-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1441
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL DIMARZO, a/k/a MICHAEL DIMARZO,
Defendant, Appellant.
____________________
No. 95-1442
UNITED STATES OF AMERICA,
Appellee,
v.
MARIO J. ALZATE-YEPEZ,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Cyr and Lynch, Circuit Judges. ______________
____________________
David J. Wenc for appellant DiMarzo. _____________
Alan Black, with whom Morton & Black was on brief for appellant __________ ______________
Alzate-Yepez.
Andrew Levchuk, Assistant United States Attorney, with whom ______________
Donald K. Stern, United States Attorney, was on brief for appellee. _______________
____________________
April 10, 1996
____________________
2
CYR, Circuit Judge. Appellants Mario Alzate-Yepez CYR, Circuit Judge. ______________
("Mario" or "Alzate") and Miguel DiMarzo were jointly tried and
convicted of possessing cocaine, with intent to distribute, see ___
21 U.S.C. 841(a)(1) (1994), and conspiracy, see id. 846. ___ ___
Appellants assign error by the district court in allowing
certain trial testimony and denying their respective motions for
judgments of acquittal. Appellant Alzate additionally claims
that the district court erred in denying his pretrial motion for
severance and imposed too harsh a sentence. Finding no error,
we affirm.
I I
BACKGROUND BACKGROUND __________
In April 1994, the Western Massachusetts Narcotics
Task Force brokered a cocaine deal among appellants and one
Robert Schultz, an undercover Task Force agent. During the
first phase, Alonzo Alzate-Yepez ("Alonzo"), Mario's brother,
agreed that he would arrange to deliver five kilograms of
cocaine to Schultz at the Westfield Motor Inn on April 12, 1994,
in return for $100,000. If all went well on April 12, Alonzo
promised to deliver to Schultz another five kilograms a day or
two later, and ten kilograms per week thereafter.
On April 12, at approximately 5:00 a.m., appellant
Mario and brother Alonzo set out in Mario's car on the 100-mile
trip from Boston to Westfield. Upon arrival at the Westfield
Motor Inn, Mario remained in the car while Alonzo registered at
the Inn. After waiting about fifteen minutes, Mario entered the
3
Inn and requested a separate room overlooking the parking lot.
Meanwhile, a Task Force surveillance team had taken up positions
around the Inn. Shortly thereafter, the agents saw a male,
later identified as Mario, lingering around the office and
parking lot of the Inn while carefully observing cars and people
in the area.
Agent Schultz and another undercover agent arrived at
the restaurant parking lot next to the Inn around 9:30 a.m.
Alonzo approached them, introductions ensued, and the three went
into the restaurant for coffee. Alonzo told Schultz that he was
expecting a courier to arrive with the cocaine at any time.
Soon Schultz left the restaurant to "beep" the courier from his
car phone, while Alonzo returned to his room at the Inn to await
a call from the courier. While Agent Schultz was standing
beside his car, he noticed that Mario was observing him and the
surrounding area.
A short time later, Schultz went to Alonzo's room on
the ground floor, where Alonzo told him that the courier had
gotten lost, but now had correct directions to the Inn and
should arrive within ten minutes. Alonzo added that "they" had
eight cars, with secret compartments for carrying cocaine, but
he was not sure which was being used for this deal. At about
10:45 a.m., a white Oldsmobile entered the parking lot and
stopped just outside Alonzo's ground-floor room. Before leaving
to meet the driver as it turned out, appellant Miguel DiMarzo
Alonzo advised Schultz to stay put.
4
After greeting one another, Alonzo and DiMarzo
conversed as DiMarzo scanned the area and the two walked to the
restaurant. Shortly after entering the restaurant, Alonzo left,
and invited Schultz to join him in the parking lot, where he
unlocked the driver's door of the Oldsmobile to let Schultz in
the passenger side. After fidgeting with the defroster, Alonzo
reached under the dashboard and popped open two interior side
panels in the rear seat area which contained several bricks of
cocaine wrapped in duct tape and plastic. After inspecting the
brick-like packages, Agent Schultz signalled the Task Force
surveillance team, and Alonzo, Mario and DiMarzo were arrested.
