
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1849                                    UNITED STATES,                                      Appellee,                                          v.                              CATALINO TORRES-MALDONADO                               AND MARILYN GOTAY-COLON,                               Defendants, Appellants,        No. 92-1850                                    UNITED STATES,                                      Appellee,                                          v.                               HECTOR SANTIAGO-ALICEA,                                Defendant, Appellant,        No. 92-1851                                    UNITED STATES,                                      Appellee,                                          v.                                  TEDDY LEON AYALA,                                Defendant, Appellant,        No. 92-1852                                    UNITED STATES,                                      Appellee,                                          v.                                   OSCAR DIAZ CRUZ,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                           and DiClerico,* District Judge.                                           ______________                                 ____________________            Jose A. Fuentes  Agostini with whom Dominguez & Totti was on brief            _________________________           _________________        for appellant Torres-Maldonada and Gotay-Colon.            Ramon Garcia Garcia on brief for appellant Santiago-Alicea.             ___________________            Carlos R. Noriega on brief for appellant Ayala.            _________________            Harry R. Segarra on brief for appellant Diaz Cruz.            ________________            Kathleen  A. Felton,  with  whom  Charles  E. Fitzwilliam,  United            ___________________               _______________________        States Attorney, Warren Vazquez, Assistant United States Attorney, and                         ______________        Nina Goodman, Department of Justice, were on brief for appellee.        ____________                                 ____________________                                   January 20, 1994                                 ____________________        ____________________        *Of the District of New Hampshire, sitting by designation.                      STAHL,   Circuit   Judge.     Defendants-appellants                               _______________            challenge  various  aspects   of  their  drug  and   firearms            convictions, arguing, inter alia,  that insufficient evidence                                  _____ ____            supports  their  convictions,  and  that  their  motions  for            severance and  for suppression  of  evidence were  improperly            denied.    We   reverse  the  firearms  convictions   of  two            defendants and affirm all other convictions.                                          I.                                          I.                                          __                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       ________________________________________                      For  purposes  of  defendants'  challenges  to  the            sufficiency of the  evidence, we begin by  reciting the facts            in the light most favorable to the government.  United States                                                            _____________            v. Mena-Robles, 4 F.3d 1026, 1029 (1st Cir. 1993).                 ___________                      Spanning  a two-week  period in  late February  and            early  March of  1991,  a  group  of  individuals,  including            defendants, occupied Rooms 310, 311  and 327 of the Carib Inn            Hotel in  Isla Verde, Puerto  Rico.   Two of  the rooms  were            registered to false names.                      Soon,  the activities of the occupants of all three            rooms  attracted the  attention  of  hotel  employees.    The            hotel's  chief of  security  observed  "continual" visits  to            occupants of all  three rooms made by young  people who often            drove  luxury  cars  and  stayed  for  periods  of about  ten            minutes.  In  a hotel of  225 guest rooms,  the group in  the            three  rooms received  90% of  all  phone calls  made to  the                                         -3-            hotel.  Moreover,  the group paid their hotel  bills in cash,            using bundles of small denominations wrapped in rubber bands.            On a few occasions, the  occupants paid for all three of  the            rooms  together in  amounts  totaling approximately  $300  to            $400.   In addition, a  "floor supervisor" in charge  of maid            service  on defendants' floor at  the hotel saw the occupants            of all three rooms passing frequently among  the three rooms.                      On  March  6,  1991,  the   same  floor  supervisor            observed two  revolvers on top of a bureau  in Room 327.  She            informed both the hotel's chief of security and local police,            who, in turn, contacted agents of the United States Bureau of            Alcohol, Tobacco  and Firearms  (ATF).   Later that  day, ATF            agents  and local police  officers began surveillance  at the            Carib Inn Hotel.                          At  approximately 11:00 p.m.  on March 6,  1991 the            surveilling agents observed defendants Hector Santiago-Alicea            (Santiago-Alicea), Teddy  Leon Ayala (Leon),  Oscar Diaz Cruz            (Diaz)  and Frankie  Nieves-Burgos  (Nieves-Burgos)1 with  an            unidentified man  in the  hotel lobby.   Santiago-Alicea  was            wearing a bulletproof jacket, and the agents noticed a  bulge            under  the  jacket which  appeared to  be a  gun.   The group            proceeded from the  lobby to the hotel parking  lot where the                                            ____________________            1.  Nieves-Burgos,  convicted below, is  not a party  to this            appeal.                                         -4-                                          4            unidentified  individual, after opening  the trunk of  a car,            opened  a   plastic  bag   inside  the   trunk  and   counted            unidentified  items inside  the bag.   