USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 95-1889
UNITED STATES OF AMERICA,
Appellee,

v.
CHARLES ROGERS, JR.

Defendant, Appellant.

____________________
No. 96-2032
UNITED STATES OF AMERICA,

Appellee,
v.

ANDREW J. BEAGAN,
Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________
____________________
Before

Selya and Lynch, Circuit Judges,

______________
and Pollak, Senior District Judge.*
_____________________
____________________

Robert D. Watt, with

______________

whom Frederick Q. Watt

_________________

and Brian J. Syl

_____________

were on brief, for appellant Charles Rogers, Jr.

Mark J. Gardner for appellant Andrew J. Beagan.
_______________
Stephanie S. Browne, Assistant
____________________

U.S. Attorney, with

Whitehouse, U.S. Attorney, was on brief, for appellee.

__________

whom Shel
____

____________________

August 26, 1997

____________________

____________________

*Of the Eastern District of Pennsylvania, sitting by designation.

LYNCH, Circuit Judge. A sting

LYNCH, Circuit Judge.
______________

cocaine led to the arrests

operation involving

and convictions of Charles Rogers

and Andrew Beagan.

They, along with two others, were charged

with conspiracy to

distribute and to possess

with intent to

distribute over five kilograms of cocaine in violation

U.S.C.

intent

846, and attempt to

to distribute

over

violation of 21 U.S.C.

raise numerous

substantial of these

claim.

Beagan's

entrapment.

distribute and to possess with

five

kilograms

841(a)(1).

challenges to

of

their convictions.

revolve

We affirm.

I.

cocaine

Rogers and Beagan

is Rogers' sufficiency of

claims

of 21

around

his

The

in

both

most

the evidence

defense

of

During

Police

the Fall of 1994, members of the Providence

Department

met

discuss a drug sting.

receive

10%

arrange a

from

with Ronald

Rego,

an

informer, to

Agreement was reached that Rego would

a drug

meeting between

Beagan,

a codefendant here.

cocaine

sale to

sting.

In

return, Rego

would

Rocha and

Andrew

Detective Fred

Detective Rocha would arrange a

Beagan and arrest

him at

the time

of the

sale.

On

Beagan.

November 16,

1994,

Rego

The meeting was tape recorded.

large-scale cocaine

interested

in

buying

dealer and

as

much

-22

introduced Rocha

Rocha claimed he was

Beagan

as

25

to

indicated he

kilograms.

was

Other

telephone

conversations and

December.

Some of

meetings

took

these were recorded.

place in

Rocha

early

and Beagan

agreed on a December 12 sale date.

Beagan

and Rocha

met on

that day.

Beagan

told

Rocha that "his people" did not want to carry all their money

at

once, so

transaction

Beagan and

Rocha agreed

into two parts.

Rocha

they would

would first

split the

deliver 10

kilograms

of cocaine

people liked

and

Beagan would

the quality,

then the

pay.

If

remaining 15

Beagan's

kilograms

would be exchanged.

Beagan

exchange on

that day

and Rocha

worked out

the telephone.

details of

Rocha was to call

to tell him where to bring

the cocaine was to be loaded.

drop

the

the

Beagan later

the "drop car" in which

Rocha would then pick up

the

car, load it with 10 kilograms of cocaine and drive the

car to an undisclosed location.

third location to show Rocha

Once Rocha saw the money,

left the

drop car.

car, and,

if they

Beagan would meet Rocha at a

the money for the 10 kilograms.

he would tell Beagan where

Beagan's

people would pick up

were satisfied

with the

he had

the drop

cocaine, Beagan

would release the money to

to buy the remaining

Rocha.

If Beagan's people wanted

15 kilograms, they would have to

do so

within the hour.

As

the drop car,

planned, Beagan called

a white Taurus, was in

-33

Rocha to tell

him that

the University Heights

parking

lot in Providence.

Rocha and another police officer

picked up the car, which had been rented by David Scialo (the

third codefendant in the case).

