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

appellant Diaz-Perez.
Enrique Velez-Rodriguez for appellant de la Cruz Paulino.

_______________________
Jose A. Quiles-Espinosa,
________________________

Senior

Litigation Counsel,

with

Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assist

_____________
________________
United States Attorney, were on brief for appellee.
____________________
August 3, 1995
____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

D az-P rez

and

"defendants")

Vanessa

appeal

de

Defendants-appellants Wanda

la

their

Cruz-Paulino (collectively,

convictions

for

aiding

and

abetting each other and others in the unlawful possession of,

with intent

cocaine,

2.

to distribute, approximately eighty kilograms of

in violation of 21 U.S.C.

D az-P rez also

communications

facility

facilitate the

U.S.C.

new

843(b).

use

six

conviction for

separate

using a

occasions

cocaine, in violation

to

of 21

D az-P rez argues that she is entitled to a

12(d)(2) by failing

to

on

distribution of

trial because the

intended

appeals her

841(a)(1) and 18 U.S.C.

government violated Fed.

to designate certain of

during

its

case

in

R. Crim. P.

the evidence it

chief;

because the

district

court

evidence;

and

admitted

because

comments in

front of

Cruz-Paulino

argue

sent into

Cruz-Paulino

establish her

D az-P rez's

tape

trial

judge

the

the jury.

that

discretion in allowing a

be

hearsay

the jury

the

made

prejudicial

Both D az-P rez and

district

court

into

de la

abused

its

representative sample of cocaine to

deliberation room.

argues that

guilt beyond

conviction,

recordings

the evidence

conviction for insufficient evidence.

-22

de la

was insufficient

a reasonable

but reverse

Finally,

de

doubt.

to

We affirm

la Cruz-Paulino's

I.
I.
__

Background
Background
__________

On

Administration

January

("DEA")

21,

1994,

agents in

cooperating individual known as

about a

Federal

Drug

Enforcement

Puerto

Rico

met with

"Chita," who spoke with them

pending drug transaction involving

200 kilograms of

cocaine.

Chita told the agents that the Puerto Rican contact

was known as "Negro."

Between

recorded four

He did not refer to either defendant.

12:00

noon

and

4:20

telephone conversations

Colombian contact

known as

"Jota."

p.m.,

DEA

agents

placed by Chita

During

to a

the trial,

the

district court admitted tapes of these recorded conversations

into evidence without objection from defense counsel.

of

the conversations,

Jota told

Chita that

arrangements for

the Puerto Rican contact,

to

schoolteacher,

as

number

DEA

a female

he would

In one

make

whom he referred

to telephone

Chita

at the

Chita provided, which in reality was the number for a

cellular telephone.

D az-P rez was a teacher.

It

was established at

trial that

Not long after these telephone calls ended, the DEA

decided

to

abort

the

Salazar

transported Chita to the airport.

the airport, however,

operation, and

the agents received a

P rez on the DEA telephone.

recorded.

However,

Agents

at

Andaluz

and

While en route to

call from D az-

The ensuing conversation was not

trial,

-33

D az-P rez

testified

that

during that

wrapped

unrecorded conversation,

packages she was

which excise taxes had

to

mention

any

she was told

transporting contained

not been paid and was

names

during

conversations.

Andaluz testified that

he was

D az-P rez

unrecorded conversation

during the

coffee for

instructed not

subsequent

the one who

that the

had spoken

and that

with

he

never mentioned the word "coffee."

After dropping Chita

and Salazar

decided to contact

cocaine.

the airport,

returned to DEA headquarters

other agents regarding the

the

off at

To

and conferred with

contents of the call.

D az-P rez and arrange for a

accomplish

this,

Andaluz

Andaluz

They then

transfer of

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.

recorded all

of these conversations, and

The DEA

the district court

admitted the recordings into evidence, D az-P rez stipulating

that the voice

in the recordings belonged

the conversants

to her.

explicitly referred to cocaine

None

of

or coffee in

the recorded conversations, although Andaluz did use the word

"kilos" once.

During the six

D az-P rez discussed the

the

After

mode of

recorded conversations, Andaluz and

details of the delivery,

transportation and

brief exchange

solicit Andaluz s

help in

in

the size

which

of the

including

shipment.

D az-P rez attempted

carrying the bags

to

containing the

-44

cocaine down from

"Can t you give

a second-story

somebody there

over here, to place

trunk,

apartment, Andaluz

$30, $40 I ll

asked,

pay you

back

it in the trunk, only to place it in the

don t bring him over or anything, to come over here?"

D az-P rez indicated that she

would, and eventually

and D az-P rez agreed to meet in the

Andaluz

parking lot of a Burger

King restaurant.

At

and

de la

trial, Andaluz testified

Cruz-Paulino arrived

lot, but before he and Salazar

a concealed

microcassette

admitted the

recording of

evidence

Salazar

without

that after D az-P rez

at the Burger

King parking

approached them, he activated

recorder.

The

district

the subsequent conversation

objection.

After

greeting

court

into

defendants,

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

will I do with [unintelligible]."

"Shut

up!

Oh, God,

Andaluz then said,

to get

a party."

the two

bales and

the other

stuff."

getting involved here

la Cruz-Paulino then

-55

what

D az-P rez then exclaimed,

"No, relax, we are

De

girl, because

said, "No, watch

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

impossible

to

see

cellular telephone,

cardboard.

with the

the

in such a way that it was

contents.1

package of

Also

coffee,

seized

and a

were

piece

of

Chita s name was written on the cardboard, along

DEA telephone number, several

figures that totaled

eighty, and the words "coffee" and "large garbage bags."

agents

did

not

find

any

weapons,

nor

did

they

DEA

test

defendants

clothing for the presence of cocaine.

Defendants

and abetting

were

subsequently indicted

each other and

others in

for aiding

possession of,

with

intent to distribute, a controlled substance, in violation of

21 U.S.C.

841(a)(1) and 18 U.S.C.

indicted on

D az-P rez was also

six counts of using a communications facility in

furtherance of

U.S.C.

2.

a narcotics

transaction, in violation

of 21

843(b).

Prior to

trial, defendants requested,

pursuant to

Fed. R. Crim. P. 12(d)(2), that the government designate

the

____________________

1.

