United States v. Paredes-Rodriguez ( 1998 )

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________





No. 97-1360



                          UNITED STATES,



                            Appellee,



                                v.



                     JESUS PAREDES-RODRIGUEZ,



                      Defendant, Appellant.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Michael A. Ponsor, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



            Coffin and Bownes, Senior Circuit Judges.



                      _____________________



    Stewart T. Graham, Jr., by appointment of the Court, with whom

Graham & Graham was on brief, for appellant.

    Ariane D. Vuono, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief, for

appellee.





                       ____________________







                        November 6, 1998

                       ____________________          TORRUELLA, Chief Judge.  Jes£s Paredes-Rodr¡guez was

convicted on charges that he conspired to possess cocaine with

intent to distribute, and that he carried a firearm in connection

with drug trafficking.  He was sentenced to 121 months in prison

and five years of supervised release.  He now appeals his

conviction, claiming that the jury instructions were misleading,

that the indictment was constructively amended by evidence that

also constituted a prejudicial variance from the conduct charged in

the indictment, and that two police officers were erroneously

permitted to testify.  We affirm his conviction.

I.  Background

          On an appeal from a criminal conviction, we view the

facts in the light most favorable to the verdict.  See United

States v. Shea, 150 F.3d 44, 46 (1st Cir. 1998).  On the evening of

November 15, 1994, defendant-appellant Jes£s Paredes-Rodr¡guez was

driving a car down Merwin Street in Springfield, Massachusetts.  He

was accompanied by Carlos Antigua-Herrera, who was sitting on the

front passenger seat.  The car was stopped by state law enforcement

officers assigned to the U.S. Drug Enforcement Agency's Western

Massachusetts Task Force, and both driver and passenger were

arrested.  During the arrest, Paredes attempted to draw a loaded

.38 caliber semi-automatic pistol from his pockets, but was

forcibly restrained from doing so.  The officers searched the car,

and found 119 grams of crack cocaine under the passenger's seat.

     The arrest was not random.  An undercover state police

officer, Trooper Juan Col¢n, had negotiated for delivery of cocaine

on three previous occasions with the main target of the

investigation, a certain Jos‚ Reyes, also known as Rafi.  On

October 12, October 18, and November 2, 1994, Rafi delivered crack

cocaine to Col¢n at the same location on Merwin Street where

Paredes was later arrested.  During the first transaction, on

October 12, Rafi brought the crack by himself and then sold it to

Col¢n.  On October 18, Rafi arrived alone without the crack, but a

few moments later, an individual known as Flaco arrived carrying

the cocaine that Rafi then sold to Col¢n.  On November 2, Rafi

again arrived alone and without the cocaine, entered Col¢n's car,

and sat down on the front passenger seat.  Soon afterwards, the

appellant in this case, Paredes, walked by and handed Rafi through

the car's open window a one-ounce package of crack cocaine that

Rafi then sold to Col¢n for $750.

     Paredes' arrest followed the fourth transaction between

Rafi and Col¢n.  On November 14, Rafi agreed to sell Col¢n four

ounces of crack cocaine for $3,000.  The following day, Rafi told

Col¢n that at approximately 7:15 p.m., two people in a black

Oldsmobile would arrive at the same location on Merwin street to

deliver the crack.  It was precisely 7:15 p.m. when Paredes and

Antigua arrived at the designated location in their car, carrying

119 grams (approximately 4.2 ounces) of crack cocaine.

     After his arrest, Paredes waived his Miranda rights, seeMiranda v. Arizona, 384 U.S. 436 (1966), admitted that he was

delivering cocaine, and then led the arresting officers to the

building where Rafi had given him the crack cocaine.  However,

Paredes subsequently retracted his confession and denied having

taken part in or even having had knowledge of the drug transaction.

He explained that he showed the police where Rafi lived merely

because he was trying to be helpful.  He also simultaneously

asserted, inconsistently, that he had no knowledge of the cocaine

that was found in his car, and that the cocaine belonged to Rafi.

