
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1985                                    UNITED STATES,                                      Appellee,                                          v.                             VANESSA DE LA CRUZ PAULINO,                                Defendant, Appellant,        No. 94-1986                                    UNITED STATES,                                      Appellee,                                          v.                                  WANDA DIAZ-PEREZ,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Rachel  Brill with whom  Jose Fernando  Irizarry was  on brief for            _____________            _______________________        appellant Diaz-Perez.            Enrique Velez-Rodriguez for appellant de la Cruz Paulino.            _______________________            Jose A.  Quiles-Espinosa,  Senior  Litigation Counsel,  with  whom            ________________________        Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assistant        _____________                              ________________        United States Attorney, were on brief for appellee.                                 ____________________                                    August 3, 1995                                 ____________________                      STAHL, Circuit Judge.   Defendants-appellants Wanda                      STAHL, Circuit Judge.                             _____________            D az-P rez  and  Vanessa  de  la  Cruz-Paulino (collectively,            "defendants")  appeal   their  convictions  for   aiding  and            abetting each other and others in the unlawful possession of,            with intent  to distribute, approximately eighty kilograms of            cocaine,  in violation of 21 U.S.C.   841(a)(1) and 18 U.S.C.               2.   D az-P rez also  appeals her  conviction for  using a            communications   facility  on   six  separate   occasions  to            facilitate the  distribution of  cocaine, in violation  of 21            U.S.C.   843(b).  D az-P rez argues that she is entitled to a            new  trial because the  government violated Fed.  R. Crim. P.            12(d)(2) by failing  to designate certain of  the evidence it            intended  to  use  during  its  case  in  chief;  because the            district   court  admitted   hearsay  tape   recordings  into            evidence;  and  because  the  trial  judge  made  prejudicial            comments in  front of  the jury.   Both D az-P rez and  de la            Cruz-Paulino  argue  that  the  district  court  abused   its            discretion in allowing a  representative sample of cocaine to            be  sent into  the jury  deliberation room.   Finally,  de la            Cruz-Paulino  argues that  the evidence  was insufficient  to            establish her  guilt beyond  a reasonable  doubt.   We affirm            D az-P rez's  conviction,  but reverse  de  la Cruz-Paulino's            conviction for insufficient evidence.                                         -2-                                          2                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      On  January  21,  1994,  Federal  Drug  Enforcement            Administration  ("DEA")  agents in  Puerto  Rico  met with  a            cooperating individual known as  "Chita," who spoke with them            about a  pending drug transaction involving  200 kilograms of            cocaine.  Chita told the agents that the Puerto Rican contact            was known as "Negro."  He did not refer to either defendant.                      Between  12:00  noon  and  4:20  p.m.,  DEA  agents            recorded four  telephone conversations  placed by Chita  to a            Colombian contact  known as  "Jota."  During  the trial,  the            district court admitted tapes of these recorded conversations            into evidence without objection from defense counsel.  In one            of  the conversations,  Jota told  Chita that  he would  make            arrangements for  the Puerto Rican contact,  whom he referred            to  as  a female  schoolteacher,  to telephone  Chita  at the            number  Chita provided, which in reality was the number for a            DEA  cellular telephone.   It  was established at  trial that            D az-P rez was a teacher.                      Not long after these telephone calls ended, the DEA            decided  to  abort  the  operation, and  Agents  Andaluz  and            Salazar  transported Chita to the airport.  While en route to            the airport, however,  the agents received a  call from D az-            P rez on the DEA telephone.  The ensuing conversation was not            recorded.   However,  at  trial,  D az-P rez  testified  that                                         -3-                                          3            during that  unrecorded conversation,  she was told  that the            wrapped  packages she was  transporting contained  coffee for            which excise taxes had  not been paid and was  instructed not            to  mention  any   names  during  subsequent   conversations.            Andaluz testified that  he was  the one who  had spoken  with            D az-P rez  during the  unrecorded conversation  and that  he            never mentioned the word "coffee."                      After dropping Chita  off at  the airport,  Andaluz            and Salazar  returned to DEA headquarters  and conferred with            other agents regarding the  contents of the call.   They then            decided to contact  D az-P rez and arrange for a  transfer of            the  cocaine.    To  accomplish  this,  Andaluz  placed  five            telephone calls to D az-P rez between 7:10 p.m. and 9:55 p.m.            and received  one telephone  call from  D az-P rez.   The DEA            recorded all  of these conversations, and  the district court            admitted the recordings into evidence, D az-P rez stipulating            that the voice  in the recordings belonged  to her.  None  of            the conversants  explicitly referred to cocaine  or coffee in            the recorded conversations, although Andaluz did use the word            "kilos" once.                      During the six  recorded conversations, Andaluz and            D az-P rez discussed the  details of the delivery,  including            the  mode of  transportation and  the size  of the  shipment.            After  a  brief exchange  in  which  D az-P rez attempted  to            solicit Andaluz s  help in  carrying the bags  containing the                                         -4-                                          4            cocaine down from  a second-story  apartment, Andaluz  asked,            "Can t you give  somebody there  $30, $40 I ll  pay you  back            over here, to place  it in the trunk, only to place it in the            trunk,  don t bring him over or anything, to come over here?"            D az-P rez indicated that she  would, and eventually  Andaluz            and D az-P rez agreed to meet in the  parking lot of a Burger            King restaurant.                      At  trial, Andaluz testified  that after D az-P rez            and  de la  Cruz-Paulino arrived  at the Burger  King parking            lot, but before he and Salazar  approached them, he activated            a concealed  microcassette  recorder.    The  district  court            admitted the  recording of  the subsequent conversation  into            evidence  without  objection.    After  greeting  defendants,            Salazar  asked, "Did you get it down," and de la Cruz-Paulino            answered, "Of course we  did."  A short discussion  about the            $40 followed, after which Andaluz asked D az-P rez, "Which is            your  car?"  D az-P rez stated, "That black one there, in the            trunk, two bales and . . . eight doubles. . . ."  Andaluz and            Salazar opened the trunk and one of the garbage bags, Andaluz            stating that he  had "[t]o  check it out  girl, because  what            will I do with [unintelligible]."  D az-P rez then exclaimed,            "Shut  up!   Oh, God,  the two  bales and  the other  stuff."            Andaluz then said,  "No, relax, we are  getting involved here            to get  a party."  De  la Cruz-Paulino then  said, "No, watch                                         -5-                                          5            out the police  is around,  going around  here."   Defendants            were arrested immediately thereafter.                      DEA agents searched D az-P rez s car at the time of            defendants  arrest.  The trunk contained approximately eighty            kilograms of cocaine with a stipulated value of $1.2 million.            The cocaine was wrapped and sealed  in such a way that it was            impossible  to  see  the  contents.1    Also  seized  were  a            cellular telephone,  a  package of  coffee,  and a  piece  of            cardboard.   Chita s name was written on the cardboard, along            with the  DEA telephone number, several  figures that totaled            eighty, and the words "coffee" and "large garbage bags."  DEA            agents  did  not   find  any  weapons,  nor   did  they  test            defendants  clothing for the presence of cocaine.                      Defendants  were  subsequently indicted  for aiding            and abetting  each other and  others in  possession of,  with            intent to distribute, a controlled substance, in violation of            21 U.S.C.   841(a)(1) and 18 U.S.C.   2.  D az-P rez was also            indicted on  six counts of using a communications facility in            furtherance of  a narcotics  transaction, in violation  of 21            U.S.C.   843(b).                      Prior to  trial, defendants requested,  pursuant to            Fed. R. Crim. P. 12(d)(2), that the government designate  the                                            ____________________            1.  Each  kilogram was wrapped  individually in a tan-colored            wrapping,  then  two  kilograms  were  bundled  together  and            wrapped  in a black wrapping.   