
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1889                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 CHARLES ROGERS, JR.                                Defendant, Appellant.                                 ____________________        No. 96-2032                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  ANDREW J. BEAGAN,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                           Selya and Lynch, Circuit Judges,                                            ______________                         and Pollak, Senior District Judge.*                                     _____________________                                 ____________________            Robert D. Watt, with  whom Frederick Q. Watt  and Brian J.  Sylvia            ______________             _________________      ________________        were on brief, for appellant Charles Rogers, Jr.            Mark J. Gardner for appellant Andrew J. Beagan.            _______________            Stephanie S.  Browne, Assistant  U.S. Attorney, with  whom Sheldon            ____________________                                       _______        Whitehouse, U.S. Attorney, was on brief, for appellee.        __________                                 ____________________                                   August 26, 1997                                 ____________________                                    ____________________        *Of the Eastern District of Pennsylvania, sitting by designation.                      LYNCH, Circuit  Judge. A sting  operation involving                      LYNCH, Circuit  Judge.                             ______________            cocaine led to the arrests  and convictions of Charles Rogers            and Andrew Beagan.  They, along with two others, were charged            with conspiracy to  distribute and to possess  with intent to            distribute over five kilograms of cocaine in violation  of 21            U.S.C.    846, and attempt to  distribute and to possess with            intent  to distribute  over  five  kilograms  of  cocaine  in            violation of 21 U.S.C.    841(a)(1).  Rogers and Beagan  both            raise numerous  challenges to  their convictions.   The  most            substantial of these  is Rogers' sufficiency of  the evidence            claim.    Beagan's  claims  revolve  around  his  defense  of            entrapment.  We affirm.                                          I.                      During  the Fall of 1994, members of the Providence            Police  Department  met  with Ronald  Rego,  an  informer, to            discuss a drug sting.   Agreement was reached that Rego would            receive   10%  from  a drug  sting.   In  return, Rego  would            arrange a  meeting between  Detective Fred  Rocha and  Andrew            Beagan,  a codefendant here.  Detective Rocha would arrange a            cocaine  sale to  Beagan and arrest  him at  the time  of the            sale.                      On  November 16,  1994,  Rego  introduced Rocha  to            Beagan.  The meeting was tape recorded.  Rocha claimed he was            a  large-scale cocaine  dealer and  Beagan  indicated he  was            interested  in  buying  as  much  as  25  kilograms.    Other                                         -2-                                          2            telephone  conversations and  meetings  took  place in  early            December.   Some of  these were recorded.   Rocha  and Beagan            agreed on a December 12 sale date.                      Beagan  and Rocha  met on  that day.   Beagan  told            Rocha that "his people" did not want to carry all their money            at  once, so  Beagan and  Rocha agreed  they would  split the            transaction  into two parts.   Rocha  would first  deliver 10            kilograms  of cocaine  and  Beagan would  pay.   If  Beagan's            people liked  the quality,  then the  remaining 15  kilograms            would be exchanged.                      Beagan  and Rocha  worked out  the  details of  the            exchange on  the telephone.   Rocha was to call  Beagan later            that day  to tell him where to bring  the "drop car" in which            the cocaine was to be loaded.   Rocha would then pick up  the            drop  car, load it with 10 kilograms of cocaine and drive the            car to an undisclosed location.  Beagan would meet Rocha at a            third location to show Rocha  the money for the 10 kilograms.            Once Rocha saw the money,  he would tell Beagan where  he had            left the  drop car.  Beagan's  people would pick up  the drop            car, and,  if they  were satisfied  with the  cocaine, Beagan            would release the money to  Rocha.  If Beagan's people wanted            to buy the remaining  15 kilograms, they would have to  do so            within the hour.                      As  planned, Beagan called  Rocha to tell  him that            the drop car,  a white Taurus, was in  the University Heights                                         -3-                                          3            parking  lot in Providence.  Rocha and another police officer            picked up the car, which had been rented by David Scialo (the            third codefendant in the case).  The rental agreement  listed            Rogers as the second driver.                      