He  handed the  bag to            Santiago-Alicea,  who then showed  the contents to  Leon, who            gave a facial sign of approval  and an affirmative nod of his            head.                      Later  that  evening,  a  second  unidentified  man            arrived  at the  hotel, made  a  call on  the hotel's  "house            phone,"  and  was  met shortly  thereafter  in  the lobby  by            Nieves-Burgos  and  another  defendant, Pedro  Luis  Ramirez-            Rivera  (Ramirez-Rivera).2    After  a  brief   conversation,            Nieves-Burgos and Ramirez-Rivera went back upstairs.  Shortly            thereafter  they reappeared  with  Santiago-Alicea, who  then            exchanged packages with the unidentified man.                      On  March 7,  1991,  the  following day,  Santiago-            Alicea was observed waiting in the hotel parking lot, looking            in all directions.  A car pulled up to him and, after a brief            conversation, Santiago-Alicea handed a small paper bag to its            driver, received money in exchange, counted the money, put it            in his pocket and returned to the hotel.                       On the basis of the foregoing events, ATF and local            law enforcement officials  obtained a search warrant  for the            three hotel rooms.  On that same afternoon of March 7,  1991,                                            ____________________            2.  Ramirez-Rivera, convicted below,  is not a party  to this            appeal.                                         -5-                                          5            they  executed the  warrant.   Upon  entering Room  311, they            found defendant Catalino  Torres-Maldonado (Torres-Maldonado)            seated  on the  floor talking  on  the phone,  and his  wife,            defendant  Marilyn Gotay-Colon  (Gotay-Colon), seated  on the            sofa.  Nieves-Burgos and Ramirez-Rivera were stretched out on            separate  beds  in   the  room,  clad  only   in  underpants.            Santiago-Alicea was seated on the end of one of the beds.                          Upon  searching the  room,  the  agents found  that            Gotay-Colon's  purse contained cocaine in a plastic bag which            was marked with a picture of a unicorn.  Her purse  also held            approximately $400  in cash in  a bundle secured by  a rubber            band.  In  a zippered, opaque tote  bag on the sofa  on which            Gotay-Colon was seated,  the agents found $2000 in  cash in a            bundle,  again  secured  by  a  rubber  band,  and  a  loaded            semiautomatic pistol.                        On a  night table in  the room, the agents  found a            plastic bag containing cocaine, approximately $1500  in cash,            brown paper bags, and a homemade pipe used for smoking drugs.            In the  room's  closet was  the  bulletproof jacket  seen  on            Santiago-Alicea the night before.   Under the bed, the agents            found empty plastic bags labeled with a picture of a unicorn,            along with plastic straw-and-spoon type implements typical of            the sort  used to  cut and package  drugs for  re-sale.   The            agents also found razor blades, ordinary playing cards, and a            stapler,  all of which  can be used  to package  drugs.  They                                         -6-                                          6            also found  beepers and  cellular telephones.   Finally,  the            agents discovered keys to a  gray Buick, which would later be            searched by the agents.                      Rooms 310 and 327, though unoccupied at the time of            the  search,  also contained  drugs  and drug-related  items.            Room  310 contained  fifty-five  packets  of  cocaine,  again            marked with  a unicorn, which were found in a brown paper bag            hidden in a roll-away bed or sofabed.  There was also a small            amount of narcotics in an ashtray and a pipe used for smoking            drugs.  The  search of Room 327 turned up a pillowcase hidden            above  a "dropped  ceiling" in  the bathroom.   It  contained            sixteen brown  paper bags, each  of which, in turn,  held 100            small packets marked with the  unicorn symbol and filled with            cocaine.   Under a  sofa, the agents found  a bullet that fit            the semiautomatic pistol found in Room 311.                      Later that day, Leon and Diaz, who had been present            for one of the transactions the night before, but who had not            been present  during the search  of Room 311, arrived  at the            hotel.     Leon  exclaimed,  "Oh,  my  god,  they  busted  my            people."3  The  agents asked Leon  and Diaz if they  knew the            occupants of  Room 311.    They replied  in the  affirmative.                                            ____________________            3.  The  parties agree that  the exclamation was  in Spanish,            not English.  One report stated that the exclamation was more            closely translated as "They busted the people."  Nonetheless,                                               ___            the officer who allegedly heard the remark testified at trial            that  the  exclamation  was,  "Oh, my  god,  they  busted  my            people."                                         -7-                                          7            Leon was  carrying over $6700 in cash and  a key to Room 310.            Diaz had over $1400 in cash anda hotel receipt for Room 327.                       The  agents subsequently searched  two cars  in the            hotel parking lot.  In the first car, a green Ford  LTD, they            found  a  loaded   .357  six-shot  revolver,  along   with  a            photograph  of  Nieves-Burgos  and  a  parking  receipt  with            Nieves-Burgos'  fingerprint on it.   The second  car searched            was  the gray  Buick, keys  to which  had been  found in  the            search of Room 311.  In the  Buick, the agents found a loaded            nine  millimeter pistol, with  additional ammunition  and one            "spent" or fired bullet cartridge.   Though the Buick was not            registered in Santiago-Alicea's name, the registration to the            car was found in Santiago-Alicea's wallet.                      