USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No. 94-1350

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

RODRIGO BRAND,

Defendant, Appellant.

_____________________

No. 94-1351

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

FELIX APONTE-VELAZQUEZ,

Defendant, Appellant.

_____________________

No. 94-1352

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

CARMELO PULLIZA-DELGADO,

Defendant, Appellant.

____________________

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

___________________

____________________

Before

Selya, Circuit Judge,

_____________

Aldrich and Coffin, Senior Circuit Judges.

_____________________

____________________

Peter Goldberger with whom James H. Feldman, Jr., Pamela A. Wi

________________
______________________ ____________
Alan Ellis and
___________

Law Offices of Alan Ellis, P.C.

_________________________________

were on

brief

appellant Felix Aponte-Velazquez.

Graham A. Castillo Pagan with
__________________________

whom

Luis Rafael Rivera

___________________

brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.

was

Luis Rafael Rivera

___________________

with whom

Graham A. Castillo Pagan

__________________________

was

brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.

Jose A. Quiles-Espinosa,
________________________

Senior

Litigation

Counsel, with

Guillermo Gil, United States Attorney, Juan A. Pedrosa,

______________ ________________________ ________________

Assist

United States Attorney, and Nelson Perez-Sosa, Assistant United Sta

_________________
Attorney, were on brief for appellee.

____________________

March 26, 1996

____________________

ALDRICH,

Senior Circuit Judge.

____________________

Appellants Aponte,

Pulliza, and Brand raise several claims of error on appeal of

their

convictions

connection

scheme.

with

for

various

cocaine

substantive

importation

and

Finding none meritorious, we affirm.

I. Reconstruction of Trial Record

__________________________________

offenses

in

distribution

After

obtain

persistent efforts

complete

trial

by appellate

transcript,

the

counsel to

trial

court

determined that certain portions -- closing arguments and the

court's jury charge -- had been permanently lost.

then moved this

Appellants

court for summary reversal, which

we denied

without prejudice in an order requesting the court to attempt

a recreation adequate for appeal, or, if unable, to determine

whether appellants

gaps.

The

were prejudiced as a

court recreated

result of remaining

its jury charge,

and located

transcript containing the complete closing argument on behalf

of

Pulliza

and

argument for Aponte.

some incomplete

"substantial

portion"

of

the

closing

It received from Brand's trial attorney

notes prepared

for his closing,

along with

assurances that it would be impossible to recreate the actual

argument.

The government filed what the parties agreed is a

"reasonable recreation" of its main closing argument, as well

as a

recreation of

inadequate.

its rebuttal,

All agreed that

which appellants

no contemporaneous

had

-3-

view as

objections

been

raised during these segments

of the trial.

The court

then certified that the record had been reconstructed

as

best as

could.

court and

the

prejudice
of

the

arising

from

trial transcript

than the inconvenience of not

precise

parties

The defendants have not shown any

specific
absence

the

text

developing

. . .

for

argument

on

the
other

having the

purposes
appeal

on

of
the

basis of clear error.1

Appellants

their

convictions is

contend

adequate

appellate review

impossible because

the court

of

did not

produce a reasonable recreation

of the missing transcripts,2

entitling them to

a new trial.

reversal and

They

concede

that due process does not automatically require reversal when

a defendant is denied a full verbatim

e.g., Bundy v. Wilson,

trial transcript, see,

___

815 F.2d 125, 135 (1st Cir. 1987) (an

____

_____

"adequate

______

substitute"

contend that

U.S.C.

may

suffice)

(citing

non-compliance with the Court

753(b)(1), alone requires

cases),

but

Reporter Act, 28

reversal and a new trial.

We disagree.

The Act

provides, inter alia, that

__________

all open court

proceedings

in criminal cases

"shall be recorded verbatim."

28 U.S.C.

753(b)(1) (1982).

This

United States
_____________

v.

Andiarena, 823
_________

provision is mandatory,

F.2d

673, 676

(1st

Cir.

____________________

1.

Appellants

concede

plain error

is their

sole recourse

with respect to the incomplete portions of the transcript.

2.

We limit

our consideration to the

closing arguments and

jury charge, as any other alleged breaches in the record were

not brought to the attention of the district court.

-4-

1987), and concededly

nothing

prescribes

not complied

automatic

with in

reversal

convictions for non-compliance, and we

which so hold.

U.S.