Paredes further stated that Rafi had given him the gun, and told

him to deliver the gun and the car to a friend who would be waiting

for him on Merwin Street.  He admitted, however, that he had

originally told the police that he found the gun under some leaves.

     Paredes' trial before the U.S. District Court for the

District of Massachusetts began on November 4, 1996, and continued

until November 12.  On that date, the jury returned a verdict

finding Paredes guilty on all three counts of the indictment.  On

February 24, 1997, Paredes was sentenced as described above.

Judgment was entered on February 25, and Paredes filed a notice of

appeal on April 19, 1997.

II.  Analysis

     A.  Jury Instructions

     If objections to the jury instructions have been properly

preserved, we review the trial judge's choice of wording in the

instructions only for abuse of discretion.  See United States v.

Smith, 145 F.3d 458, 460 (1st Cir. 1998).  In order to determine

whether or not the court abused its discretion, we first "'must

look at the instructions in light of the evidence and determine

whether they fairly and adequately submit the issues in the case to

the jury.'"  Id. (quoting United States v. Mitchell, 85 F.3d 800,

809 (1st Cir. 1996)).  Even if we find the instructions erroneous,

any such errors that are not of constitutional magnitude are

reviewed for harmlessness.  See Fed. R. Crim. P. 52(a); Koonce v.

Pepe, 99 F.3d 469, 473 (1st Cir. 1996).   Pursuant to harmless

error review, "[t]he only question for us is whether the ailing

instruction by itself so infected the entire trial that the

resulting conviction violates due process."  Id. (quoting Estellev. McGuire, 502 U.S. 62, 72 (1991)).  Accordingly, "[w]e must

address the instruction 'in the context of the instructions as a

whole and the trial record,' and 'inquire whether there is a

reasonable likelihood that the jury has applied the challenged

instruction in a way that violates the [constitutional right to due

process.]'"  Koonce, 99 F.3d at 473 (quoting Estelle, 502 U.S. at

72) (other citations omitted).

     As noted earlier, Paredes was indicted on three counts:

conspiracy to possess cocaine with intent to distribute, possession

of cocaine with intent to distribute, and carrying a firearm in

connection with a drug-trafficking crime.  Although he acknowledges

that there was other evidence that could support his conviction on

the conspiracy count, Paredes contends that the possession count

was the cornerstone of the indictment because evidence that he was

in possession of the cocaine was the strongest evidence for a

conviction on the conspiracy and weapons counts.

     Paredes claims that, since the cocaine was found in a

plastic bag beneath a towel underneath the front passenger seat,

some distance from the reach of his outstretched hand, he could not

be said to be in actual possession of the cocaine.  In order to

convict him on the possession count, he claims, the jury had to

find that he was in constructive possession of the cocaine.

However, Paredes objects to the court's wording of the instruction

on constructive possession, specifically challenging the omission

of any explicit mention of an intent requirement.  He cites the

relevant portion of the court's instructions:  "If an individual

has the ability to exercise substantial control over an object that

he does not have in his physical custody, then he is in possession

of that item."  He further contends that the subsequent instruction

that possession must be knowing in order to be criminal does not

cure the effect of the omission of an intent requirement, because

it allegedly permits conviction of a person who knows that an item

in proximity to him contains cocaine, even though that person does

not intend to exercise control over the item.

     Assuming for the sake of argument that Paredes is correct

that the evidence did not permit a finding that he was in actualpossession of the cocaine, the first question before us is whether

the district court's instructions to the jury, taken as a whole,

correctly conveyed the law as to constructive possession.  Paredes

is correct in asserting that intent is an element of constructive

possession, which "exists when a person 'knowingly has the power

and intention at a given time to exercise dominion and control over

an object, either directly or through others.'"  United States v.