Each

wrapping,
wrapped

kilogram was wrapped

then

two

kilograms

in a black wrapping.

into three large garbage bags.

individually in a tan-colored
were

bundled

The bundles

together

and

were then placed

-66

evidence it intended to introduce at trial.

government

designated the seized

which

cocaine

the

recordings

stated, "Any

and

had

been

photographs.

In response, the

cocaine, the

wrapped,

In

and

materials in

various

addition, the

tape

government

other physical and/or documentary evidence will

be notified at least five (5) days before the date of trial."

The government never notified

introduce the

telephone or

P rez s

car

into

evidence.

referred

to

both

pieces

defendants that it intended to

the cardboard seized

from D az-

Nonetheless, the

government

of evidence

during

its

opening

statement at defendants' jury trial.

Immediately

D az-P rez,

telephone

both

and

designated as

Rule 12(d)(2).

the

defense

the

During

the

counsel

cardboard

evidence by

government never

either piece

following

opening

moved

because

they

the government as

statement

of

exclude

the

to

had

not

been

required under

the discussion on defendants' motion,

admitted

of evidence,

but

that it

had not

instead repeatedly

designated

insisted

that it had provided defendants with full discovery, stating,

for example,

they

were fully

piece of

aware that

evidence and

surprise to them

this

this was
is not

they had it from

a
[a]

about

three weeks after the defendants had been

arrested this
they
piece

should be
of

is

no surprise
aware

evidence

and

that
the

to

this was

government

could attempt to use such evidence.

-77

them,

The

district court

provided."

denied the

When defense

although provided under

designated as

stated,

it."

motion, stating,

counsel objected that the evidence,

Fed. R.

Crim. P. 16,

required by Rule 12(d)(2),

"It is not [a]

The evidence

"it's been

had not

been

the district court

surprise, it[']s there

and you have

was subsequently admitted without further

objection.

At

the close

both defendants moved

judgments

motions.

offered

of

government's case

pursuant to

acquittal;

D az-P rez

no

of the

the

Fed. R. Crim.

district

court

then testified in her own

other evidence.

De

in chief,

P. 29

denied

for

both

defense, but

la Cruz-Paulino

did

not

testify and offered no evidence.

defendants renewed their Rule

also objected

representative

At the close of trial, both

29 motions, and each defendant

to the district

court's decision

sample of unpackaged

to allow

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

its

discretion

telephone and

in

argues that

admitting

the district

into

the piece of cardboard

evidence

court abused

the

cellular

because the government

did

not disclose its intent

to use the

evidence during its

-88

case

in chief

D az-P rez

holding

since

as required

first argues

that the

it had

by Fed.

that

R. Crim.

the district

government did

not violate

provided defendants with

P. 12(d)(2).2

court erred

in

Rule 12(d)(2)

open-file discovery.

We

agree.

contain

"To the

extent that the

information that

Rule 12(d)(2) creates

policy

does

not,

is subject

and of

it does

itself,

satisfy

does

not

defendant

is still

satisfy

`left in

Rule

this notice

evidence the

Providing open-file

12(d)(2)

the dark'

evidence, discoverable under Rule

as to

because

16, the government intends

Fed. R. Crim. P. 12(d)(2) provides:

(d)
(d)

Notice
Notice

by
by

the
the

"the

exactly what

____________________

2.

file

United States v. Brock,

_____________
_____

F. Supp. 851, 868 (E.D. Wis. 1994).

discovery

16 discovery,

The open

not specify which

government intends to use at trial."

863

to Rule

a notice requirement.

in

requirement because

government's open files

Government
Government

of
of

the
the

Intention to Use Evidence.

Intention to Use Evidence.
. . . .
(2)
(2)

At
At

the
the

Defendant.
Defendant.
or

as

Request
Request

of
of

At the arraignment

soon

thereafter as

practicable the defendant

in

the
the

order

to

is
may,

afford

an

opportunity to move to suppress

evidence
(b)(3)

under
of

notice

subdivision

this rule,

of

intention

the
to

request

government's
use

(in

its

evidence in chief at trial) any

evidence
may
under

be

which
entitled

Rule

the

defendant

to

16 subject

discover
to any

relevant limitations prescribed

in Rule 16.

-99

to

rely upon in its case in

v. Kelley,
______

120 F.R.D. 103, 107

district court

file

chief at trial."

erred in

(E.D. Wis. 1988).

ruling that the

discovery satisfied

United States
_____________

Thus the

government's open-

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

government's Rule 12(d)(2)

conviction and

remand

argues

remedy

the

violation, we should reverse

her

for a

that

new trial

to

as we

did for

the

victim

of a Rule 16

987 F.2d 77,

(1993).

violation in United States v. Alvarez,

______________
_______

85-86 (1st Cir.), cert. denied, 114

_____ ______

S. Ct. 147

We do not agree.3

We have not yet addressed the effect of a violation

of

Rule

12(d)(2).

however, we

In

have made clear

that the alleged

reviewing

discovery

violations,

that "[a] defendant

must prove

violation prejudiced his case to succeed in

obtaining a reversal on appeal."

955 F.2d 112, 126

United States v.
_____________

(1st Cir.), cert.

_____

Nickens,
_______

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

States v. Valencia,
______
________
sanctions imposed
discretion),

for abuse

656 F.2d 412, 415

for Rule

cert. denied,
_____ ______

of discretion.

(9th Cir.) (reviewing

12(d)(2) violation for

454

United
______

U.S. 877

abuse of

(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

court did not consider

imposing a sanction since it

find

that

violation

case, however, the

occurred.

Accordingly,

ourselves determine whether a sanction was necessary.

-1010

district
did not
we

must

(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

12(d)(2) violation prejudiced her in three ways:

not prepared to file

a motion to suppress the

Rule

(1) she was

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

Crim.

P. 12

12(d) is

advisory

omitted), rather than

trial.

As

defendants to

its

"a

matter of

procedure," Fed.

committee's note

(internal quotation

a rule designed to ensure

text makes

request notice

clear,

R.

Rule

fairness at

12(d)(2)

of the government's

allows

intent to

use

evidence "in order to afford an opportunity to move to

______________________________________________

suppress evidence
__________________

Fed.