The cocaine recovered from the concealed compartments in the
Oldsmobile weighed 4.94 kilograms, almost exactly the five
kilograms Alonzo had agreed to supply.
On May 17, 1994, a federal grand jury indicted the
Alzate brothers and DiMarzo under 21 U.S.C. 841(a)(1) and
846. Alonzo Alzate pled guilty to both counts, whereas appel-
lants Mario Alzate and Miguel DiMarzo were jointly tried and
convicted on both counts. In due course, the district court
imposed sentences on appellants and final judgment entered on
March 31, 1995. DiMarzo filed a notice of appeal on April 3.
Appellant Mario Alzate did not do so until April 13.1
____________________
1The government contends that we lack jurisdiction of the
latter appeal because Mario did not file a notice of appeal
within the ten-day period. See Fed. R. App. P. 4(b), 26(a); ___
United States v. Morillo, 8 F.3d 864, 867 (1st Cir. 1993). ______________ _______
However that may be, this is an appropriate case in which to
resolve the appeal on the merits. See United States v. Connell, ___ _____________ _______
6 F.3d 27, 29 n.3 (1st Cir. 1993) (foregoing resolution of
5
____________________
jurisdictional question where same party inevitably will prevail
on merits).
6
II II
DISCUSSION DISCUSSION __________
A. The Severance Motion A. The Severance Motion ____________________
Appellant Mario Alzate filed a pretrial motion for a
separate trial pursuant to Fed. R. Crim. P. 14, on the ground
that the "spillover" effect of the evidence against DiMarzo
would prejudice Mario unfairly. Appellants contended at trial
that they had not known that Alonzo Alzate planned to conduct a
drug deal at the Inn. Mario argues on appeal that DiMarzo's
"mere presence" defense was so patently "ridiculous" that the
jury likely concluded without separately considering the
evidence against Mario that both were guilty. His contention
fails.
Severance rulings under Fed. R. Crim. P. 14 are
reviewed only for manifest abuse of discretion. United States ______________
v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995). _____________
As a rule, persons . . . indicted together
should be tried together[, which] helps . .
. prevent inconsistent verdicts and . . .
conserve resources (judicial and prosecuto-
rial). Thus, . . . a defendant who seeks a
separate trial can ordinarily succeed . . .
only by making a strong showing of evident
prejudice. . . . Supreme Court precedent
instructs that a district court should grant
a severance under Rule 14 only if there is a
serious risk that a joint trial would com-
promise a specific trial right of one of the
defendants, or prevent the jury from making
a reliable judgment about guilt or in-
nocence.
Id. (internal citations and quotations omitted). Rarely is ___
severance required in a conspiracy case. United States v. ______________
7
Brandon, 17 F.3d 409, 440 (1st Cir.), cert. denied, 115 S. Ct. _______ _____ ______
80 (1994). Appellants were charged as coconspirators, and with
an identical substantive offense, all in the same indictment.
Careful review discloses no unfairness attributable to their
joint trial. More particularly, Mario makes no plausible
showing of prejudice, especially in light of the repeated ________
instruction by the court that the jury must consider the evi-
dence against each defendant independently and return separate
verdicts. Id. The trial court acted well within its broad ___
discretion in denying the motion to sever.
B. The Schultz Testimony B. The Schultz Testimony _____________________
On redirect examination Agent Schultz was allowed to ________
testify that, in his experience, innocent observers are not
invited to accompany criminals engaged in completing a drug
deal. Appellant DiMarzo argues that (1) Fed. R. Crim. P.
16(a)(1)(E) obligated the government to provide him with pretri-
al discovery relating to Schultz' expert qualifications to
testify to this matter, (2) Schultz' opinion was inadmissible
under both Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 _______ ___________________________________
U.S. 579 (1993), and Fed. R. Evid. 704(b) (prohibiting testimony
on ultimate jury issue). Similarly, Mario Alzate contends that
he was entitled to a mistrial, or at the very least a continu-
ance for further discovery relating to Schultz' expert qualifi-
cations.2 We do not agree.
