925 F.

2d 535

UNITED STATES, Appellee,

v.
Noel MORALES-DIAZ, Defendant, Appellant.
No. 90-1306.

United States Court of Appeals,

First Circuit.
Submitted Nov. 21, 1990.
Decided Feb. 15, 1991.

Martha R. Reeves, for appellant.

F. Mark Terison, Asst. U.S. Atty., with whom Richard S. Cohen, U.S.
Atty., was on brief, for appellee.*
Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and
TORRUELLA, Circuit Judge.
BOWNES, Senior Circuit Judge.

This is an appeal from defendant-appellant Noel Morales-Diaz's convictions,

after a jury trial, for possession of more than 500 grams of cocaine with intent
to distribute and for conspiracy to do the same. Appellant raises several issues
relative to his trial and sentence. Finding no error, we affirm.

I. THE FACTS
2

On July 23, 1989, Agent Gerard Brady of the Maine Bureau of

Intergovernmental Drug Enforcement (BIDE) was working undercover in Saco,
Maine. Pursuant to a deal previously arranged by other agents, Brady and an
informant drove to a commuter parking lot in Saco to wait for two Hispanic
men who were to sell them 18 ounces of cocaine for $19,500. Other undercover
agents were on the scene setting up surveillance, including BIDE agent Guy
Godbout, who operated a video camera. Brady, who parked his own car about
thirty feet away, sat in the passenger seat of the informant's car while they
waited.

The meeting had been set for 1 p.m. and at 2:15 the defendant and Pedro
Alvarez-Alvarez arrived, with defendant driving the car. Defendant, appearing
to recognize the informant, approached and greeted him in English. He then
introduced himself to Brady as Tony. While Alvarez remained in the car,
defendant asked Brady if he had the money. Brady replied that he did, that it
was in the trunk, and asked defendant if he had the cocaine. Defendant said yes
and motioned to Alvarez, who got out of the car, walked around to the front,
knelt down, and appeared to reach underneath the frame. Alvarez then went to
the driver's side of the informant's car and threw a dark plastic bag towards
Brady. Defendant and Alvarez gestured that that was the cocaine. Saying he
wanted to make sure, Brady cut open the bag. He then said it looked good and
that he would get the money from his trunk. Defendant accompanied Brady to
the rear of Brady's car. When the trunk was opened, pursuant to prearrangement
with the other agents, defendant and Alvarez were arrested.

At defendant's trial, Agent Brady testified to the account above. Agent Godbout
took the stand and his videotape of the drug transaction was played for the jury.
Wayne Buck, a forensic chemist, testified that the total weight of the cocaine
was 538.7 grams.

Defendant himself was the only witness for the defense. He testified that he did
not knowingly participate in any sale of drugs. According to him, he drove
Alvarez to Maine that day from their home in Lawrence, Massachusetts, at the
latter's request. He did not know why Alvarez wanted to go to Maine. When he
drove into the parking lot in Saco, he told Brady he was lost and asked him for
a map, speaking only Spanish to Brady. He testified that the word "coke" was
never used, that he did not know there was cocaine in the car, and that he did
not see Alvarez put anything in the informant's car. Brady's testimony was a lie,
according to defendant. On rebuttal, Agent Brady contradicted defendant. He
testified that there was no conversation with defendant about directions, that
only English was spoken, and that defendant was looking inside the informant's
car when Alvarez threw the cocaine into it.

Upon conviction, defendant was sentenced to 327 months imprisonment. The

district court adopted the calculations set forth in the presentence investigation
(PSI) report. The PSI report grouped the substantive and conspiracy counts
together pursuant to U.S.S.G. Sec. 3D1.2(b)(1) and calculated a base offense
level of 26 by reference to U.S.S.G. Sec. 2D1.1(a)(3) and the amount of cocaine
involved. No adjustments were made to the base offense level.

