United States v. Rullan Rivera

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                                     
                                 ____________________



        No. 94-1890



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                              ARNALDO L. RULLAN-RIVERA,



                                Defendant, Appellant.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
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                                 Cyr, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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Luis R. Rivera-Gonzalez, with whom Joseph C. Laws, Jr. was on
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        brief for appellant.

             Jos  A. Quiles Espinosa, Senior Litigation Counsel, with whom
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        Guillermo Gil, United States Attorney, and Warren V zquez, Assistant
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        United States Attorney, were on brief for appellee.


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                                    July 21, 1995

                                                     
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CYR,   Circuit   Judge.     Arnaldo   L.  Rullan-Rivera
                    CYR,   Circuit   Judge.
                           _______________



          ("Rullan") appeals the judgment of conviction entered against him



          for  possessing cocaine with intent to distribute.  See 21 U.S.C.
                                                              ___



            841(a)(1); 18 U.S.C.   2.  As there was no reversible error, we



          affirm the district court judgment.  


I
                                          I



                                      BACKGROUND
                                      BACKGROUND
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                    The  relevant facts  are  recounted in  the light  most



          favorable  to the verdict.  United States v. Tuesta-Toro, 29 F.3d
                                      _____________    ___________



          771, 773  (1st Cir. 1994), cert.  denied, 115 S. Ct.  947 (1995).
                                     _____  ______



          Appellant  Rullan and  Humberto Prada-Cordero  ("Prada") enlisted



          Erasto Miranda-Rodriguez ("Miranda") to transport one kilogram of



          cocaine from Puerto Rico  to the continental United States.1   On



          November  10, 1992, Prada, Miranda,  Rullan and his  wife went to



          the Luis  Munoz Marin  International Airport in  Carolina, Puerto



          Rico,  where  Prada and  Miranda were  to board  a flight  to the



          mainland.  After twice  triggering the security checkpoint magne-



          tometer  alarm,  Miranda  abandoned  his  handbag,  passport  and



          airline  ticket, and  fled the  checkpoint area rather  than risk



          disclosure of the cocaine concealed on his person.



                    Shortly thereafter, Miranda surrendered to  the police,



          became a  cooperating witness  for the government  and implicated



          appellant Rullan, who was arrested and indicted for conspiring to



          possess cocaine with intent  to distribute, see 21 U.S.C.    846,
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               1Rullan had  supplied Miranda with small  amounts of cocaine

          for personal use in years past.



                                          2



and  possessing  cocaine with  intent  to distribute,  see  id.  
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          841(a)(1); 18  U.S.C.    2.   Rullan filed  a pretrial motion  to



          compel disclosure of any prior "bad acts" evidence the government



          intended to introduce at trial.  Although the motion was granted,



          the government disclosed no Rule 404(b) evidence. 



                    At trial,  the court ruled that no Rule 404(b) evidence



          was to be  introduced.   The prosecutor  accordingly assured  the



          court  that Miranda had been instructed not to mention his previ-



          ous cocaine purchases from Rullan.  See supra note 1.   Neverthe-
                                              ___ _____



          less,  on the  third  day of  trial,  when the  prosecutor  asked



          Miranda whether he had "known Mr. Rullan in relation to [codefen-



          dant]  Humberto  Prada  prior  to [November  8,  1992],"  Miranda



          blurted out:  "No,  I was totally surprised.  Arnaldo Rullan sur-



          prised me because he was my drug dealer."   



                    On  the  following  day, codefendant  Prada  failed  to



          appear  for trial.  The district court denied Rullan's motion for



          mistrial, and ordered that the joint trial proceed, with Prada in
                                                                         __



          absentia.  After the  district court allowed a defense  motion to
          ________



          dismiss the conspiracy charge,  both defendants were convicted on



          the substantive cocaine charge, and Rullan appealed. 


