USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 94-1235

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS CARTAGENA-CARRASQUILLO,

Defendant, Appellant.

____________________

No. 94-1236

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS LUGO-LOPEZ,

Defendant, Appellant.

____________________

No. 94-2127

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE L. FIGUEROA-GARCIA,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

___________________
[Hon. Morton A. Brody,* U.S. District Judge]
___________________

____________________

Before

Torruella, Chief Judge,

___________

Lynch, Circuit Judge,

_____________

and Watson,** Senior Judge.

____________

____________________

Roberto Rold n Burgos,

______________________

by

appointment of

the court,

for

appellant Cartagena-Carrasquillo.
Miriam Ramos Grateroles, by
________________________

appointment of the

court, for

appellant Lugo-L pez.

Theodore L. Craft,
___________________

by

appointment

of

the

court,

for

appellant Figueroa-Garc a.
Nelson P rez-Sosa Cruz,
_______________________
with whom

Assistant United

Guillermo Gil, United

_____________

States Attorney,

States Attorney, was

for appellee.

____________________

December 1, 1995
____________________

on brief,

*Of the District of Maine, sitting by designation.

**Of

the

U.S.

Court

of

International

designation.

-2-

Trade,

sitting

by

LYNCH,
LYNCH,

Circuit Judge.
Circuit Judge.
______________

Cocaine

trafficking

in

Puerto Rico resulted in the criminal convictions of the three

appellants, who raise

their trials.

attempting

to

the conduct of

Two issues -- the exclusion of expert evidence

establish

Posttraumatic Stress

military

issues primarily as to

service

in

an

insanity

defense

Disorder claimed to have

Vietnam

and

the

based

on

resulted from

prosecutor's

ill-

considered reference

to religion in his

merit close discussion.

closing argument --

We affirm, rejecting the defendants'

challenges on these and other grounds.

Facts and Trial Proceedings

___________________________

In the

agent

with

learned

the

from

defendant

summer of 1992, Jefferson

Drug

a confidential

Carlos

kilogram quantities

Malav

Enforcement

Mor n, a special

Administration

informant, Ram n

Lugo-L pez

of cocaine.

was

On

interested

("DEA"),

Malav , that

in

selling

instruction from Mor n,

confirmed Lugo-L pez' interest in a phone conversation

and later called to

negotiate the purchase of

of

told Lugo-L pez that he could page Mor n

cocaine.

Malav

two kilograms

(whom Malav

said would

handle the money) when he

to make the transactions.

L pez

left a

message for

ready

and that he should

was ready

Lugo-L pez had Mor n paged.

Mor n that

the "contracts"

drop by Lugo-L pez'

them up.

-33

Lugo-

were

house to pick

Malav

met

the

went to

supplier,

defendant

Cartagena-Carrasquillo

right

away

with the

returned with

They

went

the Lugo-L pez residence, where

left,

a room

at

Cartagena-Carrasquillo.

saying

drugs.

defendant Jos

to

Luis

that he

would

return

Cartagena-Carrasquillo

L. Figueroa-Garc a and

the

Cartagena-Carrasquillo opened the

he

rear

of

later

a bag.

the carport

where

bag and took out a kilo of

cocaine.

During phone conversations between Mor n and Malav

while Malav

was

had arrived to

the bag.

to

at Lugo-L pez' house,

Malav

sell two of the four kilograms

Lugo-L pez asked Malav

come and put up the money.

said two

men

of cocaine in

to call his partner, Mor n,

In a round robin, Lugo-L pez

kept insisting that the

money be brought to his

Malav , on instructions from

to San Juan (where

pages

and

telephone

Figueroa-Garc a left to

When

the

Mor n, tried to lure Lugo-L pez

an arrest would be easier)

he would be paid there.

two returned,

sallying about where

house while

with promises

At some point during the

calls,

sell one

series of

Cartagena-Carrasquillo

of the

Lugo-L pez

and

the sale would take

Carrasquillo got upset with the delay

kilos to

Malav

place.

and

another.

were

still

Cartagena-

and left in a car with

Figueroa-Garc a.

Law enforcement agents shadowed the car, driven

Figueroa-Garc a,

and saw

Cartagena-Carrasquillo get

-44

by

out of

the

car carrying a tan bag.

got back into the car

chase

When agents approached him, he

and fled with Figueroa-Garc a.

resulted, ending in a public housing project.

men fled by

foot and were

Carrasquillo,

abandoned

who had

the car,

Agents later found

the

did not

it in a

ultimately arrested.

tan bag

have it

in

trash can in

The two

Cartagena-

his hands

when he

A car

when

he

was arrested.

the area where

he

first

fled on foot.

