United States v. Betances Diaz

Opinion

USCA1 Opinion

January 4, 1994
                                [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]

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

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No. 92-1535

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                JOHNNY BETANCES DIAZ,

                                Defendant, Appellant.
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                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                            Rosenn,* Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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Justin Levin for appellant Johnny Betances Diaz.
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            Geoffrey E.  Hobart, Assistant United  States Attorney,  with whom
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        A.  John Pappalardo,  United States  Attorney,  and Jeffrey  A. Locke,
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        Assistant United States Attorney, were on brief for appellee.
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        *Of the Third Circuit, sitting by designation.

Rosenn,  Senior Circuit  Judge.   Appellant Johnny
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             Betances  Diaz was  tried to  a  jury and  convicted in  the

             United   States   District   Court  for   the   District  of

             Massachusetts  for  conspiracy  to possess  with  intent  to

             distribute five or  more kilograms of cocaine,  in violation

             of  21  U.S.C.      841(a)(1)  and  846.    He  appeals  his

             conviction and contends  that:  (1) the  evidence introduced

             against him was  insufficient to support the  guilty verdict

             returned  by  the  jury, (2)  the  district  court erred  in

             admitting  a hearsay statement made by a co-conspirator, and

             (3) the  district court improperly  denied his motion  for a

             severance.  We affirm.1

                                          I.

                       As   recounted  in  United   States  v.  Matiz,  a
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             companion case decided contemporaneously herewith, this case

             arose  out of  a  large  scale  investigation  conducted  by

             various  government   agencies  in  the  United  States  and

             Colombia,  South  America  into   the  cocaine  distribution

             activities  of a number  of individuals.   The United States

             (the  Government) had  the assistance  of  Pedro Alvarez,  a

             defendant in another criminal matter.

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             1 The district  court possessed subject matter  jurisdiction
             pursuant to 18  U.S.C.   3231.  This  court has jurisdiction
             pursuant to 28 U.S.C.   1291 and 18 U.S.C.   3742 (a)(2).

Alvarez, at the behest of the Government, posed as

             a purchaser and  contacted a number of  cocaine suppliers in

             Colombia.      Negotiations  ensued   over   several  months

             pertaining to the  purchase of large quantities  of cocaine.

             In  the  early  part  of  1991,  the  suppliers in  Colombia

             informed  Alvarez  that  they  were  experiencing  temporary

             difficulties  in  smuggling  the  cocaine  into  the  United

             States.   In light of these difficulties, they asked Alvarez

             to  assist them in transporting the shipment.  Additionally,

             the  suppliers asked  Alvarez to  store  and distribute  the

             cocaine to their associates.

                       The Government  instructed Alvarez  to request  an

             up-front  payment  from  the suppliers  of  $30,000  for his

             troubles  and expenses.   Reluctantly, the  suppliers agreed

             and told  Alvarez that the  payment would be made  by one of

             their New York based associates, "La Negra," a code name for

             Nancy Esperanza Matiz.

                       Alvarez and Matiz  ultimately scheduled a  meeting

             for  May 23, 1991,  for Matiz to  hand over the  money to an

             associate of Alvarez, actually Special Agent Dominick Lopez,

             at a  Burger King  restaurant in Queens,  New York.   Matiz,

             however, failed to appear at the scheduled hour.  Only after

             Matiz twice contacted Diaz at his residence did  she finally

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arrive  together  with him,  two  hours  late,  in a  Nissan

             Pathfinder.  

                       As Lopez approached the vehicle he stated the code

             word  for the transaction, "Cubito."  Diaz replied "Cubita,"

             apparently correcting Lopez's  use of the masculine  form of

             the word.  After Lopez entered the vehicle, Matiz instructed

             Diaz to get the money.  Diaz, without receiving instructions

             regarding  the  location  of the  money,  retrieved  it from

             underneath the seat  of the car and  passed it to Matiz  who

             then  gave  it to  Lopez.    In  response to  Lopez's  query

             regarding the amount of money contained in each bundle, both

             Matiz and Diaz disclosed the correct amount.2 

                       After  this  exchange,  Matiz  remained  in  close

             contact  with  Alvarez.    She  informed  him  that she  was

             personally  expecting  to  receive a  large  portion  of the

             cocaine shipment upon its arrival.   Upon learning the  date

             on which the shipment consisting of 615 kilograms of cocaine

             would arrive,  Matiz placed  nine telephone  calls of  short

             duration to Diaz.

                       After the cocaine shipment arrived, Alvarez called

             Matiz on numerous  occasions to discuss  the details of  the
                                 
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             2The sum amounted to only $20,000 and Matiz promised to make
             an additional  payment of  $5,000 the  next day,  explaining
             that she had been told that the amount due was $25,000.

