
USCA1 Opinion

	




          November 18, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1031                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 EDWIN COFRESI-RUIZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Skinner,* Senior District Judge.                                       _____________________                                 ____________________            Edwin Cofresi on brief pro se.            _____________            Daniel  F. Lopez  Romo, United States Attorney,  Antonio R. Bazan,            ______________________                           ________________        Assistant United States Attorney, and Jose A. Quiles  Espinosa, Senior                                              ________________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                                               _______________________________        *Of the District of Massachusetts, sitting by designation.                      Per Curiam.   Edwin Cofresi-Ruiz  was convicted  of                      __________            aiding  and  abetting  co-defendant,  Evaristo  Carrasquillo-            Ramos, in  distributing cocaine in  violation of 21  U.S.C.              841(a)(1) and 18 U.S.C.   2, and of carrying a firearm during            and in relation to that drug trafficking offense in violation            of  18 U.S.C.   924(c)(1).  He now challenges the sufficiency            of the evidence and the district court's denial of his motion            to sever his trial from that of his co-defendant.  We affirm.                                      BACKGROUND                                      __________                      The  relevant facts are not in dispute.  In a taped            telephone call, a confidential  informant for the  government            arranged  to purchase  cocaine  from Carrasquillo.   By  pre-            arrangement,  the informant  met Carrasquillo  at a  shopping            center where the  exchange of  cocaine for cash  was to  take            place.  Cofresi,  whose name  had not been  mentioned in  the            telephone  conversation, drove  Carrasquillo to  the shopping            center.  While seated  in the car with Cofresi,  Carrasquillo            instructed the informant to drive to a restaurant parking lot            located  nearby  since there  were  too  many  people at  the            shopping  center.     Cofresi   drove  Carrasquillo   to  the            restaurant parking  lot.  While waiting for  the informant to            arrive  at the  new location,  Carrasquillo and  Cofresi were            seen standing  and conversing next  to Cofresi's car.   After            the informant  arrived, Carrasquillo  gave  her the  cocaine.            During  the transfer  of  cocaine, Cofresi  stood apart  from            Carrasquillo and the informant, and at one point was observed            to have leaned  into his car.   Carrasquillo then accompanied            the  informant back to her car to  pick up the money, and was            arrested when the  informant opened  her car trunk.   As  the            police arrested Carrasquillo, Cofresi, who had seated himself            in  his car, got out of the  car and moved swiftly toward the            front  of the car.  At that point, police officers approached            and  arrested  him.   When one  of  the officers  looked into            Cofresi's  car, he  saw a  .44 Magnum  revolver located  in a            console between the driver's  and front passenger's seat with            the handle turned up.  The  gun, which was loaded at the time            and  licensed  to  Cofresi,  subsequently  was  found  to  be            operable.                                       DISCUSSION                                      __________                      I.  Aiding and Abetting                          ___________________                      Cofresi  claims that the  evidence was insufficient            to show that  he had  aided and abetted  Carrasquillo in  the            sale of the cocaine.   He points out  that the informant  had            not seen whether the cocaine had been taken  from his car and            had not testified that  she knew Cofresi or knew  that he was            involved in drug trafficking  activity.  Rather than engaging            in  a  drug  transaction,  he contends  that  he  was  giving            Carrasquillo a ride home, and thought that they were stopping            at  the restaurant for a beer.  Because his only demonstrated                                         -3-            involvement in the drug sale was his presence at the scene of            the sale,  Cofresi claims that the  evidence was insufficient            to convict  him even if he  knew that a drug  sale was taking            place.                        Although  the evidence  may  not  have  shown  that            Cofresi  was a  prime  mover behind  the  drug sale,  we  are            satisfied that  it showed  that he participated  willingly in            the transaction in  order to  ensure its success.   He  drove            Carrasquillo to the site of the prearranged drug deal, he was            in  the  car with  Carrasquillo  when  Carrasquillo told  the            informant to  move  to a  new  location since  he  apparently            believed that the presence of  so many people could interfere            with the sale, and he drove Carrasquillo to the new location.            He  made  no attempt  to go  into  the restaurant  upon their            arrival there,  but remained  in conversation in  the parking            lot   with  Carrasquillo   while  Carrasquillo   awaited  the            informant's arrival, and he stood by as the cocaine was given            to the informant.  He was also observed leaning into his  car            at one point, and subsequently a loaded gun registered to him            was found in the console  next to the driver's seat with  the            handle turned  up.  Finally, when  Carrasquillo was arrested,            he  attempted to  leave the  scene.   These facts  are almost            identical  to those in United  States v. Paone,  758 F.2d 774                                   ______________    _____            (1st  Cir.  1985),  in  which we  sustained  the  defendant's            conviction  for aiding and abetting a cocaine sale.  There we                                         -4-            stated that defendant's  presence at "several critical  steps            of the transaction" made it "entirely reasonable for the jury            to conclude  that his  appearances were not  coincidental and            that  he  was a  participant who  sought  to bring  about the            cocaine sale."  Id. at 776.  See also United States v. Ortiz,                            ___          ______________________    _____            966  F.2d 707, 712 (1st Cir. 1992) (suggesting that "a person            .  .  . brought  to  a  neutral  site by  a  drug  trafficker            preliminary  to  the   actual  consummation  of  a   narcotic            transaction" is  unlikely to be an  "innocent bystander", and            affirming the  conviction of a defendant  who had accompanied            the principal drug dealer  to the prearranged site of  a drug            sale   because   there  was   no   evidence   that  he   came            involuntarily,  the cocaine was in plain view on the car seat            next to the defendant, and the defendant listened to the drug            dealer's  negotiations  with  an  undercover  agent  and  was            subsequently found to have been carrying a beeper).  Thus, we            find that the evidence supports the jury's determination that            Cofresi  was  a willing  participant  who  aided and  abetted            Carrasquillo in the drug sale.                      II.  Carrying a Firearm                           __________________                      Cofresi argues  that his  conviction on  the aiding            and  abetting charge  precludes his  conviction for  using or            carrying  a firearm during and in relation to a drug offense.            Cofresi contends  that the evidence  showed that he  was away            from his car during the delivery  of the cocaine and that his                                         -5-            gun was in the car.  Because it was not on his person and not            within his immediate reach, he claims that he cannot be found            to have used or carried the gun during and in relation to the            sale of the cocaine.  This argument has no merit  in light of            our  cases on this point.   In United  States v. Castro-Lara,                                           ______________    ___________            970 F.2d 976 (1st Cir. 1992), a defendant named Obijo claimed            that his conviction  for using or  carrying a firearm  during            and in relation  to any  drug crime was  erroneous.  In  that            case Obijo's  co-defendant Castro had placed a bag of cocaine            into Obijo's car, and  both men were preparing to  drive away            together  when they were arrested.  While searching the trunk            of the car, the police found  a briefcase owned by Obijo.  In            the  briefcase  was  an   unloaded  but  operable  gun,  live            ammunition and a large  amount of cash.  We  rejected Obijo's            argument  that the  gun  had not  been  within his  immediate            reach.  We explained that our "concern is not whether the gun            was 'instantly  available' or 'exclusively  dedicated to  the            narcotics trade,' but whether  it was 'available for use'  in            connection  with the  narcotics  trade."   Id.  at 983.    We                                                       ___            concluded  that a jury  reasonably could have  found that the            gun  was "available for use" during and in relation to a drug            trafficking crime  because the gun had been  found in Obijo's            car at the scene of  a drug pickup near  a large sum of  cash            and live ammunition.  Id.   See also United States  v. Wight,                                  ___   ___ ____ _____________     _____            968  F.2d  1393  (1st  Cir.  1992)  (the  court  sustained  a                                         -6-            defendant's  conviction for  using  a firearm  during and  in            relation  to  a drug  trafficking  crime  where  the gun  was            delivered to a co-defendant to  be used, if necessary, during            the drug deal; the defendant was arrested while attempting to            sell drugs in the van in which the gun was found; the gun was            found under some newspapers behind the defendant's seat  in a            half-open case with the  open end toward the place  where the            defendant had sat).  Here,  Cofresi remained in the  vicinity            of the car, at one point was observed to have leaned into the            front seat, and had  reseated himself in the car  by the time            the arrests were made.   Clearly, the gun, which  was located            in  the  car   between  the  driver's  seat   and  the  front            passenger's seat, was available to him for use in  connection            with the  drug transaction then  taking place in  the parking            lot.                      III.  Severance                            _________                      Finally, Cofresi  argues  that the  district  court            erred in denying his  motion for severance of his  trial from            Carrasquillo's.  In his appellate brief Cofresi contends that            the  evidence  against Carrasquillo  was  so  strong that  he            became "guilty by  association" and was not  convicted on the            basis of evidence  as to his  "individual involvement."1   He                                            ____________________            1.  In his Motion for Severance,  Cofresi also stated that he            intended to take the witness stand to testify that he did not            know  that Carrasquillo intended to effect a drug sale at the            restaurant   parking   lot.      Without    describing   what            Carrasquillo's  defense  would  be,  he  contended  that  his                                         -7-            also states that the government would have had no evidence to            present  against   him  had  his  trial   been  severed  from            Carrasquillo's.                        We review  the  district  court's  denial  of  this            motion for "manifest abuse"  of discretion, see United States                                                        ___ _____________            v. Boylan, 898 F.2d 230, 246 (1st Cir.), cert. denied, 111 S.               ______                                _____ ______            Ct.  139  (1990), and  find no  such  abuse here.   Cofresi's            burden  on  appeal is  to make  a  "strong showing"  that the            court's failure to sever  his trial prejudiced him, a  burden            which  we  have characterized  as a  "difficult battle  for a            defendant to win."  Id.                                ___                      There  were only  two defendants  in this  case and            only four counts arising out of a single, uncomplicated  drug            transaction.     Counts  one  and   two  alleged  use   of  a            communication facility, i.e., the telephone, to commit a drug                                    ____            crime,  and were  brought  against Carrasquillo.   We  cannot            conceive that the jury  mistakenly would believe that Cofresi                                            ____________________            defense was  antagonistic to Carrasquillo's defense,  so that            "extreme prejudice"  to him would  result and the  jury would            not be  able to  "compartmentalize the evidence  against each            defendant."   