It contained three kilograms of cocaine

and $12,900 in cash.

On June 17,

count

indictment

Carrasquillo,

1992, a

charging

grand jury

that

Figueroa-Garc a,

returned a

Lugo-L pez,

and

another,

four-

Cartagena-

aiding

and

abetting each other, possessed with intent to distribute some

3303.96

841(a)(1)

two

grams

of

cocaine

and 18 U.S.C.

counts with

using a

in

2.

violation

days of

mistrial.

started on

21

U.S.C.

Lugo-L pez was also charged in

telephone in

distribution in violation of 21 U.S.C.

Trial

of

November 30,

testimony, defendants

furtherance

843(b).

1993.

requested and were

Cartagena-Carrasquillo

of drug

and Lugo-L pez

After four

granted a

moved for

dismissal on

double jeopardy grounds.

The district court's

denial of the motion was appealed.

While that

trial

for the

second

appeal was

time

on

pending, this case

February

defendants were found guilty of all counts.

-55

14,

1994.

went to

The

The appeals from

the conviction

denial

of

the

were consolidated

motion

to

with the appeals

dismiss

on

grounds

from the

of

double

jeopardy.

Post-Traumatic Stress Disorder

______________________________

Lugo-L pez argues there was

of

his

proffered expert

testimony

Posttraumatic Stress Disorder

error in the exclusion

that

("PTSD") and

he suffered

from

his attempts

to

18 U.S.C.

17,

base an insanity defense on PTSD.1

The insanity defense, set forth at

is an affirmative defense.

The burden is on the defendant to

show by clear and convincing evidence, see 18 U.S.C.

___

that:

17(b),

at the time of the commission of the acts

constituting the

offense, the defendant,

as a result of a severe mental disease or

defect,

was

unable

to

appreciate

the

nature and quality or the wrongfulness of

his acts.

Mental

disease or defect does

not otherwise constitute a defense.

____________________

1.

Lugo-L pez

exposed

to Agent

illness and
asserted

is a

Vietnam

Orange, has

had been

that

veteran

he

been hospitalized

diagnosed as

suffers

disorder recognized in the

who asserted

for mental

schizophrenic.

from PTSD,

which

he was

is

He
a

also
mental

Diagnostic and Statistical Manual

_________________________________

of Mental Disorders 424-29 (4th ed. 1994).

___________________

PTSD is caused by

exposure to an extreme traumatic stressor involving actual or

threatened death or

serious injury or other

physical integrity and

re-experiencing
stimuli

tends to result

the traumatic

associated

with

the

event,
trauma,

responsiveness, and increased arousal.

threat to one's

in symptoms such
a

tendency to
numbing

of

Id. at 424.

as

avoid
general

___

-66

18

U.S.C.

17(a).

There

assertion of the defense as

Rules

of

intention

Criminal

is

a procedural

well.

Procedure

component

Rule 12.2 of

requires that

to

the Federal

notice

of

an

to raise the insanity defense must be given by the

defendant to the government "within the time provided for the

filing of pretrial motions or at such later time as the court

may

direct."

If

such notice

is

not given,

the insanity

defense may not be raised.

The

trial

court

primarily because

it felt

and

because

secondarily

insufficient

excluding

discretion.

in

the

excluded

it

thought

The

under

(11th Cir.

1128,

1136 (7th

1990);

12.2

evidence

was

review

for

is

abuse

nom.
____

of

F.2d 1051,

v. Weaver,
______

denied sub
______ ___

evidence

been given

Cameron, 907
_______

United States
_____________

Cir.), cert.
_____

the

standard of

Rule

See United States v.

___ ______________

1059

PTSD

inadequate notice had

any event.

testimony

the

882 F.2d

Schwanke v.
________

United States, 493 U.S. 968 (1989); United States v. Duggan,

_____________
______________
______

743 F.2d 59, 80 (2d Cir. 1984).

A district court's decision

to admit or

exclude expert

testimony is

deference and will be reversed only if:

based on

court

an incorrect

has a

"'definite and firm

made a clear error

based

legal standard

upon a

States v. Shay,
______
____

entitled to

(1) the decision was

or (2)

the reviewing

conviction that

of judgment in the conclusion

weighing

57 F.3d

of the

-77

the court

it reached

relevant factors.'"