____________________
2We review these discovery and evidentiary rulings under an
"abuse of discretion" standard. United States v. Lanoue, 71 F.3d _____________ ______
966, 973 (1st Cir. 1995) (discovery rulings); United States v. _____________
8
On cross-examination, both defense counsel repeatedly
invited Agent Schultz to draw upon his experience as a drug
enforcement officer. For example, Schultz was asked whether
drug crime participants typically carry weapons. On redirect,
the prosecutor asked Schultz: "[C]an you tell us how often in
your experience drug dealers bring along with them to a deal a
casual innocent observer?" Over defense objections, Schultz was
allowed to respond that he had never "seen a person just casual-
ly come along for a drug deal."
We reject appellants' contentions that either Criminal
Rule 16(a)(1)(E) or Daubert was implicated by the challenged _______
testimony. First, the Schultz response expressed neither a lay
nor an expert opinion, as distinguished from a statement of fact ___ _______
as to what Schultz had witnessed during his 29 years in law
enforcement. As the challenged testimony proffered no opinion, __ _______
lay or expert, but simply the witness's personal experience
relating to a subject bearing directly upon the appropriateness
of a jury inference, see United States v. Batista-Polanco, 927 ___ _____________ _______________
F.2d 14, 18 (1st Cir. 1991) (extended presence at scene of
heroin packaging operation supports "common sense" inference of
guilt), long held permissible in such circumstances, see United ___ ______
States v. Smith, 680 F.2d 255, 260 (1st Cir. 1982), cert. ______ _____ _____
denied, 459 U.S. 1110 (1983), we reject the claim. ______
____________________
Neal, 36 F.3d 1190, 1205 (1st Cir. 1994) (continuance); United ____ ______
States v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994) (mistrials), ______ ______
cert. denied, 115 S. Ct. 919 (1995); United States v. Cotto- _____ ______ _____________ ______
Aponte, 30 F.3d 4, 6 (1st Cir. 1994) (evidentiary rulings). ______
9
Nor did the Schultz testimony encroach upon the jury's
factfinding function regarding the ultimate issue of guilt. The
district court alertly gave an immediate jury instruction that
"mere presence" at a crime scene is insufficient to establish
guilt, and that ultimately it was for the jury to decide whether
the government had met its burden of proof. See United States ___ _____________
v. Myers, 972 F.2d 1566, 1577 n.8 (11th Cir. 1992) (Bownes, J.), _____
cert. denied, 507 U.S. 1017 (1993). When Agent Schultz later _____ ______
was subjected to further cross-examination, see United States v. ___ _____________
Paiva, 892 F.2d 148, 157 (1st Cir. 1989), he conceded the _____
possibility that a driver might not have known that he was
transporting someone to a crime scene. Thus, viewing the
challenged Schultz testimony in the context of the entire
examination, we find neither error nor unfair prejudice.
C. Evidence of Prospective Sentence C. Evidence of Prospective Sentence ________________________________
In an effort to forfend against an argument by the
government that DiMarzo had known the cocaine was in the Oldsmo-
bile based on the improbability that criminal conspirators
would entrust such valuable contraband to an innocent third par-
ty DiMarzo sought to inform the jury of the harsh sentence he
would face upon conviction, to demonstrate the strong inducement
the "real" drug dealers had to select an unsuspecting dupe to
transport their drugs, so as to avoid detection themselves. On
appeal, DiMarzo contends that the rejection of his proffer
denied him the "only way" he had to counteract the adverse
inference suggested by the government. We think the district
10
court soundly excluded the evidence. See Cotto-Aponte, 30 F.3d ___ ____________
at 6 (applying "abuse of discretion" standard to evidentiary
rulings). Accordingly, it was proper as well to reject the
requested instruction that the jury not draw the inference urged
by the government.
