
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1441                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                        MIGUEL DIMARZO, a/k/a MICHAEL DIMARZO,                                Defendant, Appellant.                                                                                      ____________________        No. 95-1442                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                MARIO J. ALZATE-YEPEZ,                                Defendant, Appellant.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Michael A. Ponsor, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Cyr and Lynch, Circuit Judges.                                           ______________                                                                                      ____________________             David J. Wenc for appellant DiMarzo.             _____________             Alan Black, with whom Morton & Black was on brief for appellant             __________            ______________        Alzate-Yepez.             Andrew Levchuk, Assistant United States Attorney, with whom             ______________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                                                                      ____________________                                    April 10, 1996                                                                                      ____________________                                          2                    CYR,  Circuit  Judge.   Appellants  Mario Alzate-Yepez                    CYR,  Circuit  Judge.                          ______________          ("Mario" or "Alzate") and Miguel  DiMarzo were jointly tried and          convicted of possessing cocaine,  with intent to distribute, see                                                                       ___          21 U.S.C.    841(a)(1) (1994),  and conspiracy, see  id.    846.                                                          ___  ___          Appellants  assign  error  by  the district  court  in  allowing          certain trial testimony and denying their respective motions for          judgments of  acquittal.   Appellant Alzate additionally  claims          that the district court erred in denying his pretrial motion for          severance and imposed too  harsh a sentence.  Finding  no error,          we affirm.                                           I                                          I                                     BACKGROUND                                     BACKGROUND                                     __________                    In  April  1994, the  Western  Massachusetts Narcotics          Task Force  brokered  a cocaine  deal among  appellants and  one          Robert Schultz,  an undercover  Task Force  agent.   During  the          first  phase, Alonzo  Alzate-Yepez ("Alonzo"),  Mario's brother,          agreed  that  he would  arrange  to  deliver  five kilograms  of          cocaine to Schultz at the Westfield Motor Inn on April 12, 1994,          in return  for $100,000.  If  all went well on  April 12, Alonzo          promised to deliver to  Schultz another five kilograms a  day or          two later, and ten kilograms per week thereafter.                      On  April 12,  at approximately  5:00 a.m.,  appellant          Mario and brother Alonzo set out in Mario's car on the  100-mile          trip  from Boston to Westfield.   Upon arrival  at the Westfield          Motor  Inn, Mario remained in the car while Alonzo registered at          the Inn.  After waiting about fifteen minutes, Mario entered the                                          3          Inn and  requested a separate room overlooking  the parking lot.          Meanwhile, a Task Force surveillance team had taken up positions          around  the Inn.   Shortly  thereafter, the  agents saw  a male,          later  identified  as Mario,  lingering  around  the office  and          parking lot of the Inn while carefully observing cars and people          in the area.                       Agent Schultz  and another undercover agent arrived at          the  restaurant parking  lot next  to the  Inn around  9:30 a.m.          Alonzo approached them, introductions ensued, and the three went          into the restaurant for coffee.  Alonzo told Schultz that he was          expecting  a courier  to arrive  with the  cocaine at  any time.          Soon  Schultz left the restaurant to "beep" the courier from his          car phone, while Alonzo returned to his room at the Inn to await          a  call  from the  courier.   While  Agent Schultz  was standing          beside  his car, he noticed that Mario was observing him and the          surrounding area.                    A short time  later, Schultz went to Alonzo's  room on          the ground floor,  where Alonzo  told him that  the courier  had          gotten  lost,  but now  had correct  directions  to the  Inn and          should  arrive within ten minutes.  Alonzo added that "they" had          eight cars,  with secret compartments for  carrying cocaine, but          he was not  sure which was being  used for this deal.   At about          10:45 a.m.,  a  white Oldsmobile  entered  the parking  lot  and          stopped just outside Alonzo's ground-floor room.  Before leaving          to meet the driver    as it turned out, appellant Miguel DiMarzo             Alonzo advised Schultz to stay put.                                           4                    After  greeting  one   another,  Alonzo  and   DiMarzo          conversed as DiMarzo scanned  the area and the two walked to the          restaurant.  Shortly after entering the restaurant, Alonzo left,          and invited  Schultz to join  him in the  parking lot, where  he          unlocked the driver's door  of the Oldsmobile to let  Schultz in          the passenger  side.  