USCA1 Opinion

July 12, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 92-2367
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE ALGARIN-ROSA,
Defendant, Appellant.
_____________________
No. 93-1006
UNITED STATES OF AMERICA,
Appellee,
v.
EDUARDO GONZALEZ-RODRIGUEZ,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________
Before

Torruella, Oakes* and Cyr,

Circuit Judges.
______________
____________________
___________________
*Of the Second Circuit, sitting by designation.

Jos C. Romo Matienzo for appellant Gonzalez-Rodriguez.

_____________________
Carlos Vazquez-Alvarez for appellant Algarin-Rosa.
______________________
Esther Castro Schmidt, Assistant United States Attorney, w
______________________
whom Daniel F. Lopez Romo, United States Attorney, and Jos A. Quil
____________________
____________

Espinosa, Senior Litigation Counsel, were on brief for appellee.

________
____________________
____________________

Cyr, Circuit Judge.

Cyr, Circuit Judge.

Appellants challenge their convictio

_______ _____
under 21 U.S.C.

841(a)(1), for

of 997.3 grams of cocaine.

aiding and abetting the distribut

We affirm.

I
BACKGROUND
BACKGROUND
__________
We

review the evidence in

prosecution with a

the light most

view to whether a

the defendants guilty

beyond a

favorable to

rational jury could have

reasonable doubt.

United States
_____________

Cruz, 981 F.2d 613, 615 (1st Cir. 1992); United States
____
_____________
F.2d 210, 212 (1st Cir.
711 (1st

April 6, 1992, a
could

be

operated by

"Los Companeros,"

Burgos, and

garin"), apparently

an

a tip that

auto body

Aro

coca

repair s

Rodriguez ("Eduardo")

The informant went to the

there encountered Jose

an employee.

F.2d 7

Ct. 1005 (1993).

two brothers, Eduardo Gonzalez

Luis Gonzalez ("Luis").

by one Harry

denied, 113 S.
______

confidential informant received

purchased at

v. Tejeda,
______

1992); United States v. Ortiz, 966

_____________
_____

Cir. 1992), cert.

_____

fo

shop, accompan
Algarin Rosa

The informant asked

the possibility of

purchasing a

half kilogram of

told the informant

that in order to purchase

("

Algarin ab

cocaine.

Alga

this amount, the inf

mant would need to talk to Luis.

As the informant was leaving the
panied

by Eduardo.

Algarin

shop, Luis arrived, acc

made introductions.

With

Algarin

Eduardo present, the informant again asked to purchase a half kilog

of

cocaine.

eighth of a
offer.

Luis consulted with

Eduardo and

offered to

sell o

kilogram of cocaine for $3000; the informant declined

Luis then indicated that a

large shipment was due from Vi

ues, Puerto Rico, and that when the shipment arrived he could sell
informant

a full

kilogram

for $16,000.

The

informant tentativ

assented.
On

April 13, 1992, the

informant met again

with Luis,

stated that he had received the shipment from Vieques and was ready
complete the kilogram deal.

The informant gave Luis his beeper num

and left, ostensibly to get the purchase money.

Around 3:00 p.m.,

informant returned to the repair shop, accompanied by Ruben Diaz Pa

("Diaz"),

a federal

present.

Before

undercover agent.
the

transaction could

Eduardo entered and warned

thereupon arranged to
nied by
vous,

Luis
be

and Algarin

were b

consummated,

howev

Luis that there were police nearby.

meet the informant on a

nearby road.

Accom

Diaz, the informant drove to the site of the proposed rend

and parked as

instructed.

A few

minutes later, the inform

and Diaz observed Eduardo

After several passes,

attempted to

following in his

BMW automobi

Eduardo pulled over and parked in

informant's automobile.
Luis

drive by in a wine-colored

Luis

pulled in behind.

lead the informant

own car.

to a third

Because the

Using

front of

hand signa

site, with Edua

informant was

uncomforta

with this change in plans, he declined to follow, and drove away.

