
USCA1 Opinion

	




          March 11, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1286                                    UNITED STATES,                                      Appellee,                                          v.                                VICTOR MANUEL ALVAREZ,                                Defendant, Appellant.                                 ____________________        No. 91-1287                                    UNITED STATES,                                      Appellee,                                          v.                                     DIANA MATOS,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Skinner,* Senior District Judge.                                       _____________________                                 ____________________            Rachel  Brill,  Assistant   Federal  Public  Defender,  with  whom            _____________        Benicio  Sanchez Rivera,  Federal Public  Defender, was  on brief  for        _______________________        appellant Victor Manuel Alvarez.            Joseph C.  Laws, Jr., by Appointment  of the  Court, for appellant            ____________________        Diana Matos.            Ivan  Dominguez,  Assistant  United  States  Attorney,  with  whom            _______________        Daniel  F. Lopez  Romo, United  States Attorney,  and Jose  A. Quiles-        ______________________                                ________________        Espinosa, Senior Litigation Counsel, were on brief for appellee United        ________        States.                                 ____________________                                    March 11, 1993                                 ____________________        _____________________        *Of the District of Massachusetts, sitting by designation.             SKINNER, District Judge.                       ______________                    Appellants Victor M. Alvarez and  Diana Matos, common             law  husband and  wife,  were convicted  by  a jury  in  the             District of Puerto Rico for aiding and abetting several drug             offenses.1    Miguel Flores,  though  not  a party  to  this             appeal nor  convicted in the  same trial,  played a  central             role in  the alleged cocaine trafficking  scheme and pleaded             guilty  to  the  identical  charges.    Appellants  defended             against  the  charges  alleging  that  they  were  unwitting             participants  in  defendant   Flores'  cocaine   trafficking             scheme.  Flores  offered testimony  to the same  end.   Each             appellant advances numerous grounds for reversal.                      Appellant  Alvarez  appeals his  convictions alleging             that the  district court  (1) erroneously refused  to accept             defendant Flores' guilty plea prior to the trial  of Alvarez             and Matos,  (2) improperly prohibited Flores from testifying             that  his testimony  exposed him  to criminal  penalties for             cocaine trafficking, and (3)  errored in denying appellant's                                              ____________________             1 Alvarez  and Matos were  convicted for  the possession  of             cocaine  with intent to distribute in violation of 18 U.S.C.                2 and 21 U.S.C.    841(a)(1); the  importation of cocaine             into the customs territory of the United States in violation             of 18 U.S.C.    2 and 21 U.S.C.   952(a); and the failure to             declare  cocaine in the cargo manifest or supply list of the             aircraft which  brought them  into the customs  territory of             the  United States  in violation  of 18  U.S.C.    2 and  21             U.S.C.   955.                                           -3-                                          3             motion for judgment of acquittal.  We affirm with respect to             Alvarez.                    Appellant Matos  joins the arguments  of Alvarez  and             further appeals her convictions,  alleging that the district             court  failed  to  exclude  government   evidence  that  was             produced in violation of Rule 16, Federal Rules  of Criminal             Procedure.   As  to  Matos, we  reverse  and remand  to  the             district court for a new trial.             I.     Evidence             __     ________                    We recite  the evidence in  the light most  favorable             to the  prosecution.   United States  v. Campbell,  874 F.2d                                    __________________________             838,  839  (1st Cir.  1989).   The  evidence showed  that on             December 8, 1989, Victor M. Alvarez, Diana Matos, and Miguel             A.  Flores arrived  at  the Luis  Munoz Marin  International             Airport, San Juan, Puerto  Rico, on American Airlines flight             904  from Caracas,  Venezuela.   A  U.S. Customs  Inspector,             Francis Aponte, noticed that  the three individuals appeared             to be nervous and were talking secretively among themselves.             Inspector  Aponte approached  the individuals,  made routine             inquiries of them,  and referred the group  to the secondary             inspection station (a table used to examine the contents  of             a passenger's luggage).  