
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1131                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              JOS  NEGRON GIL DE RUBIO,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Jos  A. Pagan Nieves, with whom Jos  A. Pagan Nieves Law Offices             ____________________            ________________________________        was on brief for appellant.              Juan A. Pedrosa, Assistant United States Attorney, with whom             _______________        Guillermo Gil, United States Attorney, Jos  A. Quiles-Espinosa, Senior        _____________                          _______________________        Litigation Counsel, and Nelson P rez-Sosa, Assistant United States                                _________________        Attorney, were on brief for appellee.                                                                                      ____________________                                    August 6, 1996                                                                                      ____________________                    Per  Curiam.   Jos   Negron  Gil  de  Rubio  ("Negron")                    Per  Curiam.                    ___________          appeals his  conviction and  sentence for  conspiring to  possess          cocaine with intent  to distribute, see  21 U.S.C.     841(a)(1),                                              ___          846.  Finding  no error, we affirm the district court judgment in          all respects.                     Negron  first claims that  the district court  erred in          rejecting his  motion  for a  bill  of particulars,  because  the          indictment failed to name all coconspirators and alleged no overt          acts involving Negron.1  The lone count against Negron alleged an          eighteen-month conspiracy  to possess  with intent  to distribute          cocaine.   It named all  28 indicted coconspirators,  but omitted          two unindicted cooperating  witnesses.2  No more was exigible, as                                        ____________________               1Rulings disallowing bills of  particulars are reviewed only          for abuse  of discretion.   United States  v. Sepulveda,  15 F.3d                                      _____________     _________          1161, 1193 (1st Cir. 1993),  cert. denied, 114 S.Ct. 2714 (1994).                                       _____ ______          In  the  present context,  this requires  a demonstration  by the          defendant  that the  denial  resulted in  prejudice at  trial, or          other prejudice  to  a "substantial  right."   United  States  v.                                                         ______________          Hallock, 941 F.2d  36, 40 (1st Cir. 1991)  (quoting United States          _______                                             _____________          v. Paiva, 892 F.2d 148, 154 (1st Cir. 1989)).              _____               2Count One alleged:                    The general  allegations are  hereby incorpo-                    rated and realleged herein by reference.                    From  on or about  September 1991, up  to and                    including May  of 1993,  in  the District  of                    P.R., FL, N.Y., MA, and elsewhere, within the                    jurisdiction of this court, . . .                     [list of 23 defendants, including Negron, but                    not including 2 of the 4 cooperating witness-                    es]                    .  . . the  defendants herein, and  others to                    the Grand Jury known  and unknown, did  know-                    ingly  and  intentionally  combine, conspire,                    confederate,  and agree  together, with  each                                          2          the  indictment  substantially   described  the  essential  facts          constituting  the charged offense, within the  meaning of Fed. R.          Crim. P. 7(c)(1).  See United States  v. Hallock, 941 F.2d 36, 40                             ___ _____________     _______          (1st Cir.  1991).  Compare  United States v. Tomasetta,  429 F.2d                             _______  _____________    _________          978, 979 (1st Cir.  1970) (more precise averments as to  date and          location  of  crime may  be  needed when  charging  a substantive          offense).   The government  need not describe  "the precise dates          and locations" of all overt acts, Hallock, 941 F.2d at 40-41; see                                            _______                     ___          United States v. Paiva, 892 F.2d 148, 155 (1st Cir. 1989), absent          _____________    _____          a showing of actual prejudice or surprise.                      Bills of particulars are designed to provide sufficient          additional  detail  to enable  an  accused to  mount  an adequate                                        ____________________                    other and with  diverse other persons  to the                    Grand Jury known  and unknown, to commit  the                    following offense against  the United States,                    that is, possession with intent to distribute                    cocaine,  a Schedule  II  narcotic drug  con-                    trolled substance, in violation  of Title 21,                    U.S.C.,    841(a)(1) and 846.                    Object of the  conspiracy: It was the  object                    of  the  conspiracy   that  codefendants  and                    coconspirators would and  did possess cocaine                    with the intent to  distribute, and would and                    did distribute  the same for  the purpose  of                    obtaining monetary gain.                    