
USCA1 Opinion

	




          January 4, 1994                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1535                                    UNITED STATES,                                      Appellee,                                          v.                                JOHNNY BETANCES DIAZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Rosenn,* Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Justin Levin for appellant Johnny Betances Diaz.            ____________            Geoffrey E.  Hobart, Assistant United  States Attorney,  with whom            ___________________        A.  John Pappalardo,  United States  Attorney,  and Jeffrey  A. Locke,        ___________________                                 _________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________        _____________________        *Of the Third Circuit, sitting by designation.                       Rosenn,  Senior Circuit  Judge.   Appellant Johnny                                ______________________             Betances  Diaz was  tried to  a  jury and  convicted in  the             United   States   District   Court  for   the   District  of             Massachusetts  for  conspiracy  to possess  with  intent  to             distribute five or  more kilograms of cocaine,  in violation             of  21  U.S.C.      841(a)(1)  and  846.    He  appeals  his             conviction and contends  that:  (1) the  evidence introduced             against him was  insufficient to support the  guilty verdict             returned  by  the  jury, (2)  the  district  court erred  in             admitting  a hearsay statement made by a co-conspirator, and             (3) the  district court improperly  denied his motion  for a             severance.  We affirm.1                                          I.                       As   recounted  in  United   States  v.  Matiz,  a                                           __________________________             companion case decided contemporaneously herewith, this case             arose  out of  a  large  scale  investigation  conducted  by             various  government   agencies  in  the  United  States  and             Colombia,  South  America  into   the  cocaine  distribution             activities  of a number  of individuals.   The United States             (the  Government) had  the assistance  of  Pedro Alvarez,  a             defendant in another criminal matter.                                              ____________________             1 The district  court possessed subject matter  jurisdiction             pursuant to 18  U.S.C.   3231.  This  court has jurisdiction             pursuant to 28 U.S.C.   1291 and 18 U.S.C.   3742 (a)(2).                       Alvarez, at the behest of the Government, posed as             a purchaser and  contacted a number of  cocaine suppliers in             Colombia.      Negotiations  ensued   over   several  months             pertaining to the  purchase of large quantities  of cocaine.             In  the  early  part  of  1991,  the  suppliers in  Colombia             informed  Alvarez  that  they  were  experiencing  temporary             difficulties  in  smuggling  the  cocaine  into  the  United             States.   In light of these difficulties, they asked Alvarez             to  assist them in transporting the shipment.  Additionally,             the  suppliers asked  Alvarez to  store  and distribute  the             cocaine to their associates.                       The Government  instructed Alvarez  to request  an             up-front  payment  from  the suppliers  of  $30,000  for his             troubles  and expenses.   Reluctantly, the  suppliers agreed             and told  Alvarez that the  payment would be made  by one of             their New York based associates, "La Negra," a code name for             Nancy Esperanza Matiz.                       Alvarez and Matiz  ultimately scheduled a  meeting             for  May 23, 1991,  for Matiz to  hand over the  money to an             associate of Alvarez, actually Special Agent Dominick Lopez,             at a  Burger King  restaurant in Queens,  New York.   Matiz,             however, failed to appear at the scheduled hour.  Only after             Matiz twice contacted Diaz at his residence did  she finally                                         -3-                                          3             arrive  together  with him,  two  hours  late,  in a  Nissan             Pathfinder.                         As Lopez approached the vehicle he stated the code             word  for the transaction, "Cubito."  Diaz replied "Cubita,"             apparently correcting Lopez's  use of the masculine  form of             the word.  After Lopez entered the vehicle, Matiz instructed             Diaz to get the money.  Diaz, without receiving instructions             regarding  the  location  of the  money,  retrieved  it from             underneath the seat  of the car and  passed it to Matiz  who             then  gave  it to  Lopez.    In  response to  Lopez's  query             regarding the amount of money contained in each bundle, both             Matiz and Diaz disclosed the correct amount.2                        After  this  exchange,  Matiz  remained  in  close             contact  with  Alvarez.    She  informed  him  that she  was             personally  expecting  to  receive a  large  portion  of the             cocaine shipment upon its arrival.   Upon learning the  date             on which the shipment consisting of 615 kilograms of cocaine             would arrive,  Matiz placed  nine telephone  calls of  short             duration to Diaz.                       After the cocaine shipment arrived, Alvarez called             Matiz on numerous  occasions to discuss  the details of  the                                              ____________________             2The sum amounted to only $20,000 and Matiz promised to make             an additional  payment of  $5,000 the  next day,  explaining             that she had been told that the amount due was $25,000.                                         -4-                                          4             pickup  of  her  portion  of  the  cocaine.    During  these             conversations,  Matiz  expressed her  desire  to obtain  her             share as  soon as possible.   