The  police  officers   loaded  into  the   car  25            kilograms of  oatmeal packaged  to look  like cocaine.   They            moved  the car  to  the  parking  lot  of  a  ball  field  in            Providence.   Rocha called Beagan  and told him to  bring the            money  to the  India Point  Days Inn  in Providence.   Beagan            arrived at the  motel parking lot around 4  p.m., accompanied            by the final  codefendant in the case, Ruben  DeLeon.  DeLeon            was carrying a  black bag.  Rocha saw  that the bag contained            bundles of money.                      Beagan  handed Rocha  a  cellular telephone  (which            belonged  to  Scialo)  so  that  Rocha  could  tell  Beagan's            confederate  at the  other end  of the  line where  the drugs            were.   However,  the line  went  dead.   Beagan plugged  the            telephone into  an outlet in  his car and the  telephone soon            rang.  Beagan handed the phone  to Rocha, who told the caller            that the drop car was parked at the ball field parking lot at            Power   Street  in  Providence.    Rocha  then  returned  the            telephone to  Beagan, who remained  on the line until  he was            arrested.                      Officers who were stationed near the ball field saw            a green  Toyota pull  up next to  the drop  car.   Rogers was                                         -4-                                          4            driving; Scialo and  one other were passengers.   The car was            rented to Scialo.   Scialo  got out of  the Toyota, into  the            drop  car and  began to  drive away,  following Rogers.   Two            officers saw that Rogers was  holding a cellular phone to his            ear.   The  authorities  stopped the  two  cars and  arrested            Rogers and Scialo.1                      Soon afterwards,  FBI agents and  Providence police            arrested  Beagan  and  DeLeon at  the  Days  Inn.   Telephone            records established that  around 4 p.m.(the approximate  time            that Rocha spoke to Beagan's confederate on the telephone and            told him  where to find  the drop car), the  telephone Rogers            was holding was  used to twice call the  telephone Beagan was            holding.            Procedural History            __________________                      The four codefendants -- Rogers, Beagan, Scialo and            DeLeon --  were charged and  tried before  a jury on  the two            drug trafficking  counts.  At  the close of  the government's            case, Rogers moved for a judgment of acquittal as well as for            a  mistrial based on  an allegedly improper  statement by the            prosecutor in his  opening.  The prosecutor had  said that he            would show that Rocha had  spoken on the telephone to someone            named  Chuck during  the drug  deal.   No  such evidence  was            admitted at  trial.  The  district court denied  the motions,                                            ____________________            1.  They also arrested  the other passenger in  the car, Juan            Toribio, but he later was released.                                         -5-                                          5            stating  that defense counsel could argue in closing that the            government had failed to produce promised evidence.                      After beginning  deliberations, the  jury requested            that the  court instruct  them once again  on the  meaning of            predisposition.   The court did  so.  Beagan objected  to the            instruction,  asking  that   the  jurors  be  told   that  in            considering  whether he was predisposed to commit the charged            crimes, they  might only consider  his behavior prior  to his            contact with the  government agents.   The court declined  to            give  the additional instruction.   The jury  returned to its            deliberations, and Beagan, Rogers and DeLeon2 were  convicted            on the two drug trafficking charges.  Scialo was acquitted.                      Beagan and  Rogers moved for  a new trial,  each on            different  grounds.   Rogers  argued  that  the  verdict  was            against the weight  of the evidence and that  there was newly            discovered evidence, in the form of Scialo's testimony, which            would exculpate  Rogers.   The district  court ruled  against            him.                      Beagan  moved for a  new trial on  several grounds,            only one  of which  warrants discussion:  his claim  of juror            misconduct.  Beagan  filed an affidavit from  Matthew Beagan,            Jr.,  his brother,  alleging that  after  the trial,  Matthew            Beagan had spoken  to one of the jurors,  who stated that the                                            ____________________            2.  DeLeon  has petitioned for  habeas relief,  claiming that            his attorney failed to file and perfect his appeal.                                         -6-                                          6            jury had  been very  confused about the  meaning of  the term            "predisposition"  and that some  of the jurors  had consulted            dictionaries.  The court called  in the juror to whom Matthew            Beagan had spoken, as well as one other juror, and questioned            them regarding their  post-trial contact with  Matthew Beagan            and the use of dictionaries  by jurors.  