United States Court of Appeals For the First Circuit

Nos. 99-1568 00-1764

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL PANIAGUA-RAMOS,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

José R. Franco, with whom David W. Roman and Brown & Ubarri were on brief, for appellant. Nelson Pérez-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. May 30, 2001

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

(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-Sánchez (del

Rosario), orchestrated a scheme to transport large amounts of

1In his opening brief, Paniagua also mounted a challenge under the banner of Apprendi v. New Jersey,

(2000) (establishing, as a constitutional matter, that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"). Following our explication of Apprendi in United States v. Robinson,

(1st Cir. 2001), Paniagua withdrew this claim.

-2- 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,

(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

-3- 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,

, 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

2 In United States v. Josleyn,

(1st Cir. 2000), we left open the question of whether a defendant in a criminal case needs to file a separate notice of appeal from an order denying a post-sentence motion for new trial (or, conversely, whether the original notice of appeal from the judgment of conviction suffices to bring that order before the appellate court). This case does not require us to answer that question.

-4- entitled, upon timely request, to an instruction that calls the

jury's attention to these dangers. E.g., United States v.

Pelletier,

(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,

,

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,

(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

-5- 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,

(1st Cir. 1994); United States v. Weston,

(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,

(1st Cir. 1991); see also

United States v. Taylor,

(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

-6- seriously impaired the fairness, integrity, or public reputation

of the proceedings as to threaten a miscarriage of justice.

Johnson v. United States,

(1997); United

States v. Olano,

(1993); United States v.

Brown,

(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,

(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

-7- 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,

(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,

(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,

(1st

Cir. 1987) (finding no plain error when district court failed to

give an explicit accomplice instruction, but defendant did not

-8- 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,

(leaving open this possibility); United States

v. House,

(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 that is

either demonstrably false, internally inconsistent, or

inherently incredible. Perhaps more importantly, our

independent examination of the record reveals no flaw of this

magnitude. The Fernandez exception is, therefore, inapposite.

By like token, the Fifth Circuit's decision in United

States v. Jones,

(5th Cir. 1982), hawked by

Paniagua in his brief and at oral argument, does not assist his

cause. There, as here, the appellant contended "that the

district court committed plain error by failing to give a

cautionary instruction (although not requested to do so) against

conviction upon the uncorroborated testimony of an alleged

-9- accomplice, who was a cooperating government witness."

. Jones argued, as does Paniagua, that whenever a conviction

is based upon an accomplice's testimony and that testimony is

uncorroborated or the evidence as to guilt is debatable, plain

error "invariably results, unless the trial court (even in the

absence of request) specially instructs the jury to receive such

accomplice testimony with caution and to require corroboration

of it."

. The court of appeals rejected this strait-

jacketed reading of the law, remarking that "in the ordinary

course of criminal trial, one would expect experienced counsel

to request such an [accomplice] instruction should it be thought

desirable to have this express instruction to alert the jury to

the potential unreliability of the accomplice . . . testimony."

Placing the burden elsewhere, the court stated, would

"permit counsel, by knowing inaction, to trap a trial court into

reversible omission of instruction."

. As a result,

"the failure to give an instruction in the absence of request

for it may amount to plain error only in egregious instances."

Since the circumstances here hardly are egregious, Jones

provides no support for Paniagua's plaint.

Paniagua's rejoinder of last resort is that the

belatedly challenged instruction denied him a fair trial because

it ignored what he terms an "established safeguard," namely, a

-10- direction to the jurors that they could not convict unless they

"believe beyond a reasonable doubt that [the testifying]

accomplice is telling the truth." Paniagua draws the quoted

language verbatim from a footnote in our opinion in Dailey,

n.8. Although the quotation is accurate, casting

the direction as an immutable obligation wrests the words from

their contextual moorings and distorts the Dailey court's

meaning.

In Dailey, the government appealed a pretrial order

barring it from using accomplice testimony at Dailey's trial.

. The district court issued the bar order

because it believed that the accomplices' plea agreements were

so likely to incite perjurious testimony that allowing the

accomplices to appear as witnesses would violate Dailey's right

to a fair trial.

. We reversed this order, holding

that Dailey's accomplices should be permitted to testify,

subject to "standard procedural safeguards."

. We

recounted certain of those safeguards (e.g., "[t]he [plea]

agreements should be read to the jury and made available during

its deliberations; defense counsel [should be allowed to] cross-

examine the accomplices at length about the agreements; and the

jury should be given the standard cautionary instruction

concerning the testimony of accomplices and a special cautionary

-11- instruction concerning the nature of each accomplice's

contingent agreement and the risk that it creates, particularly

in instances where the accomplice's testimony cannot be

corroborated").