Initially, she also  voiced an             interest in purchasing some of  the cocaine that Alvarez had             received   as  his   fee  for   transporting  the   cocaine.             Ultimately,  however,  she  decided  against it  because  of             financial constraints.                       Finally, Alvarez informed Matiz that she would  be             able to  collect her allocation  of the cocaine on  June 12,             1991.   Alvarez  reserved a  hotel room  for Matiz  under an             assumed  name in Middleboro, Massachusetts near the site for             the transfer of the cocaine.  Matiz arrived  at the hotel on             June  10, along  with Diaz  who also used  a false  name and             fictitious  address to  check in.    The following  evening,             Alvarez  and Matiz  met at  the  hotel to  review the  final             arrangements   for  the  pickup.     A  number   of  Matiz's             assistants, who had arrived at the  hotel on the same day as             Matiz, were designated to collect the cocaine.                         At   the  time  of  the  pickup,  one  of  Matiz's             assistants  followed  an undercover  agent to  the warehouse             where the  car was loaded.  Matiz,  however, remained behind             at the hotel with another  undercover agent, Dillon, who was             to accompany her to a meeting with Alvarez to discuss future                                         -5-                                          5             cocaine shipments.  Before departing, Matiz introduced  Diaz             to  Dillon as her husband.  She then informed Diaz that "the             boys" had gone  to load the  car.  Diaz  asked how long  the             loading  would take and  offered his own  estimate regarding             the length of the task.   As Matiz was leaving,  Diaz wished             her  a  successful meeting.  In  the car,  Matiz  and Dillon             decided to purchase a bottle  of champagne to celebrate  the             deal.  On  the way to the  liquor store, Dillon  asked Matiz             whether  Diaz minded  that she  met with  other men  late at             night, as they  had done the night before.   Matiz responded             that Diaz  did not mind,  that he understood that  Matiz was             working,  that he  was aware  of the  business, and  that he             liked the money.  Shortly  after an agent placed Matiz under             arrest, another agent arrested Diaz outside the hotel.                                         II.                           A.  Sufficiency of the Evidence                       Diaz first  contends that the evidence produced at             trial does not show that he was a member of  the conspiracy.             Essentially, he  claims that  he was merely  present at  the             time of Matiz's activities but  did not participate in them.                       In  evaluating a  claim  of insufficiency  of  the             evidence, we "review the evidence as a whole,  including all                                         -6-                                          6             reasonable  inferences from that evidence, in the light most             favorable  to the government."  United States v. Argencourt,                                             ___________________________             996  F.2d 1300,  1303 (1st  Cir. 1993).   In  addition, both             direct  and  circumstantial  evidence must  be  credited  on             appeal.  United States v.  Echeverri, 982 F.2d 675, 677 (1st                      ___________________________             Cir. 1993).   Thus, as long as a jury  could rationally find             guilt beyond  a reasonable doubt,  we have no choice  but to             affirm.  Argencourt, 996 F.2d at 1303.                       __________                       Although, as the district  court acknowledged, the             evidence  against  Diaz  was  "thin",  it  nevertheless  was             sufficient  to  convict  him   beyond  a  reasonable  doubt.             Contrary   to  his  assertions,  Diaz  did  more  than  just             passively  and  innocently accompany  Matiz in  her dealings             with respect  to  the  cocaine  purchase.   He  exhibited  a             knowledge  of  and  participation in  the  conspiracy.   For             example,   at   the  encounter   with   agent  Lopez,   Diaz             acknowledged the  correct code term for the transaction.  He             also  retrieved  the  money  without receiving  instructions             pertaining  to its location and stated the correct amount in             each  bundle.    In  addition, at  key  moments  of  Matiz's             involvement with the cocaine purchase, she communicated with             Diaz.  Furthermore,  on the day of the  cocaine pickup, Diaz             revealed his familiarity  with the cocaine shipment  when he                                         -7-                                          7             asked  about the  length of  the  trip and  offered his  own             estimate of  the time  it would take  to complete  the task.             The reasonable  inference to be drawn from  this evidence is             that Diaz was intimately involved with Matiz in planning and             executing the  conspiracy.   Finally, Matiz  explicitly told             agent Dillon  that Diaz knew  she was working, was  aware of             the business,  and that he liked the  money.  Based upon the             admitted evidence,  a jury reasonably  could have  concluded             that  Diaz knowingly  participated in the  conspiracy rather             than merely acting as a disinterested bystander.                                         II.                           B.  Statement of Co-Conspirator                       Diaz next maintains that the  district court erred             in   admitting,  pursuant  to   Federal  Rule   of  Evidence             801(d)(2)(E),  Matiz's  statement  implicating  him  in  the             conspiracy.   He argues that  the statement was not  made in             the course of or in furtherance of the conspiracy.                         