The rental agreement

listed

Rogers as the second driver.

The

kilograms of

moved

the car

Providence.

money

to the

arrived at the

by the final

was carrying a

police

officers

oatmeal packaged

to

the

loaded

to look

parking

Rocha called Beagan

India Point

lot

into

of

Rocha saw

25

They

field

in

bring the

in Providence.

codefendant in the case, Ruben

bundles of money.

ball

and told him to

Days Inn

car

like cocaine.

motel parking lot around 4

black bag.

the

Beagan

p.m., accompanied

DeLeon.

DeLeon

that the bag contained

Beagan

belonged

to

confederate

were.

Scialo)

at the

However,

telephone into

rang.

handed Rocha

so

that

other end

the line

cellular telephone

Rocha

of the

went

an outlet in

could

line where

dead.

Beagan's

the drugs

Beagan plugged

his car and the

Beagan handed the phone

tell

(which

the

telephone soon

to Rocha, who told the caller

that the drop car was parked at the ball field parking lot at

Power

Street

telephone to

in

Providence.

Beagan, who remained

Rocha

then

returned

on the line until

the

he was

arrested.

Officers who were stationed near the ball field saw

a green

Toyota pull

up next to

-44

the drop

car.

Rogers was

driving; Scialo and

rented to Scialo.

drop

car and

one other were passengers.

Scialo

began to

drive away,

officers saw that Rogers was

ear.

The

authorities

got out of

The car was

the Toyota, into

following Rogers.

the

Two

holding a cellular phone to his

stopped the

two

cars and

arrested

Rogers and Scialo.1

Soon afterwards,

FBI agents and

Providence police

arrested

Beagan

and

DeLeon at

records established that

the

Days

Inn.

Telephone

around 4 p.m.(the approximate

time

that Rocha spoke to Beagan's confederate on the telephone and

told him

where to find

was holding was

the drop car), the

used to twice call the

telephone Rogers

telephone Beagan was

holding.

Procedural History
__________________

The four codefendants -- Rogers, Beagan, Scialo and

DeLeon --

were charged and

drug trafficking

counts.

tried before

At

the close of

a jury on

the two

the government's

case, Rogers moved for a judgment of acquittal as well as for

mistrial based on

prosecutor in his

an allegedly improper

opening.

statement by the

The prosecutor had

said that he

would show that Rocha had

named

Chuck during

admitted at

trial.

spoken on the telephone to someone

the drug

The

deal.

No

such evidence

district court denied

was

the motions,

____________________

1.

They also arrested

the other passenger in

Toribio, but he later was released.

-55

the car, Juan

stating

that defense counsel could argue in closing that the

government had failed to produce promised evidence.

After beginning

that the

court instruct

predisposition.

instruction,

considering

crimes, they

them once again

The court did

asking

that

the

so.

jury requested

on the

meaning of

Beagan objected

jurors

be

told

to the

that

in

whether he was predisposed to commit the charged

might only consider

contact with the

give

deliberations, the

his behavior prior

government agents.

the additional instruction.

The court declined

The jury

on the two drug trafficking charges.

Rogers moved for

to

returned to its

deliberations, and Beagan, Rogers and DeLeon2 were

Beagan and

to his

convicted

Scialo was acquitted.

a new trial,

each on

different

grounds.

Rogers

against the weight

argued

that

the

of the evidence and that

verdict

was

there was newly

discovered evidence, in the form of Scialo's testimony, which

would exculpate

Rogers.

The district

court ruled

against

him.

Beagan

only one

of which

misconduct.

Jr.,

moved for a

warrants discussion:

Beagan

several grounds,

his claim

filed an affidavit from

his brother,

Beagan had spoken

new trial on

alleging that

after

to one of the jurors,

of juror

Matthew Beagan,

the trial,

Matthew

who stated that the

____________________

2.

DeLeon

has petitioned for

habeas relief,

claiming that

his attorney failed to file and perfect his appeal.