The bundles  were then placed            into three large garbage bags.                                         -6-                                          6            evidence it intended to introduce at trial.  In response, the            government  designated the seized  cocaine, the  materials in            which  the  cocaine  had   been  wrapped,  and  various  tape            recordings  and  photographs.   In  addition, the  government            stated, "Any  other physical and/or documentary evidence will            be notified at least five (5) days before the date of trial."            The government never notified  defendants that it intended to            introduce the  telephone or  the cardboard seized  from D az-            P rez s  car  into  evidence.    Nonetheless, the  government            referred  to  both  pieces  of evidence  during  its  opening            statement at defendants' jury trial.                      Immediately  following  the  opening  statement  of            D az-P rez,  both  defense  counsel   moved  to  exclude  the            telephone  and  the  cardboard  because  they  had  not  been            designated as  evidence by  the government as  required under            Rule 12(d)(2).  During  the discussion on defendants' motion,            the  government never  admitted  that it  had not  designated            either piece  of evidence,  but  instead repeatedly  insisted            that it had provided defendants with full discovery, stating,            for example,                       they  were fully  aware that  this was  a                      piece of  evidence and  this  is not  [a]                      surprise to them  they had it from  about                      three weeks after the defendants had been                      arrested this  is  no surprise  to  them,                      they  should be  aware  that  this was  a                      piece  of  evidence  and  the  government                      could attempt to use such evidence.                                         -7-                                          7            The  district court  denied the  motion, stating,  "it's been            provided."  When defense  counsel objected that the evidence,            although provided under  Fed. R.  Crim. P. 16,  had not  been            designated as  required by Rule 12(d)(2),  the district court            stated,  "It is not [a]  surprise, it[']s there  and you have            it."  The evidence  was subsequently admitted without further            objection.                      At  the close  of the  government's case  in chief,            both defendants moved  pursuant to  Fed. R. Crim.  P. 29  for            judgments  of  acquittal;  the  district  court  denied  both            motions.  D az-P rez  then testified in her own  defense, but            offered  no  other evidence.    De  la Cruz-Paulino  did  not            testify and offered no evidence.  At the close of trial, both            defendants renewed their Rule  29 motions, and each defendant            also objected  to the district  court's decision  to allow  a            representative  sample of unpackaged  cocaine, which had been            admitted into evidence without objection, into the jury room.            Defendants now appeal their convictions.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________            A.  Rule 12(d)(2) Violation            ___________________________                      D az-P rez  argues that  the district  court abused            its  discretion  in  admitting  into  evidence  the  cellular            telephone and  the piece of cardboard  because the government            did  not disclose its intent  to use the  evidence during its                                         -8-                                          8            case  in chief  as required  by Fed.  R. Crim.  P. 12(d)(2).2            D az-P rez  first argues  that  the district  court erred  in            holding  that the  government did  not violate  Rule 12(d)(2)            since  it had  provided defendants with  open-file discovery.            We  agree.  "To the  extent that the  government's open files            contain  information that  is subject  to Rule  16 discovery,            Rule 12(d)(2) creates  a notice requirement.   The open  file            policy  does  not,  in  and of  itself,  satisfy  this notice            requirement because  it does  not specify which  evidence the            government intends to use at trial."  United States v. Brock,                                                  _____________    _____            863  F. Supp. 851, 868 (E.D. Wis. 1994).  Providing open-file            discovery  does   not  satisfy  Rule  12(d)(2)  because  "the            defendant  is still  `left in  the dark'  as to  exactly what            evidence, discoverable under Rule  16, the government intends                                            ____________________            2.  Fed. R. Crim. P. 12(d)(2) provides:                      (d)  Notice  by  the  Government  of  the                      (d)  Notice  by  the  Government  of  the                      Intention to Use Evidence.                      Intention to Use Evidence.                           . . . .                           (2)  At  the  Request   of  the                           (2)  At  the  Request   of  the                           Defendant.   At the arraignment                           Defendant.                              or  as  soon  thereafter as  is                           practicable the defendant  may,                           in    order   to    afford   an                           opportunity to move to suppress                           evidence    under   subdivision                           (b)(3)  of  this rule,  request                           notice   of  the   government's                           intention   to   use  (in   its                           evidence in chief at trial) any                           evidence  which  the  defendant                           may  be  entitled  to  discover                           under  Rule  16 subject  to any                           relevant limitations prescribed                           in Rule 16.                                         -9-                                          9            to  rely upon in its case in  chief at trial."  United States                                                            _____________            v. Kelley,  120 F.R.D. 103, 107  (E.D. Wis. 1988).   Thus the               ______            district court  erred in  ruling that the  government's open-            file  discovery satisfied  the requirement of  Rule 12(d)(2).            The government's failure to designate either the telephone or            the cardboard as evidence was a violation of the rule.                      D az-P rez   next   argues  that   to   remedy  the            government's Rule 12(d)(2)  violation, we should reverse  her            conviction and  remand  for a  new trial  as we  did for  the            victim  of a Rule 16  violation in United  States v. Alvarez,                                               ______________    _______            987 F.2d 77,  85-86 (1st Cir.), cert. denied, 114  S. Ct. 147                                            _____ ______            (1993).  We do not agree.3                      We have not yet addressed the effect of a violation            of  Rule  12(d)(2).     In  reviewing  discovery  violations,            however, we  have made clear  that "[a] defendant  must prove            that the alleged  violation prejudiced his case to succeed in            obtaining a reversal on appeal."   United States v.  Nickens,                                               _____________     _______            955 F.2d 112, 126  (1st Cir.), cert.  denied, 113 S. Ct.  108                                           _____  ______            (1992); see also United States v. Valencia, 656 F.2d 412, 416                    ___ ____ _____________    ________                                            ____________________            3.  We would review  a district court's decision to  impose a            particular  sanction only  for abuse  of discretion.   United                                                                   ______            States v. Valencia,  656 F.2d 412, 415  (9th Cir.) (reviewing            ______    ________            sanctions imposed  for Rule  12(d)(2) violation for  abuse of            discretion),  cert. denied,  454  U.S. 877  (1981); see  also                          _____ ______                          ___  ____            Alvarez, 987 F.2d at 85 (reviewing district court's treatment            _______            of  government's failure  to provide  pretrial  discovery for            abuse of discretion).   In this  case, however, the  district            court did not consider  imposing a sanction since it  did not            find  that  a  violation  occurred.    Accordingly,  we  must            ourselves determine whether a sanction was necessary.                                         -10-                                          10            (9th Cir.), cert.  denied, 454  U.S. 877 (1981).   We  extend                        _____  ______            this prejudice requirement to violations of Rule 12(d)(2).                      D az-P rez  argues  that   the  government's   Rule            12(d)(2) violation prejudiced her in three ways:  (1) she was            not prepared to file  a motion to suppress the  evidence, (2)            the  evidence forced her to alter her trial strategy, and (3)            the  evidence had an  effect on her  plea strategy.   None of            these reasons warrants reversal in this case.                      Rule  12(d) is  "a  matter of  procedure," Fed.  R.            Crim.  P. 12  advisory  committee's note  (internal quotation            omitted), rather than  a rule designed to ensure  fairness at            trial.    