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United States v. Maria Enriqueta Cirila Trinidad de Jongh, 937 F.2d 1, 1st Cir. (1991)
United States v. Maria Enriqueta Cirila Trinidad de Jongh, 937 F.2d 1, 1st Cir. (1991)
2d 1
33 Fed. R. Evid. Serv. 132
Background
2
Appellant's assignments of error do not require that we treat the facts of her
case in exegetic fashion. To give the flavor of what transpired, we summarize
the critical events in traditional post-conviction fashion, taking the evidence in
the light most flattering to the prosecution. See United States v. Jimenez-Perez,
869 F.2d 9, 10 (1st Cir.1989); United States v. Mejia-Lozano, 829 F.2d 268,
270 (1st Cir.1987).
3
Prior to trial, Vlyt entered into a plea agreement and became the government's
star witness. The burden of her testimony put appellant hip-deep in the
narcotics venture. According to Vlyt, the cocaine was furnished by an
acquaintance of appellant's; the women were to deliver it to a dealer in Puerto
Rico; appellant maintained continuous custody of the key to the drug-laden
suitcase (although Vlyt carried the valise because appellant had a weak back);
and appellant told Vlyt that, if they were apprehended, it would be best to admit
nothing.
Based on this, and other evidence, the jury found the appellant guilty on all
three counts. On appeal, she floats four assignments of error. None have any
enduring buoyancy. We briefly discuss three claimed bevues.2
II.
The Witness Interview
6
presence. He then argued that the meeting was improper and prejudicial,
stressing that Vlyt had already varied her story once.3 He requested that Vlyt's
testimony be stricken or, alternatively, that a mistrial be declared. The court
denied the motion.
8
Nor can the appellant profitably attack the district judge's refusal to declare a
mistrial on this basis. We have regularly held that motions for mistrial are
"directed primarily to the sound discretion of the trial court." Real v. Hogan,
828 F.2d 58, 61 (1st Cir.1987); accord United States v. Chamorro, 687 F.2d 1,
6 (1st Cir.), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 613 (1982);
United States v. Pappas, 611 F.2d 399, 406 (1st Cir.1979). We cannot fault the
court's exercise of its discretion in this situation. Vlyt and the prosecutor
conferred not in some shadowed corner, but in a witness room at the
courthouse. When asked about meetings generally, Vlyt readily volunteered the
facts about the mid-trial meeting. She offered a perfectly plausible explanation
for the session--an explanation which has not seriously been called into
question. She was aggressively cross-examined about the incident.
10
In short, the defense, the court, and the jury were fully informed of the meeting
and its circumstances in ample time to assess their effect, if any, on Vlyt's
credibility. The appellant has not shown any actual prejudice. In these
circumstances, even the breach of a true sequestration order would not demand
that a mistrial be declared. See, e.g., United States v. Ayres, 725 F.2d 806, 812
(1st Cir.) (no mistrial necessary following inadvertent breach of actual
sequestration order), cert. denied, 469 U.S. 817, 105 S.Ct. 84, 83 L.Ed.2d 31
(1984); see also United States v. Kindle, 925 F.2d 272, 276 (8th Cir.1991)
(mistrial not required when appellant suffered no prejudice from challenged
contacts between sequestered witnesses and federal agents); United States v.
Arruda, 715 F.2d 671, 684 (1st Cir.1983) (where sequestration order breached,
district court had discretion to allow the witness' testimony to stand and to
refuse a mistrial). In the absence of some judicial directive limiting contact with
the witness, it verges on the frivolous to assert that the court erred in denying
appellant's mistrial motion.
III.
The Good Conduct Certificate
11
Appellant contends that the district court committed reversible error when it
refused to allow into evidence a good conduct certificate ostensibly issued by
the government of Bonaire, a copy of which is annexed as an appendix to this
opinion.5 We disagree.
12
13
14reasonable opportunity has been given to all parties to investigate the authenticity
If
and accuracy of official documents, the court may, for good cause shown, order that
they be treated as presumptively authentic without final certification or permit them
Fed.R.Evid. 902(3). In this case, the certificate's existence was not revealed to
the prosecution until the start of the defendant's case and defendant offered it
into evidence on the same day. There was no "reasonable opportunity" for
investigation. Hence, the exception to Rule 902(3) did not apply.
16
By the same token, the record reflects no "good cause" for the lack of a final
certification. Because the language of the Rule 902(3) exception was
appropriated directly from Fed.R.Civ.P. 44(a)(2), see Fed.R.Evid. 902 advisory
committee note, we are obliged to read the two rules in pari passu. The notes
accompanying Civil Rule 44 inform the use of the good cause exception:
19
Moreover, although "good cause" has a protean quality and its ascertainment
will likely vary from case to case, we do not believe that the "reasonable
opportunity" and "good cause" components of Rule 902(3) are scissile in all
respects. Where the adversary, despite a fair chance to examine into the
document's bona fides, casts no serious doubt on its authenticity, a finding of
good cause can much more readily eventuate. See Black Sea & Baltic Gen. Ins.
Co. v. S.S. Hellenic Destiny, 575 F.Supp. 685, 692 (S.D.N.Y.1983); 5 J.