The DiMarzo proffer would have necessitated an unwar-
ranted departure from the fundamental division of responsibili-
ties between judge and jury. See Shannon v. United States, 114 ___ _______ _____________
S. Ct. 2419, 2424 (1994). As a general rule, under our criminal
justice system it is the jury's responsibility to determine
guilt or innocence on the basis of the facts it has found,
whereas the court is responsible, among other things, for
sentencing a defendant after a guilty verdict. As federal
juries perform no sentencing function, "providing jurors sen-
tencing information invites them to ponder matters that are not
within their province, distracts them from their factfinding
responsibilities, and creates a strong possibility of confu-
sion." Id. Thus, even assuming that DiMarzo's guideline ___
sentencing range had some minimal probative value a dubious
proposition at best the district court did not err in reject-
ing the DiMarzo proffer given the considerations alluded to in
Shannon. See Fed. R. Evid. 403; cf. United States v. Luciano- _______ ___ ___ _____________ ________
Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995) (rejecting Sixth ________
Amendment challenge to restriction upon cross-examination
relating to potential punishment).
D. Sufficiency of the Evidence D. Sufficiency of the Evidence ___________________________
11
Appellants claim reversible error in the denial of
their respective motions for judgments of acquittal. See Fed. ___
R. Crim. P. 29. Under Criminal Rule 29, we review the evidence
in the light most favorable to the government, drawing all
plausible inferences and resolving all credibility determina-
tions in line with the verdicts. United States v. Spinney, 65 _____________ _______
F.3d 231, 234 (1st Cir. 1995). We will uphold a verdict if a
rational factfinder could have found each essential element of
the offense beyond a reasonable doubt. United States v. Gomez- _____________ ______
Pabon, 911 F.2d 847, 852 (1st Cir. 1990), cert. denied, 498 U.S. _____ _____ ______
1074 (1991).
The government met its test. Under 21 U.S.C.
841(a)(1), it was required to establish that defendants knowing-
ly and intentionally possessed a controlled substance with
intent to distribute. United States v. Aguilar-Aranceta, 957 _____________ ________________
F.2d 18, 23 (1st Cir.), cert. denied, 506 U.S. 834 (1992). _____ ______
Under 21 U.S.C. 846, the government was required to establish
that defendants agreed, at least tacitly, to commit the substan-
tive offense which constituted the object of their agreement,
and that defendants voluntarily participated in the conspiracy.
Flores-Rivera, 56 F.3d at 323-24. The jury was entitled to rely _____________
upon circumstantial evidence such as presence at the crime
scene and association with others involved in the crime to
infer essential elements of the crime, except that such evi-
dence, standing alone, is insufficient to support conviction. ________ _____
Id. at 324. Although appellants hold themselves out as excep- ___
12
tions that prove the rule, there is ample record evidence, above
and beyond their mere presence and association, to permit a
rational jury to find guilt under both counts, beyond a reason-
able doubt.