II
                                          II



                                      DISCUSSION
                                      DISCUSSION
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          A.   The Rule 404(b) Evidence
          A.   The Rule 404(b) Evidence
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                    The government  does not  dispute that Miranda's  unex-



          pected reference to Rullan as his former drug  dealer constituted



          prohibited  "bad  acts"  evidence,  but simply  contends  that  a



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mistrial was not  necessary to  cure any inadvertent  harm.   For



          present  purposes,  therefore,  we  assume  that  the  challenged



          testimony violated the prohibition against  Rule 404(b) evidence.


A ruling denying a motion for mistrial  is reviewed for



          manifest  abuse of  discretion, United States  v. Romero-Carrion,
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          No. 94-1792, slip op. at 4 (1st Cir. May 9,  1995); United States
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          v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994), cert. denied, 115 S.
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          Ct.  919 (1995),  and will be  upheld absent  a clear  showing of



          prejudice by the defendant-appellant.  United States v. Hahn,  17
                                                 _____________    ____



          F.3d  502, 508 (1st Cir.  1994) (citing United  States v. Sclamo,
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          578 F.2d 888,  891 (1st Cir. 1978)).  Mistrial  is a last resort,



          to  be employed only if the demonstrated  harm can be cured by no



          less drastic  means, such as a  contemporaneous jury instruction.



          United States v. Sepulveda,  15 F.3d 1161, 1184 (1st  Cir. 1993),
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          cert. denied, 114 S. Ct. 2714 (1994).  
          _____ ______



                    Miranda testified in Spanish.   The problematic portion



          of the testimony, see supra p. 3 ("[Rullan] was my drug dealer"),
                            ___ _____



          was never translated into  English before Miranda was interrupted



          in  mid-sentence by  a  defense objection.    The official  trial



          transcript of the exchange reads, in full:



                    Q:   Had you known Mr.  Rullan in relation to

                         Humberto Prada prior to that day?



                    A:   No,  I  was totally  surprised.   Arnold

                         Rullan surprised me --


4



The trial  judge immediately ordered Miranda's  response stricken



          from  the  record  and  contemporaneously directed  the  jury  to



          disregard it.  



                    It  would be unrealistic,  nonetheless, to suggest that



          the  Puerto  Rico jury  did not  hear  and understand  the entire



          response given  by Miranda in  Spanish.  Be  that as it  may, the



          normal presumption    that juries follow the court's instructions



             can be rebutted only on  a sufficient showing that the offend-



          ing testimony  reasonably could  not have  been ignored  and that



          serious prejudice likely  resulted.  Id. at 1185.  See also Greer
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          v. Miller, 483  U.S. 756,  766 n.8 (1987)  ("We normally  presume
             ______



          that a jury will follow an instruction to  disregard inadmissible



          evidence  inadvertently  presented  to  it, unless  there  is  an



          'overwhelming probability' that the jury will be unable to follow



          the  court's instructions.")  (quoting Richardson  v. Marsh,  481
                                                 __________     _____



          U.S. 200, 208 (1987)).  Although  Rullan points out that a limit-



          ing  instruction is  not  always sufficient  to insulate  against



          improper  evidentiary  prejudice,  see,  e.g.,  Bruton v.  United
                                             ___   ____   ______     ______



          States,  391 U.S. 123, 135  (1968), mistrial was  not required in
          ______



          the instant case.  



                    There  was strong  evidentiary  support  for  the  jury



          verdict.  Miranda  testified that Rullan:  (1) telephoned Miranda



          to  arrange the first  meeting at which  the cocaine distribution



          scheme was  discussed; (2) drove Prada to Miranda's apartment for



          their  meetings;  (3)  relayed  drug  smuggling messages  between



          Miranda  and  Prada; (4)  removed cocaine  from  his own  car and


5



carried  it into Miranda's residence  prior to their  trip to the



          airport; (5)  accompanied Miranda and  Prada to the  airport; and



          (6) discussed  with Miranda and  Prada their plans  for investing



          the drug profits. 