R. Crim.

under subdivision

P. 12(d)(2)

(b)(3) of

(emphasis added).4

"provides a mechanism for insuring that a

the

government's

this rule."

intention to

use

Rule 12(d)

defendant knows of

evidence

to which

____________________

4.

Fed. R. Crim. P. 12(b) provides:

(b)
(b)

Pretrial
Pretrial

Motions.
Motions.

Any

defense,

objection, or request which is capable of

determination
general
by

without

the trial

of the

issue may be raised before trial

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

the

evidence . . . .

-1111

defendant

may

want to

object"

so that

the

defendant may

"avoid the necessity of moving to suppress evidence which the

government does

advisory

not intend

committee's note;

to use."

see
___

Fed.

also 1
____

Federal Practice and Procedure:

Criminal
__________________________________________

R. Crim.

P. 12

Charles A.

Wright,

197, at

735 (2d

ed.

of

1982) (Rule 12(d) "is intended

a pretrial motion for

Rule

12(d)

prior

to trial.

trial by not

designed

police conduct

guilt'")

to

This

in

complying

make motions

to

with their

suppress

in turn preserves

Thus,

Rule

evidence

the integrity of a

interrupting it with suppression motions.

Fed. R. Crim. P. 12

"`is

suppression of evidence.").

aids defendants

12(b)(3) obligation

to facilitate the making

See
___

advisory committee's note (Rule 12(b)(3)

to eliminate

from

not immediately

the

trial disputes

relevant to the

(quoting Jones v. United States,

_____
_____________

over

question of

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

should

think

that government

excuse

a defendant's

evidence

States
______

failure

to

of

Rule 12(d)(2)

move to

suppress

prior to trial, as required by Rule 12(b)(3), since

defendants
that

violations

have no

incentive to

the government
v. Poole,
_____

(excusing

the

will not

794

evidence prior to trial

suppress evidence

be introducing.

F.2d 462,

defendant's

move to

464

failure

n.1 (9th
to

move

See
___

United
______

Cir.

1986)

to

suppress

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
shall

constitute waiver

must be made prior to trial .

thereof,

but the

shown may grant relief from the waiver.").

-1212

court for

. .
cause

Crim. P. 12(d) advisory

P. 12.1

committee's note; cf. Fed.

___

(Notice of Alibi) advisory

major purpose of a notice-of-alibi

surprise"); Fed.

advisory

R. Crim.

committee's note

the fair and efficient

providing the

effect

of

contributing

to an

rule is to prevent unfair

and Inspection)

("broad discovery

contributes to

administration of criminal justice by

enough information to

as to plea; by

surprise

committee's note ("[t]he

P. 16 (Discovery

defendant with

informed decision

R. Crim.

at

the

make an

minimizing the undesirable

trial;

and

accurate determination

by

of the

otherwise

issue of

guilt or innocence").

defendant

but only

Rule 12(d) was not designed to aid the

in ascertaining

the government's

trial strategy,

in effectively bringing suppression

motions before

trial, as required by Rule 12(b)(3).

We

was

first consider

prejudiced

because,

not

introduce the telephone or

to file

a motion

D az-P rez does

the evidence;

to us

Absent some

expecting

note

to be

that

to

D az-P rez

On

appeal,

for suppression of

did

seized from her car,

a basis

discussion

the government

of them.

not articulate any basis

we

that she

the cardboard, she was unprepared

to suppress either

suppress other evidence

appear

D az-P rez's argument

for suppressing

regarding suppression,

not

seek

to

nor does there

the evidence.

we will

not

view the

lack of opportunity

prejudicial.

for a

Merely stating

suppression hearing

that "the

decision to file

as

-1313

motion

affected

to

suppress

by

the

government intended

. .

could

knowledge

to present

prior

have been

to

significantly

trial[]

those items in

that

the

evidence" is

not enough.

D az-P rez also

telephone

strategy

and

and

government's

evidence.

in

her

cardboard

incentives

case

Rule

defendants to

case

the

argues that

became

12(d) was

the strength

the admission of

greatly

to

affected

plead

markedly

guilty

stronger

not, however, designed

or weakness of

trial

since

the

with

that

to alert

the government's

against them; rather, it was designed to aid defendants

fulfilling

their

Rule

12(b)(3)

suppression motions prior to trial.

plea strategy

are simply not

obligation

plea strategy cannot

implicated by Rule

satisfy the

to

make

Since trial strategy and

alleged effect of a Rule 12(d) violation upon

or

her

the

12(d), the

trial strategy

prejudice requirements

for reversal on appeal.

We

was

not

recognize, however, that even though Rule 12(d)

designed

government's

trial

to

give

strategy,

defendants

the

notice

government's

of

the

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

rather

by

than allowing

granting

the

defendant

a continuance,

the government effectively

-1414

to sandbag

the

defendant

evidence.

by

Whether

continuance for

introducing

or not

previously

a defendant should

Rule

be granted

fairness reasons, however, is

left to the discretion of the district court.

will only

undesignated

consider prejudice

12(d), namely

a matter best

On

stemming from the

matters regarding

appeal, we

function of

potential motions

to

suppress.

Thus,

12(d)(2) by

introduce

although

the

government

not indicating prior

the

telephone

and

the

violated

Rule

to trial its

intention to

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

violations

however,

of

we

government

R.

this

that

we do

not

condone governmental

sort.

Like

the

Advisory

believe that

in

general,

will in fact comply

Crim. P.

12

Committee,

"attorneys for

[with Rule 12(d)(2)]."

advisory committee's

note.6

We

rely

the

Fed.

on

____________________

6.

The Advisory

Committee's notes discuss why

no sanctions

were provided for violations of Rule 12(d)(2):

No

sanction

is

provided

government's failure to
court's

order

because

believes

that

government

will in fact

judges have ways of

for

comply with
the

attorneys

the
the

committee
for

the

comply and that

insuring compliance.

An automatic exclusion of
particularly

where

notice

was

not

create

too

heavy

such evidence,

the failure

deliberate,
a

burden

to give
seems

to

upon

the

exclusionary rule of evidence, especially

when defendant has opportunity

for broad

-1515

district

courts

governmental

to

impose

noncompliance

continuances and

and

appropriate

encourage

hold additional suppression

sanctions

them

to

for

grant

hearings where

warranted.

in

Cf. Valencia,
___ ________

admission

court

of

conducted a

656 F.2d at 416 (finding

undesignated evidence

where

second suppression

hearing to

admissibility

of undesignated evidence).

noncompliance

is the result

undesignated evidence may be

1,

1995)

misconduct and

to

dismiss

an

(repeating

misconduct).