After fidgeting with the defroster, Alonzo          reached under the  dashboard and popped  open two interior  side          panels in the rear  seat area which contained several  bricks of          cocaine  wrapped in duct tape and plastic.  After inspecting the          brick-like  packages,  Agent Schultz  signalled  the  Task Force          surveillance team, and Alonzo,  Mario and DiMarzo were arrested.          The  cocaine recovered  from the  concealed compartments  in the          Oldsmobile weighed  4.94  kilograms,  almost  exactly  the  five          kilograms Alonzo had agreed to supply.                     On  May 17,  1994, a  federal grand jury  indicted the          Alzate brothers and  DiMarzo under  21 U.S.C.     841(a)(1)  and          846.  Alonzo Alzate  pled guilty to both counts,  whereas appel-          lants Mario  Alzate and  Miguel DiMarzo  were jointly  tried and          convicted on both  counts.   In due course,  the district  court          imposed sentences  on appellants  and final judgment  entered on          March 31,  1995.  DiMarzo filed  a notice of appeal  on April 3.          Appellant Mario Alzate did not do so until April 13.1                                        ____________________               1The government  contends that  we lack jurisdiction  of the          latter  appeal  because Mario  did not  file  a notice  of appeal          within the  ten-day period.   See  Fed. R.  App. P.  4(b), 26(a);                                        ___          United  States v.  Morillo,  8 F.3d  864,  867 (1st  Cir.  1993).          ______________     _______          However  that may  be, this is  an appropriate  case in  which to          resolve  the appeal on the merits.  See United States v. Connell,                                              ___ _____________    _______          6  F.3d 27,  29  n.3 (1st  Cir.  1993) (foregoing  resolution  of                                          5                                                  ____________________          jurisdictional question where same party inevitably will  prevail          on merits).                                           6                                         II                                          II                                     DISCUSSION                                     DISCUSSION                                     __________          A.  The Severance Motion          A.  The Severance Motion              ____________________                    Appellant Mario  Alzate filed a pretrial  motion for a          separate trial  pursuant to Fed. R.  Crim. P. 14, on  the ground          that  the "spillover"  effect  of the  evidence against  DiMarzo          would prejudice  Mario unfairly.  Appellants  contended at trial          that they had not known that  Alonzo Alzate planned to conduct a          drug deal at  the Inn.   Mario argues on  appeal that  DiMarzo's          "mere presence"  defense was  so patently "ridiculous"  that the          jury likely  concluded     without  separately  considering  the          evidence against Mario    that both were guilty.  His contention          fails.                    Severance  rulings  under  Fed.  R. Crim.  P.  14  are          reviewed only for manifest  abuse of discretion.  United  States                                                            ______________          v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995).                _____________                    As a  rule, persons . .  . indicted together                    should be  tried together[, which] helps . .                    .  prevent inconsistent verdicts  and .  . .                    conserve resources  (judicial and prosecuto-                    rial).   Thus, . . . a defendant who seeks a                    separate trial can ordinarily  succeed . . .                    only by making  a strong showing  of evident                    prejudice. . .  .   Supreme Court  precedent                    instructs that a district court should grant                    a severance under Rule 14 only if there is a                    serious risk  that a joint trial  would com-                    promise a specific trial right of one of the                    defendants, or prevent the jury  from making                    a  reliable  judgment  about  guilt  or  in-                    nocence.                         Id.  (internal citations  and  quotations omitted).   Rarely  is          ___          severance required  in  a conspiracy  case.   United  States  v.                                                        ______________                                          7          Brandon, 17 F.3d  409, 440 (1st Cir.), cert.  denied, 115 S. Ct.          _______                                _____  ______          80 (1994).  Appellants were  charged as coconspirators, and with          an identical  substantive offense,  all in the  same indictment.          Careful review  discloses  no unfairness  attributable to  their          joint  trial.    More  particularly, Mario  makes  no  plausible          showing  of  prejudice,  especially  in light  of  the  repeated                                                                  ________          instruction  by the court that  the jury must  consider the evi-          dence against  each defendant independently and  return separate          verdicts.   Id.   The trial  court acted  well within  its broad                      ___          discretion in denying the motion to sever.           B.  The Schultz Testimony          B.  The Schultz Testimony              _____________________                    On redirect  examination Agent Schultz  was allowed to                       ________          testify  that, in  his  experience, innocent  observers are  not          invited  to accompany  criminals  engaged in  completing a  drug          deal.   