                    The overwhelming  weight of the  direct and circumstan-



          tial evidence, combined  with the firm,  contemporaneous instruc-



          tion, demonstrates  to a "high probability"  that the inadvertent



          introduction of the "bad acts" evidence did not contribute to the



          verdict.   Therefore, the reference  to prior drug  dealings with



          Rullan  was "harmless."  United  States v. Tejeda,  974 F.2d 210,
                                   ______________    ______



          215  (1st Cir. 1992)  ("nonconstitutional evidentiary error under



          Rule 404(b) will be  treated as harmless  if it is `highly  prob-



          able' that the error  did not contribute to the  verdict") (cita-



          tions omitted).



          B.   Sufficiency of the Evidence
          B.   Sufficiency of the Evidence
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                    Rullan could  be convicted  of aiding and  abetting the



          possession of cocaine, with intent to distribute, see 21 U.S.C.  
                                                            ___



          841(a)(1) and 18 U.S.C.   2, only if the government proved beyond



          a reasonable doubt that he "associated himself with the  underly-



          ing venture, participated in  it as something he wished  to bring



          about, and  sought by  his actions to  make it succeed."   United
                                                                     ______



          States v. Clifford, 979 F.2d 896, 899 (1st Cir. 1992) (citing Nye
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          & Nissen  v. United States, 336 U.S. 613, 619 (1949)).  We review
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          the  evidence in  the  light most  favorable  to the  government,



          indulging  all reasonable inferences in its favor, with a view to


6



determining whether a rational jury could have found guilt beyond



          a reasonable doubt.  Hahn, 17 F.3d at 506.  
                               ____



                    Rullan contends that Miranda's trial  testimony was not



          credible  because Miranda  had  made contrary  statements to  the



          grand jury, and he was motivated  by the expectation of a reduced



          sentence.  We find  this challenge unavailing, since Miranda  was



          impeached, both with his  prior inconsistent grand jury testimony



          and  his plea  agreement, and  the  credibility assessment  was a



          matter for the trial jury.  See Sepulveda, 15 F.3d at 1175; Hahn,
                                      ___ _________                   ____



          17 F.3d  at 506.   Thus,  there was  ample  credible evidence  to



          establish Rullan's guilt beyond a reasonable doubt.  See supra p.
                                                               ___ _____



          5.



          C.   Flight by Codefendant
          C.   Flight by Codefendant
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                    Following an evidentiary hearing,   the district  court



          found that  Prada voluntarily absented himself from the final two



          days of  trial.  Rullan moved  for a mistrial, claiming  that his



          codefendant's  flight might  prompt  a jury  inference that  both



          defendants were  guilty.   The district  court directed  that the



          trial proceed  against both  defendants.   See  Crosby v.  United
                                                     ___  ______     ______



          States,      U.S.    ,     , 113 S. Ct. 748, 752-753 (1993); Fed.
          ______   ___      ___  ____



          R. Crim. P. 43(b). 



                    Rullan asserts three  claims of error.  First, he says,



          the district court mistakenly believed Rullan might avoid retrial



          on  double jeopardy grounds if a mistrial were declared.  Second,



          a limiting instruction  could not prevent  a jury inference  that



          both defendants were guilty because Prada absconded during trial.


7



Third,  the instruction given by the court was "over extensive in



          content"  and prejudicial.  We  review the two  latter claims for



          manifest abuse of discretion.  Pierro, 32 F.3d at 617. 
                                         ______



                    First,  Rullan correctly  asserts that  double jeopardy



          does not bar  retrial where a mistrial is ordered  at the request



          of  the defendant.    United States  v.  Scott, 437  U.S. 82,  93
                                _____________      _____



          (1978);  United States  v. Aguilar-Aranceta,  957 F.2d  18, 21-22
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          (1st Cir.),  cert. denied, 113 S.  Ct. 105 (1992).   The district
                       _____ ______



          court  nonetheless correctly  predicated its  denial of  Rullan's



          motion for mistrial on the ground that Prada's voluntary  failure



          to appear, in  and of itself, did  not necessarily mean that  the
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          joint  trial could  not  proceed with  Prada  in absentia.    See
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          Crosby,  113 S. Ct. at 752 (treating voluntary failure to appear,
          ______



          after  trial begins, as  waiver of right to  be tried in person);



          Fed. R. Crim. P. 43(b).  



