

                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.  Sylvia                                                                              
were on brief, for appellant Charles Rogers, Jr.
Mark J. Gardner for appellant Andrew J. Beagan.                           
Stephanie S.  Browne, Assistant  U.S. Attorney, with  whom Sheldon                                                                              
Whitehouse, U.S. Attorney, was on brief, for appellee.                  
                                         

                       August 26, 1997
                                         

                                            

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

          LYNCH, Circuit  Judge. A sting  operation involving                      LYNCH, Circuit  Judge.                                           

cocaine led to the arrests  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  of 21

U.S.C.    846, and attempt to  distribute and to possess with

intent  to distribute  over  five  kilograms  of  cocaine  in

violation of 21 U.S.C.    841(a)(1).  Rogers and Beagan  both

raise numerous  challenges to  their convictions.   The  most

substantial of these  is Rogers' sufficiency of  the evidence

claim.    Beagan's  claims  revolve  around  his  defense  of

entrapment.  We affirm.

                              I.

          During  the Fall of 1994, members of the Providence

Police  Department  met  with Ronald  Rego,  an  informer, to

discuss a drug sting.   Agreement was reached that Rego would

receive   10%  from  a drug  sting.   In  return, Rego  would

arrange a  meeting between  Detective Fred  Rocha and  Andrew

Beagan,  a codefendant here.  Detective Rocha would arrange a

cocaine  sale to  Beagan and arrest  him at  the time  of the

sale.

          On  November 16,  1994,  Rego  introduced Rocha  to

Beagan.  The meeting was tape recorded.  Rocha claimed he was

a  large-scale cocaine  dealer and  Beagan  indicated he  was

interested  in  buying  as  much  as  25  kilograms.    Other

                             -2-                                          2

telephone  conversations and  meetings  took  place in  early

December.   Some of  these were recorded.   Rocha  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  Beagan and  Rocha agreed  they would  split the

transaction  into two parts.   Rocha  would first  deliver 10

kilograms  of cocaine  and  Beagan would  pay.   If  Beagan's

people liked  the quality,  then the  remaining 15  kilograms

would be exchanged.

          Beagan  and Rocha  worked out  the  details of  the

exchange on  the telephone.   Rocha was to call  Beagan later

that day  to tell him where to bring  the "drop car" in which

the cocaine was to be loaded.   Rocha would then pick up  the

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

car to an undisclosed location.  Beagan would meet Rocha at a

third location to show Rocha  the money for the 10 kilograms.

Once Rocha saw the money,  he would tell Beagan where  he had

left the  drop car.  Beagan's  people would pick up  the drop

car, and,  if they  were satisfied  with the  cocaine, Beagan

would release the money to  Rocha.  If Beagan's people wanted

to buy the remaining  15 kilograms, they would have to  do so

within the hour.

          As  planned, Beagan called  Rocha to tell  him that

the drop car,  a white Taurus, was in  the University Heights

                             -3-                                          3

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  police  officers   loaded  into  the   car  25

kilograms of  oatmeal packaged  to look  like cocaine.   They

moved  the car  to  the  parking  lot  of  a  ball  field  in

Providence.   Rocha called Beagan  and told him to  bring the

money  to the  India Point  Days Inn  in Providence.   Beagan

arrived at the  motel parking lot around 4  p.m., accompanied

by the final  codefendant in the case, Ruben  DeLeon.  DeLeon

was carrying a  black bag.  Rocha saw  that the bag contained

bundles of money.

          Beagan  handed Rocha  a  cellular telephone  (which

belonged  to  Scialo)  so  that  Rocha  could  tell  Beagan's

confederate  at the  other end  of the  line where  the drugs

were.   However,  the line  went  dead.   Beagan plugged  the

telephone into  an outlet in  his car and the  telephone soon

rang.  Beagan handed the phone  to Rocha, who told the caller

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

Power   Street  in  Providence.    Rocha  then  returned  the

telephone to  Beagan, who remained  on the line until  he was

arrested.