As  its  text makes  clear,  Rule  12(d)(2)  allows            defendants to  request notice  of the government's  intent to            use  evidence "in order to  afford an opportunity  to move to                           ______________________________________________            suppress  evidence  under subdivision  (b)(3) of  this rule."            __________________            Fed.  R. Crim.  P. 12(d)(2)  (emphasis added).4    Rule 12(d)            "provides a mechanism for insuring that a  defendant knows of            the  government's  intention to  use  evidence  to which  the                                            ____________________            4.  Fed. R. Crim. P. 12(b) provides:                      (b)  Pretrial  Motions.     Any  defense,                      (b)  Pretrial  Motions.                      objection, or request which is capable of                      determination  without  the trial  of the                      general  issue may be raised before trial                      by  motion.   Motions  may be  written or                      oral at the discretion of the judge.  The                      following must be raised prior to trial:                           . . . .                            (3)    Motions   to    suppress                           evidence . . . .                                         -11-                                          11            defendant  may  want to  object"  so that  the  defendant may            "avoid the necessity of moving to suppress evidence which the            government does  not intend  to use."   Fed.  R. Crim.  P. 12            advisory  committee's note;  see  also 1  Charles A.  Wright,                                         ___  ____            Federal Practice and Procedure:   Criminal   197, at  735 (2d            __________________________________________            ed.  1982) (Rule 12(d) "is intended  to facilitate the making            of  a pretrial motion for  suppression of evidence.").  Thus,            Rule  12(d)  aids defendants  in  complying  with their  Rule            12(b)(3) obligation  to  make motions  to  suppress  evidence            prior  to trial.  This  in turn preserves  the integrity of a            trial by not  interrupting it with suppression motions.   See                                                                      ___            Fed. R. Crim. P. 12  advisory committee's note (Rule 12(b)(3)            "`is  designed  to eliminate  from  the  trial disputes  over            police conduct  not immediately  relevant to the  question of            guilt'")  (quoting Jones v. United States,  362 U.S. 257, 264                               _____    _____________            (1960) (emphasis eliminated)).5                        As "a matter of procedure," Rule 12(d) differs from            discovery  rules designed  to ensure  fairness.  See  Fed. R.                                                             ___                                            ____________________            5.  We  think  that government  violations  of  Rule 12(d)(2)            should  excuse  a defendant's  failure  to  move to  suppress            evidence  prior to trial, as required by Rule 12(b)(3), since            defendants  have no  incentive to  move to  suppress evidence            that  the government  will not  be introducing.   See  United                                                              ___  ______            States  v. Poole,  794  F.2d 462,  464  n.1 (9th  Cir.  1986)            ______     _____            (excusing   the  defendant's  failure  to  move  to  suppress            evidence prior to trial  since the government had not  warned            the defendant that the evidence would be used); Fed. R. Crim.            P. 12(f) ("Failure by a party to raise defenses or objections            or to make requests which  must be made prior to trial .  . .            shall  constitute waiver  thereof,  but the  court for  cause            shown may grant relief from the waiver.").                                         -12-                                          12            Crim. P. 12(d) advisory  committee's note; cf. Fed.  R. Crim.                                                       ___            P. 12.1  (Notice of Alibi) advisory  committee's note ("[t]he            major purpose of a notice-of-alibi  rule is to prevent unfair            surprise"); Fed.  R. Crim.  P. 16 (Discovery  and Inspection)            advisory  committee's note  ("broad discovery  contributes to            the fair and efficient  administration of criminal justice by            providing the  defendant with  enough information to  make an            informed decision  as to plea; by  minimizing the undesirable            effect   of  surprise   at  the   trial;  and   by  otherwise            contributing  to an  accurate determination  of the  issue of            guilt or innocence").  Rule 12(d) was not designed to aid the            defendant  in ascertaining  the government's  trial strategy,            but only  in effectively bringing suppression  motions before            trial, as required by Rule 12(b)(3).                      We  first consider  D az-P rez's argument  that she            was  prejudiced  because,  not  expecting  the government  to            introduce the telephone or  the cardboard, she was unprepared            to file  a motion  to suppress either  of them.   On  appeal,            D az-P rez does  not articulate any basis  for suppression of            the evidence;  we  note  that  D az-P rez  did  not  seek  to            suppress other evidence  seized from her car,  nor does there            appear  to us  to be  a basis  for suppressing  the evidence.            Absent some  discussion  regarding suppression,  we will  not            view the  lack of opportunity  for a  suppression hearing  as            prejudicial.   Merely stating  that "the  decision to file  a                                         -13-                                          13            motion  to  suppress  . .  .  could  have been  significantly            affected  by   the  knowledge  prior  to   trial[]  that  the            government intended  to present  those items in  evidence" is            not enough.                      D az-P rez also  argues that  the admission of  the            telephone  and  the  cardboard  greatly  affected  her  trial            strategy  and  her  incentives  to  plead  guilty  since  the            government's   case  became   markedly  stronger   with  that            evidence.   Rule  12(d) was  not, however, designed  to alert            defendants to  the strength  or weakness of  the government's            case  against them; rather, it was designed to aid defendants            in  fulfilling  their  Rule   12(b)(3)  obligation  to   make            suppression motions prior to trial.  Since trial strategy and            plea strategy  are simply not  implicated by Rule  12(d), the            alleged effect of a Rule 12(d) violation upon  trial strategy            or  plea strategy cannot  satisfy the  prejudice requirements            for reversal on appeal.                      We  recognize, however, that even though Rule 12(d)            was   not  designed   to  give   defendants  notice   of  the            government's  trial  strategy,  the  government's  failure to            designate certain pieces of evidence could work an unfairness            if the  defendant were not prepared immediately  to rebut it.            In such cases, we think that a district court would not abuse            its  discretion  by  granting  the  defendant  a continuance,            rather  than allowing  the government effectively  to sandbag                                         -14-                                          14            the   defendant   by   introducing  previously   undesignated            evidence.  Whether  or not  a defendant should  be granted  a            continuance for  fairness reasons, however, is  a matter best            left to the discretion of the district court.  On  appeal, we            will only  consider prejudice  stemming from the  function of            Rule  12(d), namely  matters regarding  potential motions  to            suppress.                      Thus,   although   the  government   violated  Rule            12(d)(2) by  not indicating prior  to trial its  intention to            introduce  the  telephone  and  the  cardboard  into evidence            during  its case in  chief, reversal is  not mandated because            D az-P rez suffered no prejudice.   That having been said, we            pause  to  make clear  that  we do  not  condone governmental            violations  of  this  sort.   Like  the  Advisory  Committee,            however,  we  believe that  in  general,  "attorneys for  the            government  will in fact comply  [with Rule 12(d)(2)]."  Fed.            R.  Crim. P.  12  advisory committee's  note.6   We  rely  on                                            ____________________            6.  The Advisory  Committee's notes discuss why  no sanctions            were provided for violations of Rule 12(d)(2):                      No   sanction   is   provided   for   the                      government's failure to  comply with  the                      court's   order  because   the  committee                      believes    that   attorneys    for   the                      government  will in fact  comply and that                      judges have ways of  insuring compliance.                      An automatic exclusion of  such evidence,                      particularly  where  the failure  to give                      notice  was  not  deliberate,   seems  to                      create  too  heavy   a  burden  upon  the                      exclusionary rule of evidence, especially                      when defendant has opportunity  for broad                                         -15-                                          15            district   courts   to  impose   appropriate   sanctions  for            governmental  noncompliance  and  encourage  them   to  grant            continuances and  hold additional suppression  hearings where            warranted.  