B. Tape Recordings
___________________

determine

Where governmental

exclusion of the

appropriate.

Cf. United States

___ _____________

slip op. at 17 n.7

admonishment

stating that court may

indictment

the district

of bad faith,

v. Flores-Rivera, No. 93-1558,

_____________

June

no error

to

deter

(1st Cir.

against government

use supervisory power

future

prosecutorial

D az-P rez

next argues

committed reversible

that

the

error by admitting

district

into evidence three

____________________

discovery
Project

under rule
on

16.

Standards

Compare
for

ABA

Criminal

Justice, Standards Relating to Electronic

Surveillance

(Approved

Draft, 1971)

at

failure to

comply with

the

p.116:

"A

duty of

giving notice could lead

suppression
the
rule

of evidence.

standards make it
is

intended

be

procedure

which

appropriate

circumstances

dictate

that

to the

Nevertheless,

explicit that the

to

need

evidence

matter
not

of

under

automatically
otherwise

admissible be suppressed."

Fed. R. Crim. P. 12 advisory committee's note.

-1616

court

tape

recordings

unnamed

and

of

conversations

uncharged

Colombian

believes that the contents

Chita

contacts.

and

D az-P rez

D az-P rez argues that

not have been (implicitly)

finding

that

the

persons

the

admitted pursuant to

Fed. R. Evid. 801(d)(2)(E)7 since the district court

factual

two

of the tape recordings constitute

hearsay subject to no exception.

tapes could

between

on

the

made no

tapes

were

participating in a conspiracy with D az-P rez and speaking in

furtherance of

v.

that conspiracy as required

Petrozziello,
____________

addition,

548

D az-P rez

F.2d 20,

contends

23

(1st

that

had

by United States
_____________

Cir.

an

1977).

inquiry

In

been

conducted, the court could not have found that "the declarant

and

the

defendant were

hearsay statement

members

was made,

and that

furtherance of the conspiracy."

P rez failed to object

not been preserved

States
______

v. Figueroa,
________

of a

conspiracy

the statement

Id. at 23.
__

Because

in the district court, the

for appeal.

818

As we

F.2d 1020,

1026

Petrozziello
____________

rule is

(1st Cir.

designed to

was in

D az-

issue has

explained in

(alteration in Figueroa):
________

[T]he

when the

United
______

1987)

protect

the

borderline

integrity of
situations

prosecution may

or may

the

trial in

where
not

the

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

course and in furtherance of the conspiracy."

-1717

party during the

conspiracy.
to

If the defendant elects not

put the

government to

either

for

the

outcome,

this

tactical reasons

or because

realistically,

foreordained -- he is in a poor
to complain after the fact.
in

United States
_____________

Inc.,
____

621

1980),

F.2d

"[i]n

objection,

test --

is

position

As we stated

v. David E. Thompson,
___________________
1147,

the

Fed. R.

1153

absence
Evid.

deviation from the standard

(1st
of

Cir.

a proper

103(a)(1), a
announced in

Petrozziello will be reversed only upon a

____________
showing of plain error."

The

court to ask:

error

is

requires the reviewing

(1) whether there is an error; (2) whether the

"plain,"

"obvious"; and

rights.

"plain error" standard

term

(3) whether

United States
_____________

synonymous

the

with

error affected

v. Olano, 113 S. Ct.

_____

"clear"

or

substantial

1770, 1777-1778

(1993); see also

___ ____

Fed. R.

Crim. P. 52(b)

defects affecting substantial rights

they were

it

seriously affected

the

or

may be noticed although

not brought to the attention

"error rises to this level only

("Plain errors

of the court.").

when it is so shocking

fundamental fairness

integrity of the proceedings conducted below."

and

An

that

basic

United States
_____________

v. Ortiz, 23 F.3d 21, 26 (1st Cir. 1994) (internal quotations

_____

omitted).

Applying the plain-error

P rez's argument.

not

Even assuming arguendo that D az-P rez was

________

involved in a conspiracy

and, therefore,

standard, we reject D az-

that

the

with the persons

judge

could not

on the tapes

have

made

the

required findings under Petrozziello,

____________

we do not believe that

-1818

the error passes the "clear" or "obvious" hurdle.

error

defendant asserts

on

appeal depends

finding the defendant neglected to

make,

the error

cannot be `clear'

"Where the

upon a

factual

ask the district court to

or `obvious'

unless the

desired factual finding is

_______

by the record below."

1, 5 (1st

P rez's

the only one rationally supported

United States v. Olivier-Diaz, 13 F.3d

_____________
____________

Cir. 1993) (emphasis added).

"desired"

involved

in

contacts.8

factual

finding

is

conspiracy

with

the

We do

is the "only

that

was

not

Colombian

not believe, however, that such

a finding

one rationally supported by the

that D az-P rez

distribute cocaine.

she

Chita's

Rather, the non-hearsay evidence

plausible

In this case, D az-

In

record below."

presented at trial makes it

was involved

fact, Count

in a

One of

conspiracy to

the Indictment

charged both defendants with "aiding and abetting each other,

and others to

this Grand Jury unknown."

the tape recordings between

Additionally, while

Chita and his Colombian contacts

do not mention D az-P rez by name, the Colombian contacts did

____________________

8.

To

the

extent

admission of
the

conversations

1007 (1st Cir.

1197,

contacts'

D az-P rez

Chita's statements, we

utterance(s),'"

F.2d

that

served

U.S.

"`reciprocal

and

United States
_____________

v. McDowell,
________

918 F.2d

(8th

statements

989

think that his

as

Cir. 1970)),
"into

the jury,'"

Lemonakis, 485 F.2d 941, 948

_________
415

challenges

1990) (quoting United States

_____________

1199

`intelligible to

also

(1974)).

to

those statements

integrated
1004,

the Colombian

and

make

them

id. (quoting United States v.

