USCA1 Opinion
March 11, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-1286
UNITED STATES,
Appellee,
v.
VICTOR MANUEL ALVAREZ,
Defendant, Appellant.
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No. 91-1287
UNITED STATES,
Appellee,
v.
DIANA MATOS,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Skinner,* Senior District Judge.
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Rachel Brill, Assistant Federal Public Defender, with whom
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Benicio Sanchez Rivera, Federal Public Defender, was on brief for
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appellant Victor Manuel Alvarez.
Joseph C. Laws, Jr., by Appointment of the Court, for appellant
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Diana Matos.
Ivan Dominguez, Assistant United States Attorney, with whom
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Daniel F. Lopez Romo, United States Attorney, and Jose A. Quiles-
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Espinosa, Senior Litigation Counsel, were on brief for appellee United
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States.
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March 11, 1993
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*Of the District of Massachusetts, sitting by designation.
SKINNER, District Judge.
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Appellants Victor M. Alvarez and Diana Matos, common
law husband and wife, were convicted by a jury in the
District of Puerto Rico for aiding and abetting several drug
offenses.1 Miguel Flores, though not a party to this
appeal nor convicted in the same trial, played a central
role in the alleged cocaine trafficking scheme and pleaded
guilty to the identical charges. Appellants defended
against the charges alleging that they were unwitting
participants in defendant Flores' cocaine trafficking
scheme. Flores offered testimony to the same end. Each
appellant advances numerous grounds for reversal.
Appellant Alvarez appeals his convictions alleging
that the district court (1) erroneously refused to accept
defendant Flores' guilty plea prior to the trial of Alvarez
and Matos, (2) improperly prohibited Flores from testifying
that his testimony exposed him to criminal penalties for
cocaine trafficking, and (3) errored in denying appellant's
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1 Alvarez and Matos were convicted for the possession of
cocaine with intent to distribute in violation of 18 U.S.C.
2 and 21 U.S.C. 841(a)(1); the importation of cocaine
into the customs territory of the United States in violation
of 18 U.S.C. 2 and 21 U.S.C. 952(a); and the failure to
declare cocaine in the cargo manifest or supply list of the
aircraft which brought them into the customs territory of
the United States in violation of 18 U.S.C. 2 and 21
U.S.C. 955.
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motion for judgment of acquittal. We affirm with respect to
Alvarez.
Appellant Matos joins the arguments of Alvarez and
further appeals her convictions, alleging that the district
court failed to exclude government evidence that was
produced in violation of Rule 16, Federal Rules of Criminal
Procedure. As to Matos, we reverse and remand to the
district court for a new trial.
I. Evidence
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We recite the evidence in the light most favorable
to the prosecution. United States v. Campbell, 874 F.2d
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838, 839 (1st Cir. 1989). The evidence showed that on
December 8, 1989, Victor M. Alvarez, Diana Matos, and Miguel
A. Flores arrived at the Luis Munoz Marin International
Airport, San Juan, Puerto Rico, on American Airlines flight
904 from Caracas, Venezuela. A U.S. Customs Inspector,
Francis Aponte, noticed that the three individuals appeared
to be nervous and were talking secretively among themselves.
Inspector Aponte approached the individuals, made routine
inquiries of them, and referred the group to the secondary
inspection station (a table used to examine the contents of
a passenger's luggage). At that time, appellant Alvarez was
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permitted to leave the customs enclosure to purchase
airplane tickets to New York for each member of the group.
Inspector Aponte testified on cross-examination that he had
not made any written record of the group's suspicious
behavior even though such information would have been an
important part of the case report.
Carlos Ortiz, also a U.S. Customs Inspector,
testified that he noticed two individuals, later identified
as Flores and Matos, pushing two carts stacked with luggage
and that he motioned for them to approach his secondary
station. Inspector Ortiz requested Matos' and Flores'
customs declaration cards, noting that both cards appeared
to have been filled out by the same person. Matos
complained that the airline had broken a bottle of liquor
that she packed in her suitcase. During his search of the
luggage, Ortiz noticed that the luggage contained both men's
and women's clothing and he discovered a heavy, newspaper
wrapped package. Ortiz unwrapped the package to find an
aged painting of a young girl in a wooden frame. Ortiz
asked Matos if she had purchased the picture on her trip, to
which she answered "yes."