          Officers who were stationed near the ball field saw

a green  Toyota pull  up next to  the drop  car.   Rogers was

                             -4-                                          4

driving; Scialo and  one other were passengers.   The car was

rented to Scialo.   Scialo  got out of  the Toyota, into  the

drop  car and  began to  drive away,  following Rogers.   Two

officers saw that Rogers was  holding a cellular phone to his

ear.   The  authorities  stopped the  two  cars and  arrested

Rogers and Scialo.1

          Soon afterwards,  FBI agents and  Providence police

arrested  Beagan  and  DeLeon at  the  Days  Inn.   Telephone

records established that  around 4 p.m.(the approximate  time

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

told him  where to find  the drop car), the  telephone Rogers

was holding was  used to twice call the  telephone Beagan was

holding.

Procedural History                              

          The four codefendants -- Rogers, Beagan, Scialo and

DeLeon --  were charged and  tried before  a jury on  the two

drug trafficking  counts.  At  the close of  the government's

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

a  mistrial based on  an allegedly improper  statement by the

prosecutor in his  opening.  The prosecutor had  said that he

would show that Rocha had  spoken on the telephone to someone

named  Chuck during  the drug  deal.   No  such evidence  was

admitted at  trial.  The  district court denied  the motions,

                                                    

1.  They also arrested  the other passenger in  the car, Juan
Toribio, but he later was released.

                             -5-                                          5

stating  that defense counsel could argue in closing that the

government had failed to produce promised evidence.

          After beginning  deliberations, the  jury requested

that the  court instruct  them once again  on the  meaning of

predisposition.   The court did  so.  Beagan objected  to the

instruction,  asking  that   the  jurors  be  told   that  in

considering  whether he was predisposed to commit the charged

crimes, they  might only consider  his behavior prior  to his

contact with the  government agents.   The court declined  to

give  the additional instruction.   The jury  returned to its

deliberations, and Beagan, Rogers and DeLeon2 were  convicted

on the two drug trafficking charges.  Scialo was acquitted.

          Beagan and  Rogers moved for  a new trial,  each on

different  grounds.   Rogers  argued  that  the  verdict  was

against the weight  of the evidence and that  there was newly

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

would exculpate  Rogers.   The district  court ruled  against

him.

          Beagan  moved for a  new trial on  several grounds,

only one  of which  warrants discussion:  his claim  of juror

misconduct.  Beagan  filed an affidavit from  Matthew Beagan,

Jr.,  his brother,  alleging that  after  the trial,  Matthew

Beagan had spoken  to one of the jurors,  who stated that the

                                                    

2.  DeLeon  has petitioned for  habeas relief,  claiming that
his attorney failed to file and perfect his appeal.

                             -6-                                          6

jury had  been very  confused about the  meaning of  the term

"predisposition"  and that some  of the jurors  had consulted

dictionaries.  The court called  in the juror to whom Matthew

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

them regarding their  post-trial contact with  Matthew Beagan

and the use of dictionaries  by jurors.  The questioning took

place  in the  presence of  counsel  for all  the parties  in

interest.    After  meticulous   inquiry,  the  court  denied

Beagan's  motion for  a new  trial.   It found  that although

there had  been juror misconduct  in that at least  one juror

had  consulted a dictionary  on the term  predisposition, the

conduct was  not prejudicial  to Beagan  because it  occurred

prior  to  the  time the  jurors  requested  additional legal

instruction on the legal definition of the term.

          Rogers was  sentenced to  78 months'  imprisonment.

Beagan was  subject  to a  statutory minimum  of 240  months'

imprisonment.

                             II.

Rogers                  

          Rogers'   primary   claim   is   that   there   was

insufficient   evidence  to  convict  him  on  the  two  drug

trafficking counts.  He argues  that he was merely present at

the scene of the crime and  that there is no evidence of  his

actual involvement.

                             -7-                                          7

          The    case    against   Rogers    is    admittedly

circumstantial and requires  some inferences.  We  review the

facts in  the light  most favorable to  the verdict.   United                                                                         

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

this light,  the evidence  is sufficient  to support  Rogers'

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  of  a   crime  can  establish  guilt   where  the

surrounding circumstances imply participation.  United States                                                                         

v.  Montilla-Rivera, 115  F.3d 1060,  1064  (1st Cir.  1997);                               

United States  v. Paulino,  13 F.3d 20,  25 (1st  Cir. 1994);                                     

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

Such is the case here.

