before PIERCE, WINTER, and WALKER, Circuit Judges.

PIERCE, Senior Circuit Judge:

Juan Jose Pujana-Mena appeals from a judgment of the United States District Court for the Eastern District of New York, Korman, Judge, convicting him after a jury trial of conspiracy and substantive narcotics offenses. Pujana-Mena seeks reversal of his conviction contending that the district court erred in refusing to instruct the jury that character evidence alone may be sufficient to create a reasonable doubt. He also claims that the court erred in permitting a government agent to vouch for the credibility of a government informant. After considering each of these arguments, we affirm the judgment of conviction.

BACKGROUND

Pujana-Mena, a resident of Bogota, Colombia, was arrested in New York City on September 12, 1989, following an investigation by the Drug Enforcement Administration ("DEA") into large-scale narcotics smuggling. A seven-count superseding indictment was filed on December 15, 1989, charging Pujana-Mena with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a); conspiring to import more than 1000 kilograms of marijuana into the United States in violation of 21 U.S.C. §§ 963 and 960(b)(1)(G); importing more than 1000 kilograms of marijuana in violation of 21 U.S.C. § 952(a); possession of more than 1000 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and engaging in a monetary transaction involving more than $10,000 in drug proceeds in violation of 18 U.S.C. § 1957. ¹

The evidence at trial established that in 1988 and 1989 several large loads of marijuana and cocaine were smuggled by ship into the United States, concealed within containers of seemingly legitimate exports from Ecuador, Guatemala, and Colombia. The drugs were seized at ports in Louisiana, New Jersey, and New York, after being discovered during customs inspections. Pujana-Mena did not dispute that these quantities of drugs entered the country, but he claimed that he was not responsible for the illegal shipments.

The government sought to prove that Pujana-Mena had arranged the shipments as the leader of an extensive narcotics-importation network, principally through the testimony of two witnesses, Hernando Aponte, a paid confidential DEA informant, and Carlos Sanin-Delgadillo, a former narcotics trafficker who agreed to cooperate with the government after his arrest in April 1988. Aponte and Sanin-Delgadillo gave detailed testimony linking Pujana-Mena with four drug shipments from August 1988 to September 1989. The government also presented physical evidence, including tape-recorded conversations between Pujana-Mena and Aponte and print-outs of specially-encrypted computer messages that the government asserts were sent by Pujana-Mena to Aponte.

The defense presented three character witnesses from Pujana-Mena's home in Bogota, Colombia, who testified as to his reputation in his community as an honest and law-abiding person. In addition, the defense introduced several documentary exhibits. These included two reports prepared by DEA agents during the investigation, one of which set forth statements made by Sanin-Delgadillo made immediately after his arrest, at which time he denied any knowledge of the drugs that had been seized. Pujana-Mena also introduced a customs declaration form dated February 25, 1988, in which he declared that he was bringing $40,000 into the United States--an act purportedly contrary to the usual practice of drug dealers of smuggling cash out of the country. Also, Pujana-Mena introduced a certificate of incorporation for a Colombian company called Delta Chemicals The jury convicted Pujana-Mena on the conspiracy and substantive drug counts and acquitted him on the continuing criminal enterprise and money-laundering charges. The district judge sentenced Pujana-Mena to concurrent prison terms of 200 months on each count, to be followed by five years of supervised release. The court also imposed a fine of $242,260 to cover the costs of his incarceration, and a special assessment of $50 on each count.

of which Pujana-Mena was a partner, apparently offered to show that he was engaged in legitimate business activities.

This appeal followed.

DISCUSSION

I. "Standing Alone" Character Evidence Instruction

During a pre-charge conference that took place on the morning summations were to begin, the following colloquy occurred when defense counsel asked the district court to supplement its proposed charge on character evidence and instruct the jury "that character evidence alone may raise a reasonable doubt":

THE COURT: I'm not charging that. I think it's wrong.