Torres-Maldonado, 14 F.3d 95, 102 (1st Cir. 1994) (quoting United

States v. Garc¡a, 983 F.2d 1160, 1164 (1st Cir. 1993)).  Upon

examining the instructions as a whole, however, we find that,

notwithstanding the absence of a explicit mention of an intent

requirement, the same is implicit in the instructions.

     Although the omission of an explicit reference to intent

is a less than ideal way of explaining constructive possession to

a jury, the other instructions given by the court helped

substantially to prevent the prejudice adverted to by Paredes.  For

example, the court also instructed:

          The possession of a controlled substance

          cannot be found solely on the basis that

          the defendant was near or close to the

          controlled substance.  Nor can it be found

          simply because the defendant was present

          at a scene where controlled substances

          were involved, or solely because the

          defendant associated with a person who

          controlled the substance where it was

          found.



This instruction, in combination with certain illustrative examples

of constructive possession given by the court and subsequent

instructions on the intent-to-distribute aspect of the crime

charged, effectively conveyed the notion that the jury had to find

that Paredes' possession of the cocaine was knowing and

intentional.  As a prior panel of this court stated,

          [the appellant's argument] ignores the

          nature of the crime with which he was

          charged.  In directing his entire argument

          at alleged error in the definition of

          'possession,' the defendant forgets that

          he was charged not with simple possession,

          but possession with intent to distribute.

          . . . [His] argument is that the jury

          found he possessed [certain containers]

          without knowing they contained cocaine,

          but went on to find that he intended to

          distribute the cocaine that was in them.

          No reasonable jury could make such a

          finding.



United States v. Hallock, 941 F.2d 36, 43 (1st Cir. 1991).

Similarly, in the case before us, it simply makes no sense to

assert that the same jury that found that Paredes intended to

distribute the cocaine could have simultaneously found that he did

not intend to possess it.

     B.  The Indictment

     Paredes raises two separate but related claims regarding

the indictment.  One is his claim that the charges were

constructively and improperly amended by the admission of evidence

that he delivered cocaine to Rafi on November 2, because that

evidence allowed the jury to convict him of a conspiracy that was

not charged in the indictment.  The other is his argument that

there was a fatal variance between the indictment and the proof

offered by the government at trial.  Reviewing both contentions for

plain error, we find them without merit.

     When an amendment of the indictment occurs in the middle

of trial, it is considered per se prejudicial for a number of

reasons:  "to preserve the right of the person accused of an

infamous crime to have a grand jury vote on the indictment, to

prevent reprosecution for the same offense, and to protect the

right of the accused to be informed of all charges," so as to be

able to adequately prepare his defense.  United States v. Vavlitis,

9 F.3d 206, 210 (1st Cir. 1993).  A constructive amendment of the

indictment "occurs when the charging terms of the indictment are

altered, . . . in effect, by prosecution or court after the grand

jury has last passed upon them."  United States v. Dunn, 758 F.2d

30, 35 (1st Cir. 1985) (quoting Gaither v. United States, 413 F.2d

1061, 1071-72 (D.C. Cir. 1969)); see also Vavlitis, 9 F.3d at 210.

For example, an indictment is constructively amended by "a jury

instruction which modifies the offense charged in the indictment,

. . . or the admission of evidence of an offense not charged by the

grand jury."  Dunn, 758 F.2d at 35.

     Notwithstanding Paredes' contentions, the admission of

evidence of the November 2 delivery did not constructively amend

the indictment.  The conspiracy count charged Paredes with

participating in a conspiracy to possess cocaine with intent to

distribute "on or around November 15, 1995."  During trial, the

government introduced evidence that Col¢n purchased cocaine from

Rafi on three occasions prior to the November 15 transaction, and

that Paredes acted as Rafi's courier on one of those occasions.

     The problem with Paredes' argument is that it is based on

a misconception of the scope of the conspiracy charged in the

indictment.  He does not question that the indictment charged him

with conspiring with Rafi and others to possess and sell cocaine.

