

                  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 &amp; 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