Later that

afternoon, Luis

called

the informant's

bee

number and agreed to complete their kilogram transaction at the rep

shop.

Eduardo greeted the informant on arrival and instructed him

to park in

front of the shop.

As the informant and

Diaz made th

way

into the office, Algarin reassured the informant of Luis's hon

ty:

"Do not be afraid,

they do not deal with tricks."

Eduardo,

was leaving the office as the informant met with Luis, advised Luis
how to remove the
is done.

cocaine from its bag:

Don't take it

out like that."

informant's signal, federal agents

arrested in

the office.

"That is not the way that

Shortly thereafter,

raided the repair shop.

Algarin attempted

to

run away,

at
Luis
but

arrested after
was

a scuffle with DEA

agents at the shop

arrested on the street nearby.

gate.

Edua

All were indicted for aiding

abetting the distribution of cocaine.

The defendants were joined
tion.

On May 4, 1992, the defense filed an omnibus discovery

seeking, inter alia, "all

_____ ____
ment

for trial, over Eduardo's obj

of government

witnesses."

administrative fine had

possession

information which may be used

in New York.

The

government

been imposed on

moti

for impea

disclosed that

the informant for

The government disclaimed

mariju

knowledge of

other impeachment material relating to the informant.

Ultimately, Luis entered a
went to trial.
the defense

guilty plea; Eduardo and Alga

In an effort to discredit

called Esteban Garcia

the informant's testimo

Rosario ("Garcia"),

a former

quaintance of the informant, who testified that the informant had u

5

and dealt drugs in the past.

cution

To rebut Garcia's

recalled the informant.

The informant admitted knowing Gar

and, later, on cross-examination, admitted

drugs from Garcia "for

testimony, the pro

a friend."

that he had once purcha

Both defendants asserted

that

government
relying

should have

on Brady
_____

judgments of

disclosed

v. Maryland,
________

this information

373

U.S. 83

acquittal under Fed. R.

prior to

(1963), and

Crim. P. 29.

tri

moved

The court den

their motion.

In the course of his redirect examination by the governme

the

informant was

[Garcia] was
Algarin."
know,

asked whether

acquainted with

he "had

Eduardo Gonzalez or

The informant responded in Spanish:

but I do know that he

cocaine from

. . . Eduardo

Gonzalez."

on the

Evidence
fy:

personal knowledge
Rule 602.

"as to Algarin I do

Before the answer

See Fed. R. Evid. 404(b).

___

mistrial motion, the

government an opportunity to
on

Luis Gonzalez

could

defendants moved for mistrial, invok

the rule on "other acts" evidence.

ing its ruling

knowledge

[Garcia] bought one eighth [kilogram]

translated into English, both

based

any personal

Rese

district court gave

show that the informant's statement

of

Garcia's prior

drug

sources un

Eventually, the informant was permitted to tes

"I used to visit him [Garcia] at his house and I know that he

buying from Luis and Eduardo."

A few hours later, as part of its j

charge, the court delivered a

curative instruction proposed by def

dants:

"I instruct you, ladies and gentlemen of the jury,

that the defendants are on trial solely and exclusively on the charge set forth in the indictment
and nothing else.
So therefore I instruct you
that you should disregard, that is, get out of
your mind completely, [the informant's] testimony
concerning [Garcia's] prior dealings with the
defendant.
It has nothing to do with this case
and it is irrelevant and you should not consider
it at all for any purpose whatsoever in your deliberation . . . ."
Algarin and Eduardo were both convicted.
II
II
DISCUSSION
DISCUSSION
__________
Appellants'
erred

first contention

in denying their motion

is

that

the district

for mistrial based

on the informan

testimony that Garcia had purchased "one eighth [kilogram] of

from . . .

Eduardo Gonzalez."

the informant's

statement was

Assuming, for present

inadmissible

co

coca

purposes, t

against appellants,1

review for "abuse of discretion" the district court's election to g

a cautionary instruction, rather than declare a

mistrial, to count

act any prejudicial effect which may have resulted from the challen
testimony.
(1st Cir.