Defendants were tried  together.  Torres-Maldonado,            Gotay-Colon,  Santiago-Alicea,  Leon,   and  Diaz  were   all            convicted of  conspiring to  possess cocaine  with intent  to            distribute,  and  of  possession of  cocaine  with  intent to            distribute.  See 21  U.S.C.    841(a)(1), 846.4   Gotay-Colon                         ___            was  also convicted  of possession  of  cocaine based  on the                                            ____________________            4.  Section  841(a)(1) states in relevant part that "it shall            be unlawful for  any person knowingly or intentionally  . . .            to  manufacture, distribute,  or  dispense,  or possess  with            intent to manufacture, distribute, or dispense, a  controlled            substance."                 Section  846  states,   "Any  person  who   attempts  or            conspires  to commit any  offense defined in  this subchapter            shall be subject  to the same  penalties as those  prescribed            for the  offense, the commission  of which was the  object of            the attempt or conspiracy."                                         -8-                                          8            amount found  in her  purse.  See  21 U.S.C.    844(a).5   In                                          ___            addition, Torres-Maldonado,  Gotay-Colon and  Santiago-Alicea            were convicted of using a firearm during and in relation to a            drug offense.  See 18  U.S.C.   924(c)(1).6  Defendants raise                           ___            various grounds for appeal.  We address them in turn.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Sufficiency of the Evidence            A.  Sufficiency of the Evidence            _______________________________                 1. Standard of Review                 1. Standard of Review                 _____________________                      In  reviewing challenges to  the sufficiency of the            evidence, "[o]ur  task is to  review the record  to determine            whether  the  evidence and  reasonable  inferences therefrom,            taken  as a  whole and  in the  light most  favorable  to the            prosecution,  would allow a rational jury to determine beyond            a  reasonable  doubt  that  the  defendants  were  guilty  as            charged."  Mena-Robles, 4 F.3d  at 1031.  Moreover, "`[w]e do                       ___________                                            ____________________            5.  Section 844(a)  states, in  relevant part,  "It shall  be            unlawful for any person knowingly or intentionally to possess            a controlled substance . . . ."            6.  Section 924(c)(1) provides, in relevant part:                           Whoever, during and in  relation to any  crime                      of violence or drug trafficking crime  (including a                      crime of  violence or drug trafficking  crime which                      provides for an enhanced punishment if committed by                      the use of a deadly or  dangerous weapon or device)                      for which  he may be  prosecuted in a court  of the                      United States, uses or carries a firearm, shall, in                      addition to  the punishment provided for such crime                      of violence or drug trafficking crime, be sentenced                      to imprisonment for five years . . . .                                         -9-                                          9            not weigh  witness credibility,  but resolve  all credibility            issues in favor of the verdict.  The evidence may be entirely            circumstantial  and   need  not   exclude  every   reasonable            hypothesis of innocence;  that is, the factfinder  may decide            among  reasonable interpretations  of the evidence."   United                                                                   ______            States  v.  Cassiere, 4  F.3d  1006,  1011  (1st  Cir.  1993)            ______      ________            (quoting  United States v.  Batista-Polanco, 927 F.2d  14, 17                      _____________     _______________            (1st Cir. 1991)).                   2.  Conspiracy and Possession with Intent to Distribute                 2.  Conspiracy and Possession with Intent to Distribute                 _______________________________________________________                      Torres-Maldonado  and  Gotay-Colon claim  that  the            evidence at trial  showed no more than  their "mere presence"            at the hotel.  We  have recently stated that "the culpability            of   a   defendant's   presence  hinges   upon   whether  the            circumstances  fairly imply  participatory  involvement.   In            other words, a defendant's `mere presence' argument will fail            in situations where the `mere' is lacking."  United States v.                                                         _____________            Echeverri,  982 F.2d  675, 678  (1st Cir.  1993).   While the            _________            government's  evidence  against Torres-Maldonado  and  Gotay-            Colon  is less  abundant than  its  evidence against  several            other defendants, it  is nonetheless sufficient to  support a            finding  of  guilt  beyond  a  reasonable  doubt  as  to  the            conspiracy and possession counts.                        Hotel   personnel  testified   that  both   Torres-            Maldonado and Gotay-Colon were associated with the group that            occupied Rooms  310, 311  and 327.   A front  desk supervisor                                         -10-                                          10            identified  Torres-Maldonado as a member of the group who had            been  present when  cash  payments were  made  for the  three            rooms, and  the  floor supervisor  mentioned above  testified            that  she  observed  Gotay-Colon  passing  between  the three            rooms.   She recalled  a specific  instance when  Gotay-Colon            went to Room 327 with Santiago-Alicea.                      In  addition,  drugs  and drug  paraphernalia  were            lying  in open  view  in  Room 311  at  the  time of  Torres-            Maldonado's and Gotay-Colon's  arrest.  