At that time, appellant Alvarez was                                         -4-                                          4             permitted   to  leave  the  customs  enclosure  to  purchase             airplane tickets to New  York for each member of  the group.             Inspector Aponte testified on  cross-examination that he had             not  made  any  written  record of  the  group's  suspicious             behavior  even though  such information  would have  been an             important part of the case report.                     Carlos  Ortiz,   also  a   U.S.  Customs   Inspector,             testified  that he noticed two individuals, later identified             as Flores and  Matos, pushing two carts stacked with luggage             and  that  he motioned  for them  to approach  his secondary             station.    Inspector  Ortiz requested  Matos'  and  Flores'             customs declaration cards,  noting that both cards  appeared             to  have  been  filled  out  by  the  same  person.    Matos             complained that  the airline had  broken a bottle  of liquor             that she packed in  her suitcase.  During his search  of the             luggage, Ortiz noticed that the luggage contained both men's             and women's  clothing and  he discovered a  heavy, newspaper             wrapped  package.   Ortiz unwrapped  the package to  find an             aged  painting of  a young  girl in a  wooden frame.   Ortiz             asked Matos if she had purchased the picture on her trip, to             which she answered "yes."                      Inspector Ortiz  consulted with  a senior  inspector,             took  the picture  to a  search room,  and drilled  into the                                         -5-                                          5             picture frame using a  small drill bit.  Ortiz  discovered a             white  powdery substance  inside the  wooden frame,  which a             field test  indicated was  cocaine.   Matos and  Flores were             arrested  and searched.    Customs  inspectors then  located             Alvarez in the airport's main concourse and placed him under             arrest.    Inspectors conducted  a  thorough  search of  the             group's  luggage,  finding  two  additional  paintings  that             concealed cocaine  and discovering false bottoms  in each of             the  six suitcases  that  also concealed  cocaine.   Customs             agents  determined  that the  group  carried  more than  ten             kilograms of cocaine.                     A grand  jury returned a  three count indictment  on             January 3,  1990, against Matos, Alvarez, and  Flores.  Each             defendant pleaded  not guilty.   On October 2,  1990, Flores             filed  a  notice  to  plead  guilty  on  one  count  of  the             indictment.   It appears,  however, that Flores  intended to             plead guilty on all three counts, and on October 5, 1990, he             amended his petition accordingly.   On October 5, 1990,  the             district   court   extensively   questioned  Flores   before             declining  to accept his plea.  Flores asserted that Alvarez             and Matos had been unaware of any plan to import cocaine and             that he, himself, was solely responsible for the crime.  The             judge  suspended  the  proceeding  because  she  was  unsure                                         -6-                                          6             whether Flores could plead  guilty to aiding and  abetting a             crime while  simultaneously proclaiming the innocence of the             other alleged participants.                    On October 9, 1990, the Flores plea hearing  resumed.             The judge explained that  Flores' refusal to acknowledge the             aiding  and abetting  modality did  not preclude  his guilty             plea.   The court then engaged in an extensive colloquy with             defendant Flores in accordance  with Rule 11 of the  Fed. R.             Crim. P.   The judge  noted that Flores  had proclaimed  the             innocence of Alvarez and Matos in a confidential letter that             Flores had  written  to  the  judge  from  prison.    Flores             confirmed sending the  letter and explained that  appellants             were friends  of his  from  New York,  the home  of all  the             parties.  Flores  had invited  appellants to join  him on  a             cruise from San Juan to several caribbean islands, including             a stop in Caracas,  Venezuela.  While on the  cruise, Flores             met  a man who offered  him three thousand  dollars to bring             several  pictures from  Venezuela  to Puerto  Rico.   Flores             agreed to  meet the man at  a hotel in Caracas  and to carry             the pictures into Puerto Rico as a passenger on a commercial             airline.   Flores  did  not tell  Alvarez  or Matos  of  his             scheme.                                           -7-                                          7                    Flores, Alvarez,  and Matos  left the  ship while  it             was in  port in Caracas to visit  the beach.  Flores claimed             to  have  tricked the  appellants  into  missing the  ship's             scheduled departure because he did not want to fly to Puerto             Rico alone.  