277 (1964),

of

this case,

yet

defendant's

are aware of no cases

Appellants cite Hardy v. United States, 375

_____
______________

for the

proposition that

new counsel

on

appeal3 cannot

"entire

properly represent

transcript."

Id. at
___

279-80.

indigent federal defendant is

free of charge in order to

it

their clients

without an

Hardy held
_____

that an

entitled to a trial transcript

perfect an appeal; we do not read

to have created a rule mandating reversal for less than a

verbatim account.

Alternatively,

appellants

suggest

we follow

Fifth Circuit's view

that new counsel

reversal for lack of

a verbatim transcript under

merely

by showing

significant,"

the missing

United States
_____________

on appeal may

portion is

v. Selva,
_____

than

"substantially verbatim."

obtain

753(b)(1)

"substantial and

559 F.2d

(5th Cir. 1977), and that any reconstruction

the

1303, 1306

thereof is less

United States v.
______________

Pace, 10
____

F.3d 1106, 1124-25

(5th Cir. 1993),

cert. denied, ___

____________

___, 114 S.Ct. 2180, 128 L.Ed.2d 899 (1994).

U.S.

True, in Hardy
_____

the Court observed that the right established by Federal Rule

of Criminal Procedure 52(b) to have "plain errors or defects"

noticed

by

the

court

available at least to

"is illusory

if

no

transcript

one whose lawyer on appeal

is

enters the

____________________

3.

Appellants have all obtained new counsel for this appeal.

-5-

case after the trial is ended."

was in

the

context of

375 U.S. at 280.

deciding

whether or

should be afforded a transcript at all.

_______

not

Yet

this

appellant

We do not take this

statement to mean that if no verbatim transcript is available

________

that an effective appeal is not possible.

The

majority

of

circuits construing

753(b)(1)

have held that to obtain reversal and a new trial, whether or

not

there

specific

is new

appellate

prejudice

to his

counsel,

ability

beyond mere non-compliance with

to

the act.

defendant must

perfect an

See
___

show

appeal,

United States
_____________

v.

Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985), cert. denied,
_____
____________

474

U.S.

1068,

(disagreeing with

123,

S.Ct.

and

cert. denied,
____________

U.S.

Selva); United States v.

_____
_____________

1069

(1986)

Sierra, 981 F.2d

______

126-27 (3rd Cir. 1992), cert. denied, ___ U.S. ___, 113
____________

2949, 124 L.Ed.2d 696 (1993)

Antoine, 906 F.2d

_______

1379, 1381 (9th

U.S. 963 (1990) (same).

Cordobas, 981
________

court

474

(same); United States v.

_____________

Cir.), cert. denied,

____________

But see United States

___ ___ _____________

498

v. Preciado_________

F.2d 1206, 1212 (11th Cir. 1993) (as successor

to former

Fifth Circuit,

indicated preference

bound by

for the majority view,

Selva).
_____

We have

see Sabatier v.
___ ________

Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978) (holding that if
_________

753(b)(1) applied to

account

of

extradition proceedings, reversal

non-compliance

would

require

on

showing specific

prejudice), and explicitly adopt it today.

Appellants conceded

to the

trial

court that

the

-6-

government's reconstruction of

its main closing argument

is

substantially accurate.

for plain error, yet

that such error

one

of

occurred.

their

own

government's rebuttal,

sort

of illegitimate

these

effective review

appellants make no particularized claim

plain error could have

of

This should enable

Nor

do they make any

claim that

occurred during the closing arguments

attorneys.

With

respect

we are hard-pressed to

argument could

to

the

conceive what

have been

made during

few moments that might have "so poisoned the well that

the trial's outcome was likely affected," Arrieta-Agressot v.

________________

United States,
_____________

F.3d 525,

528

United States
_____________

v. Mejia-Lozano, 829
____________

1987)),

do

nor

appellants

reconstruction that was

(1st Cir.

F.2d 268, 274

suggest

submitted.

1993)

any

In any

based

(quoting

(1st Cir.

on

the

event, given the

quantity

and

appellants

strength of

the

from the testimony

eye-witnesses

to

their

in

the

three

various

and transactions amounting

offenses charged -- we are not

the rebuttal was

against all

of several co-conspirators --

involvement

preparations, possessions

could have risen to

evidence

to the

persuaded that any deficiency

a miscarriage of justice; i.e.,

tainted by some imaginable

even if

error, we would

not find "a substantial chance that absent the error the jury

would have acquitted."

court's

appeal

conclusion that

was not

Id.
___

We therefore uphold the district

appellants'

prejudiced, and

-7-

ability to

turn now

to the

perfect an

merits of

their claims.