___
______________
(D.C. Cir. 1973), cert. denied,
_____ ______

Because

Chita's

statements

offered only for context and not for the truth of

asserted,

part of

v. Metcalf, 430
_______

put

perspective

the

are

Evid. 801(c).

-1919

not hearsay

were

the matter

under Fed.

R.

indicate that the

schoolteacher

informant would be

in Puerto Rico.

966 F.2d 707, 716 (1st Cir.

plain

error

unrequested

in

female

See United States v. Ortiz,

___ ______________
_____

1992) (holding that there was no

district

Petrozziello
____________

contacted by a

court's

finding

failure

because

to

enough

make

an

evidence

existed to support a finding, based on a preponderance of the

evidence,

that

conspiracy

at

the

codefendants were

the time

the

statements

participating

were made),

in

cert.
_____

denied, 113 S. Ct. 1005 (1993).

______

Accordingly, because D az-P rez

any evidence

cannot

error

because

at trial to deny

conclude that

in

allowing

her role in a

the district

the

tapes into

the alleged error is

failed to

court

conspiracy, we

committed obvious

evidence.

not clear or

produce

Therefore,

obvious, we need

not reach the other elements of the plain-error review.

-2020

C. Judicial Bias
_________________

D az-P rez

trial,

the

also

district

assum[ed] the role

court

that

throughout

"overstepp[ed]

of an advocate

"constantly interjected

and bias

complains

its

the

bounds and

for the prosecution"

and

in a manner that indicated annoyance

against [defense]

counsel," thus

preventing D az-

P rez from having a fair trial.

"It

fair

cannot be gainsaid

tribunal

United States v.
_____________

(quoting

is

that `[a] fair

basic requirement

Nueva, 979
_____

In
re Murchison,
__________________

F.2d 880, 885

349

U.S.

(alteration in Nueva), cert. denied,

_____
_____ ______

Accordingly, a trial

his or

judge should be

her comments during a

of

trial in a

due

process.'"

(1st Cir.

133,

136

1992)

(1955))

113 S. Ct. 1615 (1993).

fair and impartial

jury trial.

United

in

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

(quoting Offutt
______

reading of the entire record.'"

v. United States,
_____________

After scrutinizing the entire

348 U.S. 11,

Id.
___

12 (1954)).

record with care, we

are left

with no such abiding impression.

D. Cocaine in the Jury Room

____________________________

Both

abused its

of

defendants

argue

that

the

discretion when it permitted

cocaine

deliberations.

to

be

sent

into

the

The unwrapped cocaine had

district

court

an unwrapped sample

jury

room

during

been offered into

-2121

evidence by the government,

representative

the time of

without objection, as part

of a

sample of the cocaine that had been seized at

defendants

arrest.

charge, however, defense counsel

Immediately

after the jury

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

evidence

States
______

district

court s decision

to

into the jury room for abuse of discretion.

v.

McCarthy,
________

("Whether

should

review

961

F.2d

evidentiary exhibits

not

discretionary

accompany

matter

quotations omitted);

297 (1st Cir. 1986)

the

for

972, 978

(1st

Cir.

properly admitted

jury

to

the

trial

the

jury

United States v. Rawwad,

_____________
______

United
______

1992)

should or

room

court.")

send

is

(internal

807 F.2d 294,

(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

_____ ______

District

courts have

discretion to allow

U.S. 909 (1987).

properly admitted

evidence to accompany the

807 F.2d

at 297.

This is

jury into the jury room.

true even when

drugs, for the presence of drugs

se prejudicial or inflammatory.
__

Rawwad,
______

the evidence

is

in the jury room is not per

___

Id.
___

Defendants argue that even if it would generally be

within a

sent

into

district court's discretion

the jury

room,

the

-2222

to allow

district court

drugs to

be

nonetheless

abused

its

discretion

knowledge of what was

In

in

this

case

because

defendants'

in the wrapped packages was

particular, defendants

contend

[have been] instantly struck

that the

at issue.

jurors

"would

by the clear plastic bags

of a

white powdery substance" during their deliberations and would

have

been

confused.

record, we find no

We do

not agree.

In

reviewing the

reason why the presence of

the unwrapped

cocaine sample in the jury room would

inflammatory or

there

prejudicial

was substantial,

have been particularly

to defendants.

uncontroverted

During

testimony

trial,

that

the

cocaine was wrapped in such a way that it would not have been

possible

for

Additionally,

anyone

to

during the

jurors that the

see

through

charge, the

the

packaging.

court instructed

government had stipulated that

the

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.

other

Finally,

in addition to the unwrapped

items of evidence were

including samples of the

also sent into

cocaine,

the jury room,

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

-2323

presented sufficient evidence to sustain a conviction.

the

district court

presented

no

denied

evidence in

the motion,

her

own

de la

defense.

After

Cruz-Paulino

Accordingly,

unlike defendants who do present evidence, de la Cruz-Paulino

did

not waive review of the district court's initial Rule 29

decision.

Cir.

United States v. Clotida, 892 F.2d 1098, 1100 (1st

_____________
_______

1989);

Charles

Procedure: Criminal
____________________

even

though de

defense

la

evidence

including all

permit

doubt."

own behalf.

on appeal we

presented in

the

This is so

did mount

See Clotida, 892

___ _______

must determine

a light most favorable

whether,

to the government,

government's case-in-chief,

inferences that may be

a reasonable juror to find

Id..
___

Federal Practice and

______________________

Cruz-Paulino's codefendant

Thus,

"when examined in

Wright,

463, at 642 (2d ed. 1982).

by testifying in her

F.2d at 1103.

the

A.

drawn therefrom, would

guilt beyond a reasonable

Even though D az-P rez's testimony might have

influenced

the jury in its

Paulino, we may not

decision to convict

de la Cruz-

consider that testimony on appeal.

See
___

id.; cf. McGautha v. California, 402 U.S. 183, 215 (1971) ("a
___ ___ ________
__________

defendant

whose motion

Government's case is

his

so

for acquittal

will bolster

the close

denied must decide whether

motion or put on a defense,

he

at

of the

to stand on

with the risk that in doing

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

-2424

evidence

"[t]he

after

conviction

prosecution

the

the denial

will

of his

be

her Rule

affirmed,

may have failed to

evidence for

or

even

make a prima

the defense supplied

29 motion,

though

the

facie case, if

the defect,

and the

whole record is sufficient to sustain a conviction").