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pickup  of  her  portion  of  the  cocaine.    During  these

             conversations,  Matiz  expressed her  desire  to obtain  her

             share as  soon as possible.   Initially, she also  voiced an

             interest in purchasing some of  the cocaine that Alvarez had

             received   as  his   fee  for   transporting  the   cocaine.

             Ultimately,  however,  she  decided  against it  because  of

             financial constraints.

                       Finally, Alvarez informed Matiz that she would  be

             able to  collect her allocation  of the cocaine on  June 12,

             1991.   Alvarez  reserved a  hotel room  for Matiz  under an

             assumed  name in Middleboro, Massachusetts near the site for

             the transfer of the cocaine.  Matiz arrived  at the hotel on

             June  10, along  with Diaz  who also used  a false  name and

             fictitious  address to  check in.    The following  evening,

             Alvarez  and Matiz  met at  the  hotel to  review the  final

             arrangements   for  the  pickup.     A  number   of  Matiz's

             assistants, who had arrived at the  hotel on the same day as

             Matiz, were designated to collect the cocaine.  

                       At   the  time  of  the  pickup,  one  of  Matiz's

             assistants  followed  an undercover  agent to  the warehouse

             where the  car was loaded.  Matiz,  however, remained behind

             at the hotel with another  undercover agent, Dillon, who was

             to accompany her to a meeting with Alvarez to discuss future

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cocaine shipments.  Before departing, Matiz introduced  Diaz

             to  Dillon as her husband.  She then informed Diaz that "the

             boys" had gone  to load the  car.  Diaz  asked how long  the

             loading  would take and  offered his own  estimate regarding

             the length of the task.   As Matiz was leaving,  Diaz wished

             her  a  successful meeting.  In  the car,  Matiz  and Dillon

             decided to purchase a bottle  of champagne to celebrate  the

             deal.  On  the way to the  liquor store, Dillon  asked Matiz

             whether  Diaz minded  that she  met with  other men  late at

             night, as they  had done the night before.   Matiz responded

             that Diaz  did not mind,  that he understood that  Matiz was

             working,  that he  was aware  of the  business, and  that he

             liked the money.  Shortly  after an agent placed Matiz under

             arrest, another agent arrested Diaz outside the hotel.

                                         II.

                           A.  Sufficiency of the Evidence

                       Diaz first  contends that the evidence produced at

             trial does not show that he was a member of  the conspiracy.

             Essentially, he  claims that  he was merely  present at  the

             time of Matiz's activities but  did not participate in them.

In  evaluating a  claim  of insufficiency  of  the

             evidence, we "review the evidence as a whole,  including all

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reasonable  inferences from that evidence, in the light most

             favorable  to the government."  United States v. Argencourt,
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             996  F.2d 1300,  1303 (1st  Cir. 1993).   In  addition, both

             direct  and  circumstantial  evidence must  be  credited  on

             appeal.  United States v.  Echeverri, 982 F.2d 675, 677 (1st
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             Cir. 1993).   Thus, as long as a jury  could rationally find

             guilt beyond  a reasonable doubt,  we have no choice  but to

             affirm.  Argencourt, 996 F.2d at 1303. 
                      __________

                       Although, as the district  court acknowledged, the

             evidence  against  Diaz  was  "thin",  it  nevertheless  was

             sufficient  to  convict  him   beyond  a  reasonable  doubt.

             Contrary   to  his  assertions,  Diaz  did  more  than  just

             passively  and  innocently accompany  Matiz in  her dealings

             with respect  to  the  cocaine  purchase.   He  exhibited  a

             knowledge  of  and  participation in  the  conspiracy.   For

             example,   at   the  encounter   with   agent  Lopez,   Diaz

             acknowledged the  correct code term for the transaction.  He

             also  retrieved  the  money  without receiving  instructions

             pertaining  to its location and stated the correct amount in

             each  bundle.    In  addition, at  key  moments  of  Matiz's

             involvement with the cocaine purchase, she communicated with

             Diaz.  Furthermore,  on the day of the  cocaine pickup, Diaz

             revealed his familiarity  with the cocaine shipment  when he

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asked  about the  length of  the  trip and  offered his  own

             estimate of  the time  it would take  to complete  the task.

             The reasonable  inference to be drawn from  this evidence is

             that Diaz was intimately involved with Matiz in planning and

             executing the  conspiracy.   Finally, Matiz  explicitly told

             agent Dillon  that Diaz knew  she was working, was  aware of

             the business,  and that he liked the  money.  Based upon the

             admitted evidence,  a jury reasonably  could have  concluded

             that  Diaz knowingly  participated in the  conspiracy rather

             than merely acting as a disinterested bystander.

                                         II.