-66

jury had

been very

"predisposition"

dictionaries.

confused about the

and that some

The court called

meaning of

of the jurors

the term

had consulted

in the juror to whom Matthew

Beagan had spoken, as well as one other juror, and questioned

them regarding their

post-trial contact with

and the use of dictionaries

by jurors.

Matthew Beagan

The questioning took

place

in the

presence of

counsel

interest.

After

meticulous

Beagan's

motion for

a new

there had

had

been juror misconduct

conduct was

prior

to

inquiry,

trial.

consulted a dictionary

time the

the

court

in

denied

that although

in that at least

to Beagan

jurors

the parties

It found

on the term

not prejudicial

the

for all

one juror

predisposition, the

because it

requested

occurred

additional legal

instruction on the legal definition of the term.

Rogers was

Beagan was

subject

sentenced to

to a

statutory minimum

imprisonment.

II.

Rogers
______

78 months'

imprisonment.

of 240

months'

Rogers'

insufficient

primary

evidence

trafficking counts.

to

claim

is

that

convict

him

on

He argues

the scene of the crime and

the

there

was

two

drug

that he was merely present at

that there is no evidence of

actual involvement.

-77

his

The

case

against

circumstantial and requires

facts in

the light

Rogers

is

some inferences.

most favorable to

admittedly

We

review the

the verdict.

United
______

States v. Montas, 41 F.3d 775, 778 (1st Cir. 1994).

______
______

Seen in

this light,

Rogers'

the evidence

is sufficient

to support

convictions on both counts.

It is true, as Rogers argues, that mere presence at

the scene

of a

crime is

insufficient

to establish

guilt.

However, this court has distinguished between "mere" presence

and "culpable" presence.

A defendant's presence

during the

commission

can

where

of

crime

establish

guilt

surrounding circumstances imply participation.

the

United States
_____________

v.

Montilla-Rivera, 115
_______________

United States
_____________

F.3d 1060,

v. Paulino,
_______

1064

13 F.3d 20,

(1st Cir.

25 (1st

1997);

Cir. 1994);

United States v. Ortiz, 966 F.2d 707, 711-12 (1st Cir. 1992).
_____________
_____

Such is the case here.

It

field to

was Rogers

pick up

second driver in

who drove

the drop

Scialo

car and

to the

who was

the rental agreement.

baseball

listed as

the

Most significantly,

it was Rogers who was observed talking on a cellular phone in

the middle of the

cellular

phone Beagan

present, he was

the

drug deal.

was

Records place his

using.

Rogers

was not

talking on a cellular telephone

conspirators while

the deal

was in

call to the

merely

with one of

progress.

A jury

could

reasonably find that Rogers was discussing the cocaine

-88

sale, was a

knowing participant in the drug

United States v.
______________

(defining

Piper, 35
_____

conspiracy),

cocaine with

the intent

F.3d 611,

and knowingly

to distribute

conspiracy, see
___

615 (1st

Cir. 1994)

attempted

to possess

it, see

Paulino, 13

___

_______

F.3d at 25.3

Rogers' claim that he should be granted a new trial

because

his

conviction

acquittal also fails.

there

was more

was

Rogers.

with

Rogers' argument essentially

evidence

of

conspiracy than of his own,

Scialo

inconsistent

Scialo's

involvement

Scialo's

is that

in

the

and that the jury's acquittal of

shows that there was insufficient evidence to convict

To the extent

that Rogers has preserved this claim,

it is without merit.

A not guilty verdict

not

the

equivalent of

against one co-conspirator is

finding

that

the

evidence

was

insufficient to sustain the conspiracy conviction of a second

co-conspirator.

United States
_____________

v. Bucuvalas, 909
_________

F.2d 593,

595-97 (1st

evidence

Cir. 1990).

If the

was sufficient to

convicted defendant,

co-conspirator's

reviewing court

support the verdict

the conviction

acquittal.

finds the

against the

must stand despite

Id.
___

The

the

evidence

was

sufficient.