Inspector Ortiz consulted with a senior inspector,
took the picture to a search room, and drilled into the
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picture frame using a small drill bit. Ortiz discovered a
white powdery substance inside the wooden frame, which a
field test indicated was cocaine. Matos and Flores were
arrested and searched. Customs inspectors then located
Alvarez in the airport's main concourse and placed him under
arrest. Inspectors conducted a thorough search of the
group's luggage, finding two additional paintings that
concealed cocaine and discovering false bottoms in each of
the six suitcases that also concealed cocaine. Customs
agents determined that the group carried more than ten
kilograms of cocaine.
A grand jury returned a three count indictment on
January 3, 1990, against Matos, Alvarez, and Flores. Each
defendant pleaded not guilty. On October 2, 1990, Flores
filed a notice to plead guilty on one count of the
indictment. It appears, however, that Flores intended to
plead guilty on all three counts, and on October 5, 1990, he
amended his petition accordingly. On October 5, 1990, the
district court extensively questioned Flores before
declining to accept his plea. Flores asserted that Alvarez
and Matos had been unaware of any plan to import cocaine and
that he, himself, was solely responsible for the crime. The
judge suspended the proceeding because she was unsure
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whether Flores could plead guilty to aiding and abetting a
crime while simultaneously proclaiming the innocence of the
other alleged participants.
On October 9, 1990, the Flores plea hearing resumed.
The judge explained that Flores' refusal to acknowledge the
aiding and abetting modality did not preclude his guilty
plea. The court then engaged in an extensive colloquy with
defendant Flores in accordance with Rule 11 of the Fed. R.
Crim. P. The judge noted that Flores had proclaimed the
innocence of Alvarez and Matos in a confidential letter that
Flores had written to the judge from prison. Flores
confirmed sending the letter and explained that appellants
were friends of his from New York, the home of all the
parties. Flores had invited appellants to join him on a
cruise from San Juan to several caribbean islands, including
a stop in Caracas, Venezuela. While on the cruise, Flores
met a man who offered him three thousand dollars to bring
several pictures from Venezuela to Puerto Rico. Flores
agreed to meet the man at a hotel in Caracas and to carry
the pictures into Puerto Rico as a passenger on a commercial
airline. Flores did not tell Alvarez or Matos of his
scheme.
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Flores, Alvarez, and Matos left the ship while it
was in port in Caracas to visit the beach. Flores claimed
to have tricked the appellants into missing the ship's
scheduled departure because he did not want to fly to Puerto
Rico alone. After missing the ship, Flores took Alvarez and
Matos to the predesignated hotel, checked the group into two
rooms, secretly picked up the pictures, and borrowed several
pieces of luggage from the man after explaining that the
group had left their bags on the cruise ship. Flores
arranged to meet the man in Puerto Rico at which time Flores
would deliver the pictures and return the borrowed luggage.
Flores claimed that he never saw the cocaine or even knew
for certain that he was carrying cocaine,2 but "imagined"
that the frames concealed cocaine because "nobody is going
to pay you three thousand dollars just to bring in three
pictures." Flores also denied knowing that the borrowed
suitcases concealed cocaine. Flores explained that Alvarez,
Matos, and he purchased new cloths in Caracas and spent
several days in the hotel before returning to Puerto Rico.
Flores packed the three pictures in separate bags and
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2 Flores explained to the judge, "At no time did [the man]
tell me it was cocaine. He told me, `I want you to take
these pictures for me. Take them there.' He says, `it
doesn't contain anything dangerous.'"
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covered them with cloths. Flores maintained that appellants
were totally unaware of his trafficking scheme during the
entire trip.
The district court declined Flores' plea, stating:
Now, you have stated that you did not know what was
in the picture frames, you did not know what was in
any of the luggage that you carried. That in itself
carries with it a defense that you could present to
the jury. So I am not convinced that you have made
a plea of guilty that I could accept that has a
basis in fact that contains all elements of the
offenses charged which is a requirement for the
court to accept your plea of guilty. Among those
elements, those of knowledge and intent.
Flores then moved to sever his trial from that of the
appellants. Finding that it would be impossible to mount an
adequate defense if Flores testified in favor of Alvarez and
Matos, the district court granted both the motion to sever
Flores' trial and Flores' request to be tried after
appellants.
At trial, Matos called Flores as a witness who
offered essentially the same testimony as given to the judge
during his attempted plea. During examination by Alvarez,
Flores was permitted to testify that it was a crime to bring
cocaine into the United States, but he was not permitted to
testify as to the punishment that could be imposed for his
crime or as to his aborted plea attempt. The jury found
Matos and Alvarez guilty on all charges.