-8-

II. Motion for Continuance

___________________________

On

the morning of

trial the defense

request for continuance based on

Jorge Hernandez

Miller, the

guilty and become the

made a final

the last minute decision of

lead

co-conspirator, to

government's chief witness.

plead

Remaining

defendants argued this necessitated more time to adjust trial

strategy

and

gather

information

thorough exploration, the

to impeach

him.

court, though sympathetic, saw

justification for delay:

[Y]ou

had

the opportunity

to interview

him . . . as you told me in chambers that

this has
Jencks

been done and now

Act

[material]

that all the

has been

turned

over . . . the latest bits of information

that were generated
[of

the witness]

are

going

to

After

be

like the
with the
turned

including rough notes, . . .

interviews
agents . . .

over

to

you

I will

not

no

continue this case.

a request

F.3d

trial court has wide discretion to grant or deny

for continuance.

754, 770

(1st Cir.

United States v.
_____________

1995).

"Only an

arbitrary insistence

upon expeditiousness

justifiable

for delay

assistance

discretion.

request

unreasoning and

in the face

the

of a

right to

the

of counsel," and would amount to an abuse of that

Morris
______

v. Slappy,
______

(internal quotations omitted).

reasons, plus relevant

needed

violates

Saccoccia, 58
_________

for effective

available, diligence

461

U.S. 1,

(1983)

We assess appellants' special

factors such

preparation

as the

and

amount of

the amount

in preparing for trial

-9-

11-12

time

actually

and whether the

defense contributed to its perceived

utility

opposing

of

party,

continuance,

and

caused by the denial.

predicament, the likely

inconvenience

witnesses,

and

any

Saccoccia, 58 F.3d at
_________

to

the

court,

unfair prejudice

770 (citations

omitted).

Appellants

allege

the

court

failed

to

address

"special

circumstances of

control."

faced

material

and

divided

responsibilities

considerable

an

to

unexpected

do

volume

defection

found

additional

among

of

Miller

because of

to gather

their

trial

material

were

they

had

to

the

involved,4

and

due

the remaining

defendants.

have been more diligent," would

impeachment

and

impeachment

as

themselves

overburdened

valuable

time,

need

additional preparation,

They contend they "could not

have

nature beyond

They claim that after Miller's change of plea they

suddenly

Miller's

an emergent

material

prejudiced

the denial;

in

if

granted

cross-examining

inconvenience to

others, by

comparison, was minimal.

Appellants'

unfounded.

As

accusations

the court

against

pointed out, the

the

court

are

defense had

had

ample

time

and substantial

assistance

from

the court

prepare for trial, and although more might have helped,

is always true.

Defense

to

that

counsel could have anticipated that

____________________

4.

Aponte

points out

that

discovery involved

documents totaling over 5000 pages."

-10-

"some

1453

a division

of labor strategy

one dropped

out,

might leave them in

especially since

the original

a bind if

indictment

included some 31 co-defendants who had been pleading out on a

regular basis up

to and even

very careful to elicit from

thought

why.

the

It

several

The court

was

counsel precisely what more they

they needed and hoped to find to impeach Miller, and

gave a thoroughly reasoned response, observing that

defense had been

for four

during trial.

days

given unlimited access

prior to

the

start of

to the witness

trial and

at

least

more afterward until he took the stand, a "dream for

a defense attorney,"

as well as notes government

taken during their interviews

_____

of the witness.

agents had

There

abuse of discretion in ruling this was sufficient.

was no

We

even

with

hindsight, what more a continuance would have achieved.

The

defense

add

had

implicating

him

in

Miller to these crimes.

had strictly

evidence of

the

we

hoped

do

to

uncharged

and subpoena

questioning his

see,

discredit

murders

Miller

of

The court, however, in

prohibited

in reference to

introduction of

____________________

This ruling has not been appealed.

several

could tie

a pre-trial

extrinsic

murders and limited

these crimes

motivation to enter the

by

wished more time

witnesses who

Miller's involvement in the

cross-examination

5.

not

the cocaine conspiracy, and

locate, interview

ruling,

that

apparently

accomplices in

to

only

strictly to

plea agreement,5 in

-11-

accordance

with

Tigges v.
______

Federal

Rule

of Evidence

608(b).6

See
___

Cataldo, 611 F.2d 936, 938 (1st Cir. 1979).