126, 132 (1st

great

Cir. 1995)

United
______

(quoting

United States v. Benavente Gomez, 921 F.2d 378, 384 (1st Cir.
_____________
_______________

1990)); see also

___ ____

United States
_____________

(1st

("[T]rial

Cir. 1995)

afforded

wide

discretion

evidence."), cert. denied,

_____ ______

v. Brien, 59
_____

judges have

to

admit

F.3d 274,

traditionally

or

___ S. Ct. ___,

exclude

277

been

expert

94 U.S.L.W. 3316

(1995).

The insanity defense was

first trial, nor was it

lost

One

raised when Lugo-L pez asserted

the issue of whether

month

after

the

not raised in the aborted

he was competent

mistrial, Lugo-L pez

and

to stand trial.

first

filed

written motion on January

defense.

The motion

the testimony

11, 1994, giving notice of

indicated that Lugo-L pez would present

of both Luis Falc n-Torres,

the Puerto Rico Vietnam

surrounding the

defendant

was

his caseworker at

Veteran's Assistance Program, and an

as yet unnamed expert on PTSD.

facts

a PTSD

The motion also said that the

commission of

suffering

from

the crime

delusions or

disorder that affected his conduct.

showed that

disease

or

The motion was discussed

in a February 1, 1994 status conference and the judge hearing

that motion "noted" that Lugo-L pez "shall raise at trial the

defense

of

insanity" and

traumatic stress disorder is

trial."

that

"[t]he

issue whether

post

admissible shall be resolved at

The

government,

aware

only

of

psychiatric

evaluations performed by a Dr. Cabrera earlier on defendant's

-88

competence

to

stand

trial,

on

February

requested

preliminary hearing on the admissibility of the proposed PTSD

testimony.

On

February 9, Lugo-L pez responded

and filed a

motion

stating his

intent to

offer a

Dr. Santiago

as his

expert witness and requesting authorization for this expert's

services.

The

authorization was

"reminded that the admissibility

granted, and

counsel was

of Dr. Santiago's testimony

[would be] left to the trial judge."

Trial started before a different judge

14.

an

did

At no time did Lugo-L pez file proposed instructions on

insanity defense, although on

file

memorandum of

law

constitute an insanity defense.

day

on February

the first day

as

to

of trial he

whether PTSD

could

On the fifth day of the six-

trial, the issue of the PTSD defense came up indirectly,

during

colloquy

worker's testimony

concerning

an

objection

as to Lugo-L pez' war

to

the

social

record and medals.

The court noted at a

sidebar conference that such

would be admissible,

if at

was admissible and asked

Later, after review

all,2 only if

testimony

the PTSD

defense

to see psychiatric expert's report.

of the report, the trial

court excluded

the insanity defense.

____________________

2.

The

trial

judge later

inadmissible for

ruled

other reasons.

the war-record
Thus, we

testimony

understand Lugo-

L pez' appeal on the insanity defense issue to be focussed on

the exclusion
The social
the

of the

expert testimony of

worker's testimony was not

defense;

at

most

it would

testimony.

-99

his psychiatrist.

intended to establish

buttress

the

psychiatric

The defense

of the pre-trial

was, we think, timely

rulings of the conference judge

raising of the defense

to

raised in light

noting the

and reserving the admissibility issue

trial and the later authorization of the retention of the

psychiatric expert.

also

F.2d at 1059.

But

we

hold that there was no abuse in excluding the testimony

proffered

judge.

See Cameron, 907

___ _______

for

certain other

reasons

stated

by the

trial

The trial judge found that Dr. Santiago's report was

at best conclusory

in that it did "not show

in what way the

PTSD

syndrome

responsibility

could

for the

was insufficient as

relieve

defendant

crimes charged"; that

of

the

the testimony

a matter of law in that it did not go to

Lugo-L pez' state of mind

crimes charged,

the

on the dates of commission

and that it

would be unduly

of the

prejudicial in

violation of Rule 403 in light of its lesser probative value.

The only witness proffered to establish the defense

was Dr. Santiago.

As to PTSD, the expert's report stated, in

pertinent part:

[Lugo-L pez] justifies

his

special army

Nam

experience when his

his behavior with

training and

his Viet

main problem is

his poor judgment -- he cannot anticipate

the consequences of
the time.

his behavior most of

His schizophrenic make up adds

to his difficulties.