Appellant  DiMarzo  argues that  (1)  Fed. R.  Crim.  P.          16(a)(1)(E) obligated the government to provide him with pretri-          al  discovery  relating  to  Schultz' expert  qualifications  to          testify to  this matter,  (2) Schultz' opinion  was inadmissible          under  both Daubert  v. Merrell  Dow Pharmaceuticals,  Inc., 509                      _______     ___________________________________          U.S. 579 (1993), and Fed. R. Evid. 704(b) (prohibiting testimony          on ultimate jury issue).  Similarly, Mario Alzate  contends that          he  was entitled to a mistrial, or  at the very least a continu-          ance for further discovery  relating to Schultz' expert qualifi-          cations.2  We do not agree.                                          ____________________               2We review these discovery and evidentiary rulings under  an          "abuse of discretion" standard.  United States v. Lanoue, 71 F.3d                                           _____________    ______          966, 973 (1st  Cir. 1995) (discovery  rulings); United States  v.                                                          _____________                                          8                    On cross-examination, both defense  counsel repeatedly          invited  Agent Schultz  to draw  upon his  experience as  a drug          enforcement  officer.   For example,  Schultz was  asked whether          drug crime  participants typically carry weapons.   On redirect,          the prosecutor asked  Schultz:  "[C]an you tell us  how often in          your  experience drug dealers bring along  with them to a deal a          casual innocent observer?"  Over defense objections, Schultz was          allowed to respond that he had never "seen a person just casual-          ly come along for a drug deal."                      We reject appellants' contentions that either Criminal          Rule  16(a)(1)(E) or  Daubert was  implicated by  the challenged                                _______          testimony.  First, the Schultz response expressed neither  a lay          nor an expert opinion, as distinguished from a statement of fact          ___           _______          as  to what Schultz  had witnessed  during his  29 years  in law          enforcement.  As the  challenged testimony proffered no opinion,                                                               __ _______          lay  or expert,  but  simply the  witness's personal  experience          relating to a subject  bearing directly upon the appropriateness          of a jury  inference, see United States  v. Batista-Polanco, 927                                ___ _____________     _______________          F.2d  14,  18 (1st  Cir. 1991)  (extended  presence at  scene of          heroin  packaging operation supports "common sense" inference of          guilt), long held permissible  in such circumstances, see United                                                                ___ ______          States  v. Smith,  680  F.2d 255,  260  (1st Cir.  1982),  cert.          ______     _____                                           _____          denied, 459 U.S. 1110 (1983), we reject the claim.            ______                                        ____________________          Neal, 36 F.3d  1190, 1205 (1st  Cir. 1994) (continuance);  United          ____                                                       ______          States v. Pierro, 32  F.3d 611, 617 (1st Cir.  1994) (mistrials),          ______    ______          cert.  denied, 115  S. Ct.  919 (1995);  United States  v. Cotto-          _____  ______                            _____________     ______          Aponte, 30 F.3d 4, 6 (1st Cir. 1994) (evidentiary rulings).           ______                                          9                    Nor did the Schultz testimony encroach upon the jury's          factfinding function regarding the ultimate issue of guilt.  The          district court  alertly gave an immediate  jury instruction that          "mere presence" at  a crime scene  is insufficient to  establish          guilt, and that ultimately it was for the jury to decide whether          the  government had met its burden  of proof.  See United States                                                         ___ _____________          v. Myers, 972 F.2d 1566, 1577 n.8 (11th Cir. 1992) (Bownes, J.),             _____          cert.  denied, 507 U.S. 1017  (1993).  When  Agent Schultz later          _____  ______          was subjected to further cross-examination, see United States v.                                                      ___ _____________          Paiva,  892 F.2d  148,  157 (1st  Cir.  1989), he  conceded  the          _____          possibility  that  a driver  might not  have  known that  he was          transporting someone  to  a  crime  scene.   Thus,  viewing  the          challenged  Schultz  testimony  in  the context  of  the  entire          examination, we find neither error nor unfair prejudice.            C.  Evidence of Prospective Sentence          C.  Evidence of Prospective Sentence              ________________________________                    In an effort  to forfend  against an  argument by  the          government that DiMarzo had known the cocaine was in the Oldsmo-          bile     based on  the improbability that  criminal conspirators          would entrust such valuable contraband to an innocent third par-          ty    DiMarzo sought to inform the jury of the harsh sentence he          would face upon conviction, to demonstrate the strong inducement          the  "real" drug dealers had  to select an  unsuspecting dupe to          transport  their drugs, so as to avoid detection themselves.  On          appeal,  DiMarzo  contends that  the  rejection  of his  proffer          denied  him  the "only  way" he  had  to counteract  the adverse          inference  suggested by the  government.  