
USCA1 Opinion

	




          July 12, 1993         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2367                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JOSE ALGARIN-ROSA,                                Defendant, Appellant.                                _____________________        No. 93-1006                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                             EDUARDO GONZALEZ-RODRIGUEZ,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Oakes* and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________                                   ___________________        *Of the Second Circuit, sitting by designation.             Jos  C. Romo Matienzo for appellant Gonzalez-Rodriguez.             _____________________             Carlos Vazquez-Alvarez for appellant Algarin-Rosa.             ______________________             Esther Castro  Schmidt, Assistant  United  States Attorney,  with             ______________________        whom Daniel F. Lopez Romo, United States Attorney, and Jos  A. Quiles-             ____________________                              _______________        Espinosa, Senior Litigation Counsel, were on brief for appellee.        ________                                 ____________________                                 ____________________                  Cyr, Circuit Judge.  Appellants challenge their convictions,                  Cyr, Circuit Judge.                         _______ _____        under 21 U.S.C.   841(a)(1), for  aiding and abetting the distribution        of 997.3 grams of cocaine.  We affirm.                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                  We  review the evidence in  the light most  favorable to the        prosecution with a  view to whether a  rational jury could have  found        the defendants guilty  beyond a  reasonable doubt.   United States  v.                                                             _____________        Cruz, 981 F.2d 613, 615 (1st Cir. 1992); United States  v. Tejeda, 974        ____                                     _____________     ______        F.2d 210, 212 (1st Cir.  1992); United States v. Ortiz, 966  F.2d 707,                                        _____________    _____        711 (1st  Cir. 1992), cert.  denied, 113 S.  Ct. 1005 (1993).   Around                              _____  ______        April 6, 1992, a  confidential informant received  a tip that  cocaine        could  be  purchased at  "Los Companeros,"  an  auto body  repair shop        operated by  two brothers, Eduardo Gonzalez  Rodriguez ("Eduardo") and        Luis Gonzalez ("Luis").   The informant went to the  shop, accompanied        by one Harry  Burgos, and  there encountered Jose  Algarin Rosa  ("Al-        garin"), apparently  an employee.   The informant asked  Algarin about        the possibility of  purchasing a  half kilogram of  cocaine.   Algarin        told the informant  that in order to purchase  this amount, the infor-        mant would need to talk to Luis.                  As the informant was leaving the  shop, Luis arrived, accom-        panied  by Eduardo.   Algarin  made introductions.   With  Algarin and                                          3        Eduardo present, the informant again asked to purchase a half kilogram        of  cocaine.   Luis consulted with  Eduardo and  offered to  sell one-        eighth of a  kilogram of cocaine for $3000; the informant declined the        offer.   Luis then indicated that a  large shipment was due from Vieq-        ues, Puerto Rico, and that when the shipment arrived he could sell the        informant  a full  kilogram  for $16,000.   The  informant tentatively        assented.                  On  April 13, 1992, the  informant met again  with Luis, who        stated that he had received the shipment from Vieques and was ready to        complete the kilogram deal.  The informant gave Luis his beeper number        and left, ostensibly to get the purchase money.  Around 3:00 p.m., the        informant returned to the repair shop, accompanied by Ruben Diaz Padro        ("Diaz"),  a federal  undercover agent.   Luis  and Algarin  were both        present.    Before  the  transaction could  be  consummated,  however,        Eduardo entered and warned  Luis that there were police nearby.   Luis        thereupon arranged to  meet the informant on a  nearby road.  Accompa-        nied by  Diaz, the informant drove to the site of the proposed rendez-        vous,  and parked as  instructed.  A few  minutes later, the informant        and Diaz observed Eduardo  drive by in a wine-colored  BMW automobile.        After several passes,  Eduardo pulled over and parked in  front of the        informant's automobile.  Luis  pulled in behind.  Using  hand signals,        Luis  attempted to  lead the informant  to a third  site, with Eduardo        following in his  own car.   Because the  informant was  uncomfortable        with this change in plans, he declined to follow, and drove away.                                          4                  Later that  afternoon, Luis  called  the informant's  beeper        number and agreed to complete their kilogram transaction at the repair        shop.  Eduardo greeted the informant on arrival and instructed him not        to park in  front of the shop.   