[DEFENSE COUNSEL]: Exception to that.

Explaining his refusal to give the requested charge, the district judge further stated:

I could be wrong, I think there is a good argument that you shouldn't even allow character evidence and yesterday afternoon's performance was Exhibit A[. T]o say that could create a reasonable doubt because there is some language in an old Supreme Court opinion that wasn't talking about a charge is really more than I can swallow and isn't an indication from a higher authority that it's required.

The character evidence charge ultimately given to the jury was:

You have heard testimony that the defendant has a good reputation for honesty in the community where he lives and works and for truthfulness. Along with all the other evidence you have heard, you may take into consideration what you believe about the defendant's honesty and truthfulness when you decide whether the government has proven, beyond a reasonable doubt, that the defendant committed the crime.

Pujana-Mena claims that Judge Korman's refusal to instruct the jury that evidence of good character alone may be sufficient to create a reasonable doubt was reversible error. For the reasons that follow, we disagree.

We review jury instructions de novo. "In order to succeed when challenging jury instructions appellant has the burden of showing that the requested charge 'accurately represented the law in every respect and that, viewing as a whole the charge actually given, he was prejudiced.' " United States v. Dove, 916 F.2d 41, 45 (2d Cir.1990) (quoting United States v. Ouimette, 798 F.2d 47, 49 (2d Cir.1986), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 134 (1988)).

The issue of whether, and under what circumstances, a defendant is entitled to a "standing alone" character evidence instruction has long divided the federal appellate courts. See Spangler v. United States, 487 U.S. 1224, 1224, 108 S.Ct. 2884, 2884, 101 L.Ed.2d 918 (1988) (White, J., dissenting from denial of certiorari). Over the years, it has also generated seemingly contradictory rulings from this court. Compare United States v. Fayette, 388 F.2d 728, 737 (2d Cir.1968) ("instruction should not be given, at least without the qualification that the so-called character evidence should be considered along with all the other evidence in the case") and United States v. Lowenthal, 224 F.2d 248, 249 (2d Cir.1955) (per curiam) ("standing alone" charge too broad; character evidence should be considered "in conjunction with all the evidence received at the trial, not 'in and of itself' ") with United States v. Cramer, 447 F.2d 210, 219 (2d Cir.1971) (citations omitted) (defendant entitled to charge, but failure to give deemed harmless error), cert. denied, 404 U.S. 1024, 92 S.Ct. 680, 30 L.Ed.2d 674 (1972); and United The confusion over the "standing alone" character evidence charge stems from statements made by the Supreme Court in Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467 (1896) and Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). In Edgington, the issue was whether the trial court erred in charging the jury that proof of the defendant's good character " 'must not change your verdict,' " and that such evidence has " 'special force wherever the commission of the crime is doubtful.' " 164 U.S. at 364, 17 S.Ct. at 73. The Supreme Court reversed, stating:

                States v. Minieri, 303 F.2d 550, 555 (2d Cir.)  (same), cert. denied, 371 U.S. 847, 83 S.Ct. 79, 9 L.Ed.2d 81 (1962).   Today we clarify this circuit's position with respect to the controversial instruction and join the majority of circuits that have held that such a charge is not required. 2
                

It is impossible, we think, to read the charge without perceiving that the leading thought in the mind of the learned judge was that evidence of good character could only be considered if the rest of the evidence created a doubt of defendant's guilt....

Whatever may have been said in some of the earlier cases, to the effect that evidence of the good character of the defendant is not to be considered unless the other evidence leaves the mind in doubt, the decided weight of the authority now is that good character, when considered in connection with the other evidence in the case, may generate a reasonable doubt. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although without it the other evidence would be convincing.

164 U.S. at 365-66, 17 S.Ct. at 73-74.

Contrary to appellant, we do not read this passage as mandating a "standing alone" character evidence charge. The charge at issue in Edgington was found erroneous in that it suggested to...