Taken

government,

case in chief

in

the

the evidence

light

most

favorable

presented during

established the

following:

to

the

the government's

(1)

de la

Cruz-

Paulino

helped move garbage

bags containing sealed packages

of cocaine into D az-P rez's car; (2)

in the car while

de la Cruz-Paulino was

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

Salazar opened

stated, "No,

here."

is

De

one of the

garbage bags, de

watch out the

to

allow

reasonable doubt

that she

others

possession

the

distribute, the

29

motion

la Cruz-Paulino

around, going

around

la Cruz-Paulino argues that because this evidence

insufficient

in

police is

and

jury

to

conclude

aided and abetted

of

cocaine

district court should have

for judgment

of acquittal

government's case in chief.

We agree.

at

beyond

D az-P rez and

with

intent

to

granted her Rule

the close

of the

To be

convicted of aiding and

"mere presence" at the

scene is required.

Mehtala,
_______

578 F.2d

6,

(1st

Cir.

abetting, more than

United States v.
______________

1978).

The

classic

-2525

definition

of aiding

and abetting,

adopted by

the Supreme

Court, was first enunciated by Learned Hand:

In

order

commit

to

aid

a crime

and

it is

abet

another to

necessary that

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,
_____________

(quoting United States v.

_____________

336

U.S. 613,

619 (1949)

Peoni, 100 F.2d 401, 402

_____

(2d Cir.

1938) (L. Hand, J.)).

Thus, for de la Cruz-Paulino to

been

an

convicted

government

under

had to

aiding-and-abetting

prove (1)

that D az-P rez

underlying substantive crime and

shared D az-P rez's

Valerio,

48 F.3d

the

committed the

(2) that de la Cruz-Paulino

criminal intent.

58, 64

theory,

have

(1st Cir.

See United States v.

___ ______________

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

of the

[D az-P rez's] knowledge

underlying criminal act, and intended to help [her],"

United States v. Taylor, 54

______________
______

see also United States v.

___ ____ _____________

F.3d 967, 975

Loder, 23 F.3d 586, 591 (1st

_____

1994) (discussing specific-intent

abetting).

(1st Cir. 1995);

Cir.

requirement for aiding and

This the government did not do.

"[T]he

culpable presence

line

that

is a thin

Ortiz, 966 F.2d at 712.

_____

separates

mere

presence

one, often difficult

from

to plot."

On the one hand, "[m]ere association

-2626

between

abetting

the

Mehtala,
_______

also

and

is not sufficient

presence at

committed

principal

those

578 F.2d

to

at 10

of

aiding

to establish guilt;

the scene and knowledge

sufficient

accused

establish

(internal quotation

United States v. Campa,

nor is mere

that a crime was

aiding

679 F.2d 1006,

and

and

to be

abetting."

omitted); see
___

1010 (1st Cir.

____

_____________

_____

1982) ("Mere presence at the scene and knowledge that a crime

is

being

aiding

committed is

and

affirmative

generally insufficient

abetting.

The

participation

(internal citation omitted).

circumstances where presence

as

where a

government

by

the

aider

to establish

must

prove

and

some

abettor.")

On the other hand,

"there are

itself implies participation --

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

direct

instant case, the

evidence9 during its case

government presented

in chief that

no

de la Cruz-

____________________

9.

Of

course,

a conviction

circumstantial evidence.
14 F.3d

95, 100

(1994).

As

may

premised entirely

cert. denied,
_____ ______
in

Clotida,
_______

892

115 S.

Circumstantial evidence

has been defined

does not actually assert

or represent the proposition in question,

but which asserts or
else, from

describes something

which the

trier of

fact may

either (i) reasonably infer the

truth of

the proposition,

. . . or

-2727

Ct. 193

F.2d at

(alterations in Clotida),
_______

as "proof which

on

United States v. Torres-Maldonado,

_____________
________________

(1st Cir.),

we explained

be

(ii) at least

1104

Paulino (1) had any knowledge that the garbage bags contained

cocaine, (2) had any connection to the drugs prior to Andaluz

suggesting

to

conversation,

packages to

D az-P rez,

during

their

7:55

that she pay someone $40 to help her carry the

her car,10 or (3)

was to be paid

more than $40

____________________

reasonably

infer

probability

that

fact

true. .

Mueller,
It

an

increase

in

the proposition

. ."

1 D.

Louisell

Federal Evidence
_________________

the
is in
& C.

94 (1977).

has

been noted

that

general

problem of

circumstantial proof

is

p.m.

to

evidence

determine
indirectly

"[t]he

whether
or

. .

proffered

inferentially

supports

the

proposition

proved."

Id. at
___

sought to

91.

It cannot be doubted,

however, that

circumstantial

evidence

probative.

Professor Wigmore

without

As

allowing

is

the

inference,"

could

often

very
notes,

introduction

evidence that permits "an

an

be

"hardly

inference upon
a single

trial

be adequately prosecuted."

Wigmore, Evidence
________

41 (1983).

"the

courts

in general

that

circumstantial

of

1A J.
Indeed,

have recognized

evidence

may,

in

given settings, have equal if not greater

weight

than

direct

evidence."

Torcia, Wharton's Criminal Evidence

____________________________
(14th

ed. 1985).

Furthermore,

it

C.
5
is

important to note that, in the context of

review of
legal

motion for

distinction

circumstantial

and

acquittal,
exists

direct

United States v. Sutton,

______________
______

"no

between
evidence."

801 F.2d 1346,

1358 (D.C. Cir. 1986).

10.

During

being asked

their 7:10
where she

p.m. conversation,
was, responded,

D az-P rez, upon

"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 azP rez conferred with during its case in chief,
think

and we do not

the jury was entitled to infer that de la Cruz-Paulino

was involved
suggestion

in the

drug venture prior

that D az-P rez pay someone

to Andaluz's

later

$40 to help her move

-2828

for

her

involvement in

the drug

venture.