_______

As to

this, post.
____

III. Prosecutorial Misconduct

______________________________

Before

trial government

counsel had

informed the

defense

and the

court

that Miller

had stated

during plea

negotiations that he

had decided to plead guilty because "he

thought that he was

going to be imputed with some murders to

which he denies, and

. . . the reason that motivated

him is

because he wanted to clear the record that in fact he did not

participate in those murders."

Miller had told defense

was

afraid

massacre

stated to

counsel roughly the same --

"the government

against him,

us that

During a pre-trial interview

[was] going

murder against

in fact he

agreement was admitted in

. . .

him,

did not do

evidence.

that he

to

bring a

but he

that."

It made no

also

The plea

mention, of

course, of murders.

During

vigorously

to

cross-examination

impeach

Miller's

defense

testimony

counsel

linking

sought

their

clients to

the

drug venture

by

attempting to

solicit

____________________

6.

(b)

Specific

Specific

instances

instances of

of

conduct.

the conduct

of a

witness, for the

purpose of attacking or

supporting

witness'

other

the

credibility,

than conviction of crime . . . may

not be proved by extrinsic evidence.

Fed.R.Evid. 608(b).

-12-

an

admission from Miller that he was motivated to cooperate with

the government by a

desire to "minimize the severity

of the

accusations against himself,"

specifically by avoiding being

implicated

with,

in,

or

charged

repeatedly denied such motivation,

the

murders.

professing only a

Miller

desire

to "repent" and "tell the truth."

Appellants

now contend

that due process required the

this was

an outright

government to correct.7

lie

They

rely principally upon Napue v. Illinois, 360 U.S. 264 (1959),

_____
________

which held that

Fourteenth

a defendant's due

Amendment

where the prosecutor

required

process rights under

reversal

failed to correct a

of

the

his conviction

witness' denial of

receiving promises of leniency in exchange for his testimony,

knowing

it was

himself

solicited the falsity. 360

said

this principle,

liberty,

testimony

Nor

false, even

did

though the

"implicit

does not cease

U.S. at 269.

in any

to apply

prosecutor had

The Court

concept of

merely because

ordered

the false

goes only to the credibility of the witness."

the fact

that the

jury

not

was presented

Id.
___

with other

grounds for questioning the witness' credibility "turn[] what

was otherwise a tainted trial into

a fair one."

Id. at 270.
___

____________________

7.

Defense counsel

time that
obligation

made no indication

the defense believed

to

clarify

to the court

the government was

Miller's

statements

at the
under an

about

his

motivation to plead, and, indeed, indicated satisfaction with

coverage

of

the issue

when

the

court

inquired prior

to

allowing examination of Miller to proceed into another area.

-13-

Appellants

contend

defense

counsels'

equal

knowledge

of

Miller's pre-trial admissions cannot alleviate the government

of its duty in this case to bring this impeachment "evidence"

before the jury.

There are two answers

to this.

The first

is that

the court had already ruled that testimony of murders was too

prejudicial to

defendant

be admitted.

refused

this

But, more

specific

important, although

characterization

of

his

motives, he did concede to believing the plea agreement meant

that "if I speak about things of which I have knowledge or in

which

and

I have taken part,

"would be

sentenced

I wouldn't be

to

fewer

sufficient acknowledgment that his

than genuine; there

indicted for them,"

years."

This

was

claim of rebirth was less

could be no question

the government had

no duty to go further.

IV. Jury Instructions

______________________

Having raised

jury

instructions at

no objections

trial, Aponte

to any aspect

now claims

of the

plain error

both in the

its

court's explanation of

failure

defendant's

following

to

give

exercise of

reasonable doubt and

requested

his right

instructions (emphasis

instruction

to remain

ours) contain

silent.

upon reason

and

arise

from

consideration

careful
of

is a doubt based

common sense,

all

-14-

and

and

may

impartial

the evidence,

the

The

the alleged

errors:

A reasonable doubt

on

in

or

from lack of

evidence.