Torres-Maldonado  was            talking on  the phone  when the agents  entered, allowing  an            inference  that  he  and  Gotay-Colon  were  more  than  mere            visitors.   The cocaine  found in Gotay-Colon's  purse, which            was packaged  in a  bag bearing  the unicorn  symbol, further            supports  that inference.    Finally,  the  bundle  of  cash,            secured  characteristically  with  a  rubber  band,  provides            further evidence linking the couple to the group in the hotel            and to  drug-related activity.   In sum, there  is sufficient            record evidence from  which a reasonable jury  could conclude            beyond  a reasonable  doubt that Torres-Maldonado  and Gotay-            Colon  were guilty  of both  conspiracy  and possession  with            intent to distribute the drugs  found at the hotel, and that,            on the basis of the drugs found in her purse, Gotay-Colon was            guilty of simple possession.                      Even  more  compelling  evidence,  both direct  and            circumstantial,  supports   the  conspiracy   and  possession                                         -11-                                          11            convictions  of  the other  defendants  in  this  case.   For            example, a jury  could reasonably infer that  Leon, Diaz, and            Santiago-Alicea were observed  by ATF agents making  the very            drug   transactions  which  serve  as  the  basis  for  their            conspiracy  and   possession  convictions.     Therefore,  we            conclude that sufficient evidence supports those convictions.                 3.  The Firearms Convictions                 3.  The Firearms Convictions                 ____________________________                      Santiago-Alicea,  Torres-Maldonado and  Gotay-Colon            also  challenge  the sufficiency  of the  evidence supporting            their convictions  under 18  U.S.C.   924(c)(1)  for using  a            firearm during and in relation to a drug offense.                      a.  Santiago-Alicea                      a.  Santiago-Alicea                      ___________________                      Santiago-Alicea was observed wearing a bullet-proof            vest with a protruding bulge beneath it.  So clad, he engaged            in what appeared to be a drug  deal in the parking lot of the            Hotel Carib Inn.   Using the same standard  of review recited            above, we  conclude that a  reasonable jury could  have found            beyond a  reasonable doubt that the bulge was one of the guns            found  in the drug raid, and that Santiago-Alicea was "using"            the gun,  as that term  is used in section  924(c)(1), during            and in  relation to a  drug offense.  Accordingly,  we affirm            his conviction.                      b.  Torres-Maldonado and Gotay-Colon                      b.  Torres-Maldonado and Gotay-Colon                      ____________________________________                      While there are several possible grounds upon which            section 924(c)(1)  liability may rest,  the evidence  against                                         -12-                                          12            Torres-Maldonado and Gotay-Colon is insufficient to support a            section 924(c)(1) conviction under any applicable theory.                           (1)  Pinkerton Liability                           (1)  Pinkerton Liability                           ________________________                      We  begin by  noting that,  although  members of  a            conspiracy  may   be  held  liable  for   substantive  crimes            committed   by  a   coconspirator  in   furtherance  of   the            conspiracy, see, e.g.,  Pinkerton v. United States,  328 U.S.                        ___  ____   _________    _____________            640,  646-47 (1946); United  States v. Barker  Steel Co., 985                                 ______________    _________________            F.2d 1123, 1128-29 (1st Cir. 1993), the jury in this case was            not  so instructed.7   On  appeal, we  will not  infer either            that the jury found guilt based on a theory upon which it was            not instructed, or  that the jury would have  found guilt had            it been given a Pinkerton  instruction.  See United States v.                            _________                ___ _____________            Labat, 905 F.2d 18, 23 (2d Cir. 1990) (citing Nye & Nissen v.            _____                                         ____________            United States,  336 U.S. 613,  618 (1949)); United  States v.            _____________                               ______________            Raffone,  693 F.2d  1343, 1346  (11th  Cir. 1982)  (similar),            _______            cert. denied, 461  U.S. 931 (1983).  Accordingly,  we decline            _____ ______            to  affirm  defendants'  firearms  convictions  on  Pinkerton                                                                _________            grounds.                             (2)  Actual or Constructive Possession                           (2)  Actual or Constructive Possession                           ______________________________________                                            ____________________            7.  Nor has the government argued, either below or on appeal,            that  Pinkerton   liability  should  apply  to  hold  Torres-                  _________            Maldonado and Gotay-Colon  liable for the use  of firearms by            their coconspirators.                                         -13-                                          13                      The government argues essentially that the physical            proximity  of  Torres-Maldonado and  Gotay-Colon  to  the gun            found in the tote bag at the time of the arrest is sufficient            to support an inference that  they "used" or were prepared to            use  the gun  in  a drug  transaction  for section  924(c)(1)            purposes.8  We disagree.                      It  is well established  that a weapon  need not be            "brandished,  displayed, or discharged" in order to sustain a            conviction under  section 924(c)(1).   See  United States  v.                                                   ___  _____________            Castro-Lara, 970 F.2d 976, 983 (1st Cir. 1992), cert. denied,            ___________                                     _____ ______            113 S.  Ct. 2935 (1993);  United States v. Plummer,  964 F.2d                                      _____________    _______            1251, 1255 (1st  Cir.), cert. denied, 113 S.  Ct. 350 (1992).                                    _____ ______            Nonetheless, "there must be  some facilitative nexus  between            the weapon and the criminal activity."  Castro-Lara, 970 F.2d                                                    ___________            at 983.   Moreover,  in order to  establish that  a defendant            "used"  a firearm  for purposes  of  section 924(c)(1),  "the            government   must  prove  that   the  defendant  actually  or            constructively possessed it."  United States v. Harrison, 931                                           _____________    ________            F.2d 65, 71 (D.C. Cir.), cert. denied, 112 S. Ct. 408 (1991).                                     _____ ______            See also United  States v. Long,  905 F.2d 1572,  1576 &  n.6            ___ ____ ______________    ____            (D.C.  Cir.), cert.  denied, 498  U.S. 948  (1990).   In this                          _____  ______            case, we find neither actual nor constructive possession.                                            ____________________            8.  The  government does  not argue,  nor  does the  evidence            support an inference, that Torres-Maldonado and Gotay-Colon's            convictions  under Section 924(c)  could be supported  by the            gun found during the searches of the two cars in this case.                                         -14-                                          14                      The government's  evidence does not  establish that            either  Torres-Maldonado  or Gotay-Colon  had  any  direct or            actual possessory  interest in  the firearm in  the bag.   In            fact, one government witness, who  had been asked to identify            particular government exhibits, was also asked to state which            defendant  appeared to  own or  control each  exhibit.   Upon            identifying  the bag which  contained the  gun at  issue, the            witness replied that  it was linked to "[n]o  defendant."  No            further  evidence  in the  record tends  to show  that either            Torres-Maldonado   or  Gotay-Colon   ever  exercised   actual            possession over the gun or the bag.  The      evidence     of            constructive  possession  is  equally  scant.    Constructive            possession exists when a person  "knowingly has the power and            intention at  a given time  to exercise dominion  and control            over  an object, either directly  or through others."  United                                                                   ______            States  v.  Garcia,  983  F.2d  1160,  1164 (1st  Cir.  1993)            ______      ______            (citations and  internal  quotations omitted).    Unlike  the            evidence against the other  defendants who are party  to this            appeal, the evidence against Torres-Maldonado and Gotay-Colon            failed  to  establish  any   connection  between  these   two            defendants,  on   one  hand,  and  those   drug  distribution            transactions which appeared to involve guns, on the other.                        When  viewed in  the light  most  favorable to  the            government, the  evidence shows  that only  one group of  the            defendants, which did not include either Torres-Maldonado  or                                         -15-                                          15            Gotay-Colon, was involved  in armed drug deals in  and around            the hotel.  Additional evidence  linking Torres-Maldonado and            Gotay-Colon  to  the  group  generally  falls  far  short  of                                         _________            establishing that either defendant knew of or participated in            the armed  drug deals.   Cf. United  States v.  Matthews, 942                                     ___ ______________     ________            F.2d  779, 783-84 (10th Cir. 1991) (affirming drug conspiracy            and  possession convictions  and  reversing conviction  under            section 924(c)(1) where the sole explanation for the presence            of the weapons was to provide conspirators with protection on            drug-selling  "excursions," and  where  evidence showed  that            defendant  had  not  participated  in  any  such excursions);            United  States v.  Bruce, 939 F.2d  1053, 1055-56  (D.C. Cir.            ______________     _____            1991) (reversing  conviction under section  924(c)(1) despite            gun's presence in  an apartment containing drugs,  on grounds            that  gun's intended use  was "for defendant's  protection at            the  time  and place  of subsequent  distribution") (emphasis                                     __________            added).                      Finally, there was  no additional evidence  tending            to show that either Torres-Maldonado or Gotay-Colon exercised            any  "dominion and  control" over  any  firearms, see,  e.g.,                                                              ___   ____            Garcia, 983  F.2d at  1164,  that they  had any  "appreciable            ______            ability to guide the destiny"  of firearms, see, e.g., United                                                        ___  ____  ______            States v. Staten, 581 F.2d 878, 883 (D.C. Cir. 1978), or that            ______    ______            these defendants ever  had "some stake  in, some power  over"            the  firearms found, see,  e.g., United States  v. Pardo, 636                                 ___   ____  _____________     _____                                         -16-                                          16            F.2d 535, 549 (D.C.  Cir. 1980).   Cf. Matthews, 942 F.2d  at                                               ___ ________            783-84 (reversing  section 924(c)(1)  conviction where  there            was no evidence  "that [defendant] intended to  avail himself            of  the firearms  in  question");  United  States  v.  