See, e.g., United States v. Bello-Perez, 977 F.2d 664,

___ ____ _____________
___________
1992); United States v.
_____________

Sclamo, 578 F.2d 888,

______

890-91 (

Cir. 1978).
____________________

1Rule 404(b) provides that "[e]vidence of other crimes, wron

or acts is not admissible to prove the character of a person in or
to show action in conformity therewith. It may, however, be admissi
for other purposes, such as proof of motive, opportunity, inte
preparation, plan, knowledge, identity, or absence of mistake
accident." Fed. R. Evid. 404(b).
7

There

was

no

abuse of

discretion.

Even assuming,

purposes of discussion, that some improper prejudice may have resul

from

the informant's

assessed

from the

testimony, the

vantage point

of a

degree of
______

any such

"cold appellate

prejudi
record,"

Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988),
_______
_________________
plainly insufficient
judgment
unfair

to

warrant second-guessing

the

trial

cour

that its jury instruction was adequate cure for any possi
prejudice.

Moreover,

although appellants now

fault the d

trict court's

failure to give a contemporaneous instruction, there

no indication

in the appellate

record that one

was requested.

United States v. Valencia-Lucena, 925 F.2d 506, 513-14 (1st Cir. 19

_____________

_______________

(review "limited to plain error"

where defendant eschewed request

limiting instruction

court's denial of

mistrial motio

the defense to draft a

curative instr

upon trial

Rather, the court permitted

tion

which

later.

was included

in the

jury charge

delivered a

few ho

"We normally presume that a jury will follow an instruction

disregard inadmissible evidence inadvertently

presented to it, unl

there is an 'overwhelming probability' that the jury will be unable

follow
n.8

the court's instructions."

Greer v. Miller, 483 U.S. 756,

_____
______

(1987) (quoting Richardson v.

__________

Whether

or not the brief

Marsh, 481 U.S.

_____

interval between the

the curative instruction was the

200, 208 (1987

subject testimony

product of a tactical choice

on

part of the defense, it did not amount to "plain error."

Appellants contend that the government's failure to discl

the informant's prior dealings with Garcia, in response to a discov

8

request from

the defense for "all

information which may be

impeachment of government witnesses,"

constituted a Brady
_____

used

violati

Once

again

testimony

we assume,
relating

potentially

for

to the

exculpatory,

purposes

of discussion,

informant's
and we

prior

accept the

that

Garci

cocaine dealings

government's concess

that it was material, in the sense that its disclosure would "creat
reasonable

probability . . . that the

be different."

United States v. Bagley, 473 U.S. 667, 682 (opinion

_____________
______

Blackmun, J.) (1985); United States v.

_____________
Cir. 1990).
sure

of material

evidence

using the

411-12 (1st

280, 289-90 (1st

shown

to have

a delayed disc
"prevented

disclosed material effectively

in prepar

United States v. Ingraldi,

_____________
________

Cir. 1986); United States v. Devin,

______________
_____

Cir. 1990); United States

_____________

757 (1st Cir. 1991).

of

must be

presenting the defendant's case."

F.2d 408,

Osorio, 929 F.2d 753, 758 (

______

In order to warrant reversal, however,

defense] from
and

result of the proceeding wo

918 F

v. Osorio, 929 F.2d

______

In the present case, the defense was well

aw

the informant's prior cocaine dealings with Garcia prior to tri

Indeed, Garcia

was called as a

purpose

of testifying to these

showing

that prejudice

Valencia-Lucena,
_______________

witness by the defense,

__ ___ _______

for the v

matters.2

there was

resulted from

925 F.2d

at 514

the

Accordingly,

delayed disclosure.

("[T]he fact

that the

governm

____________________

2During cross-examination, Garcia

stated:
"sometime ba
Eduardo went to my house . . . . and he told me about his probl
And, well since I knew [the informant] from sometime ago and I k
about his past, I decided that if it was necessary for me to come
testify here in court, to give my testimony in front of the Court

would do so and here I am."