The PSI report concluded that, because of two prior felony convictions,
defendant was a career offender pursuant to U.S.S.G. Sec. 4B1.1. One

conviction was under the laws of Puerto Rico for sale of marijuana; the other
was for armed robbery in Lawrence, Massachusetts. Because the statutory
maximum for the instant offense is forty years, defendant's offense level as a
career offender was determined to be 34, see id., and his criminal history
category VI. The applicable guideline range was determined to be 262 to 327
months pursuant to the Sentencing Table in U.S.S.G. Ch. 5, Part A.
8

At the sentencing hearing, defendant's only objection to the PSI report was to
the conclusion that he was not entitled to a downward departure, arguing that
his family circumstances and the fact that he was a courier in the transaction
warranted departure. (His other, previous objection to the accuracy of certain
prior Massachusetts district court convictions, had been cured and withdrawn.)
The government recommended a sentence at the upper end of the guideline
range, noting that defendant had been in prison or charged with crimes during
eight of the last ten years and was on parole at the time of the instant offense.

Adopting the undisputed facts and calculations in the PSI report, the district
court found that defendant was a career offender with a sentencing range of 262
to 327 months. The court imposed the maximum term, stating that its "principal
objective" was to "insulate the public ... for the maximum period possible"
from one with appellant's demonstrated propensity for long-term drug
trafficking.

II. TRIAL ISSUES

10

Defendant has raised a host of issues on appeal. We discuss only those having
some substance.

11

A. Defendant claims that his sixth amendment right to an impartial jury was
violated. Several jurors were selected who had previously served on an
unrelated drug case, involving a different Hispanic defendant, at which the
same government witnesses had testified and which had resulted in a
conviction. According to defendant, these jurors were more likely to convict
him because their prior guilty verdict indicated that they had already
determined favorably the credibility of the government's witnesses. This issue
was not raised below; we therefore review it only for plain error. United States
v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987).

12

During the jury voir dire, it was revealed that thirteen members of the panel
were familiar with BIDE agents Brady and Godbout through previous jury
service. The district court then asked if any of these jurors would have

difficulty being fair and impartial in this case, if they would have any tendency
to credit the testimony of the witnesses they had previously heard over other
witnesses, and, specifically, if any of them thought he would be more likely to
believe a witness he had already heard testify than someone he had not. There
was no affirmative response to these questions.
13

At a sidebar conference defense counsel asked which witnesses the jurors had
previously heard and what had been the outcome of the case. The prosecutor
stated that Agents Brady and Godbout had testified during the Ramirez trial, a
case involving similar charges that had resulted in guilty verdicts. The judge
then asked defense counsel if he wanted any further inquiry made of the jury
and he replied that he did not. Finally, the court inquired of the jurors if any of
them knew of any reason to be concerned about his ability to serve fairly and
impartially in the case. No one replied affirmatively. None of the thirteen jurors
was challenged for cause by the defense. Of the twenty-eight names drawn,
four of the jurors who had served on the Ramirez trial were ultimately selected
for appellant's jury.

14

Although we have not previously faced the precise issue presented here, in
United States v. Carranza, 583 F.2d 25 (1st Cir.1978), we held that the
defendant was not deprived of an impartial jury where members of the jury
panel who had served on a previous case involving the same government
witnesses and some of the same evidence were eliminated by peremptory
challenges. There had been no showing that the previous case involved the
same transaction giving rise to the defendant's alleged offense. No jurors from
the prior case actually sat on Carranza's jury. Canvassing the law in this area,
we observed, where former jurors were actually chosen to serve at defendant's
trial:

15 circuit courts, while expressing disapproval of the practices of using jurors

[T]he
who had served in prior similar cases involving the same government witnesses,
have been loathe to upset convictions where such use of jurors has occurred. The
rule generally followed is that, unless a specific showing of bias or prejudice is
made, the fact that a juror sat in a prior case involving the same government
witnesses and the same type of crime will not be grounds for disqualification per se
unless the defendant is charged with an offense arising from the same transaction.
16

Id. at 28 (citations omitted) (emphasis original).

