US v. Paniagua-Ramos

• Citation: 251 F.3d 242
• Decision Date: 08 May 2001
• Docket Number: PANIAGUA-RAMO,Nos. 99-1568,D,s. 99-1568
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. DANIELefendant, Appellant. & 00-1764 Heard
• Court: U.S. Court of Appeals — First Circuit

Page 242

251 F.3d 242 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. DANIEL PANIAGUA-RAMOS, Defendant, Appellant.

Nos. 99-1568 & 00-1764

United States Court of Appeals For the First Circuit

Heard May 8, 2001

Decided May 30, 2001

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

[Copyrighted Material Omitted] Jose R. Franco, with whom David W. Roman and Brown & Ubarri were on brief, for appellant.

Nelson Perez-Sosa, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief, for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lynch, Circuit Judge.

SELYA, Circuit Judge.

Defendant-appellant Daniel Paniagua-Ramos (Paniagua) beseeches us to set aside his conviction for conspiracy to possess, with intent to distribute, multi-kilogram quantities of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Paniagua rests his entreaty on claims of instructional error and jury taint.¹ Finding neither claim persuasive, we affirm the judgment below.

I

The details of the alleged conspiracy are of relatively little import to the issues on appeal, and it would be pleonastic to rehearse them here. It suffices to say that the government adduced evidence that Paniagua, acting in concert with Juan Cubilette-Baez and Rafael del Rosario-Sanchez (del Rosario), orchestrated a scheme to transport large amounts of cocaine from San Juan to New York City. According to the government's proof, the scheme had mixed results. The conspirators' first shipment (100 kilograms) went astray. Their second shipment (200 kilograms) was successful and Cubilette-Baez received the contraband in New York. Before the third shipment (scheduled to comprise 200 kilograms) left San Juan, the authorities intervened.

Paniagua soon was arrested, indicted, and tried. His quondam accomplice, del Rosario, became a key witness against him -- a witness whose testimony constituted the cornerstone of the government's case.

The matter was tried twice. On the first occasion, the jury found Paniagua guilty on the conspiracy count but acquitted him on a related charge. The trial judge voided the conviction, however, based on what he retrospectively found to be prejudicial error in the jury instructions. The government unsuccessfully appealed the order granting a new trial. See United States v. Paniagua-Ramos, 135 F.3d 193 (1st Cir. 1998).

Upon retrial, the jury returned a verdict on August 25, 1998. It again found Paniagua guilty of conspiracy.

On March 10, 1999, the court sentenced Paniagua to serve a 235-month incarcerative term. Paniagua appealed. He later moved for a new trial on the ground of jury taint. When the district court rebuffed this effort, a second appeal ensued.² By order dated June 15, 2000, we consolidated the two appeals for briefing, argument, and adjudication.

II

Paniagua's first claim of error involves the lower court's jury instructions. He calumnizes the testimony of the turncoat witness, del Rosario, and argues that the court erred in failing sufficiently to emphasize that the jurors should have received this testimony with caution and scrutinized it with care. He adds that the court compounded this error by failing to instruct the jurors that they should not convict on the unsupported testimony of an accomplice absent a belief "beyond a reasonable doubt that the accomplice is telling the truth." United States v. Dailey, 759 F.2d 192, 200 n.8 (1st Cir. 1985). This claim lacks force.

We do not gainsay the obvious: courts long have recognized the special pitfalls that accompany accomplice testimony. In an appropriate case, a criminal defendant is entitled, upon timely request, to an instruction that calls the jury's attention to these dangers. E.g., United States v. Pelletier, 845 F.2d 1126, 1129 (1st Cir. 1988). There are, however, no magic words that must be spoken in this regard.

This is as it should be. The primary function of a trial court's instructions is to create a roadmap for the jurors, limning those legal rules that they must follow in finding the facts and determining the issues in a given case. For the most part, the law provides no set formulae for converting these legal rules into lay language -- and the choice of what words are to be spoken belongs, within wide margins, to the trial judge. See United States v. Houlihan, 92 F.3d 1271, 1299 n.31 (1st Cir. 1996) (remarking the trial court's "broad discretion to formulate jury instructions as it sees fit"); United States v. Nivica, 887 F.2d 1110, 1124 (1st Cir. 1989) (noting that the trial judge need not parrot proffered instructions).

