U.S. v. Soto-Alvarez, SOTO-ALVARE

• Citation: 958 F.2d 473
• Decision Date: 07 October 1991
• Docket Number: D,90-1322,SOTO-ALVARE,Nos. 90-1274
• Parties: UNITED STATES of America, Appellee, v. Pedroefendant, Appellant. UNITED STATES of America, Appellee, v. Pedroefendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 473

958 F.2d 473

UNITED STATES of America, Appellee, v. Pedro SOTO-ALVAREZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Pedro SOTO-ALVAREZ, Defendant, Appellant.

Nos. 90-1274, 90-1322.

United States Court of Appeals First Circuit.

Heard Oct. 7, 1991.

Decided March 4, 1992.

Rehearing and Rehearing En Banc

Denied April 16, 1992.

Frank Inserni, Hato Rey, P.R., by appointment of the Court, for defendant, appellant.

Eumi L. Choi, Atty., Criminal Div., Narcotic and Dangerous Drug Section, Dept. of Justice, with whom Robert S. Mueller, III, Asst. Atty. Gen., Mary Lee Warren, Chief, Narcotic and Dangerous Drug Section, Margaret A. Grove, Acting Associate Chief of Policy, Narcotic and Dangerous Drug Section, Washington, D.C. and Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., were on brief for appellee.

Before BREYER, Chief Judge, BROWN, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

Pedro Soto-Alvarez was convicted on six charges of criminal conduct by a jury in the Federal District Court for the District of Puerto Rico. Defendant moved for a new trial on the grounds that he was denied the effective assistance of counsel, and exculpatory material before trial. Defendant also claimed that he was entitled to a new trial based on prosecutorial misconduct. Further, Soto-Alvarez appeals his conviction on double jeopardy grounds, and argues that the district court abused its discretion when it resentenced him on remand from this court. The district court denied defendant's motion for a new trial, as well as the two other claims made by defendant. Soto-Alvarez appeals the decision of the district court. We affirm.

FACTS

On May 15, 1985, defendant was charged in a seven count indictment, which included: (1) conspiracy to possess with intent to distribute approximately 153.0 grams of cocaine; (2) possession with intent to distribute approximately 130.0 grams of cocaine; (3) distribution of approximately 130.0 grams of cocaine; (4) possession with intent to distribute approximately 153.0 grams of cocaine; (5) distribution of approximately 153.0 grams of cocaine; (6) use of a communication facility to facilitate the possession with intent to distribute approximately 130.0 grams of cocaine; and (7) use of a communication facility to facilitate the possession with intent to distribute approximately 153.0 grams of cocaine, which acts were alleged to have occurred between September 20-27, 1984. On July 1, 1985, defendant pled guilty to counts one and seven of the indictment and the government agreed to dismiss the remaining five counts. Defendant was sentenced to eight years on the conspiracy charge and three years on the illegal use of a communications facility, both terms to run concurrently.

On August 7, 1986, defendant was charged in six of twelve counts in a second indictment. The charges there were: 1) conspiracy to possess with intent to distribute unspecified amounts of cocaine and heroin; 2) importation of approximately 2,500 grams of heroin; 3) importation of approximately 7,000 grams of cocaine; 4) possession with intent to distribute 2,500 grams of heroin; 5) possession with intent to distribute 7,000 grams of cocaine; and 6) travel in interstate commerce in furtherance of unlawful activity in violation of the Travel Act, 18 U.S.C. § 1952. After a thirteen day jury trial, the defendant was convicted of all counts.

Defendant was sentenced to 15 years and a fine of $25,000 for count 1; 10 years and $15,000 for count 2; 10 years and $15,000 for count 3; 10 years and $10,000 for count 4; 10 years and $10,000 for count 5; and five years for count 6. The periods set in counts 2-5 were to run concurrently with each other but consecutive to the 15 year period in count 1. The five year period in count 6 was to run consecutively to the periods in counts 1-5. Also, special parole terms of five years were imposed on each of counts 2-5, to run concurrently with each other.

