
USCA1 Opinion

	




          July 18, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2323                                    UNITED STATES,                                      Appellee,                                          v.                           MARCELINA ENRIQUE ADAMES-SANTOS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Michael c. Shklar on brief for appellant.            _________________            Sheldon Whitehouse, United States Attorney,  and Zechariah Chafee,            __________________                               ________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.     Marcelina  Enrique   Adames-Santos                      ___________            appeals  his  conviction  on  three grounds.    We  summarily            affirm.                      I.  Brady Violation                          _______________                      The first argument is that the government's failure            to disclose prior  to trial the identity  of the confidential            informant Miguel Morel, violated  Brady v. Maryland, 373 U.S.                                              _____    ________            83   (1963).     "[F]avorable  evidence   is  material,   and            constitutional  error  results from  its  suppression  by the            government, 'if  there is a reasonable  probability that, had            the evidence been disclosed to the defense, the result of the            proceeding would  have been  different.'"  Kyles  v. Whitley,                                                       _____     _______            115  S. Ct.  1555,  1565 (1995).    The Brady  rule does  not                                                    _____            require the  prosecution to reveal before trial  the names of            all witnesses  who will testify  against the defendant.   See                                                                      ___            Weatherford v. Bursey, 429 U.S. 545, 559  (1977).   "There is            ___________    ______            no requirement under  F.R. Crim.  P. 16 or  otherwise in  the            law, mandating the disclosure to the defense  of the identity            of the government's trial witnesses. . . .  [T]he decision to            admit the testimony or  evidence is within the  discretion of            the  trial judge."   United States v.  Reis, 788  F.2d 54, 58                                 _____________     ____            (1st Cir. 1986); see  also United States v. Edwards,  47 F.3d                             ___  ____ _____________    _______            841,  843 (7th  Cir.  1995)  ("It  is well-settled  that  the            Constitution   does  not   require  pretrial   disclosure  of            prosecution witnesses.")                                         -3-                      Appellant   has   failed  to   show   a  reasonable            probability  that if he had been informed of Morel's identity            prior  to trial, the result of the proceeding would have been            different.  Morel testified  on  cross-examination  that  the            money  he earned  as an  informant for  the Drug  Enforcement            Administration  ("DEA") was his main source  of income.  Even            now, appellant has failed to identify any additional evidence            that  could have been  used to  further impeach  the witness.            The  government's failure to  disclose Morel's identity prior            to trial does not undermine confidence in the jury's verdict.            See  Kyles, 115  S. Ct.  at 1566.   Therefore,  there was  no            ___  _____            constitutional violation.                      II.  Sufficiency of the Evidence                           ___________________________                      To establish  a violation of  21 U.S.C.    846, the            government is required to show, beyond a reasonable doubt, in            addition to the existence of the conspiracy itself, an intent            on the  part  of the  defendant:   "to  agree and  . .  .  to            effectuate  the commission  of  the substantive  offense.   A            defendant need not have  had the intent personally  to commit            the substantive crime."  United States v. Piper, 35 F.3d 611,                                     _____________    _____            615  (1st Cir. 1994), cert.  denied, 115 S.  Ct. 1118 (1995).                                  _____________            The government establishes  the requisite  intent by  proving            beyond  a reasonable  doubt that  the defendant  "agree[d] to            undertake  activities  that  facilitate[d]  commission  of  a            substantive offense, [notwithstanding that he did] not intend                                         -4-            to  commit  the offense  himself."   Id.1   "[T]he Government                                                    1                                                 ___            need  not  prove   the  commission  of  any  overt   acts  in            furtherance of  the conspiracy."   United States  v. Shabani,                                               _____________     _______            115 S. Ct. 382, 385 (1994).                      "When a criminal defendant undertakes a sufficiency            challenge, all the evidence,  direct and circumstantial, must            be viewed  from the  government's coign  of vantage, and  the            viewer must accept all reasonable inferences from it that are            consistent  with the  verdict."   United States v.  