Cf. Valencia,  656 F.2d at 416 (finding  no error                        ___ ________            in  admission  of  undesignated evidence  where  the district            court  conducted a  second suppression  hearing to  determine            admissibility  of undesignated evidence).  Where governmental            noncompliance  is the result  of bad faith,  exclusion of the            undesignated evidence may be  appropriate.  Cf. United States                                                        ___ _____________            v. Flores-Rivera, No. 93-1558,  slip op. at 17 n.7  (1st Cir.               _____________            June  1,  1995)  (repeating  admonishment  against government            misconduct and  stating that court may  use supervisory power            to  dismiss  an  indictment  to  deter  future  prosecutorial            misconduct).            B.  Tape Recordings            ___________________                      D az-P rez  next argues  that  the  district  court            committed reversible  error by admitting  into evidence three                                            ____________________                      discovery  under rule  16.   Compare  ABA                      Project   on   Standards   for   Criminal                      Justice, Standards Relating to Electronic                      Surveillance  (Approved  Draft, 1971)  at                      p.116:   "A  failure to  comply with  the                      duty of  giving notice could lead  to the                      suppression  of evidence.   Nevertheless,                      the  standards make it  explicit that the                      rule  is  intended  to  be  a  matter  of                      procedure    which    need   not    under                      appropriate  circumstances  automatically                      dictate    that    evidence     otherwise                      admissible be suppressed."            Fed. R. Crim. P. 12 advisory committee's note.                                         -16-                                          16            tape  recordings  of  conversations  between  Chita  and  two            unnamed   and  uncharged  Colombian   contacts.    D az-P rez            believes that the contents  of the tape recordings constitute            hearsay subject to no exception.  D az-P rez argues that  the            tapes could  not have been (implicitly)  admitted pursuant to            Fed. R. Evid. 801(d)(2)(E)7 since the district court  made no            factual  finding   that  the   persons  on  the   tapes  were            participating in a conspiracy with D az-P rez and speaking in            furtherance of  that conspiracy as required  by United States                                                            _____________            v.  Petrozziello,  548  F.2d 20,  23  (1st  Cir.  1977).   In                ____________            addition,  D az-P rez  contends  that  had  an  inquiry  been            conducted, the court could not have found that "the declarant            and  the  defendant were  members  of a  conspiracy  when the            hearsay statement  was made,  and that  the statement  was in            furtherance of the conspiracy."  Id. at 23.   Because   D az-                                             __            P rez failed to object  in the district court, the  issue has            not been preserved  for appeal.   As we  explained in  United                                                                   ______            States  v. Figueroa,  818  F.2d 1020,  1026  (1st Cir.  1987)            ______     ________            (alteration in Figueroa):                           ________                      [T]he  Petrozziello  rule is  designed to                             ____________                      protect  the  integrity of  the  trial in                      borderline    situations     where    the                      prosecution may  or may  not  be able  to                      muster sufficient proof of the existence,                      scope, shape, and  duration of an alleged                                            ____________________            7.  Fed. R. Evid. 801(d)(2)(E) states that a statement is not            hearsay if "[t]he statement is offered against a party and is            . .  . a statement by  a coconspirator of a  party during the            course and in furtherance of the conspiracy."                                          -17-                                          17                      conspiracy.   If the defendant elects not                      to  put the  government to  this  test --                      either  for  tactical reasons  or because                      the     outcome,     realistically,    is                      foreordained -- he is in a poor  position                      to complain after the fact.  As we stated                      in  United States  v. David  E. Thompson,                          _____________     ___________________                      Inc.,  621  F.2d  1147,  1153  (1st  Cir.                      ____                      1980),  "[i]n  the  absence  of  a proper                      objection,  Fed. R.  Evid.   103(a)(1), a                      deviation from the standard  announced in                      Petrozziello will be reversed only upon a                      ____________                      showing of plain error."                      The  "plain error" standard  requires the reviewing            court to ask:  (1) whether there is an error; (2) whether the            error  is   "plain,"  a  term  synonymous   with  "clear"  or            "obvious"; and  (3) whether  the  error affected  substantial            rights.  United States  v. Olano, 113 S. Ct.  1770, 1777-1778                     _____________     _____            (1993); see also  Fed. R.  Crim. P. 52(b)  ("Plain errors  or                    ___ ____            defects affecting substantial rights  may be noticed although            they were  not brought to the attention  of the court.").  An            "error rises to this level only  when it is so shocking  that            it  seriously affected  the  fundamental fairness  and  basic            integrity of the proceedings conducted below."  United States                                                            _____________            v. Ortiz, 23 F.3d 21, 26 (1st Cir. 1994) (internal quotations               _____            omitted).                       Applying the plain-error  standard, we reject D az-            P rez's argument.  Even assuming arguendo that D az-P rez was                                             ________            not  involved in a conspiracy  with the persons  on the tapes            and, therefore,  that  the  judge  could not  have  made  the            required findings under Petrozziello,  we do not believe that                                    ____________                                         -18-                                          18            the error passes the "clear" or "obvious" hurdle.  "Where the            error  defendant asserts  on  appeal depends  upon a  factual            finding the defendant neglected to  ask the district court to            make,  the error  cannot be `clear'  or `obvious'  unless the            desired factual finding is  the only one rationally supported            _______            by the record below."  United States v. Olivier-Diaz, 13 F.3d                                   _____________    ____________            1, 5 (1st  Cir. 1993) (emphasis added).   In this case, D az-            P rez's  "desired"  factual  finding  is  that  she  was  not            involved   in  a  conspiracy   with  the   Chita's  Colombian            contacts.8  We do  not believe, however, that such  a finding            is the "only  one rationally supported by the  record below."            Rather, the non-hearsay evidence  presented at trial makes it            plausible  that D az-P rez  was involved  in a  conspiracy to            distribute cocaine.   In  fact, Count  One of  the Indictment            charged both defendants with "aiding and abetting each other,            and others to  this Grand Jury unknown."  Additionally, while            the tape recordings between  Chita and his Colombian contacts            do not mention D az-P rez by name, the Colombian contacts did                                            ____________________            8.  To  the  extent  that  D az-P rez   also  challenges  the            admission of  Chita's statements, we  think that his  part of            the  conversations  served  as  "`reciprocal  and  integrated            utterance(s),'"  United States  v. McDowell,  918 F.2d  1004,                             _____________     ________            1007 (1st Cir.  1990) (quoting United States  v. Metcalf, 430                                           _____________     _______            F.2d  1197,  1199  (8th  Cir. 1970)),  to  put  the Colombian            contacts'   statements  "into   perspective  and   make  them            `intelligible to  the jury,'"  id. (quoting United  States v.                                           ___          ______________            Lemonakis, 485 F.2d 941, 948  (D.C. Cir. 1973), cert. denied,            _________                                       _____ ______            415  U.S.  989  (1974)).   Because  Chita's  statements  were            offered only for context and not for the truth of  the matter            asserted,  those statements  are  not hearsay  under Fed.  R.            Evid. 801(c).                                         -19-                                          19            indicate that the  informant would be  contacted by a  female            schoolteacher  in Puerto Rico.   