The psychiatrist's diagnosis was that:

[C]ocaine and heroin use and dependency .

. . together with his
up explain his

schizophrenic make

grandiose and

delusional

-1010

behavior, [e]specially in relation to the

informant during investigation.

The report concluded:

There is no doubt

that the patient meets

the criteria for a P.T.S.D. patient [and]

was

having delusions

intervened
(sic)

(sic)

and it is

when he

by a

was being

D.E.A. confident

confirmed in the report

prepared by D.E.A. agents. . . .

time

of the

intervention of

the D.E.A.

representatives, Mr. Lugo because

delusions of grandeur

had a

mental disease and was unable

his

conduct to

At the

of his

significant
to conform

the requirements

of the

law.

There was

testimony

unfocussed

no abuse of discretion

based on this

proffer.

and does not address

The

in excluding the

report is singularly

whether at the

time of the

commission of the crimes charged, Lugo-L pez "as a result

a severe mental

the nature

U.S.C.

disease or defect, was

unable to appreciate

and quality or the wrongfulness

17.

As the

of

of his act."

statute itself says, the

18

mere fact of

"mental

disease or

defense."

defect does

suffering

from a

commission

recounts

constitute a

Id.
___

The report does not

claimed

not otherwise

"severe" mental

of the

disorder

establish that Lugo-L pez

offenses; at

as

disorder

most, it

"significant."

at the

was

time of

characterizes his

Indeed,

the

report

that by 1992, the year of the crime, Lugo-L pez had

stopped using his drugs

hospitalizations for

of choice, heroin and cocaine.

schizophrenia

-1111

had

been

more

than

His

decade

before.

Santiago's

mental

examination

moderate[ly]

times

His

was

depress[ed],"

"irrelevant,"

status

"well

at

described

the

time

as

"mild[ly]

"logical

and coherent"

oriented

in

time,

of

but

place,

Dr.

to

at

and

person," suffering from "poor judgment" and being "insecure."

The legislative history of 18 U.S.C.

The

concept of

emphasize

that

disorders

or

severity

17 reveals that:

was

added

non-psychotic
neuroses

"inadequate

personality,"

personality,"

or

behavior

such

pattern

to

as

an

"immature
of

"anti-

social
tendencies"donot
constitutethedefense.

S.

Rep.

No.

98-225,

98th

Cong.,

2d

Sess.

229

(1984),

reprinted in U.S.C.C.A.N. 3182, 3411, quoted in United States

____________
_________ _____________

v. Salava, 978 F.2d 320, 323 (7th Cir. 1992).

______

There is nothing in the psychiatrist's report which

suggests

appreciate

that

the

defendant

that selling

did

cocaine was

not know

wrong.

or

could

At

not

best, the

report accepts and repeats Lugo-L pez' statements that he was

suffering delusions at the time that Malav

ask whether he would

sell Malav

drugs.

approached him to

Lugo-L pez

said he

was "feeling" he was a CIA spy with connections to the police

in

Haiti.

The report does not

incapacity to

determine whether

link such a delusion with an

selling

cocaine is

wrong.

Moreover, there

is no explanation

would be associated

the report

with PTSD.

or otherwise

any effects, delusional

as to why

And there

such delusions

is no evidence in

that Lugo-L pez was

suffering from

or otherwise, on the

dates when the

-1212

crimes

--

the

drug

transaction

and

the

telephone

conversations -- actually took place.

The psychiatrist's

testimony is the

only evidence

the defendant offered to establish the insanity defense.

psychiatrist's report

result

is inadequate

of his PTSD Lugo-L pez was

to establish that

17(a);

Duggan, 743
______

asserted that "as a

able

law,"

to

but

as a

"unable to appreciate the

nature and quality or the wrongfulness of his acts."

U.S.C.

F.2d at

81 (expert

See
___

contained no

conduct to

evidence

the requirements

or

18

affidavit

result of [PTSD], [defendants] were

conform their

The

not

of the

clinical findings

in

support of these conclusions and was thus inadequate to raise

the insanity defense in compliance with Rule 12.2); see

___

also
____

United States v. Whitehead, 896 F.2d 432, 435 (9th Cir. 1990)
_____________
_________

(jury not permitted to consider defense where testimony could

not

establish

with

convincing

clarity

that

PTSD

caused

defendant to be unable to appreciate the wrongfulness of bank

robbery), cert. denied, 498

_____ ______

court

did not apply an

U.S. 938 (1990).3

The

incorrect legal standard

district

or make an

error in judgment in excluding the psychiatrist's testimony.