9

failed

to disclose to the

defense before trial

that [its informa

was a drug user in no way robbed the defendant of a fair trial beca
the

issue was fully revealed at trial and extensively explored dur

cross-examination").
Finally, appellants challenge

the sufficiency

of the

dence, claiming that they were "merely present" at the scene of Lui
drug

dealing

presence"

activities, and

is insufficient to

reminding

us that

evidence

support their convictions.

of "m

See Ort
___ ___

966 F.2d at 707 (1st Cir. 1992); United States v. Francomano, 554 F
_____________
__________
483,

486 (1st Cir. 1977).

lished standards.

We evaluate their claim under well-est

Although "neither mere association with the prin

pal nor mere presence at the scene of the crime . . . is sufficient

establish aiding and abetting . . . .," United States v. Alvarez,
_____________
_______
F.2d 77, 83
483,

491

(1st Cir. 1993); United States v. Aponte-Suarez, 905 F

_____________
_____________
(1st Cir.),

cert. denied,
_____ ______

498 U.S.

990 (1990)

and ce
___ __

denied, 498 U.S. 1092 (1991), a defendant's presence at the scene o

______

criminal transaction is sufficient to support a conviction for "aid

and abetting" if it is accompanied by additional indicia of partici

__________
tion in

or association with

the criminal venture.

See id.
___ ___

(cit

United States v. Rodriguez Cortes, 949 F.2d 532, 539 (1st Cir. 1991
_____________
________________

see also United States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 19
___ ____ _____________
_________
("culpability

of

circumstances

fairly

defendant's
imply

presence hinges

upon

whether

participatory involvement").

addition

to his presence at

the repair shop,

evidence

that Eduardo (1) consulted with

Here,

the government offe

Luis on April 6,

as to

10

price

and quantity

of

the cocaine

offered

to the

informant;

watched for, and warned Luis about, police presence in the area of
repair shop on April 13; (3) accompanied Luis in a separate car to
site

of the aborted first

park

their car when they

transaction; (4) told the

arrived to consummate

agents where

the transaction;

(5) evinced familiarity with (and

some measure of responsibility f

the cocaine transaction, just prior

how to handle the

cocaine.

to the DEA raid, by telling

In addition to

Algarin's "mere presen

at the repair shop, the government presented evidence that Algarin

introduced the informant

to Luis, after

learning that the

inform

sought to purchase a large quantity of cocaine; (2) stood next to L

during negotiations with the

informant on April 6; (3) evinced fam

iarity with Luis's business practices, and sought to offer reassura

to the informant and undercover agent ("don't be afraid, they don't

tricks

here"), when

the

informant arrived

to

consummate the

deal; and, finally, (4) ran from the shop, scuffling with
at the gate, when the raid began.

a DEA ag

Cf. United States v. Hernandez,

___ _____________
_________

91-2034/5/6, slip op. at 18 (1st Cir. May 12, 1993) (upholding conv
tion where defendant apparently knew that
was

about to occur,

outside

lingered inexplicably at

apartment, and

States
______

v.

itself

implies

during

a [crime],

required.").

an illegal drug transact

attempted to

Martinez, 479
________

flee during

F.2d 824,

829

participation [where]
ready to

Finally,

as

sound
to both
11

apparent vantage po
DEA raid);

(1st Cir.

. . .

a warning

Uni
___

1973) ("prese

companion stands
or give

defendants,

we

other aid
recognize

"criminals

rarely welcome

crimes," Hernandez,
_________

innocent persons

slip op. at 17 (quoting

and that Luis's apparent willingness

Eduardo's and
jury's

Algarin's presence

if the evidence of

14, 18

to consummate the transaction

provides some corroboration

(1st Cir. 1991).

of

United States
_____________
Arguably,

th

appellants' participatory presence was so

what thin, particularly in Algarin's case, it

sufficient to support their convictions.
Affirmed.
________

to seri

Ortiz, 966 F.2d at 71

_____

ultimate conclusion as to their culpability.

Batista-Polanco, 927 F.2d

_______________
even

as witnesses

was nonetheless lega

12