United States v. de la Cruz Paulino
Procedural entryThis page is a short order in United States v. de la Cruz Paulino. Read the opinion of the Court — 61 F.3d 986 →
Opinion
USCA1 Opinion
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________
No. 94-1985
UNITED STATES,
Appellee,
v.
VANESSA DE LA CRUZ PAULINO,
Defendant, Appellant,
No. 94-1986
UNITED STATES,
Appellee,
v.
WANDA DIAZ-PEREZ,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Rachel Brill with whom Jose Fernando Irizarry was on brief for _____________ _______________________
appellant Diaz-Perez.
Enrique Velez-Rodriguez for appellant de la Cruz Paulino. _______________________
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom ________________________
Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assistant _____________ ________________
United States Attorney, were on brief for appellee.
____________________
August 3, 1995
____________________
STAHL, Circuit Judge. Defendants-appellants Wanda STAHL, Circuit Judge. _____________
D az-P rez and Vanessa de la Cruz-Paulino (collectively,
"defendants") appeal their convictions for aiding and
abetting each other and others in the unlawful possession of,
with intent to distribute, approximately eighty kilograms of
cocaine, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C.
2. D az-P rez also appeals her conviction for using a
communications facility on six separate occasions to
facilitate the distribution of cocaine, in violation of 21
U.S.C. 843(b). D az-P rez argues that she is entitled to a
new trial because the government violated Fed. R. Crim. P.
12(d)(2) by failing to designate certain of the evidence it
intended to use during its case in chief; because the
district court admitted hearsay tape recordings into
evidence; and because the trial judge made prejudicial
comments in front of the jury. Both D az-P rez and de la
Cruz-Paulino argue that the district court abused its
discretion in allowing a representative sample of cocaine to
be sent into the jury deliberation room. Finally, de la
Cruz-Paulino argues that the evidence was insufficient to
establish her guilt beyond a reasonable doubt. We affirm
D az-P rez's conviction, but reverse de la Cruz-Paulino's
conviction for insufficient evidence.
-2- 2
I. I. __
Background Background __________
On January 21, 1994, Federal Drug Enforcement
Administration ("DEA") agents in Puerto Rico met with a
cooperating individual known as "Chita," who spoke with them
about a pending drug transaction involving 200 kilograms of
cocaine. Chita told the agents that the Puerto Rican contact
was known as "Negro." He did not refer to either defendant.
Between 12:00 noon and 4:20 p.m., DEA agents
recorded four telephone conversations placed by Chita to a
Colombian contact known as "Jota." During the trial, the
district court admitted tapes of these recorded conversations
into evidence without objection from defense counsel. In one
of the conversations, Jota told Chita that he would make
arrangements for the Puerto Rican contact, whom he referred
to as a female schoolteacher, to telephone Chita at the
number Chita provided, which in reality was the number for a
DEA cellular telephone. It was established at trial that
D az-P rez was a teacher.
Not long after these telephone calls ended, the DEA
decided to abort the operation, and Agents Andaluz and
Salazar transported Chita to the airport. While en route to
the airport, however, the agents received a call from D az-
P rez on the DEA telephone. The ensuing conversation was not
recorded. However, at trial, D az-P rez testified that
-3- 3
during that unrecorded conversation, she was told that the
wrapped packages she was transporting contained coffee for
which excise taxes had not been paid and was instructed not
to mention any names during subsequent conversations.
Andaluz testified that he was the one who had spoken with
D az-P rez during the unrecorded conversation and that he
never mentioned the word "coffee."
After dropping Chita off at the airport, Andaluz
and Salazar returned to DEA headquarters and conferred with
other agents regarding the contents of the call. They then
decided to contact D az-P rez and arrange for a transfer of
the cocaine. To accomplish this, Andaluz placed five
telephone calls to D az-P rez between 7:10 p.m. and 9:55 p.m.
and received one telephone call from D az-P rez.
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USCA1 Opinion
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________
No. 94-1985
UNITED STATES,
Appellee,
v.
VANESSA DE LA CRUZ PAULINO,
Defendant, Appellant,
No. 94-1986
UNITED STATES,
Appellee,
v.
WANDA DIAZ-PEREZ,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Rachel Brill with whom Jose Fernando Irizarry was on brief for _____________ _______________________
appellant Diaz-Perez.
Enrique Velez-Rodriguez for appellant de la Cruz Paulino. _______________________
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom ________________________
Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assistant _____________ ________________
United States Attorney, were on brief for appellee.
____________________
August 3, 1995
____________________
STAHL, Circuit Judge. Defendants-appellants Wanda STAHL, Circuit Judge. _____________
D az-P rez and Vanessa de la Cruz-Paulino (collectively,
"defendants") appeal their convictions for aiding and
abetting each other and others in the unlawful possession of,
with intent to distribute, approximately eighty kilograms of
cocaine, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C.
2. D az-P rez also appeals her conviction for using a
communications facility on six separate occasions to
facilitate the distribution of cocaine, in violation of 21
U.S.C. 843(b). D az-P rez argues that she is entitled to a
new trial because the government violated Fed. R. Crim. P.
12(d)(2) by failing to designate certain of the evidence it
intended to use during its case in chief; because the
district court admitted hearsay tape recordings into
evidence; and because the trial judge made prejudicial
comments in front of the jury. Both D az-P rez and de la
Cruz-Paulino argue that the district court abused its
discretion in allowing a representative sample of cocaine to
be sent into the jury deliberation room. Finally, de la
Cruz-Paulino argues that the evidence was insufficient to
establish her guilt beyond a reasonable doubt. We affirm
D az-P rez's conviction, but reverse de la Cruz-Paulino's
conviction for insufficient evidence.
-2- 2
I. I. __
Background Background __________
On January 21, 1994, Federal Drug Enforcement
Administration ("DEA") agents in Puerto Rico met with a
cooperating individual known as "Chita," who spoke with them
about a pending drug transaction involving 200 kilograms of
cocaine. Chita told the agents that the Puerto Rican contact
was known as "Negro." He did not refer to either defendant.
Between 12:00 noon and 4:20 p.m., DEA agents
recorded four telephone conversations placed by Chita to a
Colombian contact known as "Jota." During the trial, the
district court admitted tapes of these recorded conversations
into evidence without objection from defense counsel. In one
of the conversations, Jota told Chita that he would make
arrangements for the Puerto Rican contact, whom he referred
to as a female schoolteacher, to telephone Chita at the
number Chita provided, which in reality was the number for a
DEA cellular telephone. It was established at trial that
D az-P rez was a teacher.
Not long after these telephone calls ended, the DEA
decided to abort the operation, and Agents Andaluz and
Salazar transported Chita to the airport. While en route to
the airport, however, the agents received a call from D az-
P rez on the DEA telephone. The ensuing conversation was not
recorded. However, at trial, D az-P rez testified that
-3- 3
during that unrecorded conversation, she was told that the
wrapped packages she was transporting contained coffee for
which excise taxes had not been paid and was instructed not
to mention any names during subsequent conversations.