After missing the ship, Flores took Alvarez and             Matos to the predesignated hotel, checked the group into two             rooms, secretly picked up the pictures, and borrowed several             pieces  of luggage from  the man  after explaining  that the             group  had left  their  bags on  the  cruise ship.    Flores             arranged to meet the man in Puerto Rico at which time Flores             would deliver the pictures  and return the borrowed luggage.             Flores  claimed that he never  saw the cocaine  or even knew             for certain  that he  was carrying cocaine,2  but "imagined"             that the  frames concealed cocaine because  "nobody is going             to pay you  three thousand  dollars just to  bring in  three             pictures."   Flores  also denied  knowing that  the borrowed             suitcases concealed cocaine.  Flores explained that Alvarez,             Matos, and  he purchased  new cloths  in  Caracas and  spent             several days in the  hotel before returning to  Puerto Rico.             Flores  packed  the  three  pictures in  separate  bags  and                                              ____________________             2 Flores explained to the  judge, "At no time did  [the man]             tell me  it was cocaine.   He told  me, `I want  you to take             these pictures  for me.   Take  them there.'   He  says, `it             doesn't contain anything dangerous.'"                                         -8-                                          8             covered them with cloths.  Flores maintained that appellants             were totally  unaware of  his trafficking scheme  during the             entire trip.                    The district court declined Flores' plea, stating:                     Now, you have stated that you  did not know what  was                    in the picture frames, you did  not know what was  in                    any of the luggage that you  carried.  That in itself                    carries with it a defense  that you could  present to                    the jury.   So I am  not convinced that you have made                    a  plea of  guilty that  I  could  accept that  has a                    basis  in fact  that  contains all  elements  of  the                    offenses  charged  which  is a  requirement  for  the                    court  to accept your  plea of  guilty.   Among those                    elements, those of knowledge and intent.             Flores  then moved  to  sever his  trial  from that  of  the             appellants.  Finding that it would be impossible to mount an             adequate defense if Flores testified in favor of Alvarez and             Matos, the district court  granted both the motion to  sever             Flores'  trial  and  Flores'   request  to  be  tried  after             appellants.                    At  trial,  Matos called  Flores  as  a  witness  who             offered essentially the same testimony as given to the judge             during his  attempted plea.  During  examination by Alvarez,             Flores was permitted to testify that it was a crime to bring             cocaine  into the United States, but he was not permitted to             testify as to the  punishment that could be imposed  for his             crime or as  to his  aborted plea attempt.   The jury  found             Matos and Alvarez guilty on all charges.                                         -9-                                          9                    One  week  later,  Flores   again  came  before   the             district  court to offer his  guilty plea, but  this time he             admitted  that  he knew  cocaine  was  concealed within  the             picture frames.  The court accepted his plea.             II.    Alvarez's Conviction             ___    ____________________                    Appellant  Alvarez  attacks  his conviction  on three             fronts.    First,  Alvarez  alleges  that  his  defense  was             prejudiced because the district  court erroneously failed to             accept defendant Flores'  guilty plea prior to the  trial of             Alvarez  and Matos.    Alvarez claims  the  judge relied  on             "perceived technical deficiencies" with Flores' plea, rather             than  crediting   the  weight  of   Flores'  testimony  that             indicated he  accepted full  responsibility  for the  crime.             This error, Alvarez argues,  prejudiced his defense  because             he  was deprived of  the opportunity  to put  Flores' guilty             plea before the jury  as persuasive evidence of Mr.  Flores'             credibility and sincerity.                      We  are  unpersuaded  by  appellant's  argument.    A             criminal  defendant has  no  constitutional right  to  plead             guilty.   North  Carolina v.  Alford, 400  U.S. 25,  38 n.11                       __________________________             (1970)   (a   trial   judge    need   not   "accept    every                                         -10-                                          10             constitutionally   valid  guilty   plea  merely   because  a             defendant wishes so  to plead").   Nor does Rule  11 of  the             Federal  Rules of  Criminal Procedure  create such  a right.             United States  v. Bednarski, 445 F.2d 364,  365-66 (1st Cir.             ___________________________             1971).    