He does argue, however, that because the indictment refers to a

conspiracy "on or about November 15," the conspiracy charge is

necessarily limited to the events that occurred on November 15, and

therefore, that the evidence as to the other transactions is

evidence of other, uncharged conspiracies.  Unfortunately for his

argument, this circuit has previously held that "the setting forth,

in approximate form, of [a] date on in the indictment does not

preclude the admission of evidence relating to events which

occurred earlier."  United States v. Fisher, 3 F.3d 456, 461 n.12

(1st Cir. 1993); see also United States v. Bello-P‚rez, 977 F.2d

664, 669 n.4 (1st Cir. 1992).  The evidence as to the earlier

transactions is certainly relevant to the November 15 transaction,

because it provides an explanation of his presence on Merwin Street

on the day of his arrest.  Furthermore, any potential prejudice was

prevented by the district court's careful instruction to the jury -

which we have no reason to fear was ignored by the jury - that the

defendant was on trial only for the events of November 15, and none

other.

     The argument with regard to the alleged variance in proof

is quite similar to the constructive amendment argument.  "A

variance occurs when the proof differs from the allegations in the

indictment."  Vavlitis, 9 F.3d at 210.  However, "[a] variance is

material and reversible only if it has affected the defendant's

substantial rights . . . to be informed of the charges and to

prevent a second prosecution for the same offense."  Id.  Paredes

claims that the evidence introduced at trial regarding the

November 2 transaction created a prejudicial variance between the

proof and the indictment.  As noted above, however, the reference

to approximate dates in an indictment is not binding and thus the

scope of the indictment may cover prior events.  See Fisher, 3 F.3d

at 461 n.12.  Accordingly, the evidence as to the prior

transactions between Rafi and Col¢n, and Paredes' participation in

one of those transactions is not materially different from the

conduct charged in the indictment.

     Moreover, even assuming that the evidence of prior

transactions was sufficiently different from the acts charged in

the indictment to constitute a variance, the evidence did not

prejudice Paredes' substantial rights.  He was certainly able to

prepare an adequate defense, since he was on notice that the

government would seek to introduce such evidence.  Additionally,

any danger that Paredes could be convicted on the basis of the

evidence of the November 2 transaction was sufficiently mitigated

by the court's instruction to the jury that the evidence as to the

earlier transactions should be considered only as evidence that

might be probative of his participation in a conspiracy on

November 15, and not as proof of his participation in an earlier

conspiracy.

     C.  Evidentiary Rulings

     Paredes objects to the trial court's admission of Col¢n's

testimony as to statements made by Rafi in his presence during

their negotiations for the November 15 transaction.  He also

objects to the admission of the testimony of the law enforcement

officer in charge of the investigation as to what was said to him

by two other officers.  Neither objection is well-founded.

     Under Fed. R. Evid. 801(d)(2)(E), a defendant's

coconspirator's statements are admissible if the prosecution proves

to the trial judge by a preponderance of the evidence that there

was a conspiracy, that the defendant was part of the conspiracy,

and that the statements were made by the coconspirator during the

course and in furtherance of the conspiracy.  See Bourjaily v.

United States, 483 U.S. 171, 176 (1987); see also United States v.

Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977) (explaining that

under Fed. R. Evid. 104(a), trial judge rather than jury has duty

to hear evidence and determine admissibility of coconspirator

statements).  Moreover, after some debate among the circuit courts

of appeals, see, e.g., Petrozziello, 548 F.2d at 23 n.2, the

Supreme Court declared that trial courts may consider any non-

privileged evidence, regardless of its admissibility, in making

Rule 801(d)(2)(E) determinations, see Bourjaily, 483 U.S. at 178-79

(harmonizing Fed. R. Evid. 104(a) procedures and Rule 801(d)(2)(E)

determinations).

     Thus, for example, in determining whether or not to

permit the introduction of evidence as to the statements of an

alleged coconspirator, the trial judge may consider hearsay

evidence, including the very coconspirator statement whose

introduction is being sought.  As the Court explained, "there is

little doubt that a coconspirator's statements could themselves be

probative of the existence of a conspiracy and the participation of

both the defendant and the declarant in the conspiracy."  Id. at

180.