Feliz-                                               ______________      ______            Cordero, 859  F.2d 250,  254 (2d Cir.  1988) (holding  that a            _______            loaded  gun "found  in the  same room  as  drug paraphernalia            during the  course of  a search pursuant  to a  warrant" was,            standing alone,  insufficient to  support a  conviction under            section  924(c)(1)).  We conclude that there was insufficient            evidence  to allow  a jury  to  conclude beyond  a reasonable            doubt  that  Torres-Maldonado  or  Gotay-Colon  actually   or            constructively  possessed a  firearm for purposes  of section            924(c)(1).                            (3)  Aiding and Abetting                           (3)  Aiding and Abetting                           ________________________                      Given   such  a  lack  of  evidence  of  actual  or            constructive possession, the  firearms convictions of Torres-            Maldonado and Gotay-Colon  may stand, if at all,  only upon a            theory that  they aided and abetted  in the use  of the gun.9            The government's evidence, however, is insufficient to uphold            a conviction on an aiding and abetting theory.                        It is  well settled  in the  case law  interpreting            section 924(c)(1)  that an accomplice  "must have known  to a            practical certainty  that the  principal would  be [using]  a                                            ____________________            9.  The  indictment in  this case  included  one count  which            charged  all defendants  with  using,  and  with  aiding  and            abetting in the use of, a firearm.                                         -17-                                          17            gun."  United States v. Powell, 929 F.2d 724, 728 (D.C.  Cir.                   _____________    ______            1991).  See also United States v. Williams, 985 F.2d 749, 756                    ___ ____ _____________    ________            (5th  Cir.)  ("Because  the  evidence  does  not  support  an            inference that  [nonpossessing defendants] knew  the gun  was            available  to  [possessing  codefendant],  the  evidence   is            insufficient   to    support   [nonpossessing    defendants']            convictions on [a section  924(c)(1)] count."), cert. denied,                                                            _____ ______            114 S. Ct. 148 (1993); United States v. Nelson, 733 F.2d 364,                                   _____________    ______            371  (5th  Cir.)  ("[W]e believe  that  in  order to  convict            [defendant] on  the  theory that  [coconspirator]  aided  and            abetted  [defendant],  the  government  had  to  prove   that            [defendant]  knew that [coconspirator] was carrying a firearm            while  the latter  was  carrying out  the  directions of  the            former."), cert. denied, 469 U.S. 937 (1984).                       _____ ______                      In this  case, there is insufficient  evidence from            which  a jury could  conclude beyond a  reasonable doubt that            Torres-Maldonado or Gotay-Colon knew of the use of the gun at            any  time.   As noted above,  while it is  clear that Torres-                                                   __            Maldonado and Gotay-Colon  had some ties to the  group at the            hotel, there  is no evidence  that they were involved  in, or            knew of,  that part of the group's  activities which involved            guns.  In  addition, given that  the gun  was concealed in  a            tote  bag when  the officers  entered the  room, there  is no            evidence that either Torres-Maldonado or Gotay-Colon  knew of            the gun's  presence  at the  time of  the arrest.   Thus,  we                                         -18-                                          18            conclude  that there was insufficient evidence to support the            section 924(c)(1)  convictions of either  Torres-Maldonado or            Gotay-Colon on a  theory of aiding and abetting.   Cf. United                                                               ___ ______            States  v. Thomas,  987  F.2d 697,  701-02  (11th Cir.  1993)            ______     ______            (reversing  section 924(c)(1) conviction where nothing in the            government's  case linked  defendant to  gun  possessed by  a            codefendant).                        In sum,  no evidence links  either Torres-Maldonado            or Gotay-Colon  to the gun in the  zippered bag, to the armed            drug transactions or  even to the bullet-proof vest  found in            the  closet of  Room  311.   Given  this  dearth of  evidence            connecting either of these defendants to any firearm in  this            case, we reverse their convictions under section 924(c)(1).              B. Severance            B. Severance            ____________                 1.  Torres-Maldonado and Gotay-Colon                 1.  Torres-Maldonado and Gotay-Colon                 ____________________________________                      Prior  to trial,  Torres-Maldonado and  Gotay-Colon            filed a joint  motion for severance.  Attached  to the motion            was an affidavit from codefendant Santiago-Alicea, who stated            that  he was  willing to  testify  at a  separate trial  that            Torres-Maldonado  and  Gotay-Colon  were  "unaware"  of   any            activities related to drugs or firearms, and that the  couple            had merely come  to the Carib Inn  Hotel in order to  pick up            money  that  Santiago-Alicea  owed  on  a  car  that  he  had            purchased from Gotay-Colon's brother.                                           -19-                                          19                      Initially,  a  magistrate  judge  recommended  that            severance  be  granted.    Santiago-Alicea,  however,   after            conferring additionally  with counsel,  subsequently withdrew            his  offer to  testify  at a  separate  trial, whereupon  the            district  court denied  the motion  for  severance.   Torres-            Maldonado  and  Gotay-Colon  appeal the  order  denying their            severance motion.                      