Overt Acts  [Indictment lists 44  overt acts,                    none of  which specifically name  Negron] in-                    clude:                    3.  The cocaine  loads were  usually retained                    and safeguarded by  members of the  organiza-                    tion.                    . . . .                    5.  A portion of the cocaine was prepared for                    distribution in Puerto Rico.                                           3          defense,  avoid double jeopardy,  and prevent surprise  at trial.          See Hallock, 941  F.2d at 40.   There is no basis  for concluding          ___ _______          that this indictment was impermissibly vague, so as to materially          hamper  trial preparation, cause surprise, or prevent Negron from          forfending against  double jeopardy.   Moreover, not only  did he          have  the  benefit  of full  discovery,  but  the district  court          ordered that  Negron be  accorded reasonable access  to the  four          cooperating witnesses who  later testified for the  government at          trial.    These  discovery  resources  afforded  Negron  adequate          opportunities  to inform himself  of the evidence  the government          was prepared to present at trial.  Negron has  neither provided a          factual  foundation for his  conclusory alibi-defense  claim, nor          indicated a basis for the claim that any vagueness in the present          indictment may expose him to  prosecution for conduct of which he          has been acquitted  in the past.   See United States  v. Ramirez-                                             ___ _____________     ________          Burgos, 44 F.3d  17, 19 (1st Cir. 1995)(citations  omitted) ("The          ______          Double Jeopardy Clause  safeguards against (i) a  second prosecu-          tion following acquittal or final conviction for the same offense          and (ii)  multiple punishments  for the  same offense.");  United                                                                     ______          States v.  Abreu, 952 F.2d  1458, 1464 (1st Cir.),  cert. denied,          ______     _____                                    _____ ______          112 S.  Ct. 1695 (1992)(same).   Finally, even though  Negron has          been apprised of the relevant times, transactions and persons, he          neither  precisely defines  an alibi  nor  demonstrates that  the          present  conspiracy  charge  is barred  by  any  prior acquittal.          Moreover, since  the indictment contained  sufficient information          to  apprise Negron  of the  criminal  conduct with  which he  was                                          4          charged,  he was  neither prejudiced  nor  unfairly surprised  at          trial by any absence of particulars.                                           5                    Negron also claims that  the evidence was  insufficient          to support the verdict.3  At trial, the government presented four          coconspirators, each  of whom  tied Negron  directly to the  same          conspiracy.  Their  credibility was for the jury.   United States                                                              _____________          v. Saccoccia, 58 F.3d 754, 773 (1st Cir. 1995).                _________                    Negron  further claims that the district court erred in          denying  his motion  for  new  trial  based  on  newly-discovered          evidence.  The  proffered "newly discovered evidence"     a puta-          tive  averment by  a  cooperating  witness  that Negron  did  not          participate in  the drug organization     fell well short  of the          mark, if for  no other reason than that it has  not been shown to          have been "newly discovered."   See United States v. Natanel, 938                                          ___ _____________    _______          F.2d  302, 313  (1st  Cir.  1991), cert.  denied,  502 U.S.  1079                                             _____  ______          (1992);  see also  United  States  v. Tibolt,  72  F.3d 965,  972                   ___ ____  ______________     ______          (1995).                      Further, Negron challenges  the drug-quantity calculat-          ion relied on  at sentencing.  As there  was evidence that Negron          had been involved with considerably more than the five  kilograms          of  cocaine found by  the district court, there  can have been no          clear error.   See United States v. Morillo, 8 F.3d 864, 871 (1st                         ___ _____________    _______          Cir. 1993).                                        ____________________               3We review the entire record  in the light most favorable to          the government and indulge all reasonable inferences favorable to          the verdict,  see United  States v. Saccoccia,  58 F.3d  754, 773                        ___ ______________    _________          (1st Cir.  1995), in order  to determine whether a  rational jury          could have found appellant guilty  beyond a reasonable doubt. See                                                                        ___          United States v. Valle, 72 F.3d 210, 216-17 (1st Cir. 1995).            _____________    _____                                          6                    Finally,  absent  a  showing  of  any  error,  Negron's          cumulative error claim collapses.                      Affirmed.                    Affirmed                    ________                                          7