See United  States v. Ortiz,                                             ___ ______________    _____            966 F.2d 707, 716 (1st Cir.  1992) (holding that there was no            plain  error   in  district   court's  failure  to   make  an            unrequested  Petrozziello  finding  because  enough  evidence                         ____________            existed to support a finding, based on a preponderance of the            evidence,  that  the  codefendants were  participating  in  a            conspiracy  at  the time  the  statements  were made),  cert.                                                                    _____            denied, 113 S. Ct. 1005 (1993).            ______                      Accordingly, because D az-P rez  failed to  produce            any evidence  at trial to deny  her role in a  conspiracy, we            cannot  conclude that  the district  court  committed obvious            error  in  allowing  the  tapes into  evidence.    Therefore,            because  the alleged error is  not clear or  obvious, we need            not reach the other elements of the plain-error review.                                         -20-                                          20            C.  Judicial Bias            _________________                      D az-P rez  also  complains  that   throughout  the            trial,  the  district  court  "overstepp[ed]  its  bounds and            assum[ed] the role  of an advocate  for the prosecution"  and            "constantly interjected  in a manner that indicated annoyance            and bias  against [defense]  counsel," thus  preventing D az-            P rez from having a fair trial.                        "It  cannot be gainsaid  that `[a] fair  trial in a            fair  tribunal  is  a  basic requirement  of  due  process.'"            United States v.  Nueva, 979  F.2d 880, 885  (1st Cir.  1992)            _____________     _____            (quoting  In   re  Murchison,  349  U.S.   133,  136  (1955))                      __________________            (alteration in Nueva), cert. denied,  113 S. Ct. 1615 (1993).                           _____   _____ ______            Accordingly, a trial  judge should be  fair and impartial  in            his or  her comments during a  jury trial.  United  States v.                                                        ______________            Twomey, 806 F.2d  1136, 1140  (1st Cir. 1986).   However,  "a            ______            finding of partiality should be reached only `from an abiding            impression left from a  reading of the entire record.'"   Id.                                                                      ___            (quoting Offutt  v. United States,  348 U.S. 11,  12 (1954)).                     ______     _____________            After scrutinizing the entire  record with care, we  are left            with no such abiding impression.            D.  Cocaine in the Jury Room            ____________________________                      Both  defendants  argue  that  the  district  court            abused its  discretion when it permitted  an unwrapped sample            of   cocaine  to   be   sent  into   the  jury   room  during            deliberations.   The unwrapped cocaine had  been offered into                                         -21-                                          21            evidence by the government,  without objection, as part  of a            representative  sample of the cocaine that had been seized at            the time of  defendants  arrest.  Immediately  after the jury            charge, however, defense counsel  did object to the unwrapped            cocaine being sent into the jury room on the grounds that the            evidence was  confusing, unnecessary,  and inflammatory.   We            are not persuaded.                      We  review  a  district  court s decision  to  send            evidence  into the jury room for abuse of discretion.  United                                                                   ______            States  v.  McCarthy,  961  F.2d  972, 978  (1st  Cir.  1992)            ______      ________            ("Whether  evidentiary exhibits  properly admitted  should or            should  not  accompany  the  jury  to  the  jury  room  is  a            discretionary  matter  for   the  trial  court.")   (internal            quotations omitted);  United States v. Rawwad,  807 F.2d 294,                                  _____________    ______            297 (1st Cir. 1986)  (reviewing the district court's decision            to send more than fifteen pounds of heroin into the jury room            for abuse of discretion), cert. denied, 482  U.S. 909 (1987).                                      _____ ______            District  courts have  discretion to allow  properly admitted            evidence to accompany the  jury into the jury room.   Rawwad,                                                                  ______            807 F.2d  at 297.   This is  true even when  the evidence  is            drugs, for the presence of drugs  in the jury room is not per                                                                      ___            se prejudicial or inflammatory.  Id.            __                               ___                      Defendants argue that even if it would generally be            within a  district court's discretion  to allow  drugs to  be            sent  into  the jury  room,  the  district court  nonetheless                                         -22-                                          22            abused  its  discretion  in  this  case  because  defendants'            knowledge of what was  in the wrapped packages was  at issue.            In  particular, defendants  contend  that the  jurors  "would            [have been] instantly struck  by the clear plastic bags  of a            white powdery substance" during their deliberations and would            have  been  confused.   We do  not agree.   In  reviewing the            record, we find no  reason why the presence of  the unwrapped            cocaine sample in the jury room would  have been particularly            inflammatory or  prejudicial  to defendants.   During  trial,            there  was substantial,  uncontroverted  testimony  that  the            cocaine was wrapped in such a way that it would not have been            possible   for   anyone   to  see   through   the  packaging.            Additionally,  during the  charge, the  court instructed  the            jurors that the  government had stipulated that  no one could            "see from the outside what was in the wrapped bags," and that            defendants'  pleas  of  not  guilty  put  all  the  essential            elements of the charged offense at issue, including knowledge            and intent.  Finally,  in addition to the unwrapped  cocaine,            other  items of evidence were  also sent into  the jury room,            including samples of the  packaging material and kilograms of            cocaine in their original wrapping.            E.  Sufficiency of the Evidence as to de la Cruz-Paulino            ________________________________________________________                      At the close of the  government's case in chief, de            la Cruz-Paulino moved, pursuant to Fed. R. Crim. P. 29, for a            judgment of acquittal, contending that the government had not                                         -23-                                          23            presented sufficient evidence to sustain a conviction.  After            the  district court  denied  the motion,  de la  Cruz-Paulino            presented  no  evidence in  her  own  defense.   Accordingly,            unlike defendants who do present evidence, de la Cruz-Paulino            did  not waive review of the district court's initial Rule 29            decision.  United States v. Clotida, 892 F.2d 1098, 1100 (1st                       _____________    _______            Cir.  1989);  2  Charles  A.  Wright,  Federal  Practice  and                                                   ______________________            Procedure:  Criminal   463, at 642 (2d ed. 1982).  This is so            ____________________            even  though de  la  Cruz-Paulino's codefendant  did mount  a            defense  by testifying in her  own behalf.   See Clotida, 892                                                         ___ _______            F.2d at 1103.   Thus,  on appeal we  must determine  whether,            "when examined in  a light most favorable  to the government,            the  evidence  presented in  the  government's case-in-chief,            including all  inferences that may be  drawn therefrom, would            permit  a reasonable juror to find  guilt beyond a reasonable            doubt."  Id..   Even though D az-P rez's testimony might have                     ___            influenced  the jury in its  decision to convict  de la Cruz-            Paulino, we may not  consider that testimony on appeal.   See                                                                      ___            id.; cf. McGautha v. California, 402 U.S. 183, 215 (1971) ("a            ___  ___ ________    __________            defendant  whose motion  for acquittal  at  the close  of the            Government's case is  denied must decide whether  to stand on            his  motion or put on a defense,  with the risk that in doing            so  he  will bolster  the Government  case  enough for  it to            support a verdict of guilty"); 2 Wright, Federal Practice and                                                     ____________________            Procedure:  Criminal   463, at 645 (if the defendant presents            ____________________                                         -24-                                          24            evidence  after  the denial  of his  or  her Rule  29 motion,            "[t]he   conviction  will  be   affirmed,  even   though  the            prosecution  may have failed to  make a prima  facie case, if            the  evidence for  the defense supplied  the defect,  and the            whole record is sufficient to sustain a conviction").                      