Proof beyond

reasonable doubt is proof that leaves you

firmly
guilty.

convinced

that the

defendant is

-15-

If
__

careful and

impartial

consideration with your fellow

jurors of

all

after

the evidence, you are not convinced

______________________

beyond a reasonable
doubt that
the
_________________________________________
defendant is guilty, it is your duty to
_________________________________________
find the defendant not guilty.
________________________________

On the

other

hand,

if
__

after

impartial consideration
jurors

of

all

the

careful

and

with your fellow

evidence,

you are
________

convinced beyond a reasonable doubt that

_________________________________________
the defendant is guilty, it is your duty
_________________________________________
to find the defendant guilty.
_____________________________

. . . Each defendant is
be innocent and does not
or

present

innocence.

any

presumed to

have to testify

evidence

to

prove

The government has the burden

_____________________________

of proving every element of the charge

_________________________________________
beyond a reasonable doubt.
If it fails
_________________________________________
to do so, you must return a not-guilty
_________________________________________
verdict.
________

A.

Aponte

court

contends that

permitted the

jury to

by the

convict by

first paragraph

a degree

the

of proof

lower than constitutionally required.

convinced"

"clear

suggests

and

convincing"

impermissible in

441

U.S.

a burden

418,

of

proof akin

standard,

a criminal case.

425

He argues that "firmly

(1979)

(clear

use

to

of

See Addington
___ _________

and

the civil

which

is

v. Texas,
_____

convincing

is

an

"intermediate standard" between preponderance of the evidence

and proof beyond a reasonable doubt); In re Winship, 397 U.S.

_____________

358, 363-64 (1970) (guilt

by

no less

According

a standard

to

Aponte,

in a criminal case must

than "beyond

it

is

a reasonable

linguistically

conceive how "firmly convinced"

-16-

be proved

doubt").

impossible to

could equate

with "beyond

a reasonable doubt,"

when "clear

and convincing" does not.

Assessing the

Nebraska,
________

___ U.S.

___,

L.Ed.2d 583 (1994), we

adequately and

instructions as a

___,

114

whole, Victor
______

S.Ct. 1239,

1243,

v.

127

conclude that the emphasized portions

ultimately conveyed an

accurate, unambiguous

and comprehensible description of the government's burden and

the standard

convinced"

for

acquittal.

definition

Whether

alone

or not

would

be

the

"firmly

constitutionally

sufficient to convey the meaning of proof beyond a reasonable

doubt, the court's further exposition here left no doubt that

the jury's duty

was to convict only

as to guilt beyond

required.

upon reaching consensus

a reasonable doubt.8

Nothing

further is

United States v. Andujar, 49 F.3d 16, 23 (1st Cir.

_____________
_______

1995).

B.

As was

his right,

Aponte elected not

to testify,

and requested the following instruction be given to the jury:

____________________

8.

The

"firmly

convinced" language

has

withstood similar

attack

in a

variety

of contexts.

See United States

___ ______________

v.

Velazquez, 980 F.2d 1275, 1278 (9th Cir. 1992), cert. denied,
_________
____________
___

U.S.

___,

113

S.Ct.

2979,

125

L.Ed.2d

677

(1993)

(upholding same pattern instruction used here); United States

_____________
v.

Hunt, 794 F.2d

____

convinced"

1095, 1100-1101 (5th

adequately

conveys "beyond

Cir. 1986) ("firmly

a

reasonable doubt"

standard); United States v. Taylor, 997 F.2d 1551, 1557 (D.C.

_____________
______
Cir. 1993)

(same); see also United States v.

_________ ______________

F.3d 125, 131

(5th Cir.),

cert. denied, ___

____________

Williams, 20
________
U.S. ___,

S.Ct. 239, 130 L.Ed.2d 162 (1994); United States

_____________
Gonzales,
________

952 F.2d

1269, 1272-73

(10th Cir.

v. Barrera________
1992); United
______

States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995).

______
______

-17-

115

-18-

Under
not

the law,
need

Government
guilty

to
who

beyond

a defendants
testify, since
must

prove

a reasonable

presumption or inference

[sic] does
it

is the

her

[sic]9

doubt.

No

of guilt may be

made or drawn.

The

court

declined, instructing

instead

as

quoted above.

While he did not

object, Aponte now claims violation

of his

constitutional rights.

The Fifth Amendment guarantees a criminal defendant

both

the

right

inferences

to

may be

remain

silent

drawn from

and

that

his exercise

no

adverse

of this

right.

Carter v. Kentucky, 450 U.S. 288, 305 (1981).

______
________

the

defendant makes

timely request

Further, "when

that a

prophylactic

instruction be given . . . [the court] has the constitutional

obligation . . .

to minimize the

danger that the

jury will

give evidentiary weight to a defendant's failure to testify."