We   begin  by  noting  that  "a  trial  judge  has            `considerable latitude' in  deciding severance questions  and            that  the judge's resolution of them `will be overturned only            if that wide  discretion is plainly abused.'"   United States                                                            _____________            v. O'Bryant, 998 F.2d 21,  25 (1st Cir. 1993) (quoting United               ________                                            ______            States v. Natanel,  938 F.2d 302, 308 (1st  Cir. 1991), cert.            ______    _______                                       _____            denied, 112 S. Ct. 986  (1992)).  Moreover, the Supreme Court            ______            has recently  stated that  "a district  court should grant  a            severance under Rule 14 only if  there is a serious risk that            a joint trial would compromise  a specific trial right of one            of the defendants, or prevent the jury from making a reliable            judgment about guilt or innocence."  Zafiro v. United States,                                                 ______    _____________            113 S.  Ct. 933,  938  (1993).    Finally,  we have  recently            reiterated that where,  as here, a defendant  seeks severance            in order to secure the  testimony of a codefendant, s/he must            demonstrate,  inter alia, that the codefendant "`will in fact                          _____ ____            testify if  the cases  are severed.'"   See United  States v.                                                    ___ ______________                                         -20-                                          20            Nason, 9 F.3d 155, 158 (1st Cir. 1993) (quoting United States            _____                                           _____________            v. Drougas, 748 F.2d 8, 19 (1st Cir. 1984)).                 _______                      Torres-Maldonado and  Gotay-Colon sought  severance            in order to  secure Santiago-Alicea's testimony.   Aside from            an unsubstantiated  blanket  claim  of  prejudice,  Santiago-            Alicea's  initial  offer  to  provide  exculpatory  testimony            formed the sole basis  for Torres-Maldonado and Gotay-Colon's                       ____            motion for severance.  Thus, even by the reasoning set out in            Torres-Maldonado and Gotay-Colon's own  motion for severance,            once  Santiago-Alicea  withdrew  his offer  to  testify  at a            separate  trial, he  also withdrew  the entire  basis of  his            codefendants' severance motion.   Because the  district court            was given no additional justification for ordering a separate            trial, we find no abuse in its denial of Torres-Maldonado and            Gotay-Colon's severance motion.                      Moreover,  nothing  at  the joint  trial  prevented            Torres-Maldonado  and Gotay-Colon  from  putting on  evidence            from  sources   other  than  Santiago-Alicea   in  order   to                            _____  ____            corroborate their contention  that they were  merely visiting            the hotel with regard to car payments.  In fact,  one witness            so  testified.    In sum,  Torres-Maldonado  and  Gotay-Colon            failed to establish  that a joint trial  would compromise any            "specific trial  right," see Zafiro,  113 S. Ct. at  938, nor                                     ___ ______            did  they make  the "strong  showing  of evident  prejudice,"            O'Bryant,  998  F.2d  at  25,  which  is required  to  obtain            ________                                         -21-                                          21            severance.  Accordingly, the district court did not abuse its            discretion in denying their motion.                  2.  Leon                 2.  Leon                 ________                      Leon  sought  severance   based  upon  the  opening            remarks  of  counsel  for  one  of  his  codefendants,  Pedro            Panzardi Fuentes (Panzardi), who was acquitted below.  During            his  opening, Panzardi's counsel  stated, inter alia,  "It is                                                      _____ ____            not my job to be a prosecutor in this case.  So I don't  have            to prove who  did it.  It  is the government's duty  to prove            our client  guilty beyond  a reasonable doubt.   But  we will            prove  to  you,   from  the  same  evidence   the  government            collected, that  during a  period  of time,  starting at  the            beginning of  the year,  the group  which was  trafficking in            drugs was . . . using the name Panzardi from those days."                      Leon  understood  these   remarks  and  others   in            Panzardi's opening statement to mean that Panzardi planned to            bring evidence  which would  at once  aid  the government  in            proving  its  case against  all of  the other  defendants and            exonerate  Panzardi.   Leon  unsuccessfully sought  severance            based upon potential prejudice from Panzardi's trial tactics.            Upon careful review, we find no error in the district court's            denial of this motion.                      The sole basis  for Leon's  severance motion,  both            below and  on  appeal,  has been  the  opening  statement  of            Panzardi's   counsel.    A  close  reading  of  that  opening                                         -22-                                          22            statement  shows  that  it was  carefully,  indeed  artfully,            worded  by  Panzardi's counsel  to emphasize  that Panzardi's            innocence would be proven irrespective of the guilt of any of                                      ____________            his codefendants.10   Moreover,  Leon points  to no  evidence            at trial which was introduced or referred to by Panzardi that            inculpated Leon or any of the other defendants.                      The strongest  possible basis for Leon's  motion to            sever   is  his  view   that  Panzardi's  defense   would  be            antagonistic  to  his  own.    As we  have  recently  stated,            however, "[t]he fact that two defendants  assert antagonistic            defenses  does  not,  per  se,  require  severance,  even  if                                  ___  __            defendants  are  hostile or  attempt  to cast  blame  on each            other."   