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One week later, Flores again came before the
district court to offer his guilty plea, but this time he
admitted that he knew cocaine was concealed within the
picture frames. The court accepted his plea.
II. Alvarez's Conviction
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Appellant Alvarez attacks his conviction on three
fronts. First, Alvarez alleges that his defense was
prejudiced because the district court erroneously failed to
accept defendant Flores' guilty plea prior to the trial of
Alvarez and Matos. Alvarez claims the judge relied on
"perceived technical deficiencies" with Flores' plea, rather
than crediting the weight of Flores' testimony that
indicated he accepted full responsibility for the crime.
This error, Alvarez argues, prejudiced his defense because
he was deprived of the opportunity to put Flores' guilty
plea before the jury as persuasive evidence of Mr. Flores'
credibility and sincerity.
We are unpersuaded by appellant's argument. A
criminal defendant has no constitutional right to plead
guilty. North Carolina v. Alford, 400 U.S. 25, 38 n.11
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(1970) (a trial judge need not "accept every
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constitutionally valid guilty plea merely because a
defendant wishes so to plead"). Nor does Rule 11 of the
Federal Rules of Criminal Procedure create such a right.
United States v. Bednarski, 445 F.2d 364, 365-66 (1st Cir.
___________________________
1971). Here, the district court conducted a prolonged
hearing to determine the sufficiency of Flores' plea and
carefully considered his testimony. While Alvarez might
reach a different conclusion than the judge as to the
factual sufficiency of Flores' attempted plea, we find no
error in district court's determination.
Second, Alvarez alleges that the district court
violated both the Compulsory Process and the Confrontation
Clauses of the Sixth Amendment by improperly limiting the
scope of Flores' testimony and, thereby, depriving the
defendants of forceful evidence of Flores' sincerity and
credibility. On direct examination, Matos asked Flores,
"You have testified under oath regarding the exceptance
[sic] of a criminal offense. Are you aware of the
punishment that could be imposed for this crime?"
The district court sustained the government's
objection to the question, reasoning that Flores had not
actually pleaded guilty and that he might or might not be
found guilty at a later trial. Moreover, Flores' testimony
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would not necessarily be admissible against him in his own
trial unless he chose to testify in his own defense. The
judge did, however, allow Matos to ask Flores if he had
previously asserted the appellants' innocence.
Alvarez then conducted what he termed a "cross-
examination" of Flores -- a characterization rejected by the
trial court. The government argued that even though Flores
was not a joint witness of the appellants, cross-examination
was unavailable because Flores was clearly testifying in
Alvarez's favor. Though we are inclined to agree with the
trial court, we need not decide the issue because Alvarez's
Sixth Amendment objection fails regardless of how the
examination is characterized. Flores was permitted to
testify on "cross-examination" that he knew it was a crime
to bring cocaine into the United States and that he had
"wanted to talk about [his story] for some time."
The Confrontation Clause of the Sixth Amendment
provides that "[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the
witnesses against him." Cross-examination, the primary
interest secured by the Confrontation Clause, is "the
principal means by which the believability of a witness and
the truth of his testimony are tested." Kentucky v.
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Stincer, 482 U.S. 730, 736 (1987) (quoting Davis v. Alaska,
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415 U.S. 308, 316 (1974)). The Confrontation Clause
"mandates a `minimum threshold of inquiry' be afforded a
defendant in the cross-examination of adverse witnesses,"
Brown v. Powell, 975 F.2d 1, 5 (1st Cir. 1992) (quoting
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United States v. Jarabek, 726 F.2d 889, 902 (1st Cir.
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1984)), cert. dismissed, 122 L. Ed. 2d 179 (1993), but the
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right to cross-examination is, of course, not absolute.
Trial judges retain broad discretion to impose reasonable
limits on the scope of cross-examination. Delaware v. Van
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Arsdall, 475 U.S. 673, 679 (1986). On appeal, we review to
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determine:
whether the jury had sufficient other information
before it, without the excluded evidence, to make a
discriminating appraisal of the possible biases and
motivations of the witnesses.
Brown, 975 F.2d at 5 (quoting United States v. Tracey, 675
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F.2d 433, 437 (1st Cir. 1982)). The issue here is whether
the district court abused its discretion and committed a
reversible error when it prevented the jury from learning of
the exact penalties that Flores would face if convicted of
cocaine trafficking. We conclude the court committed no
error.