Andaluz testified that he was the one who had spoken with
D az-P rez during the unrecorded conversation and that he
never mentioned the word "coffee."
After dropping Chita off at the airport, Andaluz
and Salazar returned to DEA headquarters and conferred with
other agents regarding the contents of the call. They then
decided to contact D az-P rez and arrange for a transfer of
the cocaine. To accomplish this, Andaluz placed five
telephone calls to D az-P rez between 7:10 p.m. and 9:55 p.m.
and received one telephone call from D az-P rez. The DEA
recorded all of these conversations, and the district court
admitted the recordings into evidence, D az-P rez stipulating
that the voice in the recordings belonged to her. None of
the conversants explicitly referred to cocaine or coffee in
the recorded conversations, although Andaluz did use the word
"kilos" once.
During the six recorded conversations, Andaluz and
D az-P rez discussed the details of the delivery, including
the mode of transportation and the size of the shipment.
After a brief exchange in which D az-P rez attempted to
solicit Andaluz s help in carrying the bags containing the
-4- 4
cocaine down from a second-story apartment, Andaluz asked,
"Can t you give somebody there $30, $40 I ll pay you back
over here, to place it in the trunk, only to place it in the
trunk, don t bring him over or anything, to come over here?"
D az-P rez indicated that she would, and eventually Andaluz
and D az-P rez agreed to meet in the parking lot of a Burger
King restaurant.
At trial, Andaluz testified that after D az-P rez
and de la Cruz-Paulino arrived at the Burger King parking
lot, but before he and Salazar approached them, he activated
a concealed microcassette recorder. The district court
admitted the recording of the subsequent conversation into
evidence without objection. After greeting defendants,
Salazar asked, "Did you get it down," and de la Cruz-Paulino
answered, "Of course we did." A short discussion about the
$40 followed, after which Andaluz asked D az-P rez, "Which is
your car?" D az-P rez stated, "That black one there, in the
trunk, two bales and . . . eight doubles. . . ." Andaluz and
Salazar opened the trunk and one of the garbage bags, Andaluz
stating that he had "[t]o check it out girl, because what
will I do with [unintelligible]." D az-P rez then exclaimed,
"Shut up! Oh, God, the two bales and the other stuff."
Andaluz then said, "No, relax, we are getting involved here
to get a party." De la Cruz-Paulino then said, "No, watch
-5- 5
out the police is around, going around here." Defendants
were arrested immediately thereafter.
DEA agents searched D az-P rez s car at the time of
defendants arrest. The trunk contained approximately eighty
kilograms of cocaine with a stipulated value of $1.2 million.
The cocaine was wrapped and sealed in such a way that it was
impossible to see the contents.1 Also seized were a
cellular telephone, a package of coffee, and a piece of
cardboard. Chita s name was written on the cardboard, along
with the DEA telephone number, several figures that totaled
eighty, and the words "coffee" and "large garbage bags." DEA
agents did not find any weapons, nor did they test
defendants clothing for the presence of cocaine.
Defendants were subsequently indicted for aiding
and abetting each other and others in possession of, with
intent to distribute, a controlled substance, in violation of
21 U.S.C. 841(a)(1) and 18 U.S.C. 2. D az-P rez was also
indicted on six counts of using a communications facility in
furtherance of a narcotics transaction, in violation of 21
U.S.C. 843(b).
Prior to trial, defendants requested, pursuant to
Fed. R. Crim. P. 12(d)(2), that the government designate the
____________________
1. Each kilogram was wrapped individually in a tan-colored
wrapping, then two kilograms were bundled together and
wrapped in a black wrapping. The bundles were then placed
into three large garbage bags.
-6- 6
evidence it intended to introduce at trial. In response, the
government designated the seized cocaine, the materials in
which the cocaine had been wrapped, and various tape
recordings and photographs. In addition, the government
stated, "Any other physical and/or documentary evidence will
be notified at least five (5) days before the date of trial."
The government never notified defendants that it intended to
introduce the telephone or the cardboard seized from D az-
P rez s car into evidence. Nonetheless, the government
referred to both pieces of evidence during its opening
statement at defendants' jury trial.
Immediately following the opening statement of
D az-P rez, both defense counsel moved to exclude the
telephone and the cardboard because they had not been
designated as evidence by the government as required under
Rule 12(d)(2). During the discussion on defendants' motion,
the government never admitted that it had not designated
either piece of evidence, but instead repeatedly insisted
that it had provided defendants with full discovery, stating,
for example,
they were fully aware that this was a
piece of evidence and this is not [a]
surprise to them they had it from about
three weeks after the defendants had been
arrested this is no surprise to them,
they should be aware that this was a
piece of evidence and the government
could attempt to use such evidence.
-7- 7
The district court denied the motion, stating, "it's been
provided." When defense counsel objected that the evidence,
although provided under Fed. R. Crim. P. 16, had not been
designated as required by Rule 12(d)(2), the district court
stated, "It is not [a] surprise, it[']s there and you have
it." The evidence was subsequently admitted without further
objection.
At the close of the government's case in chief,
both defendants moved pursuant to Fed. R. Crim. P. 29 for
judgments of acquittal; the district court denied both
motions. D az-P rez then testified in her own defense, but
offered no other evidence. De la Cruz-Paulino did not
testify and offered no evidence. At the close of trial, both
defendants renewed their Rule 29 motions, and each defendant
also objected to the district court's decision to allow a
representative sample of unpackaged cocaine, which had been
admitted into evidence without objection, into the jury room.
Defendants now appeal their convictions.
II. II. ___
Discussion Discussion __________
A. Rule 12(d)(2) Violation ___________________________
D az-P rez argues that the district court abused
its discretion in admitting into evidence the cellular
telephone and the piece of cardboard because the government
did not disclose its intent to use the evidence during its
-8- 8
case in chief as required by Fed. R. Crim. P. 12(d)(2).2
D az-P rez first argues that the district court erred in
holding that the government did not violate Rule 12(d)(2)
since it had provided defendants with open-file discovery.
We agree. "To the extent that the government's open files
contain information that is subject to Rule 16 discovery,
Rule 12(d)(2) creates a notice requirement. The open file
policy does not, in and of itself, satisfy this notice
requirement because it does not specify which evidence the
government intends to use at trial." United States v. Brock, _____________ _____
863 F. Supp. 851, 868 (E.D. Wis. 1994). Providing open-file
discovery does not satisfy Rule 12(d)(2) because "the
defendant is still `left in the dark' as to exactly what
evidence, discoverable under Rule 16, the government intends
____________________
2. Fed. R. Crim. P. 12(d)(2) provides:
(d) Notice by the Government of the (d) Notice by the Government of the
Intention to Use Evidence. Intention to Use Evidence.
