
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1890                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              ARNALDO L. RULLAN-RIVERA,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                                                                      ____________________                                 Cyr, Circuit Judge,                                      _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                                                                      ____________________             Luis R. Rivera-Gonzalez, with whom Joseph C. Laws, Jr. was on             _______________________            ___________________        brief for appellant.             Jos  A. Quiles Espinosa, Senior Litigation Counsel, with whom             _______________________        Guillermo Gil, United States Attorney, and Warren V zquez, Assistant        _____________                              ______________        United States Attorney, were on brief for appellee.                                                                                      ____________________                                    July 21, 1995                                                                                      ____________________                    CYR,   Circuit   Judge.     Arnaldo   L.  Rullan-Rivera                    CYR,   Circuit   Judge.                           _______________          ("Rullan") appeals the judgment of conviction entered against him          for  possessing cocaine with intent to distribute.  See 21 U.S.C.                                                              ___            841(a)(1); 18 U.S.C.   2.  As there was no reversible error, we          affirm the district court judgment.                                            I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    The  relevant facts  are  recounted in  the light  most          favorable  to the verdict.  United States v. Tuesta-Toro, 29 F.3d                                      _____________    ___________          771, 773  (1st Cir. 1994), cert.  denied, 115 S. Ct.  947 (1995).                                     _____  ______          Appellant  Rullan and  Humberto Prada-Cordero  ("Prada") enlisted          Erasto Miranda-Rodriguez ("Miranda") to transport one kilogram of          cocaine from Puerto Rico  to the continental United States.1   On          November  10, 1992, Prada, Miranda,  Rullan and his  wife went to          the Luis  Munoz Marin  International Airport in  Carolina, Puerto          Rico,  where  Prada and  Miranda were  to board  a flight  to the          mainland.  After twice  triggering the security checkpoint magne-          tometer  alarm,  Miranda  abandoned  his  handbag,  passport  and          airline  ticket, and  fled the  checkpoint area rather  than risk          disclosure of the cocaine concealed on his person.                    Shortly thereafter, Miranda surrendered to  the police,          became a  cooperating witness  for the government  and implicated          appellant Rullan, who was arrested and indicted for conspiring to          possess cocaine with intent  to distribute, see 21 U.S.C.    846,                                                      ___                                        ____________________               1Rullan had  supplied Miranda with small  amounts of cocaine          for personal use in years past.                                          2          and  possessing  cocaine with  intent  to distribute,  see  id.                                                                   ___  ___          841(a)(1); 18  U.S.C.    2.   Rullan filed  a pretrial motion  to          compel disclosure of any prior "bad acts" evidence the government          intended to introduce at trial.  Although the motion was granted,          the government disclosed no Rule 404(b) evidence.                     At trial,  the court ruled that no Rule 404(b) evidence          was to be  introduced.   The prosecutor  accordingly assured  the          court  that Miranda had been instructed not to mention his previ-          ous cocaine purchases from Rullan.  See supra note 1.   Neverthe-                                              ___ _____          less,  on the  third  day of  trial,  when the  prosecutor  asked          Miranda whether he had "known Mr. Rullan in relation to [codefen-          dant]  Humberto  Prada  prior  to [November  8,  1992],"  Miranda          blurted out:  "No,  I was totally surprised.  Arnaldo Rullan sur-          prised me because he was my drug dealer."                       On  the  following  day, codefendant  Prada  failed  to          appear  for trial.  The district court denied Rullan's motion for          mistrial, and ordered that the joint trial proceed, with Prada in                                                                         __          absentia.  After the  district court allowed a defense  motion to          ________          dismiss the conspiracy charge,  both defendants were convicted on          the substantive cocaine charge, and Rullan appealed.                                           II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   The Rule 404(b) Evidence          A.   The Rule 404(b) Evidence               ________________________                    The government  does not  dispute that Miranda's  unex-          pected reference to Rullan as his former drug  dealer constituted          prohibited  "bad  acts"  evidence,  but simply  contends  that  a                                          3          mistrial was not  necessary to  cure any inadvertent  harm.   For          present  purposes,  therefore,  we  assume  that  the  challenged          testimony violated the prohibition against  Rule 404(b) evidence.                    A ruling denying a motion for mistrial  is reviewed for          manifest  abuse of  discretion, United States  v. Romero-Carrion,                                          _____________     ______________          No. 94-1792, slip op. at 4 (1st Cir. May 9,  1995); United States                                                              _____________          v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994), cert. denied, 115 S.             ______                                    _____ ______          Ct.  919 (1995),  and will be  upheld absent  a clear  showing of          prejudice by the defendant-appellant.  United States v. Hahn,  17                                                 _____________    ____          F.3d  502, 508 (1st Cir.  1994) (citing United  States v. Sclamo,                                                  ______________    ______          578 F.2d 888,  891 (1st Cir. 1978)).  