Weinstein & M. Berger, Weinstein's Evidence, p 902(3) at 902-17 (1990). But
when, as in this case, the document surfaces at the eleventh hour, the dispute
about its authenticity does not appear to be frivolous, and the proponent has no
compelling explanation for either the lateness of the proffer or the lack of the
requisite formalities, a reviewing court would be hard pressed to say that the
trial judge erred in refusing to find good cause under Rule 902(3). We cannot
do so here. See Real, 828 F.2d at 64 (in federal court, "[t]rial judges have wide
discretion in deciding whether an adequate foundation has been laid for the
admission of evidence").7
IV.
Sentencing
20
21
De Jongh's argument is, in its terms, a paradox. She does not contend that she
actually accepted responsibility. The opposite is true. She denied responsibility
and continues to do so, maintaining that she is innocent of the charges lodged
against her. Her hypothesis is more convoluted. She asseverates that where, as
in her case, "the defendant claims to be innocent, even after trial, ... Sec. 3E1.1
unconstitutionally coerces her into waiving her right not to self-incriminate
herself and thus relinquish her right to assert her innocence on appeal." The
hypothesis is quickly disproved by the caselaw.
22
In United States v. Paz Uribe, 891 F.2d 396 (1st Cir.1989), cert. denied, --- U.S.
----, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990), we rejected precisely the same
argument predicated on a materially equivalent set of facts. We held
unequivocally that, notwithstanding the defendant's perceived dilemma,
U.S.S.G. Sec. 3E1.1, as applied to a defendant who continued to maintain his
innocence after having been found guilty at trial, was "not an impermissible
burden on the exercise of constitutional rights." Id. at 400. Moreover, Paz Uribe
is no waif in the wilderness; it stands shoulder to shoulder with substantial
authority from our sister circuits to the same effect. See, e.g., United States v.
Skillman, 922 F.2d 1370, 1378-79 (9th Cir.1990); United States v. Tillem, 906
F.2d 814, 828 (2d Cir.1990); United States v. Gonzalez, 897 F.2d 1018, 101921 (9th Cir.1990); United States v. Young, 875 F.2d 1357, 1360-61 (8th
Cir.1989).8
23
25
Affirmed.
APPENDIX
26
unless such substance or drug is a part of the cargo entered in the manifest ... of
the ... vessel....
21 U.S.C. Sec. 955 (1982 & Supp. V 1987).
Whoever commits an offense against the United States or aids, abets, ... or
procures its commission, is punishable as a principal.
18 U.S.C. Sec. 2(a) (1988).
2
When arrested, Vlyt told the authorities that the defendant knew nothing about
the drugs; after pleading guilty, Vlyt's version of the events changed
considerably
A careful lawyer, we think, might well want to confer with a witness at the end
of direct examination for a number of legitimate purposes, say, as this case
aptly illustrates, to make certain that relevant facts within the witness'
knowledge were not inadvertently omitted
According to a defense witness, a Dutch citizen who does not have a significant
criminal record may, upon request, secure from the government what the
witness described as "a good conduct certificate," properly known as a
"Certificate Regarding Conduct."
The rule provides in relevant part that extrinsic evidence of authenticity is not
required as a condition precedent to admissibility with respect to a foreign
public document "purporting to be executed or attested in an official capacity
by a person authorized by the laws of a foreign country to make the execution
or attestation, and accompanied by a final certification as to the genuineness of
the signature and official position (A) of the executing or attesting person, or
(B) of any foreign official whose certificate of genuineness of signature and
official position relates to the execution or attestation or is in a chain of
certificates of genuineness of signature and official position relating to the
execution or attestation." Fed.R.Evid. 902(3) (emphasis supplied). The rule also
describes who may make the "final certification."
We add an eschatocol of sorts. Meeting the test of Evidence Rule 902 does not
automatically ensure admissibility. Even an authentic document must satisfy
other applicable criteria for admissibility. See United States v. Southard, 700
F.2d 1, 23 (1st Cir.) (self-authentication and admissibility "are two separate
matters"), cert. denied, 464 U.S. 823, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983). In
this instance, given relevancy and hearsay concerns, it is problematic whether a
duly authenticated certificate would have been admissible. See, e.g.,
Government of the Virgin Islands v. Grant, 775 F.2d 508, 510-13 (3d Cir.1985)
(holding that testimony as to an absence of prior arrests is inadmissible as
character evidence and may also be excluded, in the trial court's discretion, if
offered as background evidence); see also United States v. Nazzaro, 889 F.2d
1158, 1168 (1st Cir.1989) (police officer's military service commendations and
medal for valor excludable both on relevancy grounds and as "classic hearsay")
A more difficult problem may exist in a case where a defendant, after pleading
or being found guilty at trial, attempts to accept responsibility and the district
court purports to weigh against this acceptance the defendant's earlier,
constitutionally protected conduct, such as her exercise of her right to remain
silent or to put the government to its proof at trial. See United States v. Watt,
910 F.2d 587, 591-93 (9th Cir.1990). The instant case presents no such
dilemma and we take no view of how it may best be resolved