Flores was allowed to put his entire story before
the jury, including important information that supported his
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credibility. The jury heard Flores testify that importing
cocaine into the U.S. is a crime. We are confident that the
jury knew that a conviction for importing a large quantity
of cocaine carries a serious punishment. Though the jury
did not learn of the precise penalty imposed for drug
trafficking or that Flores had attempted to plead guilty,
the decision to exclude this evidence was within the
district court's discretion. The judge could properly
conclude that such testimony might mislead or confuse the
jury; particularly where, as here, the witness sought to
testify to the same penalties faced by the defendants.
We note that Sixth Amendment right of cross-
examination is directed at uncovering witness bias and
untruthfulness. In this case, however, Alvarez sought to
use "cross-examination" to bolster the witness' credibility.
Contrary to appellant's assertion, exposing a witness' bias
to lie can, indeed, be more important than exploring a
witness' motivation for telling the truth. Cf. Fed. R.
___
Evid. 608 (evidence of truthful character is admissible only
after the character of the witness for truthfulness has been
attacked); Fed. R. Evid 801 (prior consistent statements
generally admissible only to rebut an express or implied
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charge of recent fabrication or improper influence or
motivation).
Alvarez also asserts that the district court
violated the Compulsory Process Clause of the Sixth
Amendment. According to Alvarez, the district court
interfered with his constitutional right to present
witnesses in his own defense when it excluded an important
portion of Flores' testimony that weighed in favor of
Flores' credibility. The Compulsory Process Clause
guarantees every criminal defendant "the right . . . to have
compulsory process for obtaining witnesses in his favor . .
." This fundamental right, however, is not absolute.
Campbell, 874 F.2d at 851; Chappee v. Vose, 843 F.2d 25, 28
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(1st Cir. 1988). The Supreme Court has explained, "The
Sixth Amendment does not confer the right to present
testimony free from the legitimate demands of the
adversarial system . . ." United States v. Nobles, 422 U.S.
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225, 241 (1975). As explained more fully above, we conclude
that the district court acted properly to limit Flores'
testimony which might have mislead or confused the jury.
Third, Alvarez complains that the district court
errored in denying his Rule 29 motion for judgment of
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acquittal.3 Alvarez contends that the evidence was
insufficient to prove beyond a reasonable doubt that he was
an active participant in the scheme to import cocaine. We
review the evidence to determine whether the evidence as a
whole, taken in the light most favorable to the prosecution,
together with all reasonable inferences favorable to it,
would allow a rational fact finder to conclude beyond a
reasonable doubt that the defendant was guilty as charged.
United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.
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1991); United States v. Vargas, 945 F.2d 426, 427-28 (1st
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Cir. 1991). A conviction may be grounded in whole or in
part on circumstantial evidence. Maraj, 947 F.2d at 523.
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Moreover, because the jury is entrusted with the
responsibility for making credibility determinations and is
empowered to accept or reject, in whole or in part, a
witness' testimony, we will not weigh witness credibility on
appeal. Maraj, 947 F.2d at 523; Vargas, 945 F.2d at 427.
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3 Rule 29 provides in relevant part,
The court on motion of a defendant or of its own
motion shall order the entry of judgment of
acquittal of one or more offenses charged in the
indictment or information after the evidence on
either side is closed if the evidence is
insufficient to sustain a conviction of such offense
or offenses.
Fed. R. Crim. Proc. 29.
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Guilt for aiding and abetting attaches only where
"the defendant associated himself with the venture,
participated in it as in something he wished to bring about,
and sought by his actions to make it succeed." United
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States v. Rodriguez Cortes, 949 F.2d 532, 539 (1st Cir.
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1991). Neither mere association with the principal nor mere
presence at the scene of a crime, even when combined with
knowledge that a crime was to be committed, is sufficient to
establish aiding and abetting liability. United States v.
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Aponte-Suarez, 905 F.2d 483, 491 (1st Cir.) (quoting United
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States v. Francomano, 554 F.2d 483, 486 (1st Cir. 1977)),
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cert. denied, 111 S. Ct. 531 (1990). Guided by these
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standards of review, we are persuaded that Alvarez's
conviction is supported by sufficient evidence of guilt.