Here, the  district  court  conducted a  prolonged             hearing  to determine  the sufficiency  of Flores'  plea and             carefully  considered his  testimony.   While  Alvarez might             reach  a  different  conclusion  than the  judge  as  to the             factual sufficiency  of Flores'  attempted plea, we  find no             error in district court's determination.                      Second,  Alvarez  alleges  that  the  district  court             violated both the  Compulsory Process and the  Confrontation             Clauses of  the Sixth  Amendment by improperly  limiting the             scope  of  Flores'  testimony  and,  thereby,  depriving the             defendants of  forceful evidence  of  Flores' sincerity  and             credibility.   On  direct examination,  Matos  asked Flores,             "You  have testified  under  oath  regarding the  exceptance             [sic]  of  a  criminal  offense.    Are  you  aware  of  the             punishment that could be imposed for this crime?"                    The   district   court  sustained   the  government's             objection  to the  question, reasoning  that Flores  had not             actually  pleaded guilty and that  he might or  might not be             found guilty at a later  trial.  Moreover, Flores' testimony                                         -11-                                          11             would not necessarily be  admissible against him in  his own             trial unless he  chose to testify  in his own defense.   The             judge  did, however,  allow Matos  to ask  Flores if  he had             previously asserted the appellants' innocence.                      Alvarez  then  conducted  what he  termed  a  "cross-             examination" of Flores -- a characterization rejected by the             trial court.   The government argued that even though Flores             was not a joint witness of the appellants, cross-examination             was  unavailable because  Flores was  clearly  testifying in             Alvarez's favor.  Though  we are inclined to agree  with the             trial  court, we need not decide the issue because Alvarez's             Sixth  Amendment  objection  fails  regardless  of  how  the             examination  is  characterized.    Flores  was permitted  to             testify on "cross-examination"  that he knew it  was a crime             to  bring cocaine  into the  United States  and that  he had             "wanted to talk about [his story] for some time."                     The  Confrontation  Clause  of  the Sixth  Amendment             provides that  "[i]n all criminal prosecutions,  the accused             shall  enjoy the  right  . .  .  to be  confronted  with the             witnesses  against  him."    Cross-examination,  the primary             interest  secured  by  the  Confrontation  Clause,  is  "the             principal means by which the believability of a witness  and             the  truth  of  his  testimony are  tested."    Kentucky  v.                                                             ____________                                         -12-                                          12             Stincer, 482 U.S. 730, 736 (1987)  (quoting Davis v. Alaska,             _______                                     _______________             415  U.S.  308,  316  (1974)).    The  Confrontation  Clause             "mandates  a `minimum  threshold of  inquiry' be  afforded a             defendant  in the  cross-examination of  adverse witnesses,"             Brown  v. Powell,  975 F.2d  1, 5  (1st Cir.  1992) (quoting             ________________             United States  v.  Jarabek,  726  F.2d 889,  902  (1st  Cir.             __________________________             1984)), cert. dismissed, 122  L. Ed. 2d 179 (1993),  but the                     _______________             right  to  cross-examination is,  of  course, not  absolute.             Trial judges  retain broad  discretion to impose  reasonable             limits on the scope  of cross-examination.  Delaware  v. Van                                                         ________________             Arsdall, 475  U.S. 673, 679 (1986).  On appeal, we review to             _______             determine:                    whether  the jury  had  sufficient  other information                    before it, without  the excluded evidence, to make  a                    discriminating appraisal  of the  possible biases and                    motivations of the witnesses.             Brown, 975 F.2d at  5 (quoting United States v.  Tracey, 675             _____                          ________________________             F.2d 433, 437 (1st Cir.  1982)).  The issue here  is whether             the  district court  abused its  discretion and  committed a             reversible error when it prevented the jury from learning of             the  exact penalties that Flores would  face if convicted of             cocaine  trafficking.   We conclude  the court  committed no             error.                    Flores was  allowed to  put his  entire story  before             the jury, including important information that supported his                                         -13-                                          13             credibility.   The jury heard Flores  testify that importing             cocaine into the U.S. is a crime.  