As the informant and  Diaz made their        way  into the office, Algarin reassured the informant of Luis's hones-        ty:  "Do not be afraid,  they do not deal with tricks."   Eduardo, who        was leaving the office as the informant met with Luis, advised Luis on        how to remove the  cocaine from its bag:  "That is not the way that it        is done.  Don't take it  out like that."   Shortly thereafter,  at the        informant's signal, federal agents  raided the repair shop.   Luis was        arrested in  the office.    Algarin attempted  to  run away,  but  was        arrested after  a scuffle with DEA  agents at the shop  gate.  Eduardo        was  arrested on the street nearby.   All were indicted for aiding and        abetting the distribution of cocaine.                  The defendants were joined  for trial, over Eduardo's objec-        tion.  On May 4, 1992, the defense filed an omnibus discovery  motion,        seeking, inter alia, "all  information which may be used  for impeach-                 _____ ____        ment  of government  witnesses."   The  government  disclosed that  an        administrative fine had  been imposed on  the informant for  marijuana        possession  in New York.   The government disclaimed  knowledge of any        other impeachment material relating to the informant.                  Ultimately, Luis entered a  guilty plea; Eduardo and Algarin        went to trial.   In an effort to discredit  the informant's testimony,        the defense  called Esteban Garcia  Rosario ("Garcia"),  a former  ac-        quaintance of the informant, who testified that the informant had used                                          5        and dealt drugs in the past.  To rebut Garcia's  testimony, the prose-        cution  recalled the informant.  The informant admitted knowing Garcia        and, later, on cross-examination, admitted  that he had once purchased        drugs from Garcia "for  a friend."  Both defendants asserted  that the        government  should have  disclosed  this information  prior to  trial,        relying  on Brady  v. Maryland,  373   U.S. 83  (1963), and  moved for                    _____     ________        judgments of  acquittal under Fed. R.  Crim. P. 29.   The court denied        their motion.                  In the course of his redirect examination by the government,        the  informant was  asked whether  he "had  any personal  knowledge if        [Garcia] was  acquainted with  Eduardo Gonzalez or  Luis Gonzalez  and        Algarin."  The informant responded in Spanish:  "as to Algarin I don't        know,  but I do know that he  [Garcia] bought one eighth [kilogram] of        cocaine from  . . . Eduardo  Gonzalez."    Before the answer  could be        translated into English, both  defendants moved for mistrial, invoking        the rule on "other acts" evidence.  See Fed. R. Evid. 404(b).  Reserv-                                            ___        ing its ruling  on the  mistrial motion, the  district court gave  the        government an opportunity to  show that the informant's statement  was        based  on  personal knowledge  of  Garcia's prior  drug  sources under        Evidence  Rule 602.  Eventually, the informant was permitted to testi-        fy:  "I used to visit him [Garcia] at his house and I know that he was        buying from Luis and Eduardo."  A few hours later, as part of its jury        charge, the court delivered a  curative instruction proposed by defen-        dants:                                          6                  "I instruct you, ladies and gentlemen of the jury,                  that the defendants are on trial solely and exclu-                  sively on  the charge set forth  in the indictment                  and  nothing else.   So  therefore I  instruct you                  that  you should  disregard, that  is, get  out of                  your mind completely, [the  informant's] testimony                  concerning  [Garcia's]  prior  dealings  with  the                  defendant.   It has nothing  to do with  this case                  and it  is irrelevant and you  should not consider                  it at all for  any purpose whatsoever in  your de-                  liberation . . . ."        Algarin and Eduardo were both convicted.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                  Appellants'  first contention  is  that  the district  court        erred  in denying their motion  for mistrial based  on the informant's        testimony that Garcia had purchased "one eighth [kilogram] of  cocaine        from . . .  Eduardo Gonzalez."   Assuming, for present  purposes, that        the informant's  statement was  inadmissible  against appellants,1  we        review for "abuse of discretion" the district court's election to give        a cautionary instruction, rather than declare a  mistrial, to counter-        act any prejudicial effect which may have resulted from the challenged        testimony.  See, e.g., United States v. Bello-Perez, 977 F.2d 664, 672                    ___  ____  _____________    ___________        (1st Cir.  1992); United States v.  Sclamo, 578 F.2d 888,  890-91 (1st                          _____________     ______        Cir. 1978).                                    ____________________             1Rule 404(b)  provides that "[e]vidence of  other crimes, wrongs,        or acts is not admissible  to prove the character of a person in order        to show action in conformity therewith. It may, however, be admissible        for  other purposes,  such  as proof  of motive,  opportunity, intent,        preparation,  plan,  knowledge, identity,  or  absence  of mistake  or        accident."  Fed. R. Evid. 404(b).                                          7                  There  was  no  abuse of  discretion.    Even assuming,  for        purposes of discussion, that some improper prejudice may have resulted        from  the informant's  testimony, the  degree of  any such  prejudice,                                               ______        assessed  from the  vantage point  of a  "cold appellate  record," see                                                                           ___        Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988), was        _______    _________________        plainly insufficient  to  warrant second-guessing  the  trial  court's        judgment  that its jury instruction was adequate cure for any possible        unfair  prejudice.  Moreover,  although appellants now  fault the dis-        trict court's  failure to give a contemporaneous instruction, there is        no indication  in the appellate  record that one  was requested.   See                                                                           ___        United States v. Valencia-Lucena, 925 F.2d 506, 513-14 (1st Cir. 1991)        _____________    _______________        (review "limited to plain error"  where defendant eschewed request for        limiting instruction  upon trial  court's denial of  mistrial motion).        Rather, the court permitted  the defense to draft a  curative instruc-        tion  which  was included  in the  jury charge  delivered a  few hours        later.  "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."  Greer v. Miller, 483 U.S. 756, 766                                            _____    ______        n.8  (1987) (quoting Richardson v.  Marsh, 481 U.S.  200, 208 (1987)).                             __________     _____        Whether  or not the brief  interval between the  subject testimony and        the curative instruction was the  product of a tactical choice  on the        part of the defense, it did not amount to "plain error."                  Appellants contend that the government's failure to disclose        the informant's prior dealings with Garcia, in response to a discovery                                          8        request from  the defense for "all  information which may be  used for        impeachment of government witnesses,"  constituted a Brady  violation.                                                             _____        Once  again  we assume,  for  purposes  of discussion,  that  Garcia's        testimony  relating  to the  informant's  prior  cocaine dealings  was        potentially  exculpatory,  and we  accept the  government's concession        that it was material, in the sense that its disclosure would "create a        reasonable  probability . . . that the  result of the proceeding would        be different."  United States v. Bagley, 473 U.S. 667, 682 (opinion of                        _____________    ______        Blackmun, J.) (1985); United States v.  Osorio, 929 F.2d 753, 758 (1st                              _____________     ______        Cir. 1990).  In order to warrant reversal, however,  a delayed disclo-        sure  of material  evidence  must be  shown  to have  "prevented  [the        defense] from  using the  disclosed material effectively  in preparing        and  presenting the defendant's case."  United States v. Ingraldi, 793                                                _____________    ________        F.2d 408,  411-12 (1st  Cir. 1986); United  States v. Devin,  918 F.2d                                            ______________    _____        280, 289-90 (1st  Cir. 1990); United States  v. Osorio, 929 F.2d  753,                                      _____________     ______        757 (1st Cir. 1991).  In the present case, the defense was well  aware        of  the informant's prior cocaine dealings with Garcia prior to trial.        Indeed, Garcia  was called as a  witness by the defense,  for the very                                                 __ ___ _______        purpose  of testifying to these  matters.2  Accordingly,  there was no        showing  that prejudice  resulted from  the  delayed disclosure.   See                                                                           ___        Valencia-Lucena,  925 F.2d  at 514  ("[T]he fact  that the  government        _______________                                    ____________________             2During  cross-examination,  Garcia   stated:    "sometime  back,        Eduardo  went to my  house . . . . and  he told me  about his problem.        And, well  since I knew [the  informant] from sometime ago  and I knew        about his past,  I decided that if it was necessary  for me to come to        testify here in court,  to give my testimony in front  of the Court, I        would do so and here I am."                                          9        failed  to disclose to the  defense before trial  that [its informant]        was a drug user in no way robbed the defendant of a fair trial because        the  issue was fully revealed at trial and extensively explored during        cross-examination").                  