It also bears mention that the formulation of jury instructions in a criminal case is an interactive process. The trial judge must, of course, pull the laboring oar -- but the parties have a corollary responsibility seasonably to apprise the judge about what they think the jury should or should not be told. See Fed R. Crim. P. 30 (requiring parties to object to jury instructions before the jury retires, stating specifically the portion of the instructions to which each objection is addressed and the ground for the objection). Paniagua interposed no contemporaneous objection to the district court's jury instructions, and it is settled beyond peradventure that a party's failure to object to the charge in strict conformity with the prerequisites of Rule 30 forfeits most instructional errors. See United States v. Richardson, 14 F.3d 666, 670-71 (1st Cir. 1994); United States v. Weston, 960 F.2d 212, 216 (1st Cir. 1992).

We say "most," rather than "all," because there is a carefully circumscribed exception for plain errors. But the plain error hurdle, high in all events, nowhere looms larger than in the context of alleged instructional errors. See United States v. McGill, 952 F.2d 16, 17 (1st Cir. 1991); see also United States v. Taylor, 54 F.3d 967, 976 (1st Cir. 1995) ("If no timely objection has been advanced . . . even an improper instruction rarely will justify the reversal of a criminal conviction.") (citation omitted). To vault this hurdle, a defendant must make four showings. First, he must show that an error occurred. Second, he must show that the error was clear or obvious. Third, he must show that the error affected his substantial rights. Fourth, he must show that the error so seriously impaired the fairness, integrity, or public reputation of the proceedings as to threaten a miscarriage of justice. Johnson v. United States, 520 U.S. 461, 466-67 (1997); United States v. Olano, 507 U.S. 725, 732 (1993); United States v. Brown, 235 F.3d 2, 4 (1st Cir. 2000). Paniagua's claim of error cannot surmount these barriers.

We agree with Paniagua that, despite the height of the hurdle, plain error is theoretically possible with respect to an omitted jury instruction. If, say, a trial court fails to instruct a criminal jury on a basic point like the government's burden of proof or the presumption of the defendant's innocence, the lack of a contemporaneous objection would not foreclose searching appellate review. E.g., United States v. Howard, 506 F.2d 1131, 1132-34 (2d Cir. 1974) (finding plain error where the jury was not instructed as to the elements of the offense of conviction). Here, however, there is no such glaring omission. The district court correctly (and emphatically) instructed the jury about the government's burden of proof. The court also instructed the jurors at considerable length about their collective responsibility for evaluating the credibility of witnesses. To cap matters, the court gave a specific instruction about accomplice testimony, viz:

You have heard testimony of the codefendant Rafael del Rosario. This witness has a cooperation agreement with the government. The testimony of Rafael del Rosario was given in order for him to hopefully receive a reduction in sentence on act of his cooperation.

In . . . evaluating testimony of a cooperating witness, you should consider whether that testimony may have been influenced by the government's promises and you should consider that testimony with greater caution than that of ordinary witnesses. Cooperation agreements are lawful. The law only requires that you consider testimony given under those circumstances with greater caution than that of ordinary witnesses.

We do not suggest that this instruction is either letter perfect or insusceptible to any improvement. But reading it against the backdrop of the charge as a whole, see United States v. Cintolo, 818 F.2d 980, 1003 (1st Cir. 1987), we think that the instruction constitutes a fair statement of the applicable law concerning accomplice testimony. In the absence of a contemporaneous objection, no more was exigible. See United States v. Fernandez, 145 F.3d 59, 62 (1st Cir. 1998) (finding no plain error even though district court neglected "to give an unrequested cautionary instruction [and] the government's case largely depend[ed] on uncorroborated informant or accomplice testimony"); United States v. Martin, 815 F.2d 818, 824 (1st Cir. 1987) (finding no plain error when district court failed to give an explicit accomplice instruction, but defendant did not register a contemporaneous objection); see also Fed. R. Crim. P. 52(b) (directing courts, in substance, to ignore unpreserved errors not adversely "affecting substantial rights" of defendants).

Notwithstanding these authorities, Paniagua posits that more is required here because del Rosario's testimony was internally inconsistent and largely incredible. See Fernandez, 145 F.3d at 62-63 (leaving open this possibility); United States v. House, 471 F.2d 886, 888 (1st Cir. 1973) (similar). We need not probe this point too deeply for Paniagua's premise is woven out of whole cloth. He has identified no portion of del Rosario's testimony about the drug-trafficking operation...