                           B.  Statement of Co-Conspirator

                       Diaz next maintains that the  district court erred

             in   admitting,  pursuant  to   Federal  Rule   of  Evidence

             801(d)(2)(E),  Matiz's  statement  implicating  him  in  the

             conspiracy.   He argues that  the statement was not  made in

             the course of or in furtherance of the conspiracy.  

                       To  admit  a  co-conspirator's   statement  as  an

             exception to the hearsay rule, a court must find that "it is

             more likely than  not that the declarant  and defendant were

             members of a conspiracy when the hearsay statement was made,

             and  that   the  statement   was  in   furtherance  of   the

             conspiracy."  United States v. Petrozziello, 548 F.2d 20, 23
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(1st  Cir.   1977).     The  district   court  conducted   a

             Petrozziello  hearing   and   found   these   facts   by   a
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             preponderance of the evidence.   We must accept the district

             court's finding  unless the  finding was  clearly erroneous.

             See United States v. Patterson,  644 F.2d 890, 894 (1st Cir.
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             1981).

                       A   co-conspirator's   statement    is   made   in

             furtherance  of a  conspiracy if  it "'tends to  advance the

             objects  of the  conspiracy  as  opposed  to  thwarting  its

             purpose.'"  United  States v. Masse, 816 F.2d  805, 811 (1st
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             cir. 1987)  (quoting United States  v. Fahey, 769  F.2d 829,
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             839 (1st Cir. 1985)).  On the  way to a meeting with Alvarez

             to  discuss  future  shipments  of   cocaine,  Agent  Dillon

             inquired  whether  Diaz,  who  was  introduced   as  Matiz's

             husband,  minded the  late night  meetings  with other  men.

             Understood  in this context, the purpose of Dillon's inquiry

             was  to  determine  the   extent  of  Diaz's  role  in   the

             conspiracy.  Matiz answered that Diaz knew what was going on

             and was  pleased with  the money.   This statement  was made

             during  the conspiracy  and  tended  to  further  its  goals

             because  it provided Dillon  with some measure  of assurance

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that Matiz could carry out her end of the conspiracy without

             obstruction on the part of her husband.3  

C. Severance 

                       Finally, Diaz argues that the district court erred

             by  denying  his  motion  for a  severance.  He  argues that

             severance  was  necessary  in  order  to  safeguard  against

             prejudicial spillover.      Spillover occurs "where evidence

             establishing  the guilt of one defendant, but not admissible

             against the  other, may  create an  atmosphere clouding  the

             jury's ability to evaluate fairly the guilt or innocence  of

             the latter."  United States  v. Perkins, 926 F.2d 1271, 1281
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             (1st Cir. 1991).  

                       We review the  denial of a severance  motion under

             Fed. R.  Crim. P. 14 for abuse of discretion.  United States
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             v.  Innamorati,  996 F.2d  456,  469  (1st  Cir. 1993).    A
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             district court's decision not to sever  can only be reversed

             upon  a defendant's  maintenance  of  the  heavy  burden  of

             showing substantial prejudice amounting to  a miscarriage of

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             3Moreover,   in  light   of   the  other   evidence,  albeit
             circumstantial, introduced  at trial  implicating Diaz  as a
             member  of the  conspiracy,  any  error  accruing  from  the
             admission of the statement would be harmless. 

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justice.   Id.  Substantial prejudice, however, is extremely
                        ___

             difficult to prove where, as here, there are obvious reasons

             of economy  in trying  Diaz with  his co-conspirator  Matiz.

             Fed. R.  Crim. P.  8(b).   "Co-conspirators are  customarily

             tried  together  absent  a  strong  showing  of  prejudice."

             Perkins, 926 F.2d  at 1280.  Evidence regarding  the acts of
             _______

             Matiz would  have  been admissible  against Diaz  even in  a

             separate trial, as co-conspirators are liable for all of the

             criminal  acts carried out in furtherance of the conspiracy.

             See United  States v.  Ortiz-Arrigoitia, 996  F.2d 436,  440
             ___ ___________________________________

             (1st Cir. 1993).  Moreover,  the court's instructions to the

             jury  that the  guilt of each  defendant must  be determined

             individually  provided  a   further  safeguard  against  the

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spillover   effect.4    Thus,   Diaz  has  failed   to  show

             substantial prejudice because of the joint trial.

                       The judgment of the district court is

                       Affirmed.
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             4 The court warned the jury as follows:

                       And I  will throughout  refer mostly  to
                       the defendant, and I will explain to you
                       later on  that as  to one  part of  this
                       case,  you must be very sure to view the
                       evidence as to  each separately, because
                       each    is    entitled    to    separate
                       consideration from you. . . .

                       Now, here  it is very important that you
                       review   the   evidence   as   to   each
                       separately.  The government has to prove
                       as  to each  of  them  that  he  or  she
                       knowingly  and   willfully  joined   the
                       unlawful scheme, with  the understanding
                       of its unlawful character.

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