Mistrial  is a last resort,          to  be employed only if the demonstrated  harm can be cured by no          less drastic  means, such as a  contemporaneous jury instruction.          United States v. Sepulveda,  15 F.3d 1161, 1184 (1st  Cir. 1993),          _____________    _________          cert. denied, 114 S. Ct. 2714 (1994).            _____ ______                    Miranda testified in Spanish.   The problematic portion          of the testimony, see supra p. 3 ("[Rullan] was my drug dealer"),                            ___ _____          was never translated into  English before Miranda was interrupted          in  mid-sentence by  a  defense objection.    The official  trial          transcript of the exchange reads, in full:                    Q:   Had you known Mr.  Rullan in relation to                         Humberto Prada prior to that day?                    A:   No,  I  was totally  surprised.   Arnold                         Rullan surprised me --                                          4          The trial  judge immediately ordered Miranda's  response stricken          from  the  record  and  contemporaneously directed  the  jury  to          disregard it.                      It  would be unrealistic,  nonetheless, to suggest that          the  Puerto  Rico jury  did not  hear  and understand  the entire          response given  by Miranda in  Spanish.  Be  that as it  may, the          normal presumption    that juries follow the court's instructions             can be rebutted only on  a sufficient showing that the offend-          ing testimony  reasonably could  not have  been ignored  and that          serious prejudice likely  resulted.  Id. at 1185.  See also Greer                                               ___           ___ ____ _____          v. Miller, 483  U.S. 756,  766 n.8 (1987)  ("We normally  presume             ______          that a jury will follow an instruction to  disregard inadmissible          evidence  inadvertently  presented  to  it, unless  there  is  an          'overwhelming probability' that the jury will be unable to follow          the  court's instructions.")  (quoting Richardson  v. Marsh,  481                                                 __________     _____          U.S. 200, 208 (1987)).  Although  Rullan points out that a limit-          ing  instruction is  not  always sufficient  to insulate  against          improper  evidentiary  prejudice,  see,  e.g.,  Bruton v.  United                                             ___   ____   ______     ______          States,  391 U.S. 123, 135  (1968), mistrial was  not required in          ______          the instant case.                      There  was strong  evidentiary  support  for  the  jury          verdict.  Miranda  testified that Rullan:  (1) telephoned Miranda          to  arrange the first  meeting at which  the cocaine distribution          scheme was  discussed; (2) drove Prada to Miranda's apartment for          their  meetings;  (3)  relayed  drug  smuggling messages  between          Miranda  and  Prada; (4)  removed cocaine  from  his own  car and                                          5          carried  it into Miranda's residence  prior to their  trip to the          airport; (5)  accompanied Miranda and  Prada to the  airport; and          (6) discussed  with Miranda and  Prada their plans  for investing          the drug profits.                     The overwhelming  weight of the  direct and circumstan-          tial evidence, combined  with the firm,  contemporaneous instruc-          tion, demonstrates  to a "high probability"  that the inadvertent          introduction of the "bad acts" evidence did not contribute to the          verdict.   Therefore, the reference  to prior drug  dealings with          Rullan  was "harmless."  United  States v. Tejeda,  974 F.2d 210,                                   ______________    ______          215  (1st Cir. 1992)  ("nonconstitutional evidentiary error under          Rule 404(b) will be  treated as harmless  if it is `highly  prob-          able' that the error  did not contribute to the  verdict") (cita-          tions omitted).          B.   Sufficiency of the Evidence          B.   Sufficiency of the Evidence               ___________________________                    Rullan could  be convicted  of aiding and  abetting the          possession of cocaine, with intent to distribute, see 21 U.S.C.                                                              ___          841(a)(1) and 18 U.S.C.   2, only if the government proved beyond          a reasonable doubt that he "associated himself with the  underly-          ing venture, participated in  it as something he wished  to bring          about, and  sought by  his actions to  make it succeed."   United                                                                     ______          States v. Clifford, 979 F.2d 896, 899 (1st Cir. 1992) (citing Nye          ______    ________                                            ___          & Nissen  v. United States, 336 U.S. 613, 619 (1949)).  We review          ________     _____________          the  evidence in  the  light most  favorable  to the  government,          indulging  all reasonable inferences in its favor, with a view to                                          6          determining whether a rational jury could have found guilt beyond          a reasonable doubt.  Hahn, 17 F.3d at 506.                                 ____                    Rullan contends that Miranda's trial  testimony was not          credible  because Miranda  had  made contrary  statements to  the          grand jury, and he was motivated  by the expectation of a reduced          sentence.  We find  this challenge unavailing, since Miranda  was          impeached, both with his  prior inconsistent grand jury testimony          and  his plea  agreement, and  the  credibility assessment  was a          matter for the trial jury.  See Sepulveda, 15 F.3d at 1175; Hahn,                                      ___ _________                   ____          17 F.3d  at 506.   Thus,  there was  ample  credible evidence  to          establish Rullan's guilt beyond a reasonable doubt.  See supra p.                                                               ___ _____          5.          C.   Flight by Codefendant          C.   Flight by Codefendant               _____________________                    Following an evidentiary hearing,   the district  court          found that  Prada voluntarily absented himself from the final two          days of  trial.  Rullan moved  for a mistrial, claiming  that his          codefendant's  flight might  prompt  a jury  inference that  both          defendants were  guilty.   