____________________

3.

We also

note, but do not rest our decision on, the trial

judge's concern under Rule

57 F.3d 126,
defense,
testimony,

133 (1st

supported

403.

Cf. United States

___ _____________

Cir. 1995).

only

by

vague,

The proffered
weak

could skeptically be viewed as

get before the

v. Shay,
____

jury the extremely sad and

and

insanity
conclusory

only a pretext to
sympathetic story

of a much decorated Vietnam war hero gone far astray.

-1313

Religious Reference
___________________

Cartagena-Carrasquillo,

white clothing, a possible marker

religious

sect, now

closing arguments

the defendant's

objects on

who throughout

trial wore

of adherence to a minority

appeal to

which, in an apparent

the prosecutor's

effort to discredit

testimony, embraced Catholicism.

While the

prosecutor's argument was improper, that is not enough to win

the

day for

preserve

this defendant,

who did

not properly

make or

his objection, and as to whom the evidence of guilt

was overwhelming.

We know only from

this

appeal, which

argument

the

conceded,

clothing at trial

assertions of defense counsel on

government on

that

and that

this manner of

such a

inference that he might be.

The

dress in

white

Puerto

in a minority religious group.

We do not know, nor apparently

a member of

oral

Cartagena-Carrasquillo wore

Rico may symbolize membership

in fact

questioning at

did the jury, whether he

group nor the

strength of

was

the

Nothing was put on the record.

closing argument,

though, is

on

the record.

The prosecutor argued:

When we live in the same neighborhood, we

go

to the

church,
everybody.

same
we

church, when

come

out,

we go

to

talk

to

we

Now that we are in [L]ent and

this is in "Cuaresma", we do "via crusis"

where we go from house to house and say a
prayer and meet the people there.

-1414

The prosecutor's reference to Lent ("Cuaresma"), to doing the

way of the cross

use

of

the term

government

jurors,

and a

but

religion

not

("via crusis"), to saying prayers,

"we"

suggested

an alliance

church to which,

the

between

presumably, many

defendant, belonged.

and the

the

of the

Injection

of

into the case was flatly wrong and contrary to what

the public has a right to expect of government prosecutors.

Cartagena-Carrasquillo

The court

sidebar

responded it

and

During the

again

objected to

would hear

asked counsel

to keep

the

the reference.

objection later

the objection

sidebar conference, the objection

at

in mind.

was not raised

and there was no request for a curative instruction or

other curative action.

Cartagena-Carrasquillo

absence

that

of a renewed objection or

the

instruction

which

the

judges

has

trial judge

was

sua sponte.
___ ______

imposition of

that

even

to

give

may be

sua
___

obligations on

sponte
______

see,
___

e.g.,
____

200, 202 (1st

will "cure"

the

curative

While there

situations in

trial

United States
_____________

v.

Cir.), cert. denied,

_____ ______

U.S. 831 (1989), we decline to impose one here.

an instruction

in

a request for instruction

obligated

been considered,

Santiago Soto, 871 F.2d

______________

493

argues

problem or

Whether

exacerbate it

by

calling more attention to it than warranted is within the ken

of counsel and part of litigation strategy and judgment.

The

-1515

obligation

to

suggest

the

appropriate response,

if

any,

rested on defense counsel.

Balancing,

failure

to

desire for

on

properly give

Cartagena-Carrasquillo's part,

notice to

remedial instruction,

the

trial court

to preserve the

the

of a

issue, or

even

to create

proper record,

seemingly deliberate

the prosecutor,

more

952

improper

isolated but

injection of religion into

the case by

we turn to a test adopted by this Court in a

straightforward case,

F.2d 607,

against the

610 (1st

remarks

in

United States
_____________

Cir. 1991).

In

closing argument

v. Hodge-Balwing,
_____________

reviewing whether

are

grounds

for

reversal in that they "so poisoned the well" that the trial's

outcome

was

likely

following factors:

affected,

this

court

considers

the

"(1) whether the prosecutor's conduct was

isolated and/or deliberate; (2)

whether the trial court gave

a strong and explicit cautionary instruction; and (3) whether

it is likely that any prejudice . . . could have affected the

outcome of the case."

Id.
___

As to

the first prong, "[d]efendant's religion has

no bearing whatsoever

on any legitimate issue in

the case."