We are confident that the             jury knew that  a conviction for importing  a large quantity             of cocaine carries  a serious punishment.   Though the  jury             did  not  learn of  the  precise  penalty imposed  for  drug             trafficking or  that Flores  had attempted to  plead guilty,             the  decision  to  exclude  this  evidence  was  within  the             district court's  discretion.    The  judge  could  properly             conclude that  such testimony  might mislead or  confuse the             jury;  particularly where,  as here,  the witness  sought to             testify to the same penalties faced by the defendants.                      We   note  that  Sixth   Amendment  right  of  cross-             examination  is  directed  at  uncovering  witness bias  and             untruthfulness.   In this  case, however, Alvarez  sought to             use "cross-examination" to bolster the witness' credibility.             Contrary to  appellant's assertion, exposing a witness' bias             to lie  can,  indeed, be  more  important than  exploring  a             witness' motivation  for telling  the truth.    Cf. Fed.  R.                                                             ___             Evid. 608 (evidence of truthful character is admissible only             after the character of the witness for truthfulness has been             attacked);  Fed. R.  Evid  801 (prior  consistent statements             generally  admissible only  to rebut  an express  or implied                                         -14-                                          14             charge  of  recent  fabrication  or  improper  influence  or             motivation).                    Alvarez  also   asserts  that   the  district   court             violated  the   Compulsory  Process  Clause  of   the  Sixth             Amendment.    According  to  Alvarez,   the  district  court             interfered   with  his   constitutional  right   to  present             witnesses  in his own defense  when it excluded an important             portion  of  Flores'  testimony  that weighed  in  favor  of             Flores'   credibility.     The  Compulsory   Process  Clause             guarantees every criminal defendant "the right . . . to have             compulsory  process for obtaining witnesses in his favor . .             ."    This  fundamental  right, however,  is  not  absolute.             Campbell, 874 F.2d at 851; Chappee v. Vose, 843 F.2d  25, 28             ________                   _______________             (1st  Cir. 1988).   The  Supreme Court  has explained,  "The             Sixth  Amendment  does  not  confer  the  right  to  present             testimony   free  from   the  legitimate   demands   of  the             adversarial system . . ."  United States v. Nobles, 422 U.S.                                        _______________________             225, 241 (1975).  As explained more fully above, we conclude             that  the district  court  acted properly  to limit  Flores'             testimony which might have mislead or confused the jury.                     Third,  Alvarez  complains that  the  district  court             errored  in denying  his  Rule  29  motion for  judgment  of                                         -15-                                          15             acquittal.3    Alvarez   contends  that  the   evidence  was             insufficient  to prove beyond a reasonable doubt that he was             an active participant in  the scheme to import cocaine.   We             review the  evidence to determine whether the  evidence as a             whole, taken in the light most favorable to the prosecution,             together with  all  reasonable inferences  favorable to  it,             would  allow a  rational fact  finder to  conclude  beyond a             reasonable doubt  that the defendant was  guilty as charged.             United  States v.  Maraj,  947 F.2d  520,  522-23 (1st  Cir.             ________________________             1991); United States  v. Vargas, 945  F.2d 426, 427-28  (1st                    ________________________             Cir.  1991).   A conviction may  be grounded in  whole or in             part on  circumstantial evidence.   Maraj, 947 F.2d  at 523.                                                 _____             Moreover,  because   the   jury  is   entrusted   with   the             responsibility for making credibility determinations  and is             empowered  to accept  or  reject, in  whole  or in  part,  a             witness' testimony, we will not weigh witness credibility on             appeal.  Maraj, 947 F.2d at 523; Vargas, 945 F.2d at 427.                         _____                   ______                                              ____________________             3 Rule 29 provides in relevant part,                     The court  on motion  of a  defendant or  of its  own                    motion  shall   order  the   entry  of  judgment   of                    acquittal  of one  or more  offenses charged  in  the                    indictment  or  information  after  the  evidence  on                    either   side   is  closed   if   the   evidence   is                    insufficient to sustain a  conviction of such offense                    or offenses.             Fed. R. Crim. Proc. 29.                                         -16-                                          16                    Guilt for  aiding and  abetting  attaches only  where             "the   defendant  associated   himself  with   the  venture,             participated in it as in something he wished to bring about,             and  sought  by his  actions to  make  it succeed."   United                                                                   ______             States  v. Rodriguez  Cortes, 949  F.2d 532,  539 (1st  Cir.             ____________________________             1991).  Neither mere association with the principal nor mere             presence  at the scene of  a crime, even  when combined with             knowledge that a crime was to be committed, is sufficient to             establish aiding  and abetting liability.   United States v.                                                         ________________             Aponte-Suarez, 905 F.2d 483,  491 (1st Cir.) (quoting United             _____________                                         ______             States  v. Francomano, 554  F.2d 483, 486  (1st Cir. 1977)),             _____________________             cert. denied, 111 S. Ct. 531 (1990).   Guided    by    these             ____________             standards  of  review,  we  are  persuaded   that  Alvarez's             conviction  is supported  by  sufficient evidence  of guilt.             There is  no  dispute  that  Alvarez was  traveling  for  an             extended period of  time with  Matos and Flores  and that  a             very large quantity of cocaine was concealed  in the luggage             carried  by  the  group.    Moreover,  there  is  sufficient             evidence upon which a  reasonable jury could conclude beyond             a reasonable doubt that Alvarez participated in or sought to             assist Flores' scheme to import cocaine into the U.S.                    The  evidence established  that  a  Customs Inspector             noticed the group talking "secretively" at the airport; that                                         -17-                                          17             two of the  bags that  concealed cocaine  carried name  tags             bearing  Alvarez's name; and that Alvarez and his common law             wife  had  no means  of  support  other than  welfare,  food             stamps,  and odd jobs and,  yet, they could  still afford to             fly  to Puerto  Rico, travel  on  a cruise  ship, stay  in a             Venezuelan hotel  for several days, and  purchase new cloths             to  replace those purportedly left  on the cruise  ship.  In             addition, the  government  was  able  to  highlight  certain             inconsistencies  in the  testimony  offered  by  Flores  and             Matos.4    Most  significantly, the  government  produced  a             photograph apparently  taken on the cruise  ship that showed             Matos wearing  a striped dress  that according to  her story             was not purchased until after she disembarked from the  ship                                     _____             in  Caracas.    Matos  explained  that  she  was  apparently             mistaken about  the items of  clothing she carried  with her             when  she left  the ship.   The  government  also introduced             evidence that the cruise  ship operators searched the cabins             used  by Matos,  Alvarez, and  Flores and  did not  find the             luggage  purportedly left  behind  by the  appellants.   The             witness, however, did not conduct the search himself and had             no knowledge of how the search was conducted.                                              ____________________             4 Alvarez did not testify at trial.                                         -18-                                          18                    Though  the   evidence   against   Alvarez   is   not             overwhelming, when it is viewed in a light most favorable to             the  prosecution it  is sufficient  to support  the verdict.             We, therefore, affirm Alvarez's conviction.             III.   Matos' Conviction             ____   _________________                    In addition to  joining in the arguments advanced  by             Alvarez, Matos contends that her conviction must be reversed             because  the government  presented in  its  case-in-chief an             oral statement allegedly made  by Matos which the government             failed to disclose during pre-trial discovery as required by             Fed.  R. Crim. P. Rule 16.  Specifically, Matos challenges a             portion of  the testimony  given  by Officer  Ortiz, a  U.S.             Customs  Inspector who  searched  Matos' luggage.    Officer             Ortiz  testified that during the  search he asked   Matos if             she  had purchased  the picture  on her  trip, to  which she             answered  "yes."   Ortiz's  testimony  was  the only  direct             evidence that the incriminating picture belonged to Matos.                      The substance of Officer Ortiz's testimony came as  a             surprise to Matos because she had made two prior requests of             the  government -- first by  letter on January  11, 1990 and             second by formal  motion on  January 22, 1990  -- to  comply             with  the  discovery  provisions  of Rule  16,  including  a                                         -19-                                          19             specific request for any "oral statement[s of the defendant]             which the  Government intends  to offer in  evidence at  the             trial."  