The district  court directed  that the          trial proceed  against both  defendants.   See  Crosby v.  United                                                     ___  ______     ______          States,      U.S.    ,     , 113 S. Ct. 748, 752-753 (1993); Fed.          ______   ___      ___  ____          R. Crim. P. 43(b).                     Rullan asserts three  claims of error.  First, he says,          the district court mistakenly believed Rullan might avoid retrial          on  double jeopardy grounds if a mistrial were declared.  Second,          a limiting instruction  could not prevent  a jury inference  that          both defendants were guilty because Prada absconded during trial.                                          7          Third,  the instruction given by the court was "over extensive in          content"  and prejudicial.  We  review the two  latter claims for          manifest abuse of discretion.  Pierro, 32 F.3d at 617.                                          ______                    First,  Rullan correctly  asserts that  double jeopardy          does not bar  retrial where a mistrial is ordered  at the request          of  the defendant.    United States  v.  Scott, 437  U.S. 82,  93                                _____________      _____          (1978);  United States  v. Aguilar-Aranceta,  957 F.2d  18, 21-22                   _____________     ________________          (1st Cir.),  cert. denied, 113 S.  Ct. 105 (1992).   The district                       _____ ______          court  nonetheless correctly  predicated its  denial of  Rullan's          motion for mistrial on the ground that Prada's voluntary  failure          to appear, in  and of itself, did  not necessarily mean that  the                                                 ___________          joint  trial could  not  proceed with  Prada  in absentia.    See          _____                            ____  _____  __ ________     ___          Crosby,  113 S. Ct. at 752 (treating voluntary failure to appear,          ______          after  trial begins, as  waiver of right to  be tried in person);          Fed. R. Crim. P. 43(b).                      On the other hand, treating the  motion for mistrial as          a  de facto motion for severance by a non-absconding codefendant,             __ _____          see Fed.  R. Crim. P. 14,  we review its denial  under the "plain          ___          error" standard,  since severance  was never broached  before the          district court.  See United States v. Palow, 777 F.2d 52, 54 (1st                           ___ ______ ______    _____          Cir. 1985), cert. denied, 475 U.S.  1052 (1986).  Viewed in  this                      _____ ______          light,  Rullan's  motion  rests  exclusively  on  the  conclusory          assertion  that the jury could  have inferred that  he was guilty          because his codefendant absconded.  We see no compelling rational                      ___________          force in the suggestion that Rullan, who did  not flee, must have          been tainted with the same brush as the absconding Prada.                                            8                    Moreover, Rullan's conclusory claim runs counter to the          longstanding presumption that jurors normally follow the instruc-          tions given them by the trial court.  See United States v. Olano,                                                ___ ______ ______    _____          113  S. Ct.  1770, 1781  (1993).  The  district court  firmly in-          structed the  jury that  Prada's disappearance was  immaterial to          the verdict on Rullan.  The record further reflects that the jury          understood.                         THE COURT:    The absence  of  defendant                    Prada from trial is no way attributable [sic]                    to the other defendant on trial.  And may not                    be considered by you in determining the guilt                    or innocence of  defendant Rullan.   You  may                    use this only as  to defendant Prada  itself.                    [sic]   Is that clear?   Let the  record show                    that the jury has assented.                     We therefore  reject the conclusory contention  that no          jury  instruction could  protect Rullan  against an  inference of          guilt  arising  from his  codefendant's  voluntary  flight.   See                                                                        ___          United States v. Phibbs, 999 F.2d 1053, 1067 (6th Cir. 1993) (any          ______ ______    ______          adverse  effect  upon  nonfleeing  defendant  neutralized  by  "a          cautionary  instruction  that each  defendant's  case  was to  be          considered  separately and, further,  that [codefendant's] flight          could not be  used as  evidence against anyone  but him"),  cert.                                                                      _____          denied,  114 S. Ct. 1071 (1994); cf. United States v. Wright, 932          ______                           ___ ______ ______    ______          F.2d 868, 877 (10th Cir.) (upholding denial of severance, in part          because trial  court twice  instructed jury  that "it  should not          construe  the absence  of [codefendant] as  evidence of  guilt of                                          9          either [the  defendant or  the codefendant]"), cert.  denied, 502                                                         _____  ______          U.S. 972 (1991).2                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    As there  was no  reversible error, the  district court          judgment is affirmed.                      ________                                        ____________________               2Rullan  also challenges, as  too extensive and prejudicial,          the very language he asked the district court to use  in the jury          instruction relating to Prada's disappearance.  But even assuming          the  instruction  had not  been invited,  the  claim of  error is          groundless.  There  was no  error in the  instruction, let  alone          "plain error."  See Palow, 777 F.2d at 54.                          ___ _____               Lastly,  at oral  argument  Rullan  withdrew  his  so-called          "ineffective assistance of counsel" claim.  See Sainz Gonzalez v.                                                      ___ ______________          Banco  de Santander-Puerto Rico, 932 F.2d 999, 1000 n.1 (1st Cir.          _______________________________          1991);  Bunol v.  George Engine  Co., 996 F.2d  67, 70  (5th Cir.                  _____     __________________          1993).                                          10
