USCA1 Opinion

November 4, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 93-1669
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
DAVID SUSTACHE RIVERA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Benny Frankie Cerezo, by Appointment of the Court, and

______________________
Offices of Benny Frankie Cerezo on brief for appellant.
_______________________________
Miguel A. Pereira, Assistant United States Attorney, Guille
__________________
______
Gil, United States Attorney, and Jose A. Quiles-Espinosa, Sen
___
________________________
Litigation Counsel, on brief for the United States.
____________________
____________________

Per Curiam.
__________
indicted
2119(1).
for two
statute.

In December 1992, David Sustache Rivera was

for armed car jacking

in violation of

In January 1993, Sustache

additional car

jackings

18 U.S.C.

was indicted separately

in violation

of the

same

In one of these two, serious injury had resulted to

a victim, and the government also invoked 18 U.S.C.

2119(2)

providing for an additional penalty in such cases.

On
plea
trial.

March 9, 1993,

in all

three

Sustache appeared to

cases which

had

enter a guilty

been consolidated

for

By then Sustache had been examined by a psychologist

who

reported

that

he

was

competent

to

stand

trial.

Nevertheless, when defense counsel expressed some reservation

about

Sustache's

"thorough

understanding

of

all

the

proceedings," the court asked Sustache why he wanted to plead

guilty, and Sustache replied:

"I don't remember."

The district court then said that it was satisfied based

on the

psychologist's report that Sustache

stand trial.

The court said that it was unwilling to

a guilty plea
remember

from a

why he was

again urged the

defendant who said

pleading guilty.

court to

accept

that he could

not

When defense counsel

inquire about a

court questioned the defendant further.

asserted

was competent to

guilty plea,

the

Ultimately defendant

that he had not committed the crimes charged in the

indictments.

-2-2-

The
without

court
any

commenced.

then ordered

objection
There was

from

the jury

to be

defense

counsel,

summoned and,
the

extensive testimony as to each

trial
of the

three car jackings including an eye witness identification of

Sustache by a different
On

March 11,

counts.

witness in each of the

1993, the

jury found

three cases.

Sustache guilty

on all

In May 1993, the district court sentenced him to 444

months' imprisonment.
On

this appeal, Sustache's

appellate counsel, who also

represented Sustache at trial, makes two main arguments.

The

first is that two of the three identifications of Sustache at

trial were flawed.
violations of
Procedure.
prevent

The flaws, according to the counsel, were

provisions of Puerto Rico's

The

provisions

in question

suggestive identifications

Rules of Criminal
are

designed

and preserve

to

records of

the identification process.

The government responds that none of these objections to
the identifications were made in advance of trial as required
by Fed. R. Crim. P. 12(b)(3), which specifies that motions to
suppress

evidence be

raised prior

reasons, this requirement protects

appeal the
has
issue

grant of

attached.

trial.

motion

Among other

the government's right to

the suppression motion

Consonantly, the

by pre-trial

to

before jeopardy

failure to

waives the

claim.

raise such
See
___

States v. Gomez-Benabe, 985 F.2d 607 (1st Cir. 1993).

______
____________

-3-3-

an

United
______

In

reply

brief,

Sustache's

counsel

argues

"that

defendant was not granted the opportunity to file a motion to

suppress";
counsel

the gist of the argument is that Sustache and his

came to court on

guilty

March 9, 1993,

expecting to plead

and were surprised to find the case was proceeding to

trial at once.
12(f)'s

Defense counsel refers us to Fed. R. Crim. P.

provision allowing

the

district

court "for

cause

shown" to relieve any defendant from waiver.

Rule 12(f)

gives authority

there is no indication
it

there.

to trial
was

that defendant ever sought

forthwith, defense counsel

Nothing in the

applicable

court, and
to invoke

Further, when the district court ordered the case

unprepared or

describe

to the district

the

needed additional

reply brief
deadlines

to this

time to

in this court

for

case.

did not object

pre-trial

So

far as

that he

file motions.

even attempts
motions

we can

that

to
were

tell from the

record, the claimed "lack of opportunity" to move to suppress

is an afterthought.
Nor is there any
provisions
under

invoked

local law,

basis for asserting plain error.

by

counsel

related

and identifications

The

to identifications

in federal

court are

governed by federal
F.2d 765
this

law.

United States v. Sutherland,

______________
__________

929

(1st Cir.), cert. denied, 112 S. Ct. 83 (1991).