The questioning took            place  in the  presence of  counsel  for all  the parties  in            interest.    After  meticulous   inquiry,  the  court  denied            Beagan's  motion for  a new  trial.   It found  that although            there had  been juror misconduct  in that at least  one juror            had  consulted a dictionary  on the term  predisposition, the            conduct was  not prejudicial  to Beagan  because it  occurred            prior  to  the  time the  jurors  requested  additional legal            instruction on the legal definition of the term.                      Rogers was  sentenced to  78 months'  imprisonment.            Beagan was  subject  to a  statutory minimum  of 240  months'            imprisonment.                                         II.            Rogers            ______                      Rogers'   primary   claim   is   that   there   was            insufficient   evidence  to  convict  him  on  the  two  drug            trafficking counts.  He argues  that he was merely present at            the scene of the crime and  that there is no evidence of  his            actual involvement.                                         -7-                                          7                      The    case    against   Rogers    is    admittedly            circumstantial and requires  some inferences.  We  review the            facts in  the light  most favorable to  the verdict.   United                                                                   ______            States v. Montas, 41 F.3d 775, 778 (1st Cir. 1994).   Seen in            ______    ______            this light,  the evidence  is sufficient  to support  Rogers'            convictions on both counts.                      It is true, as Rogers argues, that mere presence at            the scene  of a  crime is  insufficient  to establish  guilt.            However, this court has distinguished between "mere" presence            and "culpable" presence.   A defendant's presence  during the            commission  of  a   crime  can  establish  guilt   where  the            surrounding circumstances imply participation.  United States                                                            _____________            v.  Montilla-Rivera, 115  F.3d 1060,  1064  (1st Cir.  1997);                _______________            United States  v. Paulino,  13 F.3d 20,  25 (1st  Cir. 1994);            _____________     _______            United States v. Ortiz, 966 F.2d 707, 711-12 (1st Cir. 1992).            _____________    _____            Such is the case here.                      It  was Rogers  who drove  Scialo  to the  baseball            field to  pick up  the drop  car and  who was  listed as  the            second driver in  the rental agreement.   Most significantly,            it was Rogers who was observed talking on a cellular phone in            the middle of the  drug deal.  Records place his  call to the            cellular  phone Beagan  was  using.   Rogers  was not  merely            present, he was  talking on a cellular telephone  with one of            the  conspirators while  the deal  was in  progress.   A jury            could  reasonably find that Rogers was discussing the cocaine                                         -8-                                          8            sale, was a  knowing participant in the drug  conspiracy, see                                                                      ___            United  States v.  Piper, 35  F.3d 611,  615 (1st  Cir. 1994)            ______________     _____            (defining  conspiracy),  and knowingly  attempted  to possess            cocaine with  the intent  to distribute  it, see  Paulino, 13                                                         ___  _______            F.3d at 25.3                      Rogers' claim that he should be granted a new trial            because  his   conviction  was  inconsistent   with  Scialo's            acquittal also fails.   Rogers' argument essentially  is that            there  was more  evidence  of  Scialo's  involvement  in  the            conspiracy than of his own,  and that the jury's acquittal of            Scialo  shows that there was insufficient evidence to convict            Rogers.  To the extent  that Rogers has preserved this claim,            it is without merit.                      A not guilty verdict  against one co-conspirator is            not  the  equivalent of  a  finding  that  the  evidence  was            insufficient to sustain the conspiracy conviction of a second            co-conspirator.   United States  v. Bucuvalas, 909  F.2d 593,                              _____________     _________            595-97 (1st  Cir. 1990).   If the  reviewing court  finds the            evidence  was sufficient to  support the verdict  against the            convicted defendant,  the conviction  must stand despite  the            co-conspirator's   acquittal.     Id.     The  evidence   was                                              ___            sufficient.                                            ____________________            3.  Rogers' citation to United States v. Thomas, 114 F.3d 403                                    _____________    ______            (3d   Cir.  1997),  provides  him  no  comfort.    