. . . .
(2) At the Request of the (2) At the Request of the
Defendant. At the arraignment Defendant.
or as soon thereafter as is
practicable the defendant may,
in order to afford an
opportunity to move to suppress
evidence under subdivision
(b)(3) of this rule, request
notice of the government's
intention to use (in its
evidence in chief at trial) any
evidence which the defendant
may be entitled to discover
under Rule 16 subject to any
relevant limitations prescribed
in Rule 16.
-9- 9
to rely upon in its case in chief at trial." United States _____________
v. Kelley, 120 F.R.D. 103, 107 (E.D. Wis. 1988). Thus the ______
district court erred in ruling that the government's open-
file discovery satisfied the requirement of Rule 12(d)(2).
The government's failure to designate either the telephone or
the cardboard as evidence was a violation of the rule.
D az-P rez next argues that to remedy the
government's Rule 12(d)(2) violation, we should reverse her
conviction and remand for a new trial as we did for the
victim of a Rule 16 violation in United States v. Alvarez, ______________ _______
987 F.2d 77, 85-86 (1st Cir.), cert. denied, 114 S. Ct. 147 _____ ______
(1993). We do not agree.3
We have not yet addressed the effect of a violation
of Rule 12(d)(2). In reviewing discovery violations,
however, we have made clear that "[a] defendant must prove
that the alleged violation prejudiced his case to succeed in
obtaining a reversal on appeal." United States v. Nickens, _____________ _______
955 F.2d 112, 126 (1st Cir.), cert. denied, 113 S. Ct. 108 _____ ______
(1992); see also United States v. Valencia, 656 F.2d 412, 416 ___ ____ _____________ ________
____________________
3. We would review a district court's decision to impose a
particular sanction only for abuse of discretion. United ______
States v. Valencia, 656 F.2d 412, 415 (9th Cir.) (reviewing ______ ________
sanctions imposed for Rule 12(d)(2) violation for abuse of
discretion), cert. denied, 454 U.S. 877 (1981); see also _____ ______ ___ ____
Alvarez, 987 F.2d at 85 (reviewing district court's treatment _______
of government's failure to provide pretrial discovery for
abuse of discretion). In this case, however, the district
court did not consider imposing a sanction since it did not
find that a violation occurred. Accordingly, we must
ourselves determine whether a sanction was necessary.
-10- 10
(9th Cir.), cert. denied, 454 U.S. 877 (1981). We extend _____ ______
this prejudice requirement to violations of Rule 12(d)(2).
D az-P rez argues that the government's Rule
12(d)(2) violation prejudiced her in three ways: (1) she was
not prepared to file a motion to suppress the evidence, (2)
the evidence forced her to alter her trial strategy, and (3)
the evidence had an effect on her plea strategy. None of
these reasons warrants reversal in this case.
Rule 12(d) is "a matter of procedure," Fed. R.
Crim. P. 12 advisory committee's note (internal quotation
omitted), rather than a rule designed to ensure fairness at
trial. As its text makes clear, Rule 12(d)(2) allows
defendants to request notice of the government's intent to
use evidence "in order to afford an opportunity to move to ______________________________________________
suppress evidence under subdivision (b)(3) of this rule." __________________
Fed. R. Crim. P. 12(d)(2) (emphasis added).4 Rule 12(d)
"provides a mechanism for insuring that a defendant knows of
the government's intention to use evidence to which the
____________________
4. Fed. R. Crim. P. 12(b) provides:
(b) Pretrial Motions. Any defense, (b) Pretrial Motions.
objection, or request which is capable of
determination without the trial of the
general issue may be raised before trial
by motion. Motions may be written or
oral at the discretion of the judge. The
following must be raised prior to trial:
. . . .
(3) Motions to suppress
evidence . . . .
-11- 11
defendant may want to object" so that the defendant may
"avoid the necessity of moving to suppress evidence which the
government does not intend to use." Fed. R. Crim. P. 12
advisory committee's note; see also 1 Charles A. Wright, ___ ____
Federal Practice and Procedure: Criminal 197, at 735 (2d __________________________________________
ed. 1982) (Rule 12(d) "is intended to facilitate the making
of a pretrial motion for suppression of evidence."). Thus,
Rule 12(d) aids defendants in complying with their Rule
12(b)(3) obligation to make motions to suppress evidence
prior to trial. This in turn preserves the integrity of a
trial by not interrupting it with suppression motions. See ___
Fed. R. Crim. P. 12 advisory committee's note (Rule 12(b)(3)
"`is designed to eliminate from the trial disputes over
police conduct not immediately relevant to the question of
guilt'") (quoting Jones v. United States, 362 U.S. 257, 264 _____ _____________
(1960) (emphasis eliminated)).5
As "a matter of procedure," Rule 12(d) differs from
discovery rules designed to ensure fairness. See Fed. R. ___
____________________
5. We think that government violations of Rule 12(d)(2)
should excuse a defendant's failure to move to suppress
evidence prior to trial, as required by Rule 12(b)(3), since
defendants have no incentive to move to suppress evidence
that the government will not be introducing. See United ___ ______
States v. Poole, 794 F.2d 462, 464 n.1 (9th Cir. 1986) ______ _____
(excusing the defendant's failure to move to suppress
evidence prior to trial since the government had not warned
the defendant that the evidence would be used); Fed. R. Crim.
P. 12(f) ("Failure by a party to raise defenses or objections
or to make requests which must be made prior to trial . . .
shall constitute waiver thereof, but the court for cause
shown may grant relief from the waiver.").
-12- 12
Crim. P. 12(d) advisory committee's note; cf. Fed. R. Crim. ___
P. 12.1 (Notice of Alibi) advisory committee's note ("[t]he
major purpose of a notice-of-alibi rule is to prevent unfair
surprise"); Fed. R. Crim. P. 16 (Discovery and Inspection)
advisory committee's note ("broad discovery contributes to
the fair and efficient administration of criminal justice by
providing the defendant with enough information to make an
informed decision as to plea; by minimizing the undesirable
effect of surprise at the trial; and by otherwise
contributing to an accurate determination of the issue of
guilt or innocence"). Rule 12(d) was not designed to aid the
defendant in ascertaining the government's trial strategy,
but only in effectively bringing suppression motions before
trial, as required by Rule 12(b)(3).
We first consider D az-P rez's argument that she
was prejudiced because, not expecting the government to
introduce the telephone or the cardboard, she was unprepared
to file a motion to suppress either of them. On appeal,
D az-P rez does not articulate any basis for suppression of
the evidence; we note that D az-P rez did not seek to
suppress other evidence seized from her car, nor does there
appear to us to be a basis for suppressing the evidence.
Absent some discussion regarding suppression, we will not
view the lack of opportunity for a suppression hearing as
prejudicial. Merely stating that "the decision to file a
-13- 13
motion to suppress . . . could have been significantly
affected by the knowledge prior to trial[] that the
government intended to present those items in evidence" is
not enough.