The government

argues that the jury was nevertheless entitled to find beyond

a reasonable doubt that de

D az-P rez

in

the

distribute

because (1)

la Cruz-Paulino aided and abetted

possession

of cocaine

criminals

do

with

not

intent

usually

to

welcome

nonparticipants as witnesses to their criminal activities and

(2)

the

packages

statement

facts, especially

from

an

apartment

about the

Cruz-Paulino

her

involvement

to D az-P rez's

police being

knowingly

in

the

the

and

her

de la

venture

and

de la Cruz-Paulino

was

We do not agree.11

The evidence suggests that

brought in to do

car

around, imply that

participated

intended to help it succeed.

in moving

a menial task, namely carrying

the cocaine

____________________

the

packages from

unidentified female,

the

fact that

D az-P rez questioned

whose voice does not

an

register on tape,

about their whereabouts.

During cross-examination, D az-P rez agreed that de
la Cruz-Paulino

was the

off-tape person

they were in Trujillo Alto,

in

chief,

her that

where de la Cruz-Paulino

Because D az-P rez's testimony

case

who told

however, we

was outside the

will

not

lived.

government's

consider

it.

See
___

Clotida, 892 F.2d at 1105 n.1.

_______

11.

We find the government's

Cruz-Paulino's

sufficiency-of-the-evidence

disappointingly conclusory.
think that "[t]he
was

de

la Cruz-Paulino

thorough discussion
greatly in our
that

"[d]espite

standard
challenges
12.

of

challenge

Unlike the government, we do not

evidence of guilt, as

simply overwhelming."

against

three-page discussion of de la

On the
was

to both appellants,

contrary, the

quite sparse,

and

evidence
a more

from the government would

have aided us

assessment of its sufficiency.

We reiterate

the prosecution-friendly

review,

appellate

oversight

is not an empty ritual."

overtones
of

sufficiency

Ortiz, 966 F.2d at 711_____

The government should not treat it as one.

-2929

of the

from the apartment where

car.

The government

Paulino

was involved

it was stored down

to D az-P rez's

presented no evidence that de

prior to

Andaluz suggesting

la Cruz-

to D az-

P rez that she pay someone $40 to help her carry the packages

to

her car.12

beyond a

No reasonable

could have

reasonable doubt, that D az-P rez

only someone already

this

jury

menial task and

concluded,

would have hired

participating in the drug venture to do

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

abet

D az-P rez

developed the specific intent to

in

the

approximately

two

aid and

hours

between

Andaluz's $40 suggestion and the ensuing arrests.

We

inference

the

do not

think

that the

that de la Cruz-Paulino was

drug venture after Andaluz's

were

elaborately

wrapped

then

placed into

three

participant

in

the

in

sealed

venture

the

told about and joined

$40 suggestion.

garbage bags.

drug

evidence supports

packages13

The drugs

that were

Unless she

prior

to

was

Andaluz's

suggestion, an inference we have held to be impermissible, de

la

Cruz-Paulino

unpackaged form.

could not

The

have

seen

the drugs

drugs were assuredly

in

their

packaged before

____________________

12.

See supra note 10.

_____

13.

The government stipulated that

it was impossible to see

the cocaine inside of the packages.

-3030

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,

Andaluz

especially

from her

indication

given

car during

from the

that

D az-P rez

that time.

spoke

There is

taped conversations

with

also no

between D az-P rez

and Andaluz that she had anything to do with the drugs

other

than

While

de la

move them down from the apartment

Cruz-Paulino admitted to

apartment to the car,

you

get it

down?"

to her car.14

helping carry "it"

from the

responding to Salazar's question, "Did

with "Of

course we

evidence that de la Cruz-Paulino

did,"

there is

no

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

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.

-3131

We see no basis

de

la

Cruz-Paulino

soliciting her

in

for concluding that D az-P rez cut

on

the

drug

transaction

package-carrying services.

after

D az-P rez had a

menial job that de la Cruz-Paulino was willing to do for $40;

there

into

was no need for

D az-P rez to cut

the deal to obtain her

United States v.
______________

de la Cruz-Paulino

package-carrying services.

Francomano, 554
__________

F.2d 483,

487

Cf.
___

(1st Cir.

1977) (holding

that

there was

inference" that the defendants

when the record indicated

the

required

inducement").

jury

for a

reasonable

were cut in on the

that they were willing

crewmember

The

"no basis

services

could not,

with

to perform

"no

without

drug deal

special

engaging

in

impermissible inference, conclude that de la Cruz-Paulino was

entitled to anything other

services.

Indeed, there

than $40 for her package-carrying

is no evidence

own compensation arrangement.

to obtain

turned

any

over

money from

the packages

the

about D az-P rez's

As D az-P rez was not supposed

government agents

to them,

there

is no

when

she

basis for

inferring that de la Cruz-Paulino thought she would receive a

portion of the funds collected.

Of course,

compensation

convicted.

35

(6th Cir.

Esquivel, 905
________

or

an aider

have

any

and abettor need

stake

in

not receive

transaction

to be

See United States v. Winston, 687 F.2d 832, 834___ _____________

_______

1982).

F.2d 510,

Thus,

in

515 (1st

-3232

United States
_____________

v.

Cuevas_______

Cir.), cert. denied,

_____ ______

498

U.S.

877 (1990), we upheld the conviction of a defendant who

testified that he was only

paid $33 for being a

board

boat

Similarly,

(1st Cir.

carrying

amount

in United States v. Steuben,

______________
_______

1988), we affirmed

who claimed that he

board

large

deckhand on

of

marijuana.

850 F.2d

the conviction of

was paid $300 for being a

859, 866

a defendant

crewmember on

a tugboat carrying $42 million worth of marijuana.

both cases, however, we held that there

evidence for

the jury to

In

was sufficient other

conclude that the

defendants were

not just crewmembers, but rather full-fledged participants in

the criminal ventures.

in

Unlike those cases, the

$40 payment

the instant case is corroborated by the fact that Andaluz

suggested it,

and there is little

other evidence indicating

that de

venture.

la Cruz-Paulino

Thus, while

itself counter

Paulino

was

was actually

involved in

compensation of only $40 would

other evidence establishing that

a participant

in

the

not by

de la Cruz-

criminal venture,

compensation, especially suggested as

agent, tends to negate

the drug

that

it was by a government

an inference that de

la Cruz-Paulino

was more heavily involved.