Id.10
___

wording

We have not read

Carter to require use

______

requested, however,

so

long as

instructions complied with this obligation.

of the exact

the trial

court's

United States v.
_____________

Ladd, 877 F.2d 1083, 1089 (1st Cir. 1989).

____

____________________

9.

The

district

court

apparently accepted

appellate counsel

a set

of proposed jury

counsel believed

had been

submitted to

inexplicably

absent from

the record.

instructions

were not prepared

from

Aponte's

instructions that
the court but

We

note that

for Aponte, but

were
these

for a Sonia

Berrios Rodriguez, but since the government did not object to

their inclusion in the appellate record as Aponte's requested
instructions, we will treat them as such.

10.

This

3481

obligation is also imposed by

(formerly designated as 28 U.S.C.

States v. Bruno, 308 U.S. 287 (1939).

______
_____

-19-

statute.

18 U.S.C.

632).

See United
___ ______

Our

question

government

has the burden

not

to

have

testify

is

whether

instructing

of proof and

or

present

that

the

that defendant does

evidence

adequately

communicates that no adverse inferences may be drawn from the

fact that he

answered

does not testify.

this affirmatively

instruction

that the

The government urges that we

in Ladd,
____

defendant's

where we

silence

"cannot even

considered by you in arriving at your verdict."

jury

might well

think that

approved an

Id.
___

defendant's right

be

Not so.

not to

testify means merely that

leaving

it to draw such

felt warranted.

to testify

F.2d at

the

silence as it

consider his failure

Here, however,

defendant's

Carter
______

the court

right

not to

"full and free

privilege

testify

instruction

or

present

v. Kentucky makes clear that, once request

________

exercise" of the

against

Ladd, 877
____

mentioned nothing

no-adverse-presumption instruction has

innocent

a witness,

precisely forbids drawing inferences.

evidence.

for a

conclusions from his

An instruction not to

1089.

beyond

he cannot be called as

constitutionally guaranteed

self-incrimination

on the right not

until proven

guilty.

United States v. Eiland, 741

______________
______

been made, the

requires

to testify and

450 U.S.

F.2d 738, 743

more

than

to be presumed

at 305.

See also
________

(5th Cir. 1984)

(holding

instructions

similar

to

those

given

here

constitutionally deficient under Carter).

______

We also find,

per United States v. Olano, 507 U.S.

_____________
_____

-20-

725,

___, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993), that

the forfeited error was "plain," and

rights" within the meaning of

v.

United States,
_____________

give

requested

presumptions from

mere "technical

substantial

discretion

Fed.R.Civ.P.

Chapman
_______

Fed.R.Civ.P. 52(b).

308 U.S. 287,

instruction

293-94 (1939)

cautioning

defendant's failure

. . . .").

reverse,

52(b);

but

no

Olano, 113
_____

v. California,
__________

We

386 U.S.

See Bruno
___ _____

(failure to

against

drawing

to testify was

erro[r] . . . which do[es]

rights

to

"affect[ed] substantial

not a

not affect . . .

therefore

obligation

perceive

to

do

so.

S.Ct.

at 1778.

See also
________

18,

23 (1967)

(not every

constitutional error automatically requires reversal).

Olano
_____

contemplates

that we

guide

our discretion

under

Rule 52(b)

by further

"seriously

affect[ed]

reputation

of the judicial proceedings."

(internal quotations

among

the

things

fairness,

omitted).

we may

evidence of guilt or

to the

the

determining whether

consider

is

or

public

113 S.Ct. at 1779

We have long

the

realized that

weight of

the

innocence, without casting it favorably

government or presuming that

resolved in

integrity

the error

credibility issues were

its favor, Arrieta-Agressot,

________________

3 F.3d at

528, to

determine whether the error could have made any difference to

the verdict.11

We do

not view Olano

_____

as having

removed or

forfeited

error

____________________

11.

At

this

stage

assessment

is

reasonable

doubt,"

of

whether
and

review
the

for

error was

differs

from

the

"harmless

beyond

so-called

"harmless

-21-

limited

such

consideration

an

assessment

as a general

from

matter.

our

However,

discretionary

the Court has

deemed a small number of "structural defects" not amenable to

"quantitative[]

U.S.