The government's reply noted  that, as drafted,            Cofresi's   motion  described  a   situation  prejudicial  to            Carrasquillo so  that Cofresi  had no  standing to bring  the            motion.  The government also argued that the conflict Cofresi            alleged amounted to mere  "tattling and finger pointing," and            so  was not  a  basis for  severance,  see United  States  v.                                                   ___ ______________            Arruda, 715 F.2d 671,  679 (1st Cir. 1983), and  that Cofresi            ______            had made no showing of prejudice.  Cofresi did not testify at            trial, and his argument on appeal appears to allege only that            the jury was  unable to  sift the evidence  against him  from            that relating to Carrasquillo.  Accordingly, we conclude that            he has abandoned the other arguments made in his motion.                                         -8-            was implicated  in that  offense.  The  government introduced            tape  recordings  of  the   phone  calls,  neither  of  which            mentioned Cofresi or involved Cofresi in any way.  See United                                                               ___ ______            States  v. Martinez, 479 F.2d  824, 828 (1st  Cir. 1973) (The            ______     ________            defendant was not prejudiced by a joint trial where there was            "no likelihood  of confusion between the  proof applicable to            [his co-defendants] and that applicable to [the defendant.] .            . .  None of  the evidence  in the  first count pertained  to            defendant.")                      The third  count applied to  both Carrasquillo  and            Cofresi, and  alleged that  they had aided  and abetted  each            other  in  committing a  drug crime.    With respect  to this            count, the  facts relating  to Carrasquillo and  Cofresi were            inseparably connected.  The very nature of the charge against            them  required a  consideration of  their joint  actions with            respect to the central allegation that a drug crime had taken            place.     Even  if   Cofresi's  trial  had   been  conducted            separately,  the  government  would  have  had  to  introduce            evidence  as to  Carrasquillo's  role in  the transaction  in            order  to  establish  that  a  drug  sale  had  taken  place.            (Cofresi  seems to  believe, mistakenly,  that in  a separate            trial the government would be able to introduce only evidence            relating to his own role in the drug sale.)  For that reason,            trying  Cofresi and  Carrasquillo  jointly did  not prejudice            Cofresi.   Cf.  id. at  829 (there  was no  prejudice in  not                       ___  ___                                         -9-            severing trials where the  evidence relating to the principal            drug dealer's actions, whom the defendant was alleged to have            aided  and abetted,  would have  been presented  even if  the            count  relating to  the defendant  had been  tried separately            from  the  counts relating  to  his  co-defendants, who  were            alleged  to have aided and abetted  the principal drug dealer            on  a different occasion); United  States v. Martin, 920 F.2d                                       ______________    ______            345,  349  (6th Cir.  1990) (there  was  no prejudice  in not            severing the  trials  of alleged  co-conspirators  where  the            facts  relating to  the  defendants, the  conspiracy and  the            substantive  drug charge  were "inextricably  linked"), cert.                                                                    _____            denied, 111  S. Ct. 2038 (1991).   The fact that  most of the            ______            evidence presented concerned Carrasquillo  does not mean that            Cofresi  was  prejudiced,  especially  where,  as  here,  the            district court specifically  instructed the jury to  consider            the evidence against each  defendant separately.2  See United                                                               __________            States v. Sabatino, 943  F.2d 94, 96-97 (1st Cir.  1991) (the            ______    ________            court  rejected  the  defendant's  claim that  she  had  been            convicted because of "spillover"  from vivid testimony by the                                            ____________________            2.  The  court charged the jury as follows:  "Now, let's also            discuss the defendants.  There  are two defendants.  Although            the defendants  are being  tried together, you  must consider            the  case against  each separately.   In  doing so,  you must            decide what  the evidence shows about  each defendant without            considering any  evidence that may have  been received solely            against some  other defendant or defendants.   Each defendant            is  entitled to have the case  against that defendant decided            solely  on the  evidence and  the law  which applies  to that            defendant."                                         -10-            key witnesses against her co-defendant, in  which she was not            mentioned  at all, because the  evidence applied to  her as a            co-conspirator   and  because   the   court  had   adequately            instructed  the jury  to consider  only the  evidence against            each  defendant separately);  cf. United  States v.  Cox, 934                                          ___ ______________     ___            F.2d 1114, 1119 (10th  Cir. 1991) (the court stated  that the            lengthy  testimony about a co-defendant's criminal activities            did  not warrant reversal where the defendant did not make an            "actual showing of prejudice").                      Finally, the  last count, which alleged  the use or            carrying  of  a firearm  in  connection  with  a drug  crime,            applied only to Cofresi.  The evidence clearly linked the gun            to Cofresi.   In  any event,  any jury confusion  as to  that            issue would have worked to Carrasquillo's, and not Cofresi's,            disadvantage.                      Accordingly, we conclude that the court's denial of            Cofresi's motion for  a separate  trial was not  an abuse  of            discretion.                                      CONCLUSION                                      __________                      The decision of the district court is affirmed.                                                            ________                                         -11-