To  admit  a  co-conspirator's   statement  as  an             exception to the hearsay rule, a court must find that "it is             more likely than  not that the declarant  and defendant were             members of a conspiracy when the hearsay statement was made,             and  that   the  statement   was  in   furtherance  of   the             conspiracy."  United States v. Petrozziello, 548 F.2d 20, 23                           _____________________________                                         -8-                                          8             (1st  Cir.   1977).     The  district   court  conducted   a             Petrozziello  hearing   and   found   these   facts   by   a             ____________             preponderance of the evidence.   We must accept the district             court's finding  unless the  finding was  clearly erroneous.             See United States v. Patterson,  644 F.2d 890, 894 (1st Cir.             ___ __________________________             1981).                       A   co-conspirator's   statement    is   made   in             furtherance  of a  conspiracy if  it "'tends to  advance the             objects  of the  conspiracy  as  opposed  to  thwarting  its             purpose.'"  United  States v. Masse, 816 F.2d  805, 811 (1st                         _______________________             cir. 1987)  (quoting United States  v. Fahey, 769  F.2d 829,                                  _______________________             839 (1st Cir. 1985)).  On the  way to a meeting with Alvarez             to  discuss  future  shipments  of   cocaine,  Agent  Dillon             inquired  whether  Diaz,  who  was  introduced   as  Matiz's             husband,  minded the  late night  meetings  with other  men.             Understood  in this context, the purpose of Dillon's inquiry             was  to  determine  the   extent  of  Diaz's  role  in   the             conspiracy.  Matiz answered that Diaz knew what was going on             and was  pleased with  the money.   This statement  was made             during  the conspiracy  and  tended  to  further  its  goals             because  it provided Dillon  with some measure  of assurance                                         -9-                                          9             that Matiz could carry out her end of the conspiracy without             obstruction on the part of her husband.3                                      C. Severance                        Finally, Diaz argues that the district court erred             by  denying  his  motion  for a  severance.  He  argues that             severance  was  necessary  in  order  to  safeguard  against             prejudicial spillover.      Spillover occurs "where evidence             establishing  the guilt of one defendant, but not admissible             against the  other, may  create an  atmosphere clouding  the             jury's ability to evaluate fairly the guilt or innocence  of             the latter."  United States  v. Perkins, 926 F.2d 1271, 1281                           _________________________             (1st Cir. 1991).                         We review the  denial of a severance  motion under             Fed. R.  Crim. P. 14 for abuse of discretion.  United States                                                            _____________             v.  Innamorati,  996 F.2d  456,  469  (1st  Cir. 1993).    A             ______________             district court's decision not to sever  can only be reversed             upon  a defendant's  maintenance  of  the  heavy  burden  of             showing substantial prejudice amounting to  a miscarriage of                                              ____________________             3Moreover,   in  light   of   the  other   evidence,  albeit             circumstantial, introduced  at trial  implicating Diaz  as a             member  of the  conspiracy,  any  error  accruing  from  the             admission of the statement would be harmless.                                          -10-                                          10             justice.   Id.  Substantial prejudice, however, is extremely                        ___             difficult to prove where, as here, there are obvious reasons             of economy  in trying  Diaz with  his co-conspirator  Matiz.             Fed. R.  Crim. P.  8(b).   "Co-conspirators are  customarily             tried  together  absent  a  strong  showing  of  prejudice."             Perkins, 926 F.2d  at 1280.  Evidence regarding  the acts of             _______             Matiz would  have  been admissible  against Diaz  even in  a             separate trial, as co-conspirators are liable for all of the             criminal  acts carried out in furtherance of the conspiracy.             See United  States v.  Ortiz-Arrigoitia, 996  F.2d 436,  440             ___ ___________________________________             (1st Cir. 1993).  Moreover,  the court's instructions to the             jury  that the  guilt of each  defendant must  be determined             individually  provided  a   further  safeguard  against  the                                         -11-                                          11             spillover   effect.4    Thus,   Diaz  has  failed   to  show             substantial prejudice because of the joint trial.                       The judgment of the district court is                       Affirmed.                       _________                                              ____________________             4 The court warned the jury as follows:                       And I  will throughout  refer mostly  to                       the defendant, and I will explain to you                       later on  that as  to one  part of  this                       case,  you must be very sure to view the                       evidence as to  each separately, because                       each    is    entitled    to    separate                       consideration from you. . . .                       Now, here  it is very important that you                       review   the   evidence   as   to   each                       separately.  The government has to prove                       as  to each  of  them  that  he  or  she                       knowingly  and   willfully  joined   the                       unlawful scheme, with  the understanding                       of its unlawful character.                                         -12-                                          12