We next consider whether the

Paulino

overheard

conversations15

some

and came

of

to the

fact that de la Cruz-

D az-P rez's

telephone

Burger King

delivery site

made his $40

suggestion at

____________________

15.
7:55

After the
p.m.,

government agent

D az-P rez

conversations with

engaged

him, at

in

three

8:35 p.m.,

more

telephone

9:29 p.m., and

9:45

-3333

is evidence that

she was a

drug venture.

It

experience

suppose

to

is true

full-fledged participant in

that "it runs

that

criminal

nonparticipants

as

the

counter to

human

conspirators

would

welcome

innocent

witnesses

crimes."

United States v. Batista-Polanco, 927

______________
_______________

to

their

F.2d 14, 18

(1st

Cir.

1991).

Thus,

we

have

upheld convictions

of

defendants where the facts suggested that they witnessed open

and

obvious

inference

criminal

activity

that the defendants

activity.

For

conviction

of a defendant

large-scale

throughout

example, in

hypothesis that

allowed

arrested at an

apartment,

the

participated in that criminal

Batista-Polanco, we
_______________

heroin-packaging

the

and therefore

apartment while a

operation

stating "we

upheld the

was

in

cannot

participants in a distribution

process

accept

the

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."

however,

the presence of six

Id.
___

seats -- one

In

that case,

a makeshift seat

consisting of an

with

overturned bucket

the defendant's

table at

sweater on

which the heroin

with a

it

cushion and

-- around

was packaged also

one

the kitchen

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

three

calls.

De la

Cruz-Paulino was present for all

Cruz-Paulino's voice

background of the call made at 9:29 p.m.

-3434

is heard

in the

On the other hand,

the scene of a crime

being committed

unless

the

convicted of aiding

reasonably

shared the specific intent

infer

that the

of the principal.

the inference

that

Thus, in United States

_____________

The

over to a

was a

defendant

fact that

not always

participant.

v. Paone, 758 F.2d 774, 776 (1st Cir.

_____

1985), we suggested that

passenger in the back

that someone

crime was

and abetting

criminal activity occurs in front of someone does

allow

present at

and who had knowledge that a

cannot be

jury can

a defendant who was

if the defendant had merely

seat of a car while

been a

drugs were handed

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

P rez's

side16

took place after

help her

carry

that de la Cruz-Paulino

of the

three

Andaluz suggested that

the packages.

conversations with care and

basis

for inferring

that

P rez's specific intent to

While they would

telephone

We have

conversations that

she pay someone

scrutinized

find that they do not

de la

to

those

provide a

Cruz-Paulino shared

D az-

possess cocaine for distribution.

support D az-P rez's conviction, especially

since Andaluz used the word "kilos,"

innocent

overheard D az-

observer to D az-P rez's

____________________

we do not think that an

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.

-3535

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

indicates that de

in front

la Cruz-Paulino was

of

de la

Cruz-Paulino

a participant in

the

drug

venture, for

Indeed, she

time.

D az-P rez could

did not speak

control

explicitly about

her responses.

cocaine at

any

We note that D az-P rez did mention obtaining the $40

from

the

government

agents

during

one

of

those

conversations.17

That

delivery

be

witness

Cruz-Paulino came

to the

Burger King

scene also does not indicate that she was a knowing

participant in

might

de la

the drug venture.

presumed not

their

to

bring

criminal activities,

While criminals generally

along nonparticipants

we

do

not think

to

that

necessarily holds true when the criminal activity will not be

open

and

obvious.

(reversing as

Compare
_______

insufficient

Clotida,
_______

892

the defendant's

F.2d

at

conviction

1105

for

aiding and

abetting her travelling companion

involving cocaine-laden

own

clothing).

entered

into

government

clothing mixed in suitcases with her

In this

and

no

in drug crimes

case, no

money

negotiations were

was

to

be

exchanged:

to be

the

agents were simply supposed to take the car for a

____________________

17.

Andaluz

also

Paulino's comment
D az-P rez was
"something

testified
during the

that,

although

de

9:29 conversation he

not intelligible

like they're going to

dollars or words to that effect."

-3636

on the recording,
have to give

la

Cruz-

had with
she said

us the forty

few

minutes,

responded

stating,

and . .

opened

it, and

to Andaluz's

bring

question,

it

back.

"Which is

D az-P rez

your car?"

by

"That black one over there, in the trunk, two bales

. eight doubles.

. . ."

Then Andaluz

and Salazar

the trunk and one of the garbage bags, Andaluz saying

that he had

with

unload

"[t]o check it out girl, because

[unintelligible]."

exclaimed, "Shut up!

stuff."

Oh

At this point,

getting involved here to

D az-P rez became

God, the two

what will I do

very upset

bales and the

Andaluz stated, "No,

get a party," and then

and

other

relax, we are

de la Cruz-

Paulino

stated, "No, watch

out the police

is around, going

around here."

We do not think

"No, watch out the

sufficient

that de la Cruz-Paulino's comment,

police is around, going around

in this

context

to allow

here," is

a reasonable

jury to

conclude that de la Cruz-Paulino specifically intended to aid

and abet

Even

D az-P rez in possessing

if de

la Cruz-Paulino

cocaine for distribution.

could have inferred

from D az-

P rez's sudden shift in attitude and her statements about the

"two bales," and

one of the

from the two government agents'

garbage bags,

transaction was going

not

support

that, unbeknownst to

on, such

the conclusion

intent to possess cocaine

opening of

her, a

last-minute knowledge

that

she

shared the

for distribution.

drug

would

specific

See Francomano,

___ __________

554

F.2d

at

487

("Even

if

it

could

be

inferred

that

-3737

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

abetters."); see
___

appellants'

conviction

also United States v.

____ _____________

as

aiders

and

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

being

enough

reversing de

to sustain

case is close to the

conviction.

la Cruz-Paulino's

Nevertheless,

conviction, we keep

the following:

[E]vidence

might raise

reasonable man's
enough.

Guilt,

principle in our
established
And,

mind.

according

in a

that is not
to

a basic

jurisprudence, must

beyond

unless that

a question
But

a reasonable
result is

jury act; he must not

be

doubt.

possible on

the evidence, the judge must not

line of

let the

let it act on what

in

in mind

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
________

-3838