____________________

3.
(3d

Rogers' citation to United States v. Thomas, 114 F.3d 403

_____________
______
Cir.

1997),

provides

distinguishable on its
involve telephone

him

no

comfort.

facts: unlike this

calls between

case, it did

the defendant

conspirator while a drug deal was in progress.

-99

Thomas
______

and a

is
not

known

Rogers also argues that the district court erred in

denying his motion

opening

for a mistrial based

statement.

identified

as

Chuck

The

prosecutor

as being

on

on the prosecutor's

referred

the

to

someone

telephone receiving

instructions from Rocha at the time of the drug deal (Rogers'

given name

is Charles).

When

the prosecutor attempted

to

elicit testimony from Rocha concerning that conversation, the

court ruled the

evidence inadmissible.

given the importance

of whether

Rogers

he spoke

argues that,

on the

telephone

with Rocha and Beagan during

have granted a mistrial.

Rocha

bad faith

counsel

are not

to

mislead

evidence.

to

two

inadmissible

the

defense

no evidence linking Rogers to

drug deal.

And

the district

counsel argument

The district court did not err in denying

See United States v. D'Alora, 585

___ _____________
_______

(1st Cir. 1978) ("[A] defendant

trials,

claimed

In closing,

that statements by

the motion for a mistrial.

F.2d 16, 21

not

the jury.

call during the

charged the jury

has

during his opening statement was made

argued that there was

the telephone

court

We disagree.

appropriately

prosecutor's reference

in

the drug deal, the court should

one

before

evidence and

the

then a

judge

jury

is not entitled

to

filter

trial to

out

determine

guilt or innocence.")

Nor

to grant

did the court abuse its discretion in refusing

Rogers' motion for

a severance.

Such

motions are

-1010

only to

showing

be granted

of

where the defendant

prejudice;

defendant

makes out

is

not

a strong

entitled

to

severance

merely

because he

may

acquittal if tried separately.

U.S. 534, 540 (1993).

motion

for

severance

have a

better

chance of

Zafiro v. United States, 506

______
_____________

district court's decision to deny a

is

accorded

significant

deference.

United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993).

_____________
________

Rogers has not

is

different from most

defendants

and

presented any reason why

drug conspiracy cases

involved in the

v.

Perkins, 926
_______

F.2d

Contrary to Rogers' claim, his

antagonistic,

with multiple

conspiracy to differing degrees,

co-conspirators generally

States
______

this case

merely different.

are

tried together.

1271, 1280

(1st

United
______

Cir. 1991).

defense and Beagan's were not

Beagan argued that

he was

entrapped, Rogers

scene.

that he

These two theories

inconsistent.

was merely

present at the

of the case are

crime

not necessarily

The district court scrupulously instructed the

jurors that they must consider the evidence as to each charge

and each defendant

separately.

The court did

not abuse its

discretion in refusing to sever.

Beagan
______

Beagan's sole defense at trial and focus on appeal4

____________________

4.

Beagan's

warranted
jury

only unrelated argument is that

because

to ignore

issue has been

court recess

the district

a drug
waived.

until the

court never

rally outside

the

Beagan's counsel
drug rally was

-1111

a new trial is
instructed the
courthouse. This

requested that the

over, and

the court

was

that he

district

court's

incorrect.

should

required

was entrapped.

instruction

Specifically,

have

instructed

to prove his

crime based on

government.

Beagan

on

first argues

entrapment

he argues that the

the jury

that

the

was

legally

district court

government was

predisposition to commit

evidence that predated

that the

the charged

his contact with

the

This is not a correct statement of the law.

It

is

true

that,

entrapment,

to commit

charged

agents;

defendant's

defendant

raises

defense

of

the government must show that he was predisposed

the

government

when

crime

however,

behavior after

prior

the

to

his

contact

government

may

he was approached

with

use

the

by government

agents as evidence of his predisposition prior to meeting the

agents.