There is no dispute that Alvarez was traveling for an
extended period of time with Matos and Flores and that a
very large quantity of cocaine was concealed in the luggage
carried by the group. Moreover, there is sufficient
evidence upon which a reasonable jury could conclude beyond
a reasonable doubt that Alvarez participated in or sought to
assist Flores' scheme to import cocaine into the U.S.
The evidence established that a Customs Inspector
noticed the group talking "secretively" at the airport; that
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two of the bags that concealed cocaine carried name tags
bearing Alvarez's name; and that Alvarez and his common law
wife had no means of support other than welfare, food
stamps, and odd jobs and, yet, they could still afford to
fly to Puerto Rico, travel on a cruise ship, stay in a
Venezuelan hotel for several days, and purchase new cloths
to replace those purportedly left on the cruise ship. In
addition, the government was able to highlight certain
inconsistencies in the testimony offered by Flores and
Matos.4 Most significantly, the government produced a
photograph apparently taken on the cruise ship that showed
Matos wearing a striped dress that according to her story
was not purchased until after she disembarked from the ship
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in Caracas. Matos explained that she was apparently
mistaken about the items of clothing she carried with her
when she left the ship. The government also introduced
evidence that the cruise ship operators searched the cabins
used by Matos, Alvarez, and Flores and did not find the
luggage purportedly left behind by the appellants. The
witness, however, did not conduct the search himself and had
no knowledge of how the search was conducted.
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4 Alvarez did not testify at trial.
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Though the evidence against Alvarez is not
overwhelming, when it is viewed in a light most favorable to
the prosecution it is sufficient to support the verdict.
We, therefore, affirm Alvarez's conviction.
III. Matos' Conviction
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In addition to joining in the arguments advanced by
Alvarez, Matos contends that her conviction must be reversed
because the government presented in its case-in-chief an
oral statement allegedly made by Matos which the government
failed to disclose during pre-trial discovery as required by
Fed. R. Crim. P. Rule 16. Specifically, Matos challenges a
portion of the testimony given by Officer Ortiz, a U.S.
Customs Inspector who searched Matos' luggage. Officer
Ortiz testified that during the search he asked Matos if
she had purchased the picture on her trip, to which she
answered "yes." Ortiz's testimony was the only direct
evidence that the incriminating picture belonged to Matos.
The substance of Officer Ortiz's testimony came as a
surprise to Matos because she had made two prior requests of
the government -- first by letter on January 11, 1990 and
second by formal motion on January 22, 1990 -- to comply
with the discovery provisions of Rule 16, including a
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specific request for any "oral statement[s of the defendant]
which the Government intends to offer in evidence at the
trial." The government responded by expressly acknowledging
its obligations under Rule 16 and by producing several
documents. The government, however, made no mention of
Matos' alleged statement at that time or at any time before
the damaging testimony came before the jury. During cross-
examination, Officer Ortiz admitted that his prior testimony
at a preliminary hearing and before a grand jury did not
include any reference to Matos' alleged statement concerning
the picture.
The following morning, Matos moved to strike Officer
Ortiz's testimony and for the court to admonish the jury to
disregard the testimony. Matos argued that prosecution
records showed that Officer Ortiz had told the government of
Matos' alleged statement in April 1990, but that the
government failed to produce the statement despite repeated
requests by Matos. The judge denied the motion without
giving an explanation.
Rule 16 imposes an obligation on both the criminal
defendant and the government to produce or disclose to the
opposing party certain relevant evidence prior to trial.
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The provisions of Rule 16(a)(1)(A) in effect at the time of
trial provided, in relevant part:
Upon request of a defendant the government
shall permit the defendant to inspect and
copy . . . the substance of any oral
statement which the government intends to
offer in evidence at the trial made by the
defendant whether before or after arrest in
response to interrogation by any person then
known by the defendant to be a government
agent.
Fed. R. Crim. P. 16(a)(1)(A). These mandatory discovery
provisions are intended to contribute to the fair and
efficient administration of criminal justice by providing
the defendant with sufficient information upon which to base
an intelligent a plea; by minimizing the undesirable effect
of surprise at trial; and by contributing to the accuracy of
the fact finding process. Fed. R. Crim. P. 16, advisory
________
committee's note. Where a party fails to comply with these
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discovery provisions, Rule 16 empowers the district court to
order the party to comply with the rule, grant a
continuance, exclude the non-complying evidence, or enter
other such relief as it considers just. Fed. R. Crim. P.