____________

case

officials

the identifications
before

the

case

were
was

carried

out by

transferred

to

In

local
federal

-4-4-

authorities.
were

There is no indication

seeking

to

circumvent

local

advantage of any flagrant abuse.

913 F.2d 982

(1st Cir. 1990),

that federal officials

protections

or

take

See United States v. Pratt,

___ _____________
_____
cert. denied, 111 S.
____________

Ct. 681

(1991).
The identifications

may or

may not have

been somewhat

suggestive; the defense version of what happened is not based

on

any

district

suppression
required.

court

motion meant
The

fact

identifications, one

of

findings

since

no ruling
that

tainted, strongly suggests that

lack

on the issues

there

which is

the

not

were

three

even claimed

this is not a case

of

was ever
separate
to

be

that can

be

described as a miscarriage of justice.

See United States

___ _____________

v. Olano, 113 S. Ct. 1770 (1993).

_____
Sustache's

other independent

less discussion.
says that

In

his opening brief,

the district

instructing the

jury that

and act upon

of error

requires

Sustache's counsel

court committed reversible

reasonable doubt meant

such convincing character that

rely

claim

it."

a person would be

Although no

any part of the reasonable

error by
"proof of
willing to

objection was taken to

doubt instruction given at trial,

counsel correctly asserts that the quoted language is akin to

an instruction found

to constitute plain error.

See United
___ ______

States v. Colon Pagan, 1 F.3d 80 (1st Cir. 1993).

______
___________

-5-5-

The
language

difficulty
in

any

is

that

portion

of

we
the

cannot

find

court's

two

the

quoted
sets

of

instructions
preliminary

on

reasonable

instructions prior

was

delivered in a somewhat

the

evidence.

just quoted

doubt;

was

given

to testimony, and

different form at

Although counsel's

and later

one

the other

the close of

brief uses

paraphrases the

in

the language

alleged instruction,

neither reference is accompanied by any record citation.

government's brief asserts that

The

the alleged language was not

used, and we have no reason to disagree.

Sustache's

brief

district court's

also

draws

statement that

doubt

based upon

that

a reasonable

our

to

"[a] reasonable doubt

reason and common

doubt is

attention

sense."

a doubt

the
is a

The statement

based upon

reason and

common sense is widely used in pattern instructions, see 1 L.

___
Sand, J. Siffert, W. Loughlin & S. Reiss, Modern Federal Jury
___________________
Instructions
____________

4.01, at

basis for thinking that

4-8 (1994), and

Sustache offers no

this reference was error, let

alone

plain error.
The

trial

reasonable doubt

judge

also

is proof

said

"[p]roof

that leaves you

that the defendant is guilty."

"convince" was

that

used both in the

beyond

firmly convinced

But the fact that one form of

Colon-Pagan instruction and
___________

in this case does not assist defense counsel, although it may

explain

the mistaken claim that

-6-6-

the instruction here is the

one

condemned in Colon-Pagan.
___________

As that case makes clear, the

problem in Colon-Pagan was not with the word "convincing" but

___________
with the suggestion
so

that a reasonable doubt

long as "a person . . .

upon" the proof presented.

would not exist

would be willing to rely and act

See 1 F.3d at 81.
___

The "firmly convinced" phrasing has been used in a Ninth

Circuit

pattern

instruction

and in

the

Federal

Center's pattern instructions, see Sand, supra,

___
_____
15

&

n.33;

and

while its

ourselves upheld a somewhat

reasonable

doubt with

use

may

be

Judicial

4.01, at 4-

limited,

we have

similar statement that equates a

jurors' inability

to "say

that they

have a settled conviction of the truth of the charge."

E.g.,
____

United States v. O'Brien, 972 F.2d 12, 15-16 (1st Cir. 1992).
_____________
_______
See also Victor
________ ______

v. Nebraska,
________

(Ginsburg, J., concurring).

revisit

the issue here where

114 S. Ct.

1239, 1253

(1994)

We certainly have no occasion to

no direct criticism is offered

of the "firmly convinced" language.

Finally, we note
to dispense with oral
no

need

for

that Sustache's counsel,

argument on the ground that

it,

thereafter

submitted

"supplemental brief

in lieu of

oral argument."

elaborates a number

of the points

opening and reply briefs.

this

additional

having moved

brief was

to

the

there was
court

This brief

previously argued in

Since no motion for

submitted,

we

the

leave to file

cannot deny

the

-7-7-

motion, but we do

decline either to docket or

impermissible filing.
Affirmed.
________

consider this

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