Taken   in  the   light  most   favorable  to   the            government,  the evidence  presented during  the government's            case in chief  established the  following:  (1)  de la  Cruz-            Paulino  helped move garbage  bags containing sealed packages            of cocaine into D az-P rez's car; (2)  de la Cruz-Paulino was            in the car while  D az-P rez spoke with Agent Andaluz  on her            cellular telephone; (3) de la Cruz-Paulino was present at the            Burger King delivery scene; and (4) after Agents Andaluz  and            Salazar opened  one of the  garbage bags, de  la Cruz-Paulino            stated, "No,  watch out the  police is  around, going  around            here."  De  la Cruz-Paulino argues that because this evidence            is  insufficient  to  allow  a  jury  to  conclude  beyond  a            reasonable doubt  that she  aided and abetted  D az-P rez and            others  in   the  possession   of  cocaine  with   intent  to            distribute, the  district court should have  granted her Rule            29  motion  for judgment  of acquittal  at  the close  of the            government's case in chief.  We agree.                      To be  convicted of aiding and  abetting, more than            "mere presence" at the  scene is required.  United  States v.                                                        ______________            Mehtala,  578 F.2d  6,  9  (1st  Cir.  1978).    The  classic            _______                                         -25-                                          25            definition  of aiding  and abetting,  adopted by  the Supreme            Court, was first enunciated by Learned Hand:                      In  order  to  aid  and  abet  another to                      commit  a crime  it is  necessary that  a                      defendant "in some sort associate himself                      with the venture,  that he participate in                      it as something that  he wishes to  bring                      about, that he seek by his action to make                      it succeed."            Nye  &  Nissen v.  United States,  336  U.S. 613,  619 (1949)            ______________     _____________            (quoting United States v.  Peoni, 100 F.2d 401, 402  (2d Cir.                     _____________     _____            1938) (L. Hand, J.)).   Thus, for de la Cruz-Paulino to  have            been  convicted  under  an  aiding-and-abetting  theory,  the            government  had to  prove (1)  that D az-P rez  committed the            underlying substantive crime and  (2) that de la Cruz-Paulino            shared D az-P rez's  criminal intent.   See United  States v.                                                    ___ ______________            Valerio,  48 F.3d  58, 64  (1st Cir.  1995).   The government            _______            fulfilled the first prong, for D az-P rez was convicted.   To            fulfill the second prong, the government had to prove that de            la Cruz-Paulino "consciously shared  [D az-P rez's] knowledge            of the  underlying criminal act, and intended to help [her],"            United  States v. Taylor, 54  F.3d 967, 975  (1st Cir. 1995);            ______________    ______            see also United States v.  Loder, 23 F.3d 586, 591 (1st  Cir.            ___ ____ _____________     _____            1994) (discussing specific-intent  requirement for aiding and            abetting).  This the government did not do.                      "[T]he  line  that  separates  mere  presence  from            culpable presence  is a thin  one, often difficult  to plot."            Ortiz, 966 F.2d at 712.  On the one hand, "[m]ere association            _____                                         -26-                                          26            between  the  principal  and  those  accused  of  aiding  and            abetting  is not sufficient  to establish guilt;  nor is mere            presence at  the scene and knowledge  that a crime was  to be            committed  sufficient  to  establish  aiding  and  abetting."            Mehtala,  578 F.2d  at 10  (internal quotation  omitted); see            _______                                                   ___            also  United States v. Campa,  679 F.2d 1006,  1010 (1st Cir.            ____  _____________    _____            1982) ("Mere presence at the scene and knowledge that a crime            is  being  committed is  generally insufficient  to establish            aiding  and  abetting.     The  government  must  prove  some            affirmative  participation  by   the  aider  and   abettor.")            (internal citation omitted).   On the other hand,  "there are            circumstances where presence  itself implies participation --            as  where a  250-pound bruiser stands  silently by  during an            extortion attempt, or a companion stands by during a robbery,            ready  to sound  a warning  or give  other aid  if required."            Ortiz, 966 F.2d at 712 (internal quotation omitted).            _____                      In the  instant case, the  government presented  no            direct  evidence9 during its case  in chief that  de la Cruz-                                            ____________________            9.  Of  course,  a conviction  may  be  premised entirely  on            circumstantial evidence.   United States v. Torres-Maldonado,                                       _____________    ________________            14 F.3d  95, 100  (1st Cir.),  cert. denied,  115 S.  Ct. 193                                           _____ ______            (1994).    As  we explained  in  Clotida,  892  F.2d at  1104                                             _______            (alterations in Clotida),                            _______                      Circumstantial evidence  has been defined                      as "proof which  does not actually assert                      or represent the proposition in question,                      but which asserts or  describes something                      else, from  which the  trier of  fact may                      either (i) reasonably infer the  truth of                      the proposition,  . . . or  (ii) at least                                         -27-                                          27            Paulino (1) had any knowledge that the garbage bags contained            cocaine, (2) had any connection to the drugs prior to Andaluz            suggesting   to   D az-P rez,    during   their   7:55   p.m.            conversation,  that she pay someone $40 to help her carry the            packages to  her car,10 or (3)  was to be paid  more than $40                                            ____________________                      reasonably  infer  an  increase   in  the                      probability  that  the proposition  is in                      fact  true. .  . ."  1 D.  Louisell  & C.                      Mueller,  Federal  Evidence    94 (1977).                                _________________                      It  has  been noted  that  "[t]he  . .  .                      general  problem of  circumstantial proof                      is   to   determine   whether   proffered                      evidence   indirectly  or   inferentially                      supports  the  proposition  sought to  be                      proved."  Id. at   91.                                ___                           It cannot be doubted,  however, that                      circumstantial  evidence  is  often  very                      probative.  As  Professor Wigmore  notes,                      without  allowing   the  introduction  of                      evidence that permits "an  inference upon                      an  inference,"  "hardly  a single  trial                      could  be adequately prosecuted."   1A J.                      Wigmore, Evidence    41 (1983).   Indeed,                               ________                      "the  courts  in general  have recognized                      that  circumstantial   evidence  may,  in                      given settings, have equal if not greater                      weight  than  direct  evidence."    1  C.                      Torcia, Wharton's Criminal  Evidence    5                              ____________________________                      (14th  ed. 1985).    Furthermore,  it  is                      important to note that, in the context of                      review of  a  motion for  acquittal,  "no                      legal    distinction    exists    between                      circumstantial   and  direct   evidence."                      United  States v. Sutton,  801 F.2d 1346,                      ______________    ______                      1358 (D.C. Cir. 1986).              10.  During  their 7:10  p.m. conversation,  D az-P rez, upon            being asked  where she  was, responded,  "I'm here in  . .  .            what's the name of this place, girl?  In Trujillo Alto."  The            government did not establish the identity of the person D az-            P rez conferred with during its case in chief,  and we do not            think  the jury was entitled to infer that de la Cruz-Paulino            was involved  in the  drug venture prior  to Andaluz's  later            suggestion  that D az-P rez pay someone  $40 to help her move                                         -28-                                          28            for  her  involvement in  the drug  venture.   The government            argues that the jury was nevertheless entitled to find beyond            a reasonable doubt that de  la Cruz-Paulino aided and abetted            D az-P rez  in  the  possession  of cocaine  with  intent  to            distribute  because (1)  criminals  do  not  usually  welcome            nonparticipants as witnesses to their criminal activities and            (2)  the  facts, especially  her  involvement  in moving  the            packages  from  an  apartment  to D az-P rez's  car  and  her            statement  about the  police being  around, imply that  de la            Cruz-Paulino   knowingly  participated  in  the  venture  and            intended to help it succeed.  