D az-P rez also argues that the admission of the
telephone and the cardboard greatly affected her trial
strategy and her incentives to plead guilty since the
government's case became markedly stronger with that
evidence. Rule 12(d) was not, however, designed to alert
defendants to the strength or weakness of the government's
case against them; rather, it was designed to aid defendants
in fulfilling their Rule 12(b)(3) obligation to make
suppression motions prior to trial. Since trial strategy and
plea strategy are simply not implicated by Rule 12(d), the
alleged effect of a Rule 12(d) violation upon trial strategy
or plea strategy cannot satisfy the prejudice requirements
for reversal on appeal.
We recognize, however, that even though Rule 12(d)
was not designed to give defendants notice of the
government's trial strategy, the government's failure to
designate certain pieces of evidence could work an unfairness
if the defendant were not prepared immediately to rebut it.
In such cases, we think that a district court would not abuse
its discretion by granting the defendant a continuance,
rather than allowing the government effectively to sandbag
-14- 14
the defendant by introducing previously undesignated
evidence. Whether or not a defendant should be granted a
continuance for fairness reasons, however, is a matter best
left to the discretion of the district court. On appeal, we
will only consider prejudice stemming from the function of
Rule 12(d), namely matters regarding potential motions to
suppress.
Thus, although the government violated Rule
12(d)(2) by not indicating prior to trial its intention to
introduce the telephone and the cardboard into evidence
during its case in chief, reversal is not mandated because
D az-P rez suffered no prejudice. That having been said, we
pause to make clear that we do not condone governmental
violations of this sort. Like the Advisory Committee,
however, we believe that in general, "attorneys for the
government will in fact comply [with Rule 12(d)(2)]." Fed.
R. Crim. P. 12 advisory committee's note.6 We rely on
____________________
6. The Advisory Committee's notes discuss why no sanctions
were provided for violations of Rule 12(d)(2):
No sanction is provided for the
government's failure to comply with the
court's order because the committee
believes that attorneys for the
government will in fact comply and that
judges have ways of insuring compliance.
An automatic exclusion of such evidence,
particularly where the failure to give
notice was not deliberate, seems to
create too heavy a burden upon the
exclusionary rule of evidence, especially
when defendant has opportunity for broad
-15- 15
district courts to impose appropriate sanctions for
governmental noncompliance and encourage them to grant
continuances and hold additional suppression hearings where
warranted. Cf. Valencia, 656 F.2d at 416 (finding no error ___ ________
in admission of undesignated evidence where the district
court conducted a second suppression hearing to determine
admissibility of undesignated evidence). Where governmental
noncompliance is the result of bad faith, exclusion of the
undesignated evidence may be appropriate. Cf. United States ___ _____________
v. Flores-Rivera, No. 93-1558, slip op. at 17 n.7 (1st Cir. _____________
June 1, 1995) (repeating admonishment against government
misconduct and stating that court may use supervisory power
to dismiss an indictment to deter future prosecutorial
misconduct).
B. Tape Recordings ___________________
D az-P rez next argues that the district court
committed reversible error by admitting into evidence three
____________________
discovery under rule 16. Compare ABA
Project on Standards for Criminal
Justice, Standards Relating to Electronic
Surveillance (Approved Draft, 1971) at
p.116: "A failure to comply with the
duty of giving notice could lead to the
suppression of evidence. Nevertheless,
the standards make it explicit that the
rule is intended to be a matter of
procedure which need not under
appropriate circumstances automatically
dictate that evidence otherwise
admissible be suppressed."
Fed. R. Crim. P. 12 advisory committee's note.
-16- 16
tape recordings of conversations between Chita and two
unnamed and uncharged Colombian contacts. D az-P rez
believes that the contents of the tape recordings constitute
hearsay subject to no exception. D az-P rez argues that the
tapes could not have been (implicitly) admitted pursuant to
Fed. R. Evid. 801(d)(2)(E)7 since the district court made no
factual finding that the persons on the tapes were
participating in a conspiracy with D az-P rez and speaking in
furtherance of that conspiracy as required by United States _____________
v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). In ____________
addition, D az-P rez contends that had an inquiry been
conducted, the court could not have found that "the declarant
and the defendant were members of a conspiracy when the
hearsay statement was made, and that the statement was in
furtherance of the conspiracy." Id. at 23. Because D az- __
P rez failed to object in the district court, the issue has
not been preserved for appeal. As we explained in United ______
States v. Figueroa, 818 F.2d 1020, 1026 (1st Cir. 1987) ______ ________
(alteration in Figueroa): ________
[T]he Petrozziello rule is designed to ____________
protect the integrity of the trial in
borderline situations where the
prosecution may or may not be able to
muster sufficient proof of the existence,
scope, shape, and duration of an alleged
____________________
7. Fed. R. Evid. 801(d)(2)(E) states that a statement is not
hearsay if "[t]he statement is offered against a party and is
. . . a statement by a coconspirator of a party during the
course and in furtherance of the conspiracy."
-17- 17
conspiracy. If the defendant elects not
to put the government to this test --
either for tactical reasons or because
the outcome, realistically, is
foreordained -- he is in a poor position
to complain after the fact. As we stated
in United States v. David E. Thompson, _____________ ___________________
Inc., 621 F.2d 1147, 1153 (1st Cir. ____
1980), "[i]n the absence of a proper
objection, Fed. R. Evid. 103(a)(1), a
deviation from the standard announced in
Petrozziello will be reversed only upon a ____________
showing of plain error."
The "plain error" standard requires the reviewing
court to ask: (1) whether there is an error; (2) whether the
error is "plain," a term synonymous with "clear" or
"obvious"; and (3) whether the error affected substantial
rights. United States v. Olano, 113 S. Ct. 1770, 1777-1778 _____________ _____
(1993); see also Fed. R. Crim. P. 52(b) ("Plain errors or ___ ____
defects affecting substantial rights may be noticed although
they were not brought to the attention of the court."). An
"error rises to this level only when it is so shocking that
it seriously affected the fundamental fairness and basic
integrity of the proceedings conducted below." United States _____________
v. Ortiz, 23 F.3d 21, 26 (1st Cir. 1994) (internal quotations _____
omitted).
Applying the plain-error standard, we reject D az-
P rez's argument. Even assuming arguendo that D az-P rez was ________
not involved in a conspiracy with the persons on the tapes
and, therefore, that the judge could not have made the
required findings under Petrozziello, we do not believe that ____________
-18- 18
the error passes the "clear" or "obvious" hurdle. "Where the
error defendant asserts on appeal depends upon a factual
finding the defendant neglected to ask the district court to
make, the error cannot be `clear' or `obvious' unless the
desired factual finding is the only one rationally supported _______
by the record below." United States v. Olivier-Diaz, 13 F.3d _____________ ____________
1, 5 (1st Cir. 1993) (emphasis added). In this case, D az-
P rez's "desired" factual finding is that she was not
involved in a conspiracy with the Chita's Colombian
contacts.8 We do not believe, however, that such a finding
is the "only one rationally supported by the record below."