We  think the district                                         10          court soundly excluded the evidence.  See Cotto-Aponte, 30  F.3d                                                ___ ____________          at  6 (applying  "abuse of  discretion" standard  to evidentiary          rulings).   Accordingly,  it was  proper as  well to  reject the          requested instruction that the jury not draw the inference urged          by the government.                      The  DiMarzo proffer would have necessitated an unwar-          ranted departure  from the fundamental division of responsibili-          ties between judge and jury.   See Shannon v. United States, 114                                         ___ _______    _____________          S. Ct. 2419, 2424 (1994).  As a general rule, under our criminal          justice  system it  is  the jury's  responsibility to  determine          guilt  or  innocence on  the basis  of the  facts it  has found,          whereas  the  court  is  responsible, among  other  things,  for          sentencing  a  defendant after  a  guilty verdict.    As federal          juries perform  no sentencing  function, "providing jurors  sen-          tencing information  invites them to ponder matters that are not          within  their province,  distracts them  from their  factfinding          responsibilities,  and  creates a  strong possibility  of confu-          sion."    Id.   Thus,  even  assuming that  DiMarzo's  guideline                    ___          sentencing range  had some minimal probative value     a dubious          proposition at best    the district court did not err in reject-          ing  the DiMarzo proffer given the  considerations alluded to in          Shannon.  See Fed.  R. Evid. 403; cf. United States  v. Luciano-          _______   ___                     ___ _____________     ________          Mosquera,  63 F.3d 1142,  1153 (1st Cir.  1995) (rejecting Sixth          ________          Amendment  challenge  to   restriction  upon   cross-examination          relating to potential punishment).              D.  Sufficiency of the Evidence          D.  Sufficiency of the Evidence              ___________________________                                         11                    Appellants  claim reversible  error in  the denial  of          their respective motions  for judgments of acquittal.   See Fed.                                                                  ___          R. Crim. P. 29.  Under  Criminal Rule 29, we review the evidence          in  the  light most  favorable  to the  government,  drawing all          plausible  inferences and  resolving all  credibility determina-          tions  in line with the verdicts.   United States v. Spinney, 65                                              _____________    _______          F.3d 231, 234  (1st Cir. 1995).  We  will uphold a verdict  if a          rational factfinder  could have found each  essential element of          the  offense beyond a reasonable doubt.  United States v. Gomez-                                                   _____________    ______          Pabon, 911 F.2d 847, 852 (1st Cir. 1990), cert. denied, 498 U.S.          _____                                     _____ ______          1074 (1991).                      The government  met  its  test.   Under  21  U.S.C.             841(a)(1), it was required to establish that defendants knowing-          ly  and intentionally  possessed  a  controlled  substance  with          intent to  distribute.   United States v.  Aguilar-Aranceta, 957                                   _____________     ________________          F.2d  18,  23 (1st  Cir.), cert.  denied,  506 U.S.  834 (1992).                                     _____  ______          Under  21 U.S.C.   846, the government was required to establish          that defendants agreed, at least tacitly, to commit the substan-          tive offense  which constituted  the object of  their agreement,          and  that defendants voluntarily participated in the conspiracy.          Flores-Rivera, 56 F.3d at 323-24.  The jury was entitled to rely          _____________          upon circumstantial evidence     such as  presence at the  crime          scene  and association with others  involved in the  crime    to          infer  essential elements  of the  crime, except that  such evi-          dence,  standing alone, is  insufficient to  support conviction.                  ________ _____          Id. at 324.   Although appellants hold themselves out  as excep-          ___                                         12          tions that prove the rule, there is ample record evidence, above          and  beyond their  mere presence  and association,  to permit  a          rational  jury to find guilt under both counts, beyond a reason-          able doubt.                    Appellant Mario  Alzate and his  brother Alonzo  drove          approximately 100 miles to the crime scene where Alonzo had made          prior arrangements for the cocaine to be delivered to undercover          Agent Schultz in return for $100,000.  Together with the incrim-          inating  circumstantial  evidence,  the   familial  relationship          between  Alonzo (the  "pointman") and  Mario (the  "lookout" and          driver) permitted a rational jury inference that Mario well knew          he was involved  in a drug deal.  See  United States v. Morales-                                            ___  _____________    ________          Cartagena,  987 F.2d  849, 851-52  (1st Cir.  1993).   