United States v.  McLaughlin, 957 F.2d 12,  18 (1st                      _____________     __________            Cir. 1992).  Rather, "the antagonism in defenses must be such            that if  the jury  believes one defense,  it is  compelled to            convict the other defendant."  United States  v. Angiulo, 897                                           _____________     _______            F.2d  1169,  1195  (1st Cir.),  cert.  denied,  498  U.S. 845                                            _____________            (1990).  Leon  has made no  such showing in  this case.   The            jury could have readily believed Panzardi's argument that his            name  was used  by  a  group  of people  at  the  hotel,  and                                            ____________________            10.  For  example, Panzardi's  counsel referred  to a  "group            which   was  trafficking   drugs"   without  asserting   that            Panzardi's codefendants  actually comprised  that group.   In            fact, counsel concluded his opening statement by arguing that            the  government's poor investigation  had led "to  a very bad            investigation and possibly  to the acquittal of more than one                                                            _____________            person in this  case.  Hopefully, my client  and whoever else            ____________________                         ________________            is innocent." (emphasis supplied).               ___________                                         -23-                                          23            nonetheless  have  acquitted  Leon.11    In  sum,  Panzardi's            opening  remarks  did  not  amount to  a  strong  showing  of            prejudice  to Leon, nor were they subsequently accompanied by            prejudicial  tactics at  trial.   Accordingly,  the  district            court did not err in denying Leon's motion for severance.            C.  Evidence Acquired Incident to the Warrantless Arrest            C.  Evidence Acquired Incident to the Warrantless Arrest            ________________________________________________________                      Both  Leon and Diaz  argue that they  were arrested            without probable cause,  and that therefore the  items seized            from  their  persons  during their  arrest  should  have been            suppressed.  Again, we disagree.                       In   the  context   of   warrantless  arrests,   as            elsewhere,  "[p]robable cause must  be evaluated in  light of            the totality of circumstances."  United States v. Uricoechea-                                             _____________    ___________            Casallas, 946  F.2d 162, 165  (1st Cir. 1991).   Moreover, in            ________            order to establish  that probable cause  existed for such  an            arrest, the government "need not present the quantum of proof            necessary  to convict."    Id.   See  also  United States  v.                                       ___   ___  ____  _____________            Morris,  977  F.2d 677,  684  (1st Cir.  1992)  (same), cert.            ______                                                  _____            denied,  113 S. Ct.  1588 (1993); United  States v. Figueroa,            ______                            ______________    ________            818 F.2d 1020, 1023 (1st Cir. 1987) (same).  Rather,  it need            only  show that,  at the  time of  the arrest, the  facts and            circumstances known to the arresting officers were sufficient                                            ____________________            11.  For instance, the jury was  free to reason that Leon was            never sufficiently identified as a member of the group at the            hotel, or  that, while  he was  a  member of  the group,  the            government's  evidence did not  sufficiently link him  to the            drug transactions at issue.                                         -24-                                          24            to warrant a  prudent person in believing that  the defendant            had committed  or was committing  an offense.  Id.;  see also                                                           ___   ___ ____            Beck v. Ohio,  379 U.S. 89, 91  (1964).  The arrests  of Leon            ____    ____            and Diaz clearly met these standards.                      Both Leon and Diaz had been observed on the evening            prior to their arrest engaging in what appeared to  be a drug            deal.  They were apprehended  the following day returning  to            an area  of the  hotel which had  recently been  searched and            which yielded large quantities of  drugs, drug paraphernalia,            and  firearms.  Finally, they admitted knowing members of the            group who had  been arrested earlier in  the day.  In  total,            the  circumstances of this  case indicate that  the arresting            officers had  probable cause  to believe  that both  Leon and            Diaz had committed or were committing an offense.  Therefore,            their arrest was  lawful.  Moreover,  it is well  established            that  "[i]f an arrest  is lawful, the  arresting officers are            entitled to  search  the individual  apprehended pursuant  to            that  arrest."     Uricoechea-Casallas,  946   F.2d  at  165.                               ___________________            Accordingly,  the district court did not err in admitting the            evidence recovered in that search.                      We have carefully considered  all defendants' other            claims and find them to be without merit.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                                         -25-                                          25                      For  the  foregoing  reasons,  the  convictions  of            Torres-Maldonado and Gotay-Colon under 18  U.S.C.   924(c)(1)            are vacated.                _______                      All other convictions and sentences are affirmed.                                                              ________                                         -26-                                          26