Valle, 72                                              _____________     _____            F.3d 210, 216  (1st Cir.  1995). The  government's burden  of            proof "may  be satisfied  by either direct  or circumstantial            evidence,  or any  combination  thereof."   United States  v.                                                        _____________            Gifford, 17 F.3d 462, 467 (1st Cir. 1994).              _______                      The evidence  presented to the jury  was sufficient            to sustain defendant's guilty  verdict.  The record contains,            among  other evidence, accounts  of frequent meetings between            Morel, Domingo Peguero and  appellant in which they discussed            drugs and,  specifically, ways to "make  some transactions of            crack."   Morel  recounted a  specific conversation  in which            appellant said that  he had  contacts in New  York who  could            supply crack  to Morel's  contacts in  Boston.   The evidence            also  included  the  transcript  of  a  telephone  call  from                                            ____________________               1Defendant  argues that  the  evidence does  not show  "an               1            intent  on  the defendant's  part to  engage  in the  sale of            crack." Appellant's  Brief,  p.  15.    No  such  showing  is            required,however.                                         -5-            appellant to Morel, made  for the purpose of  notifying Morel            that Peguero was in Boston "doing business" and that "in case            these  people call you, tell  them to hold  on until Monday."            DEA  agents  testified  that   during  the  October  30  drug            transaction, appellant was circlingthe area in Peguero's car.                      "[I]t is not a pre-requisite of conviction that the            prosecution  adduce  evidence to  preclude  'every reasonable            hypothesis of innocence.'"  United States v.  Montas, 41 F.3d                                        _____________     ______            775,  779  (1st Cir.  1994), cert.  denied,  115 S.  Ct. 1986                                         _____________            (1995).     In  addition,   this  court  must   "resolve  all            credibility disputes in the  verdict's favor."  United States                                                            _____________            v. Taylor, 54  F.3d 967, 974 (1st Cir. 1995).   Our review of               ______            the record persuades us that a rational jury could have found            beyond   a  reasonable   doubt   that   the  government   had            successfully proved the essential elements  of the conspiracy            charge.                      III.  Failure to Grant Mistrial                            _________________________                      Appellant's  final argument  is  that the  district            court  erred  in  not  granting  a mistrial  because  of  the            testimony by DEA agent John D. Adams that  he had purchased a            firearm  from  Peguero.    "[B]ecause  mistrials  are  strong            medicine,  . .  .  it  is only  rarely  --  and in  extremely            compelling circumstances -- that an appellate panel, informed            by a cold record, will venture to reverse a trial judge's on-            the-spot  decision  that  the  interests of  justice  do  not                                         -6-            require aborting an ongoing trial."  United States v. Pierro,                                                 _____________    ______            32 F.3d  611, 617 (1st Cir.  1994), cert. denied,  115 S. Ct.                                                ____________            919 (1995).   In United  States v. Sepulveda,  15 F.3d  1161,                             ______________    _________            1184-85  (1st Cir.  1993),  cert.  denied,  114 S.  Ct.  2714                                        _____________            (1994), this  court identified  three factors that  should be            considered in reviewing a district court's decision to deny a            mistrial: 1) the appropriateness of the curative instruction,            2)  the  swiftness  of  the  judicial  response, and  3)  the            presumption  that  jurors  will  follow  a   direct  curative            instruction.                      In  this case, consideration of the three Sepulveda                                                                _________            factors indicates  that there was  no abuse of  discretion in            the  district  court's decision  to  deny a  mistrial  or its            failure to  revisit the issue  sua sponte  at the end  of the                                           ___ ______            trial.    The  court's  curative instructions,  given  almost            immediately after  the  testimony in  question,  were  swift,            clear and direct.  There was no room for misinterpretation by            the jurors regarding the meaning of the court's instructions.            Finally, appellant's claim that  the evidence against him was            so weak that  the jurors  must have relied  upon the  firearm            testimony is belied by  the record.  As discussed  above, the            evidence was sufficient to support the conviction.  Appellant            has failed  to rebut the  presumption that the  jury followed            the court's curative instructions.                                         -7-                      Appellant's  conviction is summarily affirmed.  See                                                 _________ ________   ___            Loc. R. 27.1.                                         -8-