See, e.g., United States v. Acosta, 67 F.3d 334, 339

_________ _____________
______

(1st Cir. 1995).

Beagan

next argues that

he is

entitled to

a new

trial because jurors impermissibly used extrinsic material (a

dictionary)

to

"predisposition."

colorable

understand

Where,

the

as

here,

meaning

of

defendant

the

term

makes

claim of juror misconduct, the district court must

____________________

agreed.

No

request was

curative instruction.
to

new

trial

made

at the

time for

Beagan cannot now claim he is entitled

because

he

did

not

receive

instruction.

United States v.
_____________

Cir. 1987).

Furthermore, the court repeatedly

jury to refrain
courtroom, which

a specific

such

an

Coady, 809 F.2d 119, 123 (1st

_____

from considering anything heard

reminded the
outside the

likely made a specific curative instruction

unnecessary.

-1212

determine

whether any

whether it

F.2d

misconduct has

was prejudicial.

230, 258

(1st

Cir.

occurred

and if

United States v.
______________

1990).

We

so,

Boylan, 898
______

review the

district

court's refusal to grant a new trial for abuse of discretion.

Id. at 262; see also United States v. Cheyenne, 855 F.2d 566,
___
________ _____________
________

568 (8th Cir.

1988) (giving "substantial weight to the trial

court's appraisal

information

on

of the

the

prejudicial effects

jury, since

the

trial

of extraneous

judge

has the

advantages of close observation of the jurors and familiarity

with the issues at trial").

Here,

conscientiously in

misconduct.

Judge

response

Boyle

to

acted

the

carefully

allegations

of

and

juror

The court questioned the two jurors most closely

involved.

referred

It determined that although at least one juror had

dictionary to

determine

predisposition,

this occurred

before the

sought

to

additional instruction on

the court.

had properly

The

court

definition of

jury

the legal

as a

whole

definition from

The court concluded that whatever use was made of

the dictionary,

understood

the

the jurors

the legal import

turned to

concluded

had been

of the term

the court

that

unsatisfied that

any

predisposition and

for further

misconduct

prejudicial because of the court's

the legal meaning of predisposition.

they

instruction.

had

not

been

additional instruction on

-1313

There

was no abuse

that the jurors'

we agree with

the

of discretion.

To the extent

consulting the dictionary was

the district court that any

misconduct,5

potential harm to

defendant was cured by the subsequent legal instructions

on predisposition.

Beagan's

final

claim

is

that

he

was

denied

effective

assistance of

introduced

evidence concerning

the door to

thereby,

evidence of

according

entrapment defense.

we

counsel at

will not

to

Trial

counsel

Beagan's character,

opening

Beagan's 1991

Beagan,

drug conviction

totally

undercutting

In accordance with our

consider a

direct appeal.

trial.

claim

made for

and

the

usual practice,

the first

time on

See, e.g., United States v. Springer, 28 F.3d

_________ _____________
________

236, 239 (1st Cir. 1994); United States v. Mala, 7 F.3d 1058,
_____________
____

1063

(1st Cir.

1993).

counsel

was

inquiry

that would

Determining

constitutionally

require us

whether assistance

deficient

to go

is

beyond the

of

fact-bound

record on

appeal and consider such matters as trial counsel's strategy.

See Springer, 28 F.3d at 239; Mala, 7 F.3d at 1063.

___ ________
____

Affirmed.
_________

____________________

5.

Courts that have considered the issue of juror dictionary

use have not generally considered such

use to be prejudicial

per

Turner, 936 F.2d 221,

______

se.

See, e.g., United States v.

__________ _____________

226-27 (6th Cir.

1991); United States v. Cheyenne,

_____________
________

566, 567-68 (8th Cir. 1988).

on

the

issue

of

whether a

855 F.2d

This circuit has not yet passed

juror's

dictionary

use

even

constitutes misconduct, and we have no need to do so here.

-1414