Rather, the non-hearsay evidence presented at trial makes it
plausible that D az-P rez was involved in a conspiracy to
distribute cocaine. In fact, Count One of the Indictment
charged both defendants with "aiding and abetting each other,
and others to this Grand Jury unknown." Additionally, while
the tape recordings between Chita and his Colombian contacts
do not mention D az-P rez by name, the Colombian contacts did
____________________
8. To the extent that D az-P rez also challenges the
admission of Chita's statements, we think that his part of
the conversations served as "`reciprocal and integrated
utterance(s),'" United States v. McDowell, 918 F.2d 1004, _____________ ________
1007 (1st Cir. 1990) (quoting United States v. Metcalf, 430 _____________ _______
F.2d 1197, 1199 (8th Cir. 1970)), to put the Colombian
contacts' statements "into perspective and make them
`intelligible to the jury,'" id. (quoting United States v. ___ ______________
Lemonakis, 485 F.2d 941, 948 (D.C. Cir. 1973), cert. denied, _________ _____ ______
415 U.S. 989 (1974)). Because Chita's statements were
offered only for context and not for the truth of the matter
asserted, those statements are not hearsay under Fed. R.
Evid. 801(c).
-19- 19
indicate that the informant would be contacted by a female
schoolteacher in Puerto Rico. See United States v. Ortiz, ___ ______________ _____
966 F.2d 707, 716 (1st Cir. 1992) (holding that there was no
plain error in district court's failure to make an
unrequested Petrozziello finding because enough evidence ____________
existed to support a finding, based on a preponderance of the
evidence, that the codefendants were participating in a
conspiracy at the time the statements were made), cert. _____
denied, 113 S. Ct. 1005 (1993). ______
Accordingly, because D az-P rez failed to produce
any evidence at trial to deny her role in a conspiracy, we
cannot conclude that the district court committed obvious
error in allowing the tapes into evidence. Therefore,
because the alleged error is not clear or obvious, we need
not reach the other elements of the plain-error review.
-20- 20
C. Judicial Bias _________________
D az-P rez also complains that throughout the
trial, the district court "overstepp[ed] its bounds and
assum[ed] the role of an advocate for the prosecution" and
"constantly interjected in a manner that indicated annoyance
and bias against [defense] counsel," thus preventing D az-
P rez from having a fair trial.
"It cannot be gainsaid that `[a] fair trial in a
fair tribunal is a basic requirement of due process.'"
United States v. Nueva, 979 F.2d 880, 885 (1st Cir. 1992) _____________ _____
(quoting In re Murchison, 349 U.S. 133, 136 (1955)) __________________
(alteration in Nueva), cert. denied, 113 S. Ct. 1615 (1993). _____ _____ ______
Accordingly, a trial judge should be fair and impartial in
his or her comments during a jury trial. United States v. ______________
Twomey, 806 F.2d 1136, 1140 (1st Cir. 1986). However, "a ______
finding of partiality should be reached only `from an abiding
impression left from a reading of the entire record.'" Id. ___
(quoting Offutt v. United States, 348 U.S. 11, 12 (1954)). ______ _____________
After scrutinizing the entire record with care, we are left
with no such abiding impression.
D. Cocaine in the Jury Room ____________________________
Both defendants argue that the district court
abused its discretion when it permitted an unwrapped sample
of cocaine to be sent into the jury room during
deliberations. The unwrapped cocaine had been offered into
-21- 21
evidence by the government, without objection, as part of a
representative sample of the cocaine that had been seized at
the time of defendants arrest. Immediately after the jury
charge, however, defense counsel did object to the unwrapped
cocaine being sent into the jury room on the grounds that the
evidence was confusing, unnecessary, and inflammatory. We
are not persuaded.
We review a district court s decision to send
evidence into the jury room for abuse of discretion. United ______
States v. McCarthy, 961 F.2d 972, 978 (1st Cir. 1992) ______ ________
("Whether evidentiary exhibits properly admitted should or
should not accompany the jury to the jury room is a
discretionary matter for the trial court.") (internal
quotations omitted); United States v. Rawwad, 807 F.2d 294, _____________ ______
297 (1st Cir. 1986) (reviewing the district court's decision
to send more than fifteen pounds of heroin into the jury room
for abuse of discretion), cert. denied, 482 U.S. 909 (1987). _____ ______
District courts have discretion to allow properly admitted
evidence to accompany the jury into the jury room. Rawwad, ______
807 F.2d at 297. This is true even when the evidence is
drugs, for the presence of drugs in the jury room is not per ___
se prejudicial or inflammatory. Id. __ ___
Defendants argue that even if it would generally be
within a district court's discretion to allow drugs to be
sent into the jury room, the district court nonetheless
-22- 22
abused its discretion in this case because defendants'
knowledge of what was in the wrapped packages was at issue.
In particular, defendants contend that the jurors "would
[have been] instantly struck by the clear plastic bags of a
white powdery substance" during their deliberations and would
have been confused. We do not agree. In reviewing the
record, we find no reason why the presence of the unwrapped
cocaine sample in the jury room would have been particularly
inflammatory or prejudicial to defendants. During trial,
there was substantial, uncontroverted testimony that the
cocaine was wrapped in such a way that it would not have been
possible for anyone to see through the packaging.
Additionally, during the charge, the court instructed the
jurors that the government had stipulated that no one could
"see from the outside what was in the wrapped bags," and that
defendants' pleas of not guilty put all the essential
elements of the charged offense at issue, including knowledge
and intent. Finally, in addition to the unwrapped cocaine,
other items of evidence were also sent into the jury room,
including samples of the packaging material and kilograms of
cocaine in their original wrapping.