Thomas  is                                                               ______            distinguishable on its  facts: unlike this  case, it did  not            involve telephone  calls between  the defendant  and a  known            conspirator while a drug deal was in progress.                                         -9-                                          9                      Rogers also argues that the district court erred in            denying his motion  for a mistrial based  on the prosecutor's            opening  statement.    The  prosecutor  referred  to  someone            identified  as  Chuck  as being  on  the  telephone receiving            instructions from Rocha at the time of the drug deal (Rogers'            given name  is Charles).   When  the prosecutor attempted  to            elicit testimony from Rocha concerning that conversation, the            court ruled the  evidence inadmissible.  Rogers  argues that,            given the importance  of whether  he spoke  on the  telephone            with Rocha and Beagan during  the drug deal, the court should            have granted a mistrial.  We disagree.                      Rocha   appropriately    has   not    claimed   the            prosecutor's reference  during his opening statement was made            in  bad faith  to  mislead  the jury.    In closing,  defense            counsel  argued that there was  no evidence linking Rogers to            the telephone  call during the  drug deal.  And  the district            court  charged the jury  that statements by  counsel argument            are not  evidence.  The district court did not err in denying            the motion for a mistrial.  See United States v. D'Alora, 585                                        ___ _____________    _______            F.2d 16, 21  (1st Cir. 1978) ("[A] defendant  is not entitled            to  two  trials,   one  before  the   judge  to  filter   out            inadmissible  evidence and  then a  jury  trial to  determine            guilt or innocence.")                      Nor  did the court abuse its discretion in refusing            to grant  Rogers' motion for  a severance.  Such  motions are                                         -10-                                          10            only to  be granted  where the defendant  makes out  a strong            showing   of  prejudice;  a  defendant  is  not  entitled  to            severance  merely  because he  may  have a  better  chance of            acquittal if tried separately.   Zafiro v. United States, 506                                             ______    _____________            U.S. 534, 540 (1993).  A  district court's decision to deny a            motion  for  severance  is  accorded  significant  deference.            United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993).            _____________    ________                      Rogers has not  presented any reason why  this case            is  different from most  drug conspiracy cases  with multiple            defendants  involved in the  conspiracy to differing degrees,            and  co-conspirators generally  are  tried together.   United                                                                   ______            States  v.  Perkins, 926  F.2d  1271, 1280  (1st  Cir. 1991).            ______      _______            Contrary to Rogers' claim, his  defense and Beagan's were not            antagonistic,  merely different.   Beagan argued that  he was            entrapped, Rogers  that he  was merely  present at the  crime            scene.   These two theories  of the case are  not necessarily            inconsistent.  The district court scrupulously instructed the            jurors that they must consider the evidence as to each charge            and each defendant  separately.  The court did  not abuse its            discretion in refusing to sever.            Beagan            ______                      Beagan's sole defense at trial and focus on appeal4                                            ____________________            4.  Beagan's  only unrelated argument is that  a new trial is            warranted  because  the district  court never  instructed the            jury  to ignore  a drug  rally outside  the  courthouse. This            issue has been  waived.  Beagan's counsel  requested that the            court recess  until the  drug rally was  over, and  the court                                         -11-                                          11            was  that he  was entrapped.   Beagan  first argues  that the            district  court's  instruction  on  entrapment  was   legally            incorrect.  Specifically,  he argues that the  district court            should  have  instructed  the jury  that  the  government was            required  to prove his  predisposition to commit  the charged            crime based on  evidence that predated  his contact with  the            government.  This is not a correct statement of the law.   It            is  true  that,  when   a  defendant  raises  a  defense   of            entrapment,  the government must show that he was predisposed            to commit  the  charged  crime  prior  to  his  contact  with            government  agents;  however,  the  government  may  use  the            defendant's  behavior after  he was approached  by government            agents as evidence of his predisposition prior to meeting the            agents.  