We do not agree.11                      The evidence suggests that  de la Cruz-Paulino  was            brought in to do  a menial task, namely carrying  the cocaine                                            ____________________            the  packages from  the  fact that  D az-P rez questioned  an            unidentified female,  whose voice does not  register on tape,            about their whereabouts.                      During cross-examination, D az-P rez agreed that de            la Cruz-Paulino  was the  off-tape person  who told  her that            they were in Trujillo Alto,  where de la Cruz-Paulino  lived.            Because D az-P rez's testimony  was outside the  government's            case  in  chief,  however, we  will  not  consider  it.   See                                                                      ___            Clotida, 892 F.2d at 1105 n.1.            _______            11.  We find the government's  three-page discussion of de la            Cruz-Paulino's      sufficiency-of-the-evidence     challenge            disappointingly conclusory.  Unlike the government, we do not            think that "[t]he  evidence of guilt, as  to both appellants,            was  simply overwhelming."    On the  contrary, the  evidence            against  de  la Cruz-Paulino  was  quite sparse,  and  a more            thorough discussion  from the government would  have aided us            greatly in our  assessment of its sufficiency.   We reiterate            that  "[d]espite  the prosecution-friendly  overtones  of the            standard  of  review,   appellate  oversight  of  sufficiency            challenges  is not an empty ritual."  Ortiz, 966 F.2d at 711-                                                  _____            12.  The government should not treat it as one.                                         -29-                                          29            from the apartment where  it was stored down  to D az-P rez's            car.  The government  presented no evidence that de  la Cruz-            Paulino  was involved  prior to  Andaluz suggesting  to D az-            P rez that she pay someone $40 to help her carry the packages            to  her car.12    No reasonable  jury  could have  concluded,            beyond a  reasonable doubt, that D az-P rez  would have hired            only someone already  participating in the drug venture to do            this  menial task and  therefore that de  la Cruz-Paulino was            already involved.   Accordingly, we must  determine whether a            reasonable jury could conclude beyond a reasonable doubt that            de la Cruz-Paulino  developed the specific intent to  aid and            abet  D az-P rez  in  the  approximately  two  hours  between            Andaluz's $40 suggestion and the ensuing arrests.                      We  do not  think  that the  evidence supports  the            inference  that de la Cruz-Paulino was  told about and joined            the  drug venture after Andaluz's  $40 suggestion.  The drugs            were  elaborately  wrapped  in  sealed  packages13  that were            then  placed into  three  garbage bags.    Unless she  was  a            participant   in  the   drug  venture   prior   to  Andaluz's            suggestion, an inference we have held to be impermissible, de            la  Cruz-Paulino  could not  have  seen  the drugs  in  their            unpackaged form.   The  drugs were assuredly  packaged before                                            ____________________            12.  See supra note 10.                     _____            13.  The government stipulated that  it was impossible to see            the cocaine inside of the packages.                                         -30-                                          30            Andaluz made the $40 suggestion, for  the time period between            that suggestion (made at 7:55 p.m.) and the actual arrest (at            9:55 p.m.) would have been too short to package and transport            the  drugs,  especially  given  that  D az-P rez  spoke  with            Andaluz  from her  car during  that time.   There is  also no            indication  from the  taped conversations  between D az-P rez            and Andaluz that she had anything to do with the drugs  other            than  move them down from the apartment  to her car.14  While            de la  Cruz-Paulino admitted to  helping carry "it"  from the            apartment to the car,  responding to Salazar's question, "Did            you  get it  down?"  with "Of  course we  did,"  there is  no            evidence that de la Cruz-Paulino  saw the packages inside the            garbage bags until the time of her arrest.                                            ____________________            14.  In fact,  the recorded  conversation that began  at 7:27            p.m. contains the following discussion between D az-P rez (D)            and Andaluz (A):                      A:  Listen, how is that packed?                      D:  Ah?                      A:  Do you have it packed already?                      D:  It's,  I told you  all complete in  a                      bag.                      A:  What do you mean a bag?                      D:  Like that.   Thirty, thirty-two, like                      that.                      A:  It's still in  bags, is not in  boxes                      or suit cases?                      D:  No.                      A:  In bags, hell.                      D:  No, but it's in one black trash bag.                      A:  Hello?                      D:  Yes, it's in one black trash bag.                                         -31-                                          31                      We see no basis  for concluding that D az-P rez cut            de  la   Cruz-Paulino  in  on  the   drug  transaction  after            soliciting her  package-carrying services.   D az-P rez had a            menial job that de la Cruz-Paulino was willing to do for $40;            there  was no need for  D az-P rez to cut  de la Cruz-Paulino            into  the deal to obtain her  package-carrying services.  Cf.                                                                      ___            United  States v.  Francomano, 554  F.2d 483,  487  (1st Cir.            ______________     __________            1977) (holding  that  there was  "no basis  for a  reasonable            inference" that the defendants  were cut in on the  drug deal            when the record indicated  that they were willing  to perform            the   required   crewmember   services   with   "no   special            inducement").    The  jury  could not,  without  engaging  in            impermissible inference, conclude that de la Cruz-Paulino was            entitled to anything other  than $40 for her package-carrying            services.   Indeed, there  is no evidence  about D az-P rez's            own compensation arrangement.  As D az-P rez was not supposed            to obtain  any  money from  the  government agents  when  she            turned  over  the packages  to them,  there  is no  basis for            inferring that de la Cruz-Paulino thought she would receive a            portion of the funds collected.                      Of course,  an aider  and abettor need  not receive            compensation  or  have  any  stake  in  a  transaction  to be            convicted.   See United States v. Winston, 687 F.2d 832, 834-                         ___ _____________    _______            35  (6th Cir.  1982).   Thus,  in  United States  v.  Cuevas-                                               _____________      _______            Esquivel, 905  F.2d 510,  515 (1st  Cir.), cert. denied,  498            ________                                   _____ ______                                         -32-                                          32            U.S.  877 (1990), we upheld the conviction of a defendant who            testified that he was only  paid $33 for being a  deckhand on            board  a   boat  carrying   a  large  amount   of  marijuana.            Similarly,  in United  States v. Steuben,  850 F.2d  859, 866                           ______________    _______            (1st Cir.  1988), we affirmed  the conviction of  a defendant            who claimed that he  was paid $300 for being a  crewmember on            board  a tugboat carrying $42 million worth of marijuana.  In            both cases, however, we held that there  was sufficient other            evidence for  the jury to  conclude that the  defendants were            not just crewmembers, but rather full-fledged participants in            the criminal ventures.   Unlike those cases, the  $40 payment            in  the instant case is corroborated by the fact that Andaluz            suggested it,  and there is little  other evidence indicating            that de  la Cruz-Paulino  was actually  involved in  the drug            venture.  Thus, while  compensation of only $40 would  not by            itself counter  other evidence establishing that  de la Cruz-            Paulino  was  a participant  in  the  criminal venture,  that            compensation, especially suggested as  it was by a government            agent, tends to negate  an inference that de  la Cruz-Paulino            was more heavily involved.                      We next consider whether the  fact that de la Cruz-            Paulino    overheard    some   of    D az-P rez's   telephone            conversations15  and came  to the  Burger King  delivery site                                            ____________________            15.  After the  government agent  made his $40  suggestion at            7:55  p.m.,  D az-P rez  engaged  in  three  more   telephone            conversations with  him, at  8:35 p.m.,  9:29 p.m., and  9:45                                         -33-                                          33            is evidence that  she was a  full-fledged participant in  the            drug venture.   It  is true  that "it runs  counter to  human            experience  to  suppose   that  criminal  conspirators  would            welcome   innocent  nonparticipants  as  witnesses  to  their            crimes."  