United States v. Goldman, 563 F.2d 501, 504 (1st Cir. 1977),
______________
_______

cert.
_____

denied,
______

434 U.S.

1067 (1978).

religion does not necessarily require

Second, while

was

no

there was no curative

request

for

one,

and

-1616

we

But a

reversal.

reference to

Id. at 505.
___

instruction here, there

do

not

discount

the

possibility

that

tactical choice

the

failure to

by defense

Brandon, 17 F.3d 409,

_______

make

counsel.

See
___

the

request was

United States
_____________

446 (1st Cir. 1994), cert.

_____

v.

denied sub
______ ___

nom. Granoff v. United States, 115 S. Ct. 80 (1994)

____ _______
_____________

and Ward
___ ____

v. United States, 115 S. Ct. 81 (1994).

_____________

We turn,

Balwing
_______

then, to the

third prong

of the

Hodge______

test and ask whether it is likely that any prejudice

could have affected the

references

in the

outcome of the case.

prosecutor's closing

The religious

were less

a direct

appeal to religious

prejudice than

in other

cases we

have

considered (such as Goldman) and there is less reason here to

_______

draw an

inference of prejudice.

On objection,

the remarks

stopped.

The instructions

given to the jury

keeping

to the

path before

district

court

instructed

"objectively

without any

reminded the jury that

the

bias

jury that statements

explicitly set out the

United States v.
______________

Giry,
____

from prejudice.

jury to

perform

or without

any

its

The

duty

prejudice,"

the defendants were presumed innocent

unless guilt was established

the

it, free

assisted it in

beyond a reasonable doubt, told

of counsel were

not evidence, and

elements of the crimes charged.

818

F.2d

120, 132-33

(1st

See
___

Cir.)

(prosecutor's

"sounds

improper

closing

argument

that

defendant

like Peter who for the third time denied Christ" was

deliberate and unprovoked,

but was not

objected to and

did

-1717

not

produce

plain

error

in

light

of

overall

jury

instructions,

even

without

an

instruction

specifically

addressed to the prejudicial comment), cert. denied, 484 U.S.

_____ ______

855 (1987).

Further,

the evidence

Cartagena-Carrasquillo

supplier.

He

when approached

was introduced

arrived at

containing cocaine.

very strong.

as the

house with

the house with

a bag

the bag,

fled

by law enforcement agents, led the agents on

cocaine was

with the bag in hand, and

found soon

after

trash can in the area where he had been.

Double Jeopardy
_______________

was

by Lugo-L pez

the Lugo-L pez

He left

a car chase, left the car

containing

of guilt

the bag

the arrests

in a

Both the origins

jeopardy

and demise of defendants'

double

claims lie in the termination of the first trial by

mistrial.

The mistrial

was declared

by the judge

after the

government's first witness, Malav , was observed going into a

witness

room with DEA special

agent Mor n.

Mor n had been

assigned to protect the witness, a confidential informant and

the

given

only witness

a general

about their

violation

to the

instruction to

testimony.

of

drug transaction.

that

Although

instruction,

-1818

The

all witnesses

there was

an

court had

not to

no evidence

objection

by

talk

of

defense

counsel to the two talking precipitated

mistrial, which

held

that there was no

intent to goad a

to

was allowed.

a defense motion for

The trial

misconduct by the

mistrial.

Serra, 882 F.2d 471, 473 (11th Cir. 1989).

_____

of

prosecutor and no

Those fact findings

a clearly erroneous standard of review.

denial

court specifically

defendants' motion

to

dismiss

are subject

United States v.
_____________

The trial court's

based on

double

jeopardy

is subject

Aguilar-Aranceta, 957
________________

to de
__

novo review.
____

F.2d 18, 21 (1st

United States v.
______________

Cir.), cert. denied,

_____ ______

113 S. Ct. 105 (1992).

Defendants

government's

witness

contend

and

This

that

the

the

DEA agent

is based

on

conduct

was

of

designed

a theory

the

to

produce

a mistrial.

that the

witness

felt he had not testified well, that he attempted to

signal

his discomfort to the prosecution in full view of the

defense, and that the hostility expressed by the DEA agent to

defense counsel

the witness

about meeting with

all were intended to goad defendants into moving

for a mistrial.

a second

when they confronted him

chance

The government's

for its

hypothesized gain would be

key witness

to do

a better

job.

Theory is not fact and

the trial court specifically rejected

the theory as not based on the facts.

Nothing

in the record

suggests its findings were clearly erroneous.