Finally, appellants challenge  the sufficiency  of the  evi-        dence, claiming that they were "merely present" at the scene of Luis's        drug  dealing  activities, and  reminding  us that  evidence  of "mere        presence"  is insufficient to  support their convictions.   See Ortiz,                                                                    ___ _____        966 F.2d at 707 (1st Cir. 1992); United States v. Francomano, 554 F.2d                                         _____________    __________        483,  486 (1st Cir. 1977).   We evaluate their claim under well-estab-        lished standards.  Although "neither mere association with the princi-        pal nor mere presence at the scene of the crime . . . is sufficient to        establish aiding and abetting . . . .," United States v. Alvarez,  987                                                _____________    _______        F.2d 77, 83  (1st Cir. 1993); United States v. Aponte-Suarez, 905 F.2d                                      _____________    _____________        483,  491  (1st Cir.),  cert. denied,  498 U.S.  990 (1990)  and cert.                                _____ ______                         ___ _____        denied, 498 U.S. 1092 (1991), a defendant's presence at the scene of a        ______        criminal transaction is sufficient to support a conviction for "aiding        and abetting" if it is accompanied by additional indicia of participa-                                              __________        tion in  or association with  the criminal venture.   See id.  (citing                                                              ___ ___        United States v. Rodriguez Cortes, 949 F.2d 532, 539 (1st Cir. 1991));        _____________    ________________        see also United States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993)        ___ ____ _____________    _________        ("culpability  of  a  defendant's  presence hinges  upon  whether  the        circumstances  fairly  imply  participatory involvement").    Here, in        addition  to his presence at  the repair shop,  the government offered        evidence  that Eduardo (1) consulted with  Luis on April 6,  as to the                                          10        price  and quantity  of  the cocaine  offered  to the  informant;  (2)        watched for, and warned Luis about, police presence in the area of the        repair shop on April 13; (3) accompanied Luis in a separate car to the        site  of the aborted first  transaction; (4) told the  agents where to        park  their car when they  arrived to consummate  the transaction; and        (5) evinced familiarity with (and  some measure of responsibility for)        the cocaine transaction, just prior  to the DEA raid, by telling  Luis        how to handle the  cocaine.  In addition to  Algarin's "mere presence"        at the repair shop, the government presented evidence that Algarin (1)        introduced the informant  to Luis, after  learning that the  informant        sought to purchase a large quantity of cocaine; (2) stood next to Luis        during negotiations with the  informant on April 6; (3) evinced famil-        iarity with Luis's business practices, and sought to offer reassurance        to the informant and undercover agent ("don't be afraid, they don't do        tricks  here"), when  the  informant arrived  to  consummate the  drug        deal; and, finally, (4) ran from the shop, scuffling with  a DEA agent        at the gate, when the raid began.  Cf. United States v. Hernandez, No.                                           ___ _____________    _________        91-2034/5/6, slip op. at 18 (1st Cir. May 12, 1993) (upholding convic-        tion where defendant apparently knew that  an illegal drug transaction        was  about to occur,  lingered inexplicably at  apparent vantage point        outside  apartment, and  attempted to  flee during  DEA raid);  United                                                                        ______        States  v.  Martinez, 479  F.2d 824,  829  (1st Cir.  1973) ("presence        ______      ________        itself  implies  participation [where]  . . .  a  companion stands  by        during  a [crime],  ready to  sound  a warning  or give  other aid  if        required.").   Finally,  as  to both  defendants,  we  recognize  that                                          11        "criminals  rarely welcome  innocent persons  as witnesses  to serious        crimes," Hernandez,  slip op. at 17 (quoting  Ortiz, 966 F.2d at 712),                 _________                            _____        and that Luis's apparent willingness  to consummate the transaction in        Eduardo's and  Algarin's presence  provides some corroboration  of the        jury's  ultimate conclusion as to their culpability.  United States v.                                                              _____________        Batista-Polanco, 927 F.2d  14, 18  (1st Cir. 1991).   Arguably,  then,        _______________        even  if the evidence of  appellants' participatory presence was some-        what thin, particularly in Algarin's case, it  was nonetheless legally        sufficient to support their convictions.                  Affirmed.                  ________                                          12