                    On the other hand, treating the  motion for mistrial as



          a  de facto motion for severance by a non-absconding codefendant,
             __ _____



          see Fed.  R. Crim. P. 14,  we review its denial  under the "plain
          ___



          error" standard,  since severance  was never broached  before the



          district court.  See United States v. Palow, 777 F.2d 52, 54 (1st
                           ___ ______ ______    _____



          Cir. 1985), cert. denied, 475 U.S.  1052 (1986).  Viewed in  this
                      _____ ______



          light,  Rullan's  motion  rests  exclusively  on  the  conclusory



          assertion  that the jury could  have inferred that  he was guilty



          because his codefendant absconded.  We see no compelling rational
                      ___________



          force in the suggestion that Rullan, who did  not flee, must have



          been tainted with the same brush as the absconding Prada.  


8



Moreover, Rullan's conclusory claim runs counter to the



          longstanding presumption that jurors normally follow the instruc-



          tions given them by the trial court.  See United States v. Olano,
                                                ___ ______ ______    _____



          113  S. Ct.  1770, 1781  (1993).  The  district court  firmly in-



          structed the  jury that  Prada's disappearance was  immaterial to



          the verdict on Rullan.  The record further reflects that the jury



          understood.



                         THE COURT:    The absence  of  defendant

                    Prada from trial is no way attributable [sic]

                    to the other defendant on trial.  And may not

                    be considered by you in determining the guilt

                    or innocence of  defendant Rullan.   You  may

                    use this only as  to defendant Prada  itself.

                    [sic]   Is that clear?   Let the  record show

                    that the jury has assented. 



                    We therefore  reject the conclusory contention  that no



          jury  instruction could  protect Rullan  against an  inference of



          guilt  arising  from his  codefendant's  voluntary  flight.   See
                                                                        ___



          United States v. Phibbs, 999 F.2d 1053, 1067 (6th Cir. 1993) (any
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          adverse  effect  upon  nonfleeing  defendant  neutralized  by  "a



          cautionary  instruction  that each  defendant's  case  was to  be



          considered  separately and, further,  that [codefendant's] flight



          could not be  used as  evidence against anyone  but him"),  cert.
                                                                      _____



          denied,  114 S. Ct. 1071 (1994); cf. United States v. Wright, 932
          ______                           ___ ______ ______    ______



          F.2d 868, 877 (10th Cir.) (upholding denial of severance, in part



          because trial  court twice  instructed jury  that "it  should not



          construe  the absence  of [codefendant] as  evidence of  guilt of


9



either [the  defendant or  the codefendant]"), cert.  denied, 502
                                                         _____  ______



          U.S. 972 (1991).2


III
                                         III



                                      CONCLUSION
                                      CONCLUSION
                                      __________



                    As there  was no  reversible error, the  district court



          judgment is affirmed.
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               2Rullan  also challenges, as  too extensive and prejudicial,

          the very language he asked the district court to use  in the jury

          instruction relating to Prada's disappearance.  But even assuming

          the  instruction  had not  been invited,  the  claim of  error is

          groundless.  There  was no  error in the  instruction, let  alone

          "plain error."  See Palow, 777 F.2d at 54.
                          ___ _____

               Lastly,  at oral  argument  Rullan  withdrew  his  so-called

          "ineffective assistance of counsel" claim.  See Sainz Gonzalez v.
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          Banco  de Santander-Puerto Rico, 932 F.2d 999, 1000 n.1 (1st Cir.
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          1991);  Bunol v.  George Engine  Co., 996 F.2d  67, 70  (5th Cir.
                  _____     __________________

          1993).



                                          10