E. Sufficiency of the Evidence as to de la Cruz-Paulino ________________________________________________________
At the close of the government's case in chief, de
la Cruz-Paulino moved, pursuant to Fed. R. Crim. P. 29, for a
judgment of acquittal, contending that the government had not
-23- 23
presented sufficient evidence to sustain a conviction. After
the district court denied the motion, de la Cruz-Paulino
presented no evidence in her own defense. Accordingly,
unlike defendants who do present evidence, de la Cruz-Paulino
did not waive review of the district court's initial Rule 29
decision. United States v. Clotida, 892 F.2d 1098, 1100 (1st _____________ _______
Cir. 1989); 2 Charles A. Wright, Federal Practice and ______________________
Procedure: Criminal 463, at 642 (2d ed. 1982). This is so ____________________
even though de la Cruz-Paulino's codefendant did mount a
defense by testifying in her own behalf. See Clotida, 892 ___ _______
F.2d at 1103. Thus, on appeal we must determine whether,
"when examined in a light most favorable to the government,
the evidence presented in the government's case-in-chief,
including all inferences that may be drawn therefrom, would
permit a reasonable juror to find guilt beyond a reasonable
doubt." Id.. Even though D az-P rez's testimony might have ___
influenced the jury in its decision to convict de la Cruz-
Paulino, we may not consider that testimony on appeal. See ___
id.; cf. McGautha v. California, 402 U.S. 183, 215 (1971) ("a ___ ___ ________ __________
defendant whose motion for acquittal at the close of the
Government's case is denied must decide whether to stand on
his motion or put on a defense, with the risk that in doing
so he will bolster the Government case enough for it to
support a verdict of guilty"); 2 Wright, Federal Practice and ____________________
Procedure: Criminal 463, at 645 (if the defendant presents ____________________
-24- 24
evidence after the denial of his or her Rule 29 motion,
"[t]he conviction will be affirmed, even though the
prosecution may have failed to make a prima facie case, if
the evidence for the defense supplied the defect, and the
whole record is sufficient to sustain a conviction").
Taken in the light most favorable to the
government, the evidence presented during the government's
case in chief established the following: (1) de la Cruz-
Paulino helped move garbage bags containing sealed packages
of cocaine into D az-P rez's car; (2) de la Cruz-Paulino was
in the car while D az-P rez spoke with Agent Andaluz on her
cellular telephone; (3) de la Cruz-Paulino was present at the
Burger King delivery scene; and (4) after Agents Andaluz and
Salazar opened one of the garbage bags, de la Cruz-Paulino
stated, "No, watch out the police is around, going around
here." De la Cruz-Paulino argues that because this evidence
is insufficient to allow a jury to conclude beyond a
reasonable doubt that she aided and abetted D az-P rez and
others in the possession of cocaine with intent to
distribute, the district court should have granted her Rule
29 motion for judgment of acquittal at the close of the
government's case in chief. We agree.
To be convicted of aiding and abetting, more than
"mere presence" at the scene is required. United States v. ______________
Mehtala, 578 F.2d 6, 9 (1st Cir. 1978). The classic _______
-25- 25
definition of aiding and abetting, adopted by the Supreme
Court, was first enunciated by Learned Hand:
In order to aid and abet another to
commit a crime it is necessary that a
defendant "in some sort associate himself
with the venture, that he participate in
it as something that he wishes to bring
about, that he seek by his action to make
it succeed."
Nye & Nissen v. United States, 336 U.S. 613, 619 (1949) ______________ _____________
(quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. _____________ _____
1938) (L. Hand, J.)). Thus, for de la Cruz-Paulino to have
been convicted under an aiding-and-abetting theory, the
government had to prove (1) that D az-P rez committed the
underlying substantive crime and (2) that de la Cruz-Paulino
shared D az-P rez's criminal intent. See United States v. ___ ______________
Valerio, 48 F.3d 58, 64 (1st Cir. 1995). The government _______
fulfilled the first prong, for D az-P rez was convicted. To
fulfill the second prong, the government had to prove that de
la Cruz-Paulino "consciously shared [D az-P rez's] knowledge
of the underlying criminal act, and intended to help [her],"
United States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995); ______________ ______
see also United States v. Loder, 23 F.3d 586, 591 (1st Cir. ___ ____ _____________ _____
1994) (discussing specific-intent requirement for aiding and
abetting). This the government did not do.
"[T]he line that separates mere presence from
culpable presence is a thin one, often difficult to plot."
Ortiz, 966 F.2d at 712. On the one hand, "[m]ere association _____
-26- 26
between the principal and those accused of aiding and
abetting is not sufficient to establish guilt; nor is mere
presence at the scene and knowledge that a crime was to be
committed sufficient to establish aiding and abetting."
Mehtala, 578 F.2d at 10 (internal quotation omitted); see _______ ___
also United States v. Campa, 679 F.2d 1006, 1010 (1st Cir. ____ _____________ _____
1982) ("Mere presence at the scene and knowledge that a crime
is being committed is generally insufficient to establish
aiding and abetting. The government must prove some
affirmative participation by the aider and abettor.")
(internal citation omitted). On the other hand, "there are
circumstances where presence itself implies participation --
as where a 250-pound bruiser stands silently by during an
extortion attempt, or a companion stands by during a robbery,
ready to sound a warning or give other aid if required."
Ortiz, 966 F.2d at 712 (internal quotation omitted). _____
In the instant case, the government presented no
direct evidence9 during its case in chief that de la Cruz-
____________________
9. Of course, a conviction may be premised entirely on
circumstantial evidence. United States v. Torres-Maldonado, _____________ ________________
14 F.3d 95, 100 (1st Cir.), cert. denied, 115 S. Ct. 193 _____ ______
(1994). As we explained in Clotida, 892 F.2d at 1104 _______
(alterations in Clotida), _______
Circumstantial evidence has been defined
as "proof which does not actually assert
or represent the proposition in question,
but which asserts or describes something
else, from which the trier of fact may
either (i) reasonably infer the truth of
the proposition, . . . or (ii) at least
-27- 27
Paulino (1) had any knowledge that the garbage bags contained
cocaine, (2) had any connection to the drugs prior to Andaluz
suggesting to D az-P rez, during their 7:55 p.m.
conversation, that she pay someone $40 to help her carry the
packages to her car,10 or (3) was to be paid more than $40
____________________
reasonably infer an increase in the
probability that the proposition is in
fact true. . . ." 1 D. Louisell & C.
Mueller, Federal Evidence 94 (1977). _________________
It has been noted that "[t]he . . .
general problem of circumstantial proof
is to determine whether proffered
evidence indirectly or inferentially
supports the proposition sought to be
proved." Id. at 91. ___
It cannot be doubted, however, that
circumstantial evidence is often very
probative. As Professor Wigmore notes,
without allowing the introduction of
evidence that permits "an inference upon
an inference," "hardly a single trial
could be adequately prosecuted." 1A J.
Wigmore, Evidence 41 (1983). Indeed, ________
"the courts in general have recognized
that circumstantial evidence may, in
given settings, have equal if not greater
weight than direct evidence." 1 C.
Torcia, Wharton's Criminal Evidence 5 ____________________________
(14th ed. 1985). Furthermore, it is
important to note that, in the context of
review of a motion for acquittal, "no
legal distinction exists between
circumstantial and direct evidence."
United States v. Sutton, 801 F.2d 1346, ______________ ______
1358 (D.C. Cir. 1986).