United  States v. Batista-Polanco, 927  F.2d 14, 18                      ______________    _______________            (1st  Cir.  1991).    Thus,  we  have  upheld convictions  of            defendants where the facts suggested that they witnessed open            and  obvious  criminal  activity  and therefore  allowed  the            inference  that the defendants  participated in that criminal            activity.   For  example, in  Batista-Polanco, we  upheld the                                          _______________            conviction  of a defendant  arrested at an  apartment while a            large-scale   heroin-packaging   operation  was   in  process            throughout  the  apartment,  stating "we  cannot  accept  the            hypothesis that  participants in a distribution  scheme would            permit a noncontributing interloper to remain for an extended            period  of time in a  small apartment while their conspicuous            criminal  conduct continued unabated."   Id.   In  that case,                                                     ___            however,  the presence of six  seats -- one  a makeshift seat            consisting of an  overturned bucket  with a  cushion and  one            with  the defendant's  sweater on  it  -- around  the kitchen            table at  which the heroin  was packaged also  suggested that            the defendant was a participant along with the five other men            arrested at the apartment.  Id.                                        ___                                            ____________________            p.m.   We assume that de la  Cruz-Paulino was present for all            three  calls.   De la  Cruz-Paulino's voice  is heard  in the            background of the call made at 9:29 p.m.                                         -34-                                          34                      On the other hand,  a defendant who was  present at            the scene of a crime  and who had knowledge that a  crime was            being committed  cannot be  convicted of aiding  and abetting            unless  the  jury can  reasonably  infer  that the  defendant            shared the specific intent  of the principal.  The  fact that            criminal activity occurs in front of someone does  not always            allow  the inference  that  that someone  was a  participant.            Thus, in United States  v. Paone, 758 F.2d 774, 776 (1st Cir.                     _____________     _____            1985), we suggested that  if the defendant had merely  been a            passenger in the back  seat of a car while  drugs were handed            over to a  purchaser, rather than someone who  was repeatedly            present at important  junctures of a drug  deal, the evidence            might have been insufficient to support his conviction.                      We assume  that de la Cruz-Paulino  overheard D az-            P rez's  side16  of the  three  telephone  conversations that            took place after  Andaluz suggested that  she pay someone  to            help her  carry  the packages.    We have  scrutinized  those            conversations with care and  find that they do not  provide a            basis  for inferring  that  de la  Cruz-Paulino shared  D az-            P rez's specific intent to  possess cocaine for distribution.            While they would  support D az-P rez's conviction, especially            since Andaluz used the word "kilos,"  we do not think that an            innocent  observer to D az-P rez's  side of the conversations                                            ____________________            16.  There  is  no  evidence   that  the  conversations  were            conducted on a speaker phone so that de la Cruz-Paulino could            have heard Andaluz's side as well.                                         -35-                                          35            would infer that a drug transaction was being discussed.  Nor            do we think the fact that D az-P rez felt free to conduct her            side  of the  conversation  in front  of  de la  Cruz-Paulino            indicates that de  la Cruz-Paulino was  a participant in  the            drug  venture, for  D az-P rez could  control  her responses.            Indeed, she  did not speak  explicitly about  cocaine at  any            time.   We note that D az-P rez did mention obtaining the $40            from   the   government   agents   during    one   of   those            conversations.17                      That  de la  Cruz-Paulino came  to the  Burger King            delivery  scene also does not indicate that she was a knowing            participant in  the drug venture.   While criminals generally            might  be  presumed not  to  bring  along nonparticipants  to            witness  their  criminal activities,  we  do  not think  that            necessarily holds true when the criminal activity will not be            open  and  obvious.    Compare  Clotida,  892  F.2d  at  1105                                   _______  _______            (reversing as  insufficient  the defendant's  conviction  for            aiding and  abetting her travelling companion  in drug crimes            involving cocaine-laden  clothing mixed in suitcases with her            own  clothing).   In this  case, no  negotiations were  to be            entered  into  and  no  money  was  to  be  exchanged:    the            government  agents were simply supposed to take the car for a                                            ____________________            17.  Andaluz  also  testified  that,  although  de  la  Cruz-            Paulino's comment  during the  9:29 conversation he  had with            D az-P rez was  not intelligible  on the recording,  she said            "something  like they're going to  have to give  us the forty            dollars or words to that effect."                                         -36-                                          36            few  minutes,  unload  it, and  bring  it  back.   D az-P rez            responded  to Andaluz's  question,  "Which is  your car?"  by            stating,  "That black one over there, in the trunk, two bales            and . .  . eight doubles.  . . ."   Then Andaluz  and Salazar            opened  the trunk and one of the garbage bags, Andaluz saying            that he had  "[t]o check it out girl, because  what will I do            with  [unintelligible]."   D az-P rez became  very upset  and            exclaimed, "Shut up!   Oh  God, the two  bales and the  other            stuff."   At this point,  Andaluz stated, "No,  relax, we are            getting involved here to  get a party," and then  de la Cruz-            Paulino  stated, "No, watch  out the police  is around, going            around here."                      We do not think  that de la Cruz-Paulino's comment,            "No, watch out the  police is around, going around  here," is            sufficient  in this  context  to allow  a reasonable  jury to            conclude that de la Cruz-Paulino specifically intended to aid            and abet  D az-P rez in possessing  cocaine for distribution.            Even  if de  la Cruz-Paulino  could have inferred  from D az-            P rez's sudden shift in attitude and her statements about the            "two bales," and  from the two government agents'  opening of            one of the  garbage bags,  that, unbeknownst to  her, a  drug            transaction was going  on, such  last-minute knowledge  would            not  support  the conclusion  that  she  shared the  specific            intent to possess cocaine  for distribution.  See Francomano,                                                          ___ __________            554  F.2d  at  487  ("Even  if  it  could  be  inferred  that                                         -37-                                          37            appellants acquired knowledge of the throwing of the packages            [of marijuana] overboard, such last minute knowledge together            with all other evidence produced by the Government affords no            legal  basis  for   appellants'  conviction  as   aiders  and            abetters."); see  also United States v.  Lopez-Pena, 912 F.2d                         ___  ____ _____________     __________            1536, 1538 (1st Cir. 1989) (stating that warning about police            in the area and  advice on avoiding arrest were  what "anyone            might do as a friend").                        The evidence in this  case is close to the  line of            being  enough  to sustain  a  conviction.   Nevertheless,  in            reversing de  la Cruz-Paulino's  conviction, we keep  in mind            the following:                      [E]vidence  might raise  a question  in a                      reasonable man's  mind.  But  that is not                      enough.    Guilt,  according  to  a basic                      principle in our  jurisprudence, must  be                      established  beyond  a reasonable  doubt.                      And,  unless that  result is  possible on                      the evidence, the judge must not  let the                      jury act; he must not  let it act on what                      would  necessarily  be  only surmise  and                      conjecture, without evidence.            United States v. Campbell, 702 F.2d 262, 267 (D.C. Cir. 1983)            _____________    ________            (quoting  Cooper v. United States, 218 F.2d 39, 42 (D.C. Cir.                      ______    _____________            1954)) (alteration in Campbell).                                  ________                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the  forgoing reasons, the conviction  of D az-            P rez is affirmed and the conviction of de la Cruz-Paulino is                     affirmed                     ________            reversed.            reversed            ________                                         -38-                                          38