Along the way, we quoted extensively from

jury instructions actually used by a different district judge in

a companion case and concluded that those instructions

"adequately admonishe[d] the jury to weigh [the accomplices']

testimony with the greatest of care."

at 200 n.8. The

phraseology upon which Paniagua relies is part of this

rendition.

Read in context, Dailey makes clear that the court

considered the quoted instructions to be adequate. The court

did not, however, intimate that those precise instructions were

obligatory. Indeed, in many cases, the Dailey language will not

be appropriate. It is bedrock principle that, in the ordinary

case, a jury need not believe every government witness beyond a

reasonable doubt in order to conclude that the defendant is

guilty beyond a reasonable doubt — and Dailey did not venture to

alter that principle.3 Nor did Dailey purport to constrain the

usual rule that a trial judge has considerable leeway in

3 Even so, where the accomplice's uncorroborated testimony is the only evidence of guilt, an admonition that the testimony must be believed beyond a reasonable doubt, if requested, would be advisable to guide the jury's deliberations.

-12- choosing the language that will best enable him or her to

enlighten the jury as to a particular point. Houlihan,

n.31; Nivica,

. Accordingly, we reject

Paniagua's effort to convert an example into a mandate.

To sum up, the court's charge in this case adequately

covered the subject of accomplice testimony. Although there

were differences between the language used by the court and the

language that Paniagua now says he would have preferred, we fail

to see how those differences depart in a material way from

standards established in our precedents. We conclude,

therefore, that the absence of a contemporaneous objection dooms

Paniagua's argument. After all, the challenged instructions

contained no clear or obvious error and inflicted no blow to

Paniagua's substantial rights. In these circumstances,

permitting the conviction to stand does not come close to

constituting a miscarriage of justice.

III

Paniagua's remaining assignment of error focuses on the

denial of his motion for new trial. He maintains that he raised

a colorable claim of jury taint; that the lower court's inquiry

into the issue was superficial; and that he was entitled, at the

very least, to a more rigorous investigation. We do not agree.

-13- The relevant facts are as follows. On August 4, 1999

— nearly a year after the jury verdict and nearly five months

after the imposition of sentence — Paniagua moved for a new

trial. See Fed. R. Crim. P. 33. His motion incorporated, and

relied upon, a sworn statement from Paniagua's sister, Maria

Antonina Paniagua-Ramos. The statement, signed on July 30,

1999, related that the affiant had attended the trial

throughout; that she had testified for the defense; and that she

had become thoroughly familiar with the jurors and the

prosecutors. The affiant went on to allege that, near the end

of the trial, she observed two female jurors chatting with

former Assistant United States Attorney José A. Quiles in the

cafeteria area of the courthouse; that the trio separated, but

one of the women soon returned and handed Quiles a document

(perhaps a notebook); and that Quiles pocketed the document.

Based on this alleged ex parte communication, Paniagua requested

a new trial.4

The United States objected to the motion and denied the

factual averments on which the motion was predicated. The

district court ordered both sides to file memoranda explicating

what, if anything, Quiles may have said or done, and how (if at

4 Paniagua nowhere credibly explains why the affiant's observations, allegedly made on August 24, 1998, were not reported to the court until almost a year later.

-14- all) his actions may have tainted the jury. In responding, the

government filed, inter alia, a declaration in which Quiles (who

had served as the lead prosecutor during the first trial and the

ensuing appeal) stated, under the penalties of perjury, that he

had no role in the second trial and no contact with either the

case agent or the prosecutor. He "categorically den[ied] the

statements made by Mrs. Maria Antonina Paniagua-Ramos." He

concluded his declaration by professing ignorance as to the

identity of the persons who served as jurors in the second trial

and affirming that he had "never delivered or received any

documents from any jurors."

After reviewing the parties' submissions, the court

reassembled the discharged jury and convened an evidentiary

hearing. The judge questioned each former juror individually,

under oath, and in the presence of both counsel. The judge

asked each one, in substance, whether he or she had had any

contact with Quiles, and whether he or she knew of any dealings

between Quiles and any other member of the venire. 5 Without

5 A few examples illustrate the tenor of the inquiry. The court queried one juror as to whether she "remember[ed] whether any juror ever talked to a prosecutor, a male prosecutor?" The court asked another, "Do you remember whether ever, at any point in time during that trial when you were not actually in the courtroom, that anybody — . . . could have been an assistant U.S. attorney by the name of José Quiles — ever approached you or any other member of the jury to discuss anything about the case?"