10. During their 7:10 p.m. conversation, D az-P rez, upon
being asked where she was, responded, "I'm here in . . .
what's the name of this place, girl? In Trujillo Alto." The
government did not establish the identity of the person D az-
P rez conferred with during its case in chief, and we do not
think the jury was entitled to infer that de la Cruz-Paulino
was involved in the drug venture prior to Andaluz's later
suggestion that D az-P rez pay someone $40 to help her move
-28- 28
for her involvement in the drug venture. The government
argues that the jury was nevertheless entitled to find beyond
a reasonable doubt that de la Cruz-Paulino aided and abetted
D az-P rez in the possession of cocaine with intent to
distribute because (1) criminals do not usually welcome
nonparticipants as witnesses to their criminal activities and
(2) the facts, especially her involvement in moving the
packages from an apartment to D az-P rez's car and her
statement about the police being around, imply that de la
Cruz-Paulino knowingly participated in the venture and
intended to help it succeed. We do not agree.11
The evidence suggests that de la Cruz-Paulino was
brought in to do a menial task, namely carrying the cocaine
____________________
the packages from the fact that D az-P rez questioned an
unidentified female, whose voice does not register on tape,
about their whereabouts.
During cross-examination, D az-P rez agreed that de
la Cruz-Paulino was the off-tape person who told her that
they were in Trujillo Alto, where de la Cruz-Paulino lived.
Because D az-P rez's testimony was outside the government's
case in chief, however, we will not consider it. See ___
Clotida, 892 F.2d at 1105 n.1. _______
11. We find the government's three-page discussion of de la
Cruz-Paulino's sufficiency-of-the-evidence challenge
disappointingly conclusory. Unlike the government, we do not
think that "[t]he evidence of guilt, as to both appellants,
was simply overwhelming." On the contrary, the evidence
against de la Cruz-Paulino was quite sparse, and a more
thorough discussion from the government would have aided us
greatly in our assessment of its sufficiency. We reiterate
that "[d]espite the prosecution-friendly overtones of the
standard of review, appellate oversight of sufficiency
challenges is not an empty ritual." Ortiz, 966 F.2d at 711- _____
12. The government should not treat it as one.
-29- 29
from the apartment where it was stored down to D az-P rez's
car. The government presented no evidence that de la Cruz-
Paulino was involved prior to Andaluz suggesting to D az-
P rez that she pay someone $40 to help her carry the packages
to her car.12 No reasonable jury could have concluded,
beyond a reasonable doubt, that D az-P rez would have hired
only someone already participating in the drug venture to do
this menial task and therefore that de la Cruz-Paulino was
already involved. Accordingly, we must determine whether a
reasonable jury could conclude beyond a reasonable doubt that
de la Cruz-Paulino developed the specific intent to aid and
abet D az-P rez in the approximately two hours between
Andaluz's $40 suggestion and the ensuing arrests.
We do not think that the evidence supports the
inference that de la Cruz-Paulino was told about and joined
the drug venture after Andaluz's $40 suggestion. The drugs
were elaborately wrapped in sealed packages13 that were
then placed into three garbage bags. Unless she was a
participant in the drug venture prior to Andaluz's
suggestion, an inference we have held to be impermissible, de
la Cruz-Paulino could not have seen the drugs in their
unpackaged form. The drugs were assuredly packaged before
____________________
12. See supra note 10. _____
13. The government stipulated that it was impossible to see
the cocaine inside of the packages.
-30- 30
Andaluz made the $40 suggestion, for the time period between
that suggestion (made at 7:55 p.m.) and the actual arrest (at
9:55 p.m.) would have been too short to package and transport
the drugs, especially given that D az-P rez spoke with
Andaluz from her car during that time. There is also no
indication from the taped conversations between D az-P rez
and Andaluz that she had anything to do with the drugs other
than move them down from the apartment to her car.14 While
de la Cruz-Paulino admitted to helping carry "it" from the
apartment to the car, responding to Salazar's question, "Did
you get it down?" with "Of course we did," there is no
evidence that de la Cruz-Paulino saw the packages inside the
garbage bags until the time of her arrest.
____________________
14. In fact, the recorded conversation that began at 7:27
p.m. contains the following discussion between D az-P rez (D)
and Andaluz (A):
A: Listen, how is that packed?
D: Ah?
A: Do you have it packed already?
D: It's, I told you all complete in a
bag.
A: What do you mean a bag?
D: Like that. Thirty, thirty-two, like
that.
A: It's still in bags, is not in boxes
or suit cases?
D: No.
A: In bags, hell.
D: No, but it's in one black trash bag.
A: Hello?
D: Yes, it's in one black trash bag.
-31- 31
We see no basis for concluding that D az-P rez cut
de la Cruz-Paulino in on the drug transaction after
soliciting her package-carrying services. D az-P rez had a
menial job that de la Cruz-Paulino was willing to do for $40;
there was no need for D az-P rez to cut de la Cruz-Paulino
into the deal to obtain her package-carrying services. Cf. ___
United States v. Francomano, 554 F.2d 483, 487 (1st Cir. ______________ __________
1977) (holding that there was "no basis for a reasonable
inference" that the defendants were cut in on the drug deal
when the record indicated that they were willing to perform
the required crewmember services with "no special
inducement"). The jury could not, without engaging in
impermissible inference, conclude that de la Cruz-Paulino was
entitled to anything other than $40 for her package-carrying
services. Indeed, there is no evidence about D az-P rez's
own compensation arrangement. As D az-P rez was not supposed
to obtain any money from the government agents when she
turned over the packages to them, there is no basis for
inferring that de la Cruz-Paulino thought she would receive a
portion of the funds collected.
Of course, an aider and abettor need not receive
compensation or have any stake in a transaction to be
convicted. See United States v. Winston, 687 F.2d 832, 834- ___ _____________ _______
35 (6th Cir. 1982). Thus, in United States v. Cuevas- _____________ _______
Esquivel, 905 F.2d 510, 515 (1st Cir.), cert. denied, 498 ________ _____ ______
-32- 32
U.S. 877 (1990), we upheld the conviction of a defendant who
testified that he was only paid $33 for being a deckhand on
board a boat carrying a large amount of marijuana.
Similarly, in United States v. Steuben, 850 F.2d 859, 866 ______________ _______
(1st Cir. 1988), we affirmed the conviction of a defendant
who claimed that he was paid $300 for being a crewmember on
board a tugboat carrying $42 million worth of marijuana. In
both cases, however, we held that there was sufficient other
evidence for the jury to conclude that the defendants were
not just crewmembers, but rather full-fledged participants in
the criminal ventures. Unlike those cases, the $40 payment
in the instant case is corroborated by the fact that Andaluz
suggested it, and there is little other evidence indicating
that de la Cruz-Paulino was actually involved in the drug
venture. Thus, while compensation of only $40 would not by
itself counter other evidence establishing that de la Cruz-
Paulino was a participant in the criminal venture, that
compensation, especially suggested as it was by a government
agent, tends to negate an inference that de la Cruz-Paulino
was more heavily involved.