There was          _________          ample evidence to enable the  jury to find that Mario served  as          the "lookout" at the  crime scene, see United States  v. Hernan-                                             ___ _____________     _______          dez, 995 F.2d 307, 314 (1st Cir.), cert. denied, 114  S. Ct. 407          ___                                _____ ______          (1993),  especially  since the  brothers registered  in separate          rooms  at the  Inn and  Mario requested  a room  overlooking the          parking  lot from where he surveilled the crime scene before the          drugs arrived.  In addition, Mario testified in his own defense,          either  contradicting  the  testimony  of  government  witnesses          (e.g.,  in  contrast to  the Inn  manager,  denying that  he had          requested  a  room  overlooking  the parking  lot)  or  offering          innocent explanations for  other suspicious conduct (e.g.,  that          he had strolled around the Inn parking lot just to  take in "the          countryside"), which the  jury was entitled to reject  and treat                                         13          as evidence of  consciousness of  guilt.  See  United States  v.                                                    ___  _____________          Hadfield, 918 F.2d 987,  999 (1st Cir. 1990), cert.  denied, 500          ________                                      _____  ______          U.S. 936 (1991).3                      The   sufficiency  challenge  mounted  by  DiMarzo  is          without  merit as well.   The evidence  demonstrated that Alonzo          had  anticipated that the cocaine would arrive in a car equipped          with  secret compartments, and that  he knew how  to contact the          driver en route.  Agent Schultz testified that Alonzo spoke with          the  driver of the vehicle  carrying the cocaine  the morning of          the drug deal, conceivably  via the cellular phone in  the white          Oldsmobile, and gave him  the correct directions to the Inn.   A          short time later, DiMarzo  arrived at the Inn with  the cocaine,          pulled up just outside the ground-floor room occupied by Alonzo,          and immediately met  with him.   DiMarzo was  seen scanning  the          parking lot  as the two  men walked to  the restaurant.   Alonzo          returned with the keys to the Oldsmobile and, in the presence of          Schultz,  opened the concealed  interior compartments containing          bricks of cocaine in the promised amount.                      As we repeatedly  have recognized, a  jury is free  to          rely on its common sense, see, e.g., Hernandez, 995 F.2d at 314,                                    ___  ____  _________          and may infer that criminal conspirators normally do not involve          innocent persons at critical  stages of a drug deal,  see, e.g.,                                                                ___  ____          United  States v.  Tejeda, 974  F.2d 210,  213 (1st  Cir. 1992).          ______________     ______          Thus, the jury reasonably  could infer that DiMarzo knew  he was                                        ____________________               3As there was no abuse of discretion, we likewise affirm the          denial of Mario's motion for new trial under Fed. R. Crim. P. 33.          United States v. Garcia, 978 F.2d 746, 748 (1st Cir. 1992).             _____________    ______                                         14          delivering the cocaine needed to consummate the prearranged deal          with Alonzo, rather than that  Alonzo and appellant Mario Alzate          had entrusted to  an unsuspecting  nonparticipant the  responsi-          bility  for delivering $100,000 worth of cocaine to the scene of          the exchange. E.  The Alzate Sentencing Claims                        E.  The Alzate Sentencing Claims                            ____________________________                    Mario Alzate  claims that  he was a  "minimal partici-          pant," see U.S.S.G.    3B1.2(a) (1995), and that he  should have                 ___          been granted a downward  departure based on "aberrant behavior,"          see id.   5K2.0.  Neither contention helps him.           ___ ___                    First, the  district court found that  Mario was enti-          tled to a two-level downward  adjustment under U.S.S.G.   3B1.2-          (b), as a "minor participant."  On appeal, Mario argues that  he          deserved a three or four-level adjustment, based on his "minimal          role."  The record evidence  noted above, however, warrants  the          finding that  Mario did not  merit a "minimal  role" adjustment.          See United States  v. Munoz, 36 F.3d 1229, 1238  (1st Cir. 1994)          ___ _____________     _____          (off-loading portion of single  drug shipment or smuggling drugs          for small transaction may indicate minimal participation), cert.                                                                     _____          denied, 115 S. Ct. 1164 (1995).  Thus, there was no clear error.          ______          United States v. Neal, 36 F.3d 1190, 1211 (1st Cir. 1994).            _____________    ____                    Finally, the  second assignment  of error is  squarely          foreclosed  because the  district court  was well  aware  of its          authority to grant a  downward departure and declined to  do so.          We therefore lack jurisdiction  to review the refusal to  depart          unless based on a mistake of law.  United States v. Grandmaison,                                             _____________    ___________          No. 95-1674, 1996 WL  80411 (1st Cir. Mar. 1,  1996) (clarifying                                         15          "aberrant behavior"  standard); United States v.  Lewis, 40 F.3d                                          _____________     _____          1325, 1345 (1st  Cir. 1994).   There is  no indication that  the          district court misapprehended the confines of its legal authori-          ty.                     Affirmed.                     Affirmed.                     ________                                         16