-15- exception, the former jurors answered these inquiries in the

negative. After hearing arguments of counsel, the district

court took the matter under advisement and, in due course,

denied Paniagua's motion.

We review a district court's denial of a motion for new

trial for abuse of discretion. United States v. Huddleston,

(1st Cir. 1999). Similarly, we review claims that

a trial court failed to conduct an appropriate inquiry into

allegations of jury taint for abuse of discretion. United

States v. Boylan,

(1st Cir. 1990). The

touchstone is reasonableness: did the trial court fashion, and

then even-handedly implement, a sensible procedure reasonably

calculated to determine whether something untoward had occurred?

See

We measure Paniagua's asseveration against this

benchmark.

We begin with first principles:

The right to trial by jury in a criminal case is an important feature of the justice system. In turn, the value of the right consists principally in the neutrality of the venire. All would agree that an impartial jury is an integral component of a fair trial. To preserve the integrity of the process, trial courts must jealously safeguard jurors' impartiality.

Neron v. Tierney,

(1st Cir. 1988)

(citation omitted). A principal purpose for such safeguards is

-16- to insulate jurors from improper ex parte contacts. The

proposition that private communications between jurors and

prosecutors during the course of a criminal trial are absolutely

forbidden is so elementary as to require no citation of

authority. This does not mean, however, that every assertion of

forbidden contact must be accepted as gospel. Experience

teaches that such assertions are more easily made than proven.

Consequently, any such assertion must be tested.

Trial courts have considerable latitude in determining

how best to evaluate such assertions and thus assure jury

impartiality in particular cases. See

(explaining

that "within a given situation, a broad range of alternatives,

each different from the others, may suffice to alleviate due

process concerns" in respect to claims of jury taint). In other

words, while a trial court has an unflagging duty adequately to

probe a nonfrivolous claim of jury taint, see Smith v. Phillips,

(1982); Remmer v. United States,

(1954), the court has wide discretion to determine the

scope of the resulting inquiry and the mode and manner in which

it will be conducted.

Here, the measures taken by the district court in

addressing Paniagua's claim of jury taint assured that the

possibility of spoliation was satisfactorily explored and the

-17- record adequately developed. Despite the tardiness of

Paniagua's proffer, see supra note 4, the district court took

his allegations seriously. The court ordered both sides to

submit explanatory memoranda. After receiving these responses,

the court took further steps: it reassembled the jury and

conducted an individualized voir dire, permitting counsel for

both sides to audit the jury interviews and make suggestions.

The court then found, based on the developed facts, that the

events described by Paniagua's sister had not occurred.

This balanced, well-thought-out process easily passes

muster. While the court perhaps could have devised some other

or different plan to test the credibility of the charge (say,

ordering Quiles and Paniagua's sister to testify in person and

to undergo cross-examination), our case law makes clear that

claims of jury taint are almost always case-specific. Thus, the

trial court — which is likely to have a superior "feel" for the

nuances of the case — ought to be accorded considerable

deference in fashioning procedures to deal with such matters.

Neron,

. Accordingly, we decline Paniagua's

invitation to second-guess the lower court's judgment as to what

-18- methodology was best calculated to get at the truth in this

instance.6

Paniagua has a fallback position. Leaving the district

court's methodology to one side, he says that the court clearly

erred in rejecting Maria Antonina Paniagua-Ramos's specific and

unambiguous affidavit. But a judge is not required to accept a

fact as true simply because a witness swears to it. See, e.g.,

United States v. Tipton,

(7th Cir. 1993). In

this instance, the affiant's statement was rendered suspect both

by her evident partiality and by the timing of the submission.

It was flatly contradicted by Quiles's declaration. To cinch

matters, the juror interviews belied the affiant's accusations.

Consequently, the court's finding that no compromising incident

occurred is fully supportable.

The short of it is that Paniagua failed, despite having

been given a fair opportunity, to establish the bona fides of

his claim of jury taint. We hold, therefore, that the district

court did not abuse its discretion either in developing a format

6 We reject Paniagua's contention that the trial court's inquiry was insufficient in light of Remmer,

. Remmer involved a situation in which the district court relied on the Federal Bureau of Investigation to check out an instance of possible jury taint, determined that no taint existed based solely on the results of that investigation, and excluded the defendant from any role in the inquiry. See

. That is a far cry from what transpired here.

-19- for testing that claim or in denying Paniagua's second motion

for a new trial.

IV

We need go no further. For aught that appears,

Paniagua was tried and convicted by a properly instructed jury,

unspoiled by prosecutorial misconduct. His conviction and

sentence must, therefore, be

Affirmed.

-20-