We next consider whether the fact that de la Cruz-
Paulino overheard some of D az-P rez's telephone
conversations15 and came to the Burger King delivery site
____________________
15. After the government agent made his $40 suggestion at
7:55 p.m., D az-P rez engaged in three more telephone
conversations with him, at 8:35 p.m., 9:29 p.m., and 9:45
-33- 33
is evidence that she was a full-fledged participant in the
drug venture. It is true that "it runs counter to human
experience to suppose that criminal conspirators would
welcome innocent nonparticipants as witnesses to their
crimes." United States v. Batista-Polanco, 927 F.2d 14, 18 ______________ _______________
(1st Cir. 1991). Thus, we have upheld convictions of
defendants where the facts suggested that they witnessed open
and obvious criminal activity and therefore allowed the
inference that the defendants participated in that criminal
activity. For example, in Batista-Polanco, we upheld the _______________
conviction of a defendant arrested at an apartment while a
large-scale heroin-packaging operation was in process
throughout the apartment, stating "we cannot accept the
hypothesis that participants in a distribution scheme would
permit a noncontributing interloper to remain for an extended
period of time in a small apartment while their conspicuous
criminal conduct continued unabated." Id. In that case, ___
however, the presence of six seats -- one a makeshift seat
consisting of an overturned bucket with a cushion and one
with the defendant's sweater on it -- around the kitchen
table at which the heroin was packaged also suggested that
the defendant was a participant along with the five other men
arrested at the apartment. Id. ___
____________________
p.m. We assume that de la Cruz-Paulino was present for all
three calls. De la Cruz-Paulino's voice is heard in the
background of the call made at 9:29 p.m.
-34- 34
On the other hand, a defendant who was present at
the scene of a crime and who had knowledge that a crime was
being committed cannot be convicted of aiding and abetting
unless the jury can reasonably infer that the defendant
shared the specific intent of the principal. The fact that
criminal activity occurs in front of someone does not always
allow the inference that that someone was a participant.
Thus, in United States v. Paone, 758 F.2d 774, 776 (1st Cir. _____________ _____
1985), we suggested that if the defendant had merely been a
passenger in the back seat of a car while drugs were handed
over to a purchaser, rather than someone who was repeatedly
present at important junctures of a drug deal, the evidence
might have been insufficient to support his conviction.
We assume that de la Cruz-Paulino overheard D az-
P rez's side16 of the three telephone conversations that
took place after Andaluz suggested that she pay someone to
help her carry the packages. We have scrutinized those
conversations with care and find that they do not provide a
basis for inferring that de la Cruz-Paulino shared D az-
P rez's specific intent to possess cocaine for distribution.
While they would support D az-P rez's conviction, especially
since Andaluz used the word "kilos," we do not think that an
innocent observer to D az-P rez's side of the conversations
____________________
16. There is no evidence that the conversations were
conducted on a speaker phone so that de la Cruz-Paulino could
have heard Andaluz's side as well.
-35- 35
would infer that a drug transaction was being discussed. Nor
do we think the fact that D az-P rez felt free to conduct her
side of the conversation in front of de la Cruz-Paulino
indicates that de la Cruz-Paulino was a participant in the
drug venture, for D az-P rez could control her responses.
Indeed, she did not speak explicitly about cocaine at any
time. We note that D az-P rez did mention obtaining the $40
from the government agents during one of those
conversations.17
That de la Cruz-Paulino came to the Burger King
delivery scene also does not indicate that she was a knowing
participant in the drug venture. While criminals generally
might be presumed not to bring along nonparticipants to
witness their criminal activities, we do not think that
necessarily holds true when the criminal activity will not be
open and obvious. Compare Clotida, 892 F.2d at 1105 _______ _______
(reversing as insufficient the defendant's conviction for
aiding and abetting her travelling companion in drug crimes
involving cocaine-laden clothing mixed in suitcases with her
own clothing). In this case, no negotiations were to be
entered into and no money was to be exchanged: the
government agents were simply supposed to take the car for a
____________________
17. Andaluz also testified that, although de la Cruz-
Paulino's comment during the 9:29 conversation he had with
D az-P rez was not intelligible on the recording, she said
"something like they're going to have to give us the forty
dollars or words to that effect."
-36- 36
few minutes, unload it, and bring it back. D az-P rez
responded to Andaluz's question, "Which is your car?" by
stating, "That black one over there, in the trunk, two bales
and . . . eight doubles. . . ." Then Andaluz and Salazar
opened the trunk and one of the garbage bags, Andaluz saying
that he had "[t]o check it out girl, because what will I do
with [unintelligible]." D az-P rez became very upset and
exclaimed, "Shut up! Oh God, the two bales and the other
stuff." At this point, Andaluz stated, "No, relax, we are
getting involved here to get a party," and then de la Cruz-
Paulino stated, "No, watch out the police is around, going
around here."
We do not think that de la Cruz-Paulino's comment,
"No, watch out the police is around, going around here," is
sufficient in this context to allow a reasonable jury to
conclude that de la Cruz-Paulino specifically intended to aid
and abet D az-P rez in possessing cocaine for distribution.
Even if de la Cruz-Paulino could have inferred from D az-
P rez's sudden shift in attitude and her statements about the
"two bales," and from the two government agents' opening of
one of the garbage bags, that, unbeknownst to her, a drug
transaction was going on, such last-minute knowledge would
not support the conclusion that she shared the specific
intent to possess cocaine for distribution. See Francomano, ___ __________
554 F.2d at 487 ("Even if it could be inferred that
-37- 37
appellants acquired knowledge of the throwing of the packages
[of marijuana] overboard, such last minute knowledge together
with all other evidence produced by the Government affords no
legal basis for appellants' conviction as aiders and
abetters."); see also United States v. Lopez-Pena, 912 F.2d ___ ____ _____________ __________
1536, 1538 (1st Cir. 1989) (stating that warning about police
in the area and advice on avoiding arrest were what "anyone
might do as a friend").
The evidence in this case is close to the line of
being enough to sustain a conviction. Nevertheless, in
reversing de la Cruz-Paulino's conviction, we keep in mind
the following:
[E]vidence might raise a question in a
reasonable man's mind. But that is not
enough. Guilt, according to a basic
principle in our jurisprudence, must be
established beyond a reasonable doubt.
And, unless that result is possible on
the evidence, the judge must not let the
jury act; he must not let it act on what
would necessarily be only surmise and
conjecture, without evidence.
United States v. Campbell, 702 F.2d 262, 267 (D.C. Cir. 1983) _____________ ________
(quoting Cooper v. United States, 218 F.2d 39, 42 (D.C. Cir. ______ _____________
1954)) (alteration in Campbell). ________
III. III. ____
CONCLUSION CONCLUSION __________
For the forgoing reasons, the conviction of D az-
P rez is affirmed and the conviction of de la Cruz-Paulino is affirmed ________
reversed. reversed ________
-38- 38
United States v. de la Cruz Paulino, (1st Cir. 1995).
United States v. de la Cruz Paulino (United States v. de la Cruz Paulino) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
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