17

Defendant does not claim that his case involved the same transaction as the
Ramirez case. Neither does he point to any specific prejudice. The most he
appears to suggest is that the fact that both he and Ramirez are Hispanic is

sufficient to take this case outside the operation of the general rule and to create
implied bias. We are not persuaded to depart from the rule announced in
Carranza on that basis. The trial court's searching voir dire of the members of
the panel who had heard the government's witnesses in a previous case was
keyed to exposing any possible bias in the government's favor. None was
revealed. "Although we do not blindly accept [jurors'] avowals of impartiality,
to justify disregarding them there must be solid evidence of distinct bias."
United States v. Angiulo, 897 F.2d 1169, 1183 (1st Cir.), cert. denied, --- U.S. ---, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990).
18

Having failed to object below, defendant's burden under the plain-error standard
is to show that the presence of these jurors undermined the fairness of his trial
and contributed to a miscarriage of justice. United States v. de Leon Davis, 914
F.2d 340, 344 (1st Cir.1990). On the entire record, we are satisfied that using
these jurors was not plain error.

19

B. Defendant claims his request for an entrapment instruction was improperly

denied. His argument is that the government initiated the drug deal and that the
amount of money offered by the agents for the purchase of the cocaine-$19,500--was so great as to constitute an improper inducement to commit the
offense.

20

The settled law is that an entrapment defense and the corresponding right to a
jury instruction thereon requires proof of government inducement to commit
the crime and a defendant's lack of a predisposition to commit it. Mathews v.
United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988).
The question is, did the government "corrupt[ ] an otherwise unwilling
participant"? United States v. Murphy, 852 F.2d 1, 5 (1st Cir.1988), cert.
denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989). The defendant
has the initial burden of producing an affirmative answer to this question. Id.
That burden was not only not met in this case, it was not even approached.

21

The heart of defendant's defense was that he did not know that a cocaine deal
was occurring. According to his testimony, he thought he was asking Agent
Brady for directions. The closest he came to hinting at an entrapment defense
was his answer on cross-examination that he thought he had been set up. Even
if this met the legal definition for entrapment, which it does not, "[c]onclusory
and self-serving statements do not satisfy the defendant's burden of production."
United States v. Kakley, 741 F.2d 1, 4 (1st Cir.), cert. denied, 469 U.S. 887,
105 S.Ct. 261, 83 L.Ed.2d 197 (1984).

22

From defendant's testimony and his attorney's closing argument, his defense

22

From defendant's testimony and his attorney's closing argument, his defense
was that he was an unwitting participant in a drug deal, not an unwilling one.
Moreover, nothing in the government's case supported an issue of entrapment.
Where the evidence is insufficient to justify an entrapment instruction, the trial
court does not err in refusing to give it. See United States v. Rodriguez, 858
F.2d 809, 814 (1st Cir.1988).

23

C. Defendant's other trial issues deserve but short shrift. He claims that he was
denied the effective assistance of counsel by his trial lawyer's failure to seek
suppression of the videotape of the offense. Absent special circumstances, not
present here, we do not consider ineffective assistance claims in the first
instance on appeal. United States v. Latorre, 922 F.2d 1, 9 (1st Cir.1990);
United States v. Paz Uribe, 891 F.2d 396, 398 (1st Cir.1989), cert. denied, --U.S. ----, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990).

24

The two remaining claims of legal error at trial were not raised below by
defendant and are therefore subject to the plain error standard of review.
Defendant complains that he was deprived of adequate counsel by the court's
failure to provide him with an attorney fluent in Spanish. Not having sought
bilingual counsel at his trial, defendant, to prevail, must show that a
miscarriage of justice occurred. United States v. de Leon Davis, 914 F.2d at
344. He cannot. At the outset of the trial, the district court provided defendant a
sworn interpreter and headphones for simultaneous translation from English to
Spanish. Defendant's testimony was given in Spanish and translated into
English. There is nothing in the record of the proceedings to indicate that this
method of communication hampered the defense or in any way prejudiced
defendant, and defendant has not directed us to any evidence of prejudice. We
find no error.

25

Finally, defendant claims that the district court unfairly commented on his
credibility by reminding him in front of the jury that he was still under oath
when he resumed the witness stand following an overnight recess. Again, no
objection was made to this comment at the time of trial, and we are hardpressed to find error of any kind, plain or otherwise.