Because

declaration

the defendants

and because there was

-1919

consented to

the mistrial

no basis to conclude that

the

conduct

giving rise

provoke the defendant

806 F.2d

(1987).

intended

7, 8

the mistrial

was

reprosecution.

there was

Oregon v. Kennedy,
______
_______

(1982); United States v. Perez Sanchez,

_____________
_____________

(1st Cir. 1986),

cert. denied, 480

_____ ______

"Only where the governmental conduct in

to 'goad' the defendant

may a defendant raise

intended to

into moving for a mistrial,

no double jeopardy bar to

456 U.S. 667, 675-76

to

U.S. 922

question is

into moving for a mistrial

the bar of double jeopardy to a second

trial after having succeeded in aborting the first on his own

motion."

Kennedy, 456 U.S. at 676.

_______

Filing of Information Under 21 U.S.C.

851
___________________________________________

Late

on February

selection started for the

and

851(a)(1)

While such

filed

seeking

an

jury selection,

jury

an information under 21

enhancement of

and that

Kelly v. United States, 29 F.3d

_____
______________

1994) (citing

day before

second trial, the government filed

cliff-hanging practices are not

made before

required.

Cir.

1994, the

faxed to counsel for Lugo-L pez

U.S.C.

was

10,

cases).

That

penalties.

wise, the filing

is all

that was

1107, 1110 (7th

the information

was not

during the first trial did not bar the government from

seeking

an enhanced

government sought

constitutional

Goodwin,
_______

penalty during

to punish

or statutory

457 U.S. 368, 384

the second,

the defendant for

right.

(1982).

See
___

unless the

exercising a

United States
_____________

v.

Lugo-L pez alleges that

-2020

the

prosecution

made

the

last

minute

filing

information out of prosecutorial vindictiveness

earlier dealings in the case.

of

the

arising from

Even if seeking an enhancement

before the second trial that was not sought before an earlier

trial

were sufficiently

likely to

be vindictive

so as

to

warrant a presumption of

rebutted that

826

149 (1st

See United States v. Marrapese,

___ ______________
_________

Cir.), cert.
_____

The district court, after

reasons for

was

presumption.

F.2d 145,

(1987).

vindictiveness, the prosecutor here

There

U.S. 944

hearing the government's

the eve-of-trial filing,

no vindictiveness.

denied, 484
______

determined that

is no reason

there

to disturb that

finding.

Lugo-L pez also contends

signed

by

an

unauthorized

mistakes

of fact.

assuming

that an

authorized

to

mistakes could

that the information

person

This contention

Assistant United

sign

the

and

is

contained

unavailing.

States Attorney

information, that

be and were corrected

and

the

was

certain

Even

was not

other

prior to pronouncement

of the sentence, as permitted under the statute.

Sufficiency of the Evidence

___________________________

The claims by Cartagena-Carrasquillo and Figueroa-

Garc a that

the evidence

convictions

are without

was insufficient to

merit,

as the

facts of record amply demonstrates.

-2121

support their

description of

the

Chain of Custody
________________

Cartagena-Carrasquillo

custody of the

go

to

cocaine.

the weight

of

Chain of

the evidence

United States v. Ortiz, 966

______________
_____

cert.
_____

challenges

the

chain

of

custody arguments usually

and

F.2d 707, 716

not admissibility.

(1st Cir. 1992),

denied, 113 S. Ct. 1005 (1993); United States v. Luna,

______
_____________
____

585 F.2d 1, 6 (1st Cir.), cert. denied, 439 U.S. 852

_____ ______

Review is for abuse of discretion.

Defendant argues that the

(1978).

Ortiz, 966 F.2d at 716.

_____

deal was for 2 kilograms

of

cocaine while

kilograms,

the

amount found

that one bag of

Lugo-L pez house, but that

agents

in

the tan

cocaine was opened

bag

was 3

while at the

no bags were opened when

the DEA

found them, and that the bags were found abandoned in

a high crime area.

From this, the defendant says, there is a

chance of altered or substituted evidence.

This is a classic

weight of the evidence argument.

The

custodial

procedures

explanations

explanation

that

the

government

for

and

the

is that

opened one

agents

testified

the evidence

discrepancies

there were

as

suggests

noted.

four kilograms

kilogram bag

of

to

proper

plausible

One

such

originally,

cocaine was

sold to

another when Cartagena-Carrasquillo left Lugo-L pez' house to

make a sale, thus accounting for the remaining 3 kilograms of

cocaine and the $12,900 in cash found in the bag later.