The government responded by expressly acknowledging             its  obligations  under Rule  16  and  by producing  several             documents.   The  government,  however, made  no mention  of             Matos'  alleged statement at that time or at any time before             the damaging testimony  came before the jury.  During cross-             examination, Officer Ortiz admitted that his prior testimony             at a preliminary  hearing and  before a grand  jury did  not             include any reference to Matos' alleged statement concerning             the picture.                    The  following morning, Matos moved to strike Officer             Ortiz's  testimony and for the court to admonish the jury to             disregard  the testimony.    Matos argued  that  prosecution             records showed that Officer Ortiz had told the government of             Matos'  alleged  statement  in  April  1990,  but  that  the             government failed to produce  the statement despite repeated             requests by  Matos.   The judge  denied  the motion  without             giving an explanation.                    Rule 16  imposes an obligation  on both the  criminal             defendant and the  government to produce or  disclose to the             opposing party  certain relevant  evidence  prior to  trial.                                         -20-                                          20             The  provisions of Rule 16(a)(1)(A) in effect at the time of             trial provided, in relevant part:                    Upon  request of  a defendant  the government                    shall permit  the  defendant to  inspect  and                    copy  .  .  .   the  substance  of  any  oral                    statement  which  the  government intends  to                    offer in  evidence at  the trial made  by the                    defendant whether before  or after arrest  in                    response to interrogation  by any person then                    known  by the  defendant to  be a  government                    agent.               Fed.  R. Crim.  P. 16(a)(1)(A).   These  mandatory discovery             provisions  are  intended  to  contribute to  the  fair  and             efficient  administration of  criminal justice  by providing             the defendant with sufficient information upon which to base             an intelligent a plea;  by minimizing the undesirable effect             of surprise at trial; and by contributing to the accuracy of             the fact finding  process.   Fed. R. Crim.  P. 16,  advisory                                                                 ________             committee's  note.  Where a party fails to comply with these             _________________             discovery provisions, Rule 16 empowers the district court to             order   the  party  to   comply  with  the   rule,  grant  a             continuance,  exclude the  non-complying evidence,  or enter             other  such relief as it  considers just.   Fed. R. Crim. P.             16(d)(2).  We review a district court's ruling on the effect             of a failure to provide pretrial discovery only for abuse of             discretion.   United  States v. Nickens,  955 F.2d  112, 126                           _________________________             (1st Cir.), cert.  denied, 113 S. Ct.  108 (1992); Rodriguez                         _____________                          _________                                         -21-                                          21             Cortes, 949 F.2d at 546; see Fed. R. Crim. P.  16(d)(2).  To             ______                   ___             succeed  in obtaining a reversal on appeal, a defendant must             prove both an  abuse of discretion and  prejudice.  Nickens,                                                                 _______             955 F.2d at  126; Rodriguez  Cortes, 949  F.2d at  546.   We                               _________________             reverse.                    We  believe the  trial  court erred  when  it  denied             Matos'  motion to exclude the alleged statement or to hold a             suppression  hearing without  first making  a finding  as to             whether the  government acted in bad faith and whether Matos             was prejudiced by admission of the  statement.  We generally             defer  to the  judgment of  a district  judge who  is better             suited to  make factual  determinations based on  first hand             observation  of the  evidence.  In  this case,  however, the             judge  failed to  make  even a  threshold  inquiry into  the             circumstances  leading to  nondisclosure  of the  statement.             The court  neither heard evidence nor  made factual findings             concerning the potential prejudice  flowing from a discovery             violation, the relative importance of Ortiz's testimony, and             the existence of prosecutorial bad faith.   See Nickens, 955                                                         ___ _______             F.2d at 126.  This was error.                    Moreover,  this  error  prejudiced  appellant  Matos.             