279, 308

assess[ment],"

(1991),

Arizona
_______

v. Fulminante,
__________

499

including total

deprivation of

the

right to counsel at trial (Gideon v. Wainwright, 372 U.S. 335

______
__________

(1963)), and lack of

U.S. 510 (1927)).

an impartial judge (Tumey v.

_____

Id.
___

at 309.

additional cases); Sullivan v.

________

113

S.Ct.

2078,

(constitutionally

2082,

deficient

The distinction these

See also id. at

________ ___

Ohio, 273
____

310 (citing

Louisiana, 508 U.S. 275, ___,

_________

124

L.Ed.2d

182

(1993)

reasonable doubt

instruction).

special errors share is

that they are

"structural defects in the trial mechanism" which affect "the

entire

conduct

of the

trial

from

beginning to

"without [which]

a criminal trial cannot

function

vehicle

as

innocence," rather

process itself."

for

determination

499 U.S. at

and

reliably serve its

of

than being simply "error[s]

Fulminante,
__________

end"

guilt

or

in the trial

309-10 (internal

quotations omitted).

We think failure

Carter instruction falls comfortably

______

It is

not the sort of

evidence

is

to give a

in the latter category.

error for which an

unsuitable precisely

requested

because

assessment of the

it

concerns the

evidentiary value the jury may give to a defendant's election

____________________

error"

review only in that the defendant bears the burden of

persuasion.

Olano, 113 S.Ct. at 1778.

_____

-22-

not

to testify on his own behalf.

On

this

basis

we

are

uncontradicted

evidence

Pulliza,

the

from

Carter, 450 U.S. at 305.

______

confident

against

testimony

involved in various aspects

of

in

saying

appellants

several

that

the

Aponte

and

co-conspirators

of the scheme, was overwhelming,

and the verdict rendered would have ensued regardless

error.

In sum, although

"the failure to

of the

limit the jurors'

speculation on the meaning of [the defendant's] silence, when

the

defendant makes

instruction

full

and

be given,

free

timely request

exacts an

exercise

of

that a

prophylactic

impermissible toll

[defendant's

Fifth

on the

Amendment

privileges]," id., we do not

___

believe it could have seriously

affected the fairness of the proceedings.

V. Double Jeopardy
___________________

Aponte

maintains that

because

underlying

his convictions also formed

forfeiture

of

Controlled

Substances and

881(a)(6) and

some

personal

the same

the basis of a civil

assets,

pursuant

Money Laundering Acts,

(7) and 18 U.S.C.

offenses

to

the

21 U.S.C.

981, respectively, his

criminal sentence constitutes a prohibited second punishment,

for the

same offenses, in

Clause of the Fifth

Dixon,
_____

___

violation of the

Amendment.

U.S. ___,

___,

113

Double Jeopardy

See, e.g., United States v.

___ ____ ______________

S.Ct. 2849,

2855-56,

125

L.Ed.2d 556 (1993).

however, once a

The

Clause

only

becomes

relevant,

defendant has first been placed in jeopardy,

-23-

and

"even then,

constitutionally

it is

only the

endangered."

second proceeding
______

United States v.
______________

that is

Pierce, 60
______

F.3d 886, 889 (1st Cir. 1995), pet. for cert. filed, Oct. 19,

____________________

1995 (No. 95-6474).

Aponte contends, against all authority,

that jeopardy in the

criminal case did not attach

sentencing,

We regard it

the

well after
_____

imposition of

(1978).

sequence

penalty.12

as beyond question that "jeopardy attaches when

jury is empaneled and sworn."

28, 35

the civil

until his

Pierce, 60 F.3d
______

Crist v. Bretz, 437 U.S.

_____
_____

at 889.

A glance

at the

of events in this case, supra note 12, reveals that

_____

the criminal

sanction therefore

cannot have been

second to

the forfeiture, and thus whether or not civil sanctions under

21

U.S.C.

881(a)(6) and

(7) and

18

U.S.C.

981 even

constitute punishment for the purposes of the Double Jeopardy

Clause is a question we need not reach.

The

convictions

of

appellants

are

therefore

affirmed.
_________

____________________

12.

The following chronology is pertinent:

Jury empaneled:

September 21, 1993

Criminal trial began:

September 22, 1993

Verdicts read:

October 1, 1993

Civil action commenced:

Nov. 4, 1993

Forfeiture stipulated:

March 9, 1994

Forfeiture order:

March 10, 1994

Criminal sentencing:

March 21, 1994

-24-