26

When defendant resumed the stand for cross-examination, the district court
stated: "Mr. Diaz, I will advise you that you remain under the oath that you
took, at the commencement of your testimony yesterday, to tell the truth; you
understand?" Although defendant acknowledges the propriety of reminding a
witness retaking the stand of his oath, this admonition, he claims, went too far
by adding the words, "to tell the truth." We think the content of the admonition
was innocuous and comes "within the scope of [the district court's]

discretionary trial-management authority." United States v. Moore, 923 F.2d

910, 913 (1st Cir.1991) (finding no error in trial court's decision to allow jury
lunch break after government's closing argument).
III. SENTENCING ISSUES
27

Defendant challenges his sentence in two respects. First, he contends that the
district court erred in counting his Puerto Rico conviction towards career
offender status pursuant to U.S.S.G. Sec. 4B1.1. His argument is that, because
Puerto Rico is not a state, the conviction is not of an "offense under a federal or
state law" as required under Sec. 4B1.2, the definitional section applying to
Sec. 4B1.1.

28

This argument was not made in the district court. Although there are
"exceptional case[s]" in which we may decide purely legal issues in the first
instance, United States v. Krynicki, 689 F.2d 289, 291 (1st Cir.1982), this is not
such a case. Not only did defendant fail to raise this claim below, he presents no
developed argumentation of it to this court. He simply asserts the syllogism that
(1) to qualify under the career offender guideline, the prior felony offenses
must be state or federal offenses; (2) Puerto Rico is not a state; and (3)
therefore his Puerto Rico conviction is not a prior felony offense under the
career offender guideline. Defendant completely ignores the body of case law
recognizing that Congress has accorded the Commonwealth of Puerto Rico "the
degree of autonomy and independence normally associated with States of the
Union...." Examining Board of Engineers, Architects and Surveyors v. Flores
de Otero, 426 U.S. 572, 594, 96 S.Ct. 2264, 2277, 49 L.Ed.2d 65 (1976). Puerto
Rico has been treated as a state in a variety of contexts. See, e.g., Fred v. Roque,
916 F.2d 37, 38 (1st Cir.1990) ("state" for purposes of sovereign immunity);
United States v. Lopez Andino, 831 F.2d 1164, 1168 (1st Cir.1987) ("state" for
purposes of double jeopardy), cert. denied, 486 U.S. 1034, 108 S.Ct. 2018, 100
L.Ed.2d 605 (1988); Cordova & Simonpietri Ins. v. Chase Manhattan Bank,
649 F.2d 36, 38 (1st Cir.1981) ("state" for purposes of Sherman Act). In the
absence of any reasoned attempt by defendant to persuade us that the
Sentencing Commission meant to exclude felony convictions in Puerto Rico
Commonwealth Courts for enhancement purposes, we cannot say that this issue
is " 'so compelling as virtually to insure appellant's success.' " Johnston v.
Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979) (citation omitted). We thus
decline to address it.

29

Finally, defendant claims that a factual error in the PSI report prevented him
from receiving an offense level reduction as a minor or minimal participant in
the offense. The report recites that defendant, rather than Alvarez, handed the

cocaine to Agent Brady. Again, this complaint was not made to the district
court and is subject to plain-error review.
30

Despite the asserted factual mistake, the record does not support a finding that
defendant had a minor or minimal role in the offense. He drove the car
containing the cocaine, initiated the contact with the buyers in the parking lot,
gave the signal to Alvarez to produce the drug, and accompanied Agent Brady
to the latter's car for what he expected would be payment. The district court's
ruling that the base offense level was not subject to adjustment was not clearly
erroneous. See United States v. Wright, 873 F.2d 437, 444 (1st Cir.1989).

31

Moreover, a reduction for his role in the offense would not have helped
defendant. As a career offender, his offense level of 34, derived from the table
in Sec. 4B1.1, is greater than the level that would result if he had received the
greatest mitigating role-in-the-offense adjustment, reducing the offense level
from 26 to 22. See U.S.S.G. Sec. 3B1.2(a) (providing 4-level decrease for
minimal participant). "If the offense level for a career criminal from the table ...
is greater than the offense level otherwise applicable, the offense level from the
table ... shall apply." U.S.S.G. Sec. 4B1.1. There was no prejudice and, a
fortiori, no plain error.

32

Affirmed.

This case was submitted on the briefs. Oral argument was waived