See, e.g., United States v. Acosta, 67 F.3d 334, 339                     _________  _____________    ______            (1st Cir. 1995).                      Beagan  next argues that  he is  entitled to  a new            trial because jurors impermissibly used extrinsic material (a            dictionary)   to  understand   the   meaning  of   the   term            "predisposition."   Where,  as  here,  a  defendant  makes  a            colorable  claim of juror misconduct, the district court must                                            ____________________            agreed.   No  request was  made  at the  time for  a specific            curative instruction.  Beagan cannot now claim he is entitled            to  a  new   trial  because  he  did  not   receive  such  an            instruction.  United States v.  Coady, 809 F.2d 119, 123 (1st                          _____________     _____            Cir. 1987).   Furthermore, the court repeatedly  reminded the            jury to refrain  from considering anything heard  outside the            courtroom, which  likely made a specific curative instruction            unnecessary.                                         -12-                                          12            determine  whether any  misconduct has  occurred  and if  so,            whether it  was prejudicial.   United  States v.  Boylan, 898                                           ______________     ______            F.2d  230, 258  (1st  Cir.  1990).   We  review the  district            court's refusal to grant a new trial for abuse of discretion.            Id. at 262; see also United States v. Cheyenne, 855 F.2d 566,            ___         ________ _____________    ________            568 (8th Cir.  1988) (giving "substantial weight to the trial            court's appraisal  of the  prejudicial effects  of extraneous            information  on  the  jury, since  the  trial  judge  has the            advantages of close observation of the jurors and familiarity            with the issues at trial").                      Here,    Judge    Boyle   acted    carefully    and            conscientiously in  response  to  the  allegations  of  juror            misconduct.  The court questioned the two jurors most closely            involved.  It determined that although at least one juror had            referred  to  a  dictionary to  determine  the  definition of            predisposition,  this occurred  before the  jury  as a  whole            sought  additional instruction on  the legal  definition from            the court.  The court concluded that whatever use was made of            the dictionary,  the jurors  had been  unsatisfied that  they            understood  the legal import  of the term  predisposition and            had properly  turned to  the court  for further  instruction.            The   court  concluded  that  any  misconduct  had  not  been            prejudicial because of the court's  additional instruction on            the legal meaning of predisposition.                                         -13-                                          13                      There  was no abuse  of discretion.   To the extent            that the jurors'  consulting the dictionary was  misconduct,5            we agree with  the district court that any  potential harm to            the  defendant was cured by the subsequent legal instructions            on predisposition.                      Beagan's  final  claim  is   that  he  was   denied            effective  assistance of  counsel at  trial.   Trial  counsel            introduced  evidence concerning  Beagan's character,  opening            the door to  evidence of  Beagan's 1991  drug conviction  and            thereby,  according  to   Beagan,  totally  undercutting  the            entrapment defense.   In accordance with our  usual practice,            we  will not  consider a  claim  made for  the first  time on            direct appeal.  See, e.g., United States v. Springer, 28 F.3d                            _________  _____________    ________            236, 239 (1st Cir. 1994); United States v. Mala, 7 F.3d 1058,                                      _____________    ____            1063  (1st Cir.  1993).   Determining  whether assistance  of            counsel  was  constitutionally   deficient  is  a  fact-bound            inquiry  that would  require us  to go  beyond the  record on            appeal and consider such matters as trial counsel's strategy.            See Springer, 28 F.3d at 239; Mala, 7 F.3d at 1063.            ___ ________                  ____                      Affirmed.                      _________                                            ____________________            5.  Courts that have considered the issue of juror dictionary            use have not generally considered such  use to be prejudicial            per  se.  See,  e.g., United States v.  Turner, 936 F.2d 221,                      __________  _____________     ______            226-27 (6th Cir.  1991); United States v. Cheyenne,  855 F.2d                                     _____________    ________            566, 567-68 (8th Cir. 1988).  This circuit has not yet passed            on  the  issue  of  whether a  juror's  dictionary  use  even            constitutes misconduct, and we have no need to do so here.                                         -14-                                          14