          It  was Rogers  who drove  Scialo  to the  baseball

field to  pick up  the drop  car and  who was  listed as  the

second driver in  the rental agreement.   Most significantly,

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

the middle of the  drug deal.  Records place his  call to the

cellular  phone Beagan  was  using.   Rogers  was not  merely

present, he was  talking on a cellular telephone  with one of

the  conspirators while  the deal  was in  progress.   A jury

could  reasonably find that Rogers was discussing the cocaine

                             -8-                                          8

sale, was a  knowing participant in the drug  conspiracy, see                                                                         

United  States v.  Piper, 35  F.3d 611,  615 (1st  Cir. 1994)                                    

(defining  conspiracy),  and knowingly  attempted  to possess

cocaine with  the intent  to distribute  it, see  Paulino, 13                                                                     

F.3d at 25.3

          Rogers' claim that he should be granted a new trial

because  his   conviction  was  inconsistent   with  Scialo's

acquittal also fails.   Rogers' argument essentially  is that

there  was more  evidence  of  Scialo's  involvement  in  the

conspiracy than of his own,  and that the jury's acquittal of

Scialo  shows that there was insufficient evidence to convict

Rogers.  To the extent  that Rogers has preserved this claim,

it is without merit.

          A not guilty verdict  against one co-conspirator is

not  the  equivalent of  a  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  Cir. 1990).   If the  reviewing court  finds the

evidence  was sufficient to  support the verdict  against the

convicted defendant,  the conviction  must stand despite  the

co-conspirator's   acquittal.     Id.     The  evidence   was                                                 

sufficient.

                                                    

3.  Rogers' citation to United States v. Thomas, 114 F.3d 403                                                           
(3d   Cir.  1997),  provides  him  no  comfort.    Thomas  is                                                                     
distinguishable on its  facts: unlike this  case, it did  not
involve telephone  calls between  the defendant  and a  known
conspirator while a drug deal was in progress.

                             -9-                                          9

          Rogers also argues that the district court erred in

denying his motion  for a mistrial based  on the prosecutor's

opening  statement.    The  prosecutor  referred  to  someone

identified  as  Chuck  as being  on  the  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.  Rogers  argues that,

given the importance  of whether  he spoke  on the  telephone

with Rocha and Beagan during  the drug deal, the court should

have granted a mistrial.  We disagree.

          Rocha   appropriately    has   not    claimed   the

prosecutor's reference  during his opening statement was made

in  bad faith  to  mislead  the jury.    In closing,  defense

counsel  argued that there was  no evidence linking Rogers to

the telephone  call during the  drug deal.  And  the district

court  charged the jury  that statements by  counsel argument

are not  evidence.  The district court did not err in denying

the motion for a mistrial.  See United States v. D'Alora, 585                                                                    

F.2d 16, 21  (1st Cir. 1978) ("[A] defendant  is not entitled

to  two  trials,   one  before  the   judge  to  filter   out

inadmissible  evidence and  then a  jury  trial to  determine

guilt or innocence.")

          Nor  did the court abuse its discretion in refusing

to grant  Rogers' motion for  a severance.  Such  motions are

                             -10-                                          10

only to  be granted  where the defendant  makes out  a strong

showing   of  prejudice;  a  defendant  is  not  entitled  to

severance  merely  because he  may  have a  better  chance of

acquittal if tried separately.   Zafiro v. United States, 506                                                                    

U.S. 534, 540 (1993).  A  district court's decision to deny a

motion  for  severance  is  accorded  significant  deference.

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

          Rogers has not  presented any reason why  this case

is  different from most  drug conspiracy cases  with multiple

defendants  involved in the  conspiracy to differing degrees,

and  co-conspirators generally  are  tried together.   United                                                                         

States  v.  Perkins, 926  F.2d  1271, 1280  (1st  Cir. 1991).                               