     In the case before us, the district court conducted a

Petrozziello hearing during which he reviewed the available

evidence, including but not limited to Col¢n's testimony as to what

Rafi had stated.  The court concluded that the government had

established by a preponderance of the evidence that there had been

a conspiracy, that Paredes and Rafi had been part of the

conspiracy, and that Rafi's statements were made during and in

furtherance of the conspiracy.  In making its determination, the

court emphasized Col¢n's testimony that Paredes handed Rafi the

crack cocaine during the November 2 transaction, and the fact that

Paredes was arrested while in possession of four ounces of crack

cocaine at the time and place Rafi had said his courier would

deliver four ounces of crack cocaine.  Viewing this evidence in the

light most favorable to the guilty verdict, we discern no error in

the district court's determination.

     Paredes' response is to raise, once more, the argument

that the conspiracy charged did not include the prior transactions,

but only the November 15 transaction, and thus, that Rafi's

statements were made in the course of a prior conspiracy, and not

the one at issue.  This is an argument we have considered and

rejected above, and thus we merely repeat that the scope of the

conspiracy charged in the indictment is broad enough to cover the

earlier transactions between Rafi and Col¢n.

     Paredes also argues that the court erred in deciding to

permit Sgt. Neil Maloney, the agent in charge of the investigation,

to testify as to what other officers told him during the course of

the investigation.  Maloney testified that officers under his

command told him that they saw someone leave Paredes' residence on

Tilton Street in a brown Toyota, proceed to Belmont Street, where

both driver and passenger exchanged the Toyota for a dark Buick,

and then proceed Merwin Street driving the same Buick.  Paredes

objected to this testimony on hearsay grounds, but the judge

overruled the objection, stating that he would allow the testimony

for the limited purpose of explaining how the surveillance reports

prompted Maloney to take subsequent action, rather than to

establish the truth of the reports.  Given that the Federal Rules

of Evidence define hearsay as "a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted," Fed. R. Evid.

801(c), the court's ruling was not an abuse of discretion.  Most

importantly, any error would have been harmless, because Maloney's

testimony as to the car switch was of only tangential importance to

the ultimate issue of whether Paredes committed the acts he was

charged with.

     Finally, Paredes objects to the district court's decision

to permit Maloney to testify as to Col¢n's out-of-court

identification of Paredes, as well as the comments that Col¢n made

at the time.  Based on a photo taken of Paredes after his arrest on

November 15, Col¢n identified him as the courier who delivered the

crack during the November 2 transaction.  Col¢n had testified

earlier during the trial as to the same incident, and, according to

Paredes, Col¢n's identification at trial was very shaky.  Paredes

thus claims that he was prejudiced by the admission of Maloney's

testimony because its effect was to bolster Col¢n's identification.

Rule 801(d)(1)(C), however, declares that "[a] statement is not

hearsay if . . . [t]he declarant testifies at the trial or hearing

and is subject to cross-examination concerning the statement, and

the statement is . . . one of identification of a person made after

perceiving the person."  Cf. United States v. Owens, 484 U.S. 554,

564 (1988) (Rule 801(d)(1)(C) exception applicable to evidence of

witness's prior identification of defendant, even though by the

time of trial, witness was unable to remember identification).

Indeed, "[t]he premise for Rule 801(d)(1)(C) was that, given

adequate safeguards against suggestiveness, out-of-court

identifications were generally preferable to courtroom

identifications," because of the problem of fading memories.  Id.at 563.  Thus, even assuming that Col¢n's identification of Paredes

at trial was less emphatic than his earlier identification in the

presence of Maloney, this would merely confirm the validity of the

premise underlying Rule 801(d)(1)(C).

III.  Conclusion

     For the reasons discussed above, we affirm the

appellant's conviction.