
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                             United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-2332                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    STANLEY PROU,                                Defendant, Appellant.                                 ____________________          No. 95-2333                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   RAHEAM JOHNSON,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                     Coffin and Campbell, Senior Circuit Judges.                                          _____________________                                 ____________________               Wayne R. Foote for appellant Prou.               ______________               Bruce A. Jordan for appellant Johnson.               _______________               Margaret E.  Curran, Assistant United States  Attorney, with               ___________________          whom Sheldon Whitehouse, United States Attorney, and Stephanie S.               __________________                              ____________          Browne,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                  November 20, 1996                                 ___________________               Per curiam.   Codefendants  Stanley Prou and  Raheam Johnson               __________          seek reversal  of their  drug trafficking convictions  on various          grounds.   We find  none of their  claims to  be meritorious, and          therefore affirm.               The facts,  briefly  stated and  viewed  in the  light  most          favorable  to the government, are  as follows.   Prou and Johnson          were arrested on April  3, 1995 while meeting with  an undercover          agent, Rocha,  for  the  purpose  of  purchasing  cocaine.    The          defendants had  been in  frequent contact  with Rocha  since late          February, when an  informant arranged a  meeting between them  on          the  premise  that  Rocha   was  a  large-scale  cocaine  dealer.          Testimony showed that the defendants had planned to receive eight          kilograms of cocaine on the day of their arrest: two and one-half          for cash, two and one-half on consignment, and three for free, as          a  reward for providing information to Rocha.  When the agent and          the defendants met,  both defendants were  armed and Johnson  was          carrying a  bag of cash  that contained about  half of  the money          needed  for the  purchase.   The arrests  occurred shortly  after          Rocha  questioned Johnson  about the amount  of cash  and shortly          before the drug exchange was supposed to occur.               Both  defendants  argue that  the  district  court erred  in          failing  to  define  the  term  "distribution"  as  part  of  its          instructions on the drug  trafficking counts.1  Neither defendant                                        ____________________               1  Count  I  charged   the  defendants  with  conspiring  to          distribute and  possess with intent to  distribute five kilograms          or more of cocaine, in violation  of 21 U.S.C.    841(a) and 846.          Count  II charged  them with  aiding and  abetting an  attempt to          possess  with  intent to  distribute  five kilograms  or  more of                                         -3-          timely  objected to  this  omission  at  trial, however,  and  we          therefore  may review only for plain error.   It is apparent that          no such error  occurred.  Not only was the  jury fully capable of          understanding the concept of  "distribution" in this context, but          the evidence and remaining instructions negate any possibility of          prejudicial  misunderstanding.   We  particularly  note that  the          testimony established  that defendants sought to  obtain at least          some cocaine from Rocha  on consignment, i.e., with a  promise to                                                   ____          pay  from   the  proceeds  obtaining   by  selling  it.     Thus,          "distribution" was an integral part of  the scheme set up by  the          defendants.               Prou  additionally argues  that  the court  committed  plain          error by failing to give an aiding and abetting instruction as to          him  on Count II, which charged the defendants with the attempted          possession of cocaine with  intent to distribute.  This  claim is          wholly   without  merit.     Lacking   an  aiding   and  abetting          instruction,  the jury was left  with the option  of finding that          Prou  either was  guilty as  a principal  or  not guilty  at all.          Thus, omission of  the aiding and  abetting instruction --  which          would have permitted conviction  based on a less central  role in          the transaction -- arguably worked to Prou's benefit.  The jury's                                        ____________________          cocaine,  in violation  of 21 U.S.C.     841(a)  and 846,  and 18          U.S.C.   2.   Counts III, IV and V related  to possession and use          of firearms.                                         -4-          determination  that he  was culpable as  a principal  disposes of          this claim.2               Finally, we  reject Prou's pro  se challenge,  based on  the          Supreme  Court's decision in United  States v. Lopez,  115 S. Ct.                                       ______________    _____          1624  (1995), to  the constitutionality  of the  drug trafficking          statutes  under which  he was  convicted.   See United  States v.                                                      ___ ______________          Zorrilla,  93 F.3d  7,  8-9 (1st  Cir.  1996); United  States  v.          ________                                       ______________          Lerebours, 87 F.3d 582, 584-85 (1st Cir. 1996).          _________               Affirmed.               ________                                        ____________________               2  To the  extent that  Prou's complaint  is that  the court          failed to instruct the jury that he could  not be convicted based          on his "mere  presence" at the meeting with Rocha,  it is no more          potent.   He  failed  to ask  for  such an  instruction  and  the          evidence overwhelmingly belied that defense.                                          -5-