In United States v. Soto-Alvarez, 876 F.2d 209 (1st Cir.1989), cert. denied, 493 U.S. 1030, 110 S.Ct. 742, 107 L.Ed.2d 760 (1990), Soto-Alvarez' first appeal before this court, we reversed the conspiracy conviction on double jeopardy grounds, based on the fact that the defendant had been convicted of a conspiracy charge in the 1985 case which this court found to include the same conspiracy as the one charged in the second case. Soto-Alvarez, 876 F.2d at 229. The case was remanded for resentencing. On March 9, 1990, the district court resentenced defendant to 10 years and a $15,000 fine as to counts 2 and 3 to run consecutively with a special parole term of five years concurrent with each other; 10 years and $10,000 as to counts 3 and 4 each, to run consecutively to each other but concurrently to counts 2 and 3 with a special parole term of five years to run concurrently with each other; and five years as to count 6 to run consecutively to counts 2-5. The entire sentence was ordered to be served consecutively to the sentence being served in the 1985 case.

On March 15, 1990, defendant timely filed his notice of appeal. He claims that he is entitled to a new trial because he was not provided with certain exculpatory material prior to trial, and because the district court allowed inflammatory and egregious remarks by the prosecutor at closing argument. He also charges that he was denied effective assistance of counsel because he was not brought to Puerto Rico until a week prior to the start of his trial, and subsequently met with his attorney only three times, and then only briefly. Furthermore, appellant claims that the district court erred by not making findings or ordering the correction of the Presentence Investigation Report in compliance with Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure, and that the court was motivated by vindictiveness in resentencing him to an allegedly higher prison term than he originally received. Lastly, he contends that the conduct relied upon by the government to convict him in the present case was the same conduct the government relied upon to convict him in the first case, and therefore, the second conviction is barred by the double jeopardy clause as interpreted in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

LEGAL ANALYSIS

I. Motion for a New Trial

A. Exculpatory Evidence

Defendant contends that he was denied the right to a fair trial by not being provided with certain exculpatory Brady material ¹ prior to trial. More specifically, he alleges that the government did not make available to the defense the passport of its star witness, Jose Panzardi. In overt act number three of count one of the indictment in this case, it is alleged that defendant and Jose Panzardi traveled to Venezuela to purchase cocaine and heroin. On April 28, 1986, Mr. Panzardi testified to the grand jury that he flew to Venezuela from Miami with defendant. But Mr. Panzardi's passport has no stamp for Venezuela. On April 20, 1987, on the last day of trial, the government told the court that it did not have the passport of Mr. Panzardi. However, it was subsequently revealed that the government did indeed have the witness' passport.

This is the second time Soto-Alvarez brings such an argument before this court. In his prior appeal defendant argued the government withheld his own passport until trial, but the passport was eventually introduced into evidence. Had this material been available to the defense earlier, defendant argued, "perhaps" the jury might have rendered a different verdict. Soto-Alvarez, 876 F.2d at 233. Defendant's argument failed to convince this court when first presented before us, and fails now as well.

As we stated in defendant's prior appeal, the rule of Brady only applies to the discovery, after trial, of information which had been known to the prosecution but unknown to the defense. Soto-Alvarez, 876 F.2d at 233; see also United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). Here, the passport was introduced as a trial exhibit by the defense, and Brady is therefore inapplicable. Moreover, defendant fails to show how the withholding of Mr. Panzardi's passport until trial prejudiced his defense. Instead, defendant limits his argument to a critique of his attorney's use of this evidence during trial. Unfortunately, the fact that defendant disagrees with his attorney's use of this evidence does not suffice to formulate a claim under Brady.

B. Prosecutorial Misconduct

Soto-Alvarez further argues that the prosecutor falsely stated during closing argument that both appellant's and Mr. Panzardi's passports showed stamps which proved that they traveled to Venezuela. Because no contemporaneous objection was made to this remark, we review it under the plain error standard. United States v. Young, 470 U.S. 1, 14-20, 105 S.Ct. 1038, 1045-49, 84 L.Ed.2d 1 (1985); Soto-Alvarez, 876 F.2d at 233; see also United States v. Glantz, 810 F.2d 316, 324 (1st Cir.), cert. denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987). A review of Mr. Panzardi's passport shows no stamp for Venezuela. Nevertheless, we believe that the prosecutor's remark did not "undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." Soto-Alvarez, 876 F.2d at 233; Glantz, 810 F.2d at 324. Mr. Panzardi's passport was introduced into evidence as a trial exhibit. Appellant had an opportunity during the trial to contest the claim that Mr. Panzardi and Mr. Soto-Alvarez had traveled together at the time in question. The failure on the part of defendant's attorney to take advantage of that opportunity does not serve to state a valid claim of prosecutorial misconduct.

Nevertheless, defendant claims that the guilty verdict against him before the district court is of questionable validity because it was the result of misleading information provided to the jury by the prosecutor. Furthermore, defendant...