16(d)(2). We review a district court's ruling on the effect
of a failure to provide pretrial discovery only for abuse of
discretion. United States v. Nickens, 955 F.2d 112, 126
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(1st Cir.), cert. denied, 113 S. Ct. 108 (1992); Rodriguez
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Cortes, 949 F.2d at 546; see Fed. R. Crim. P. 16(d)(2). To
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succeed in obtaining a reversal on appeal, a defendant must
prove both an abuse of discretion and prejudice. Nickens,
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955 F.2d at 126; Rodriguez Cortes, 949 F.2d at 546. We
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reverse.
We believe the trial court erred when it denied
Matos' motion to exclude the alleged statement or to hold a
suppression hearing without first making a finding as to
whether the government acted in bad faith and whether Matos
was prejudiced by admission of the statement. We generally
defer to the judgment of a district judge who is better
suited to make factual determinations based on first hand
observation of the evidence. In this case, however, the
judge failed to make even a threshold inquiry into the
circumstances leading to nondisclosure of the statement.
The court neither heard evidence nor made factual findings
concerning the potential prejudice flowing from a discovery
violation, the relative importance of Ortiz's testimony, and
the existence of prosecutorial bad faith. See Nickens, 955
___ _______
F.2d at 126. This was error.
Moreover, this error prejudiced appellant Matos.
The alleged Matos statement provided a critical link between
Matos and the effort to smuggle the cocaine laden picture
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frame into Puerto Rico. To establish guilt for aiding and
abetting, "the government must prove that the defendant
associated himself with the venture, participated in it as
in something he wished to bring about, and sought by his
actions to make it succeed." Rodriguez Cortes, 949 F.2d at
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539 (quoting United States v. Garcia-Rosa, 876 F.2d 209, 217
____________________________
(1st Cir. 1989), cert. denied, 493 U.S. 1030 (1990)). The
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statement attributed to Matos was a very significant piece
of evidence that indicated Matos was a participant in the
crime, rather than merely being an innocent bystander
present at the scene of a crime. Similarly, the alleged
statement fundamentally sabotaged Matos' defense that she
was an unwitting participant in Flores' cocaine trafficking
venture. There is a substantial likelihood that the
statement figured prominently in the jury's decision to
reject Flores' account of the incident, which wholly
exculpated appellants.
Given the central importance of the alleged
statement, the government's failure to disclose it as
required by Rule 16 had additional grave consequences for
Matos. First, Matos was deprived of any meaningful
opportunity to investigate the circumstances of her alleged
statement and to attempt to suppress it. Significantly, the
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government disclosed during pretrial discovery a statement
made by Alvarez, which Alvarez successfully suppressed.
Second, not knowing of the alleged statement, Matos was
deprived of the opportunity to design an intelligent
litigation or plea strategy that responded to the alleged
statement.
The government contends that no prejudice attached
because "it is doubtful that counsel for appellant would not
anticipate or contemplate that such a statement might
exist." Even if this argument were not inconsistent with
the mandatory language of Rule 16, we would flatly reject it
as being incompatible with common sense and fundamental
fairness. The government also contends that the cross-
examination of Officer Ortiz effectively impeached his
testimony and essentially cured whatever prejudice might
have existed. While we have sometimes considered effective
cross-examination of witness when weighing potential
prejudice presented by that witness' testimony, Nickens, 955
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F.2d at 126; United States v. Samalot Perez, 767 F.2d 1, 4
_______________________________
(1st Cir. 1985), those cases involved the admission of
cumulative evidence that was regarded as harmless error. In
this case, the alleged statement was vital to the
conviction.
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Finally, the government argues that since Matos did
not present the trial judge with any specific grounds for
suppressing the alleged statement, the district court
correctly denied Matos' request for a suppression hearing.
During a discussion with Matos' counsel, the judge
repeatedly asked if the defendant had any grounds to
suppress the statement. Counsel responded that he learned
of the statement only the day before, that he had no
information regarding the statement, and when pressed by the
judge, stated that at that time he had no grounds to
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suppress the statement other than the violation of Rule 16.
We are not surprised that Matos was unprepared to articulate
a particular ground for suppressing the statement under
these circumstances and in the middle of a trial. The one
possible curative course, suspending the trial and holding a
suppresion hearing, was erroneously rejected by the district
court.
The government is wholly responsible for unfairly
surprising the defendant and should not benefit from its own
violation of Rule 16.
In summary, we affirm the conviction of Alvarez and
reverse and remand for a new trial as to Matos.
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