Appellant Mario Alzate and his brother Alonzo drove
approximately 100 miles to the crime scene where Alonzo had made
prior arrangements for the cocaine to be delivered to undercover
Agent Schultz in return for $100,000. Together with the incrim-
inating circumstantial evidence, the familial relationship
between Alonzo (the "pointman") and Mario (the "lookout" and
driver) permitted a rational jury inference that Mario well knew
he was involved in a drug deal. See United States v. Morales- ___ _____________ ________
Cartagena, 987 F.2d 849, 851-52 (1st Cir. 1993). There was _________
ample evidence to enable the jury to find that Mario served as
the "lookout" at the crime scene, see United States v. Hernan- ___ _____________ _______
dez, 995 F.2d 307, 314 (1st Cir.), cert. denied, 114 S. Ct. 407 ___ _____ ______
(1993), especially since the brothers registered in separate
rooms at the Inn and Mario requested a room overlooking the
parking lot from where he surveilled the crime scene before the
drugs arrived. In addition, Mario testified in his own defense,
either contradicting the testimony of government witnesses
(e.g., in contrast to the Inn manager, denying that he had
requested a room overlooking the parking lot) or offering
innocent explanations for other suspicious conduct (e.g., that
he had strolled around the Inn parking lot just to take in "the
countryside"), which the jury was entitled to reject and treat
13
as evidence of consciousness of guilt. See United States v. ___ _____________
Hadfield, 918 F.2d 987, 999 (1st Cir. 1990), cert. denied, 500 ________ _____ ______
U.S. 936 (1991).3
The sufficiency challenge mounted by DiMarzo is
without merit as well. The evidence demonstrated that Alonzo
had anticipated that the cocaine would arrive in a car equipped
with secret compartments, and that he knew how to contact the
driver en route. Agent Schultz testified that Alonzo spoke with
the driver of the vehicle carrying the cocaine the morning of
the drug deal, conceivably via the cellular phone in the white
Oldsmobile, and gave him the correct directions to the Inn. A
short time later, DiMarzo arrived at the Inn with the cocaine,
pulled up just outside the ground-floor room occupied by Alonzo,
and immediately met with him. DiMarzo was seen scanning the
parking lot as the two men walked to the restaurant. Alonzo
returned with the keys to the Oldsmobile and, in the presence of
Schultz, opened the concealed interior compartments containing
bricks of cocaine in the promised amount.
As we repeatedly have recognized, a jury is free to
rely on its common sense, see, e.g., Hernandez, 995 F.2d at 314, ___ ____ _________
and may infer that criminal conspirators normally do not involve
innocent persons at critical stages of a drug deal, see, e.g., ___ ____
United States v. Tejeda, 974 F.2d 210, 213 (1st Cir. 1992). ______________ ______
Thus, the jury reasonably could infer that DiMarzo knew he was
____________________
3As there was no abuse of discretion, we likewise affirm the
denial of Mario's motion for new trial under Fed. R. Crim. P. 33.
United States v. Garcia, 978 F.2d 746, 748 (1st Cir. 1992). _____________ ______
14
delivering the cocaine needed to consummate the prearranged deal
with Alonzo, rather than that Alonzo and appellant Mario Alzate
had entrusted to an unsuspecting nonparticipant the responsi-
bility for delivering $100,000 worth of cocaine to the scene of
the exchange. E. The Alzate Sentencing Claims E. The Alzate Sentencing Claims ____________________________
Mario Alzate claims that he was a "minimal partici-
pant," see U.S.S.G. 3B1.2(a) (1995), and that he should have ___
been granted a downward departure based on "aberrant behavior,"
see id. 5K2.0. Neither contention helps him. ___ ___
First, the district court found that Mario was enti-
tled to a two-level downward adjustment under U.S.S.G. 3B1.2-
(b), as a "minor participant." On appeal, Mario argues that he
deserved a three or four-level adjustment, based on his "minimal
role." The record evidence noted above, however, warrants the
finding that Mario did not merit a "minimal role" adjustment.
See United States v. Munoz, 36 F.3d 1229, 1238 (1st Cir. 1994) ___ _____________ _____
(off-loading portion of single drug shipment or smuggling drugs
for small transaction may indicate minimal participation), cert. _____
denied, 115 S. Ct. 1164 (1995). Thus, there was no clear error. ______
United States v. Neal, 36 F.3d 1190, 1211 (1st Cir. 1994). _____________ ____
Finally, the second assignment of error is squarely
foreclosed because the district court was well aware of its
authority to grant a downward departure and declined to do so.
We therefore lack jurisdiction to review the refusal to depart
unless based on a mistake of law. United States v. Grandmaison, _____________ ___________
No. 95-1674, 1996 WL 80411 (1st Cir. Mar. 1, 1996) (clarifying
15
"aberrant behavior" standard); United States v. Lewis, 40 F.3d _____________ _____
1325, 1345 (1st Cir. 1994). There is no indication that the
district court misapprehended the confines of its legal authori-
ty.
Affirmed. Affirmed. ________
16
Document Info
Docket Number： 95-1441
Filed Date： 4/10/1996
Precedential Status： Precedential
Modified Date： 3/3/2016