Contrary to Rogers' claim, his  defense and Beagan's were not

antagonistic,  merely different.   Beagan argued that  he was

entrapped, Rogers  that he  was merely  present at the  crime

scene.   These two theories  of the case are  not necessarily

inconsistent.  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  only unrelated argument is that  a new trial is
warranted  because  the district  court never  instructed the
jury  to ignore  a drug  rally outside  the  courthouse. This
issue has been  waived.  Beagan's counsel  requested that the
court recess  until the  drug rally was  over, and  the court

                             -11-                                          11

was  that he  was entrapped.   Beagan  first argues  that the

district  court's  instruction  on  entrapment  was   legally

incorrect.  Specifically,  he argues that the  district court

should  have  instructed  the jury  that  the  government was

required  to prove his  predisposition to commit  the charged

crime based on  evidence that predated  his contact with  the

government.  This is not a correct statement of the law.   It

is  true  that,  when   a  defendant  raises  a  defense   of

entrapment,  the government must show that he was predisposed

to commit  the  charged  crime  prior  to  his  contact  with

government  agents;  however,  the  government  may  use  the

defendant's  behavior after  he was approached  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  understand   the   meaning  of   the   term

"predisposition."   Where,  as  here,  a  defendant  makes  a

colorable  claim of juror misconduct, the district court must

                                                    

agreed.   No  request was  made  at the  time for  a specific
curative instruction.  Beagan cannot now claim he is entitled
to  a  new   trial  because  he  did  not   receive  such  an
instruction.  United States v.  Coady, 809 F.2d 119, 123 (1st                                                 
Cir. 1987).   Furthermore, the court repeatedly  reminded the
jury to refrain  from considering anything heard  outside the
courtroom, which  likely made a specific curative instruction
unnecessary.

                             -12-                                          12

determine  whether any  misconduct has  occurred  and if  so,

whether it  was prejudicial.   United  States v.  Boylan, 898                                                                    

F.2d  230, 258  (1st  Cir.  1990).   We  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  of the  prejudicial effects  of extraneous

information  on  the  jury, since  the  trial  judge  has the

advantages of close observation of the jurors and familiarity

with the issues at trial").

          Here,    Judge    Boyle   acted    carefully    and

conscientiously in  response  to  the  allegations  of  juror

misconduct.  The court questioned the two jurors most closely

involved.  It determined that although at least one juror had

referred  to  a  dictionary to  determine  the  definition of

predisposition,  this occurred  before the  jury  as a  whole

sought  additional instruction on  the legal  definition from

the court.  The court concluded that whatever use was made of

the dictionary,  the jurors  had been  unsatisfied that  they

understood  the legal import  of the term  predisposition and

had properly  turned to  the court  for further  instruction.

The   court  concluded  that  any  misconduct  had  not  been

prejudicial because of the court's  additional instruction on

the legal meaning of predisposition.

                             -13-                                          13

          There  was no abuse  of discretion.   To the extent

that the jurors'  consulting the dictionary was  misconduct,5

we agree with  the district court that any  potential harm to

the  defendant was cured by the subsequent legal instructions

on predisposition.

          Beagan's  final  claim  is   that  he  was   denied

effective  assistance of  counsel at  trial.   Trial  counsel

introduced  evidence concerning  Beagan's character,  opening

the door to  evidence of  Beagan's 1991  drug conviction  and

thereby,  according  to   Beagan,  totally  undercutting  the

entrapment defense.   In accordance with our  usual practice,

we  will not  consider a  claim  made for  the first  time on

direct appeal.  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).   Determining  whether assistance  of

counsel  was  constitutionally   deficient  is  a  fact-bound

inquiry  that would  require us  to go  beyond the  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  se.  See,  e.g., United States v.  Turner, 936 F.2d 221,                                                          
226-27 (6th Cir.  1991); United States v. Cheyenne,  855 F.2d                                                              
566, 567-68 (8th Cir. 1988).  This circuit has not yet passed
on  the  issue  of  whether a  juror's  dictionary  use  even
constitutes misconduct, and we have no need to do so here.

                             -14-                                          14