The alleged Matos statement provided a critical link between             Matos and  the effort to  smuggle the cocaine  laden picture                                         -22-                                          22             frame into Puerto Rico.   To establish guilt for  aiding and             abetting,  "the  government  must prove  that  the defendant             associated himself  with the venture, participated  in it as             in something he  wished to  bring about, and  sought by  his             actions  to make it succeed."  Rodriguez Cortes, 949 F.2d at                                            ________________             539 (quoting United States v. Garcia-Rosa, 876 F.2d 209, 217                          ____________________________             (1st Cir. 1989), cert.  denied, 493 U.S. 1030 (1990)).   The                              _____________             statement attributed  to Matos was a  very significant piece             of evidence  that indicated Matos  was a participant  in the             crime,  rather  than  merely  being  an  innocent  bystander             present at the  scene of  a crime.   Similarly, the  alleged             statement  fundamentally sabotaged  Matos' defense  that she             was an unwitting participant in Flores'  cocaine trafficking             venture.    There  is  a  substantial  likelihood  that  the             statement  figured  prominently in  the  jury's decision  to             reject  Flores'   account  of  the  incident,  which  wholly             exculpated appellants.                      Given   the  central   importance  of   the   alleged             statement,  the  government's  failure  to  disclose  it  as             required by  Rule 16  had additional grave  consequences for             Matos.    First,  Matos   was  deprived  of  any  meaningful             opportunity  to investigate the circumstances of her alleged             statement and to attempt to suppress it.  Significantly, the                                         -23-                                          23             government disclosed during  pretrial discovery a  statement             made  by  Alvarez,  which  Alvarez  successfully suppressed.             Second,  not knowing  of  the alleged  statement, Matos  was             deprived  of  the  opportunity   to  design  an  intelligent             litigation or  plea strategy  that responded to  the alleged             statement.                      The government  contends that  no prejudice  attached             because "it is doubtful that counsel for appellant would not             anticipate  or  contemplate  that  such  a  statement  might             exist."  Even  if this argument  were not inconsistent  with             the mandatory language of Rule 16, we would flatly reject it             as  being  incompatible with  common  sense  and fundamental             fairness.   The  government  also contends  that the  cross-             examination  of  Officer  Ortiz  effectively  impeached  his             testimony  and essentially  cured  whatever prejudice  might             have existed.  While  we have sometimes considered effective             cross-examination   of   witness  when   weighing  potential             prejudice presented by that witness' testimony, Nickens, 955                                                             _______             F.2d at 126; United  States v. Samalot Perez, 767  F.2d 1, 4                          _______________________________             (1st  Cir.  1985), those  cases  involved  the admission  of             cumulative evidence that was regarded as harmless error.  In             this  case,   the  alleged   statement  was  vital   to  the             conviction.                                         -24-                                          24                    Finally, the government argues  that since Matos  did             not  present the trial  judge with any  specific grounds for             suppressing  the  alleged   statement,  the  district  court             correctly denied  Matos' request for a  suppression hearing.             During  a  discussion   with  Matos'   counsel,  the   judge             repeatedly  asked  if  the  defendant  had  any  grounds  to             suppress the  statement.  Counsel responded  that he learned             of  the  statement  only the  day  before,  that  he had  no             information regarding the statement, and when pressed by the             judge,  stated  that  at that  time  he  had  no grounds  to                                   _____________             suppress  the statement other than the violation of Rule 16.             We are not surprised that Matos was unprepared to articulate             a particular  ground  for suppressing  the  statement  under             these circumstances and in the middle  of a trial.  The  one             possible curative course, suspending the trial and holding a             suppresion hearing, was erroneously rejected by the district             court.                      The  government is  wholly responsible  for  unfairly             surprising the defendant and should not benefit from its own             violation of Rule 16.                    In summary, we  affirm the conviction of Alvarez  and             reverse and remand for a new trial as to Matos.                                         -25-                                          25