-2222

Other Evidentiary Rulings

_________________________

Lugo-L pez complains that the trial court

erred in

curtailing the cross-examination of an informant.

Limitations

on

the

reviewed for abuse

898

F.2d 230,

(1990).

right

defendant does

Corgain, 5
_______

right is

F.3d 5, 8

refused

to

The informant's

established.

many

are

U.S. 849

constitutional

U.S. Const.

United States
_____________

Here, the

as

v.

district

to

the

failure to file income tax returns.

potential bias had

Defense counsel

in

have a

cross-examination

motive and

inconsistencies

witness

denied, 498
______

not unlimited.

allow

against him,

(1st Cir. 1993).

confidential informant's

of

United States v. Boylan,

______________
______

Cir.), cert.
_____

cross-examine witnesses

amend. VI, that

court

of discretion.

254 (1st

Although

to

cross-examination

his

also had already

trial testimony

already been

pointed out

as

well

as

discrepancies between the informant's testimony at

his earlier testimony both

mistrial.

before the grand jury and

Rodriguez, 63 F.3d
_________

did

at the

The jury had ample information from which to gauge

the credibility of this witness.

court

trial and

not

1159, 1168

abuse

its

See, e.g., United States v.

___ ____ _____________

(1st Cir. 1995).

discretion

in

The

limiting

trial

cross-

examination on the failure to file income tax returns.

Lugo-L pez

also

complains

about

the

district

court's allowance of the withdrawal of a number of pages of a

trial transcript

that had

previously been admitted.

-2323

There

was

no

objection to

time; he waited

Even assuming

late

this withdrawal

until after the verdicts had

that we should

objection,

the

error,

if

was

any,

was

given the

harmless.

The

portion of the transcript was

as irrelevant and confusing to

well within its discretion.

at the

been returned.

consider this issue

district court ruled that this

inadmissible

by Lugo-L pez

the jury.

Such

Moreover, the only purpose

defendant gives to be served by the portion of the transcript

that was

withdrawn was to further

undermine the credibility

of the confidential informant.

Because the jury

information to

credibility,

determine

such

had enough

there

was

no

prejudice.

Cartagena-Carrasquillo

court erred in allowing a DEA

argues

that

the

agent to give his opinion that

annotations on the back of a business presentation

related to a drug transaction.

that

the annotations

facially innocent.

was well within

testimony

card were

Cartagena-Carrasquillo argues

were simply

This court

a trial court's

identifying

district

a similar

the addition

of numbers,

has previously held

discretion to admit

document

--

that it

expert

a column

of

numbers added together -- as a drug ledger and explaining its

contents.

(1st

United States v. Echeverri, 982

_____________
_________

Cir. 1993).

There was similarly no abuse of discretion

here.

-2424

Sentencing

F.2d 675, 680-81

__________

Figueroa-Garc a asserts he should not have received

any more

than the mandatory

because, he

guilt

asserts, there

or, at

was

least, hardly

otherwise.

He

found

had

not

ineligible

for

3E1.1(a).

He claims

he

minimum sentence of

never any

to 78 months

accepted

entitled

to

3B1.2(a).

Cir. 1990).

The

his

jury found

after the

court

responsibility

and

two-level

decrease

U.S.S.G.

he was

entitled to

minor participant under U.S.S.G.

The

evidence of

any evidence.

was sentenced

60 months,

under

so

a reduction

was

as a

3B1.2(a).

defendant has the burden of showing that he is

reduction

United States v.
_____________

in

his

offense

Ocasio, 914 F.2d

______

level

under

330, 332 (1st

On appeal, the defendant must establish that the

district court's determination was clearly erroneous.

333.

Defendant

clearly

the

has

not met

shows that he was

criminal venture.

at the Lugo-L pez house

cocaine.

else and

agents in

The

evidence

minor participant in

He and Cartagena-Carrasquillo arrived

together with kilogram quantities of

returned together.

informant

Cartagena-Carrasquillo

burden.

more than a

They left together

confidential

that

Id. at
___

to sell a

When the transaction

failed,

away.

a car chase and

kilogram to someone

Figueroa-Garc a

Figueroa-Garc a then

fled from the law.

-2525

with the

drove

led the

The district

court

did not

3B1.2(a).

clearly err

by denying

a reduction

under

Figueroa-Garc a was not a minor participant.

Affirmed.
_________

-2626