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USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 92-1849
UNITED STATES,
Appellee,
v.
CATALINO TORRES-MALDONADO
AND MARILYN GOTAY-COLON,
Defendants, Appellants,
No. 92-1850
UNITED STATES,
Appellee,
v.
HECTOR SANTIAGO-ALICEA,
Defendant, Appellant,
No. 92-1851
UNITED STATES,
Appellee,
v.
TEDDY LEON AYALA,
Defendant, Appellant,
No. 92-1852
UNITED STATES,
Appellee,
v.
OSCAR DIAZ CRUZ,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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____________________
Before
Stahl, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and DiClerico,* District Judge.
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Jose A. Fuentes Agostini with whom Dominguez & Totti was on brief
_________________________ _________________
for appellant Torres-Maldonada and Gotay-Colon.
Ramon Garcia Garcia on brief for appellant Santiago-Alicea.
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Carlos R. Noriega on brief for appellant Ayala.
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Harry R. Segarra on brief for appellant Diaz Cruz.
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Kathleen A. Felton, with whom Charles E. Fitzwilliam, United
___________________ _______________________
States Attorney, Warren Vazquez, Assistant United States Attorney, and
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Nina Goodman, Department of Justice, were on brief for appellee.
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____________________
January 20, 1994
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*Of the District of New Hampshire, sitting by designation.
STAHL, Circuit Judge. Defendants-appellants
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challenge various aspects of their drug and firearms
convictions, arguing, inter alia, that insufficient evidence
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supports their convictions, and that their motions for
severance and for suppression of evidence were improperly
denied. We reverse the firearms convictions of two
defendants and affirm all other convictions.
I.
I.
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FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
________________________________________
For purposes of defendants' challenges to the
sufficiency of the evidence, we begin by reciting the facts
in the light most favorable to the government. United States
_____________
v. Mena-Robles, 4 F.3d 1026, 1029 (1st Cir. 1993).
___________
Spanning a two-week period in late February and
early March of 1991, a group of individuals, including
defendants, occupied Rooms 310, 311 and 327 of the Carib Inn
Hotel in Isla Verde, Puerto Rico. Two of the rooms were
registered to false names.
Soon, the activities of the occupants of all three
rooms attracted the attention of hotel employees. The
hotel's chief of security observed "continual" visits to
occupants of all three rooms made by young people who often
drove luxury cars and stayed for periods of about ten
minutes. In a hotel of 225 guest rooms, the group in the
three rooms received 90% of all phone calls made to the
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hotel. Moreover, the group paid their hotel bills in cash,
using bundles of small denominations wrapped in rubber bands.
On a few occasions, the occupants paid for all three of the
rooms together in amounts totaling approximately $300 to
$400. In addition, a "floor supervisor" in charge of maid
service on defendants' floor at the hotel saw the occupants
of all three rooms passing frequently among the three rooms.
On March 6, 1991, the same floor supervisor
observed two revolvers on top of a bureau in Room 327. She
informed both the hotel's chief of security and local police,
who, in turn, contacted agents of the United States Bureau of
Alcohol, Tobacco and Firearms (ATF). Later that day, ATF
agents and local police officers began surveillance at the
Carib Inn Hotel.
At approximately 11:00 p.m. on March 6, 1991 the
surveilling agents observed defendants Hector Santiago-Alicea
(Santiago-Alicea), Teddy Leon Ayala (Leon), Oscar Diaz Cruz
(Diaz) and Frankie Nieves-Burgos (Nieves-Burgos)1 with an
unidentified man in the hotel lobby. Santiago-Alicea was
wearing a bulletproof jacket, and the agents noticed a bulge
under the jacket which appeared to be a gun. The group
proceeded from the lobby to the hotel parking lot where the
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1. Nieves-Burgos, convicted below, is not a party to this
appeal.
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unidentified individual, after opening the trunk of a car,
opened a plastic bag inside the trunk and counted
unidentified items inside the bag. He handed the bag to
Santiago-Alicea, who then showed the contents to Leon, who
gave a facial sign of approval and an affirmative nod of his
head.
Later that evening, a second unidentified man
arrived at the hotel, made a call on the hotel's "house
phone," and was met shortly thereafter in the lobby by
Nieves-Burgos and another defendant, Pedro Luis Ramirez-
Rivera (Ramirez-Rivera).2 After a brief conversation,
Nieves-Burgos and Ramirez-Rivera went back upstairs. Shortly
thereafter they reappeared with Santiago-Alicea, who then
exchanged packages with the unidentified man.
On March 7, 1991, the following day, Santiago-
Alicea was observed waiting in the hotel parking lot, looking
in all directions. A car pulled up to him and, after a brief
conversation, Santiago-Alicea handed a small paper bag to its
driver, received money in exchange, counted the money, put it
in his pocket and returned to the hotel.
On the basis of the foregoing events, ATF and local
law enforcement officials obtained a search warrant for the
three hotel rooms. On that same afternoon of March 7, 1991,
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2. Ramirez-Rivera, convicted below, is not a party to this
appeal.
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they executed the warrant. Upon entering Room 311, they
found defendant Catalino Torres-Maldonado (Torres-Maldonado)
seated on the floor talking on the phone, and his wife,
defendant Marilyn Gotay-Colon (Gotay-Colon), seated on the
sofa. Nieves-Burgos and Ramirez-Rivera were stretched out on
separate beds in the room, clad only in underpants.
Santiago-Alicea was seated on the end of one of the beds.
Upon searching the room, the agents found that
Gotay-Colon's purse contained cocaine in a plastic bag which
was marked with a picture of a unicorn. Her purse also held
approximately $400 in cash in a bundle secured by a rubber
band. In a zippered, opaque tote bag on the sofa on which
Gotay-Colon was seated, the agents found $2000 in cash in a
bundle, again secured by a rubber band, and a loaded
semiautomatic pistol.
On a night table in the room, the agents found a
plastic bag containing cocaine, approximately $1500 in cash,
brown paper bags, and a homemade pipe used for smoking drugs.
In the room's closet was the bulletproof jacket seen on
Santiago-Alicea the night before. Under the bed, the agents
found empty plastic bags labeled with a picture of a unicorn,
along with plastic straw-and-spoon type implements typical of
the sort used to cut and package drugs for re-sale. The
agents also found razor blades, ordinary playing cards, and a
stapler, all of which can be used to package drugs. They
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also found beepers and cellular telephones. Finally, the
agents discovered keys to a gray Buick, which would later be
searched by the agents.
Rooms 310 and 327, though unoccupied at the time of
the search, also contained drugs and drug-related items.
Room 310 contained fifty-five packets of cocaine, again
marked with a unicorn, which were found in a brown paper bag
hidden in a roll-away bed or sofabed. There was also a small
amount of narcotics in an ashtray and a pipe used for smoking
drugs. The search of Room 327 turned up a pillowcase hidden
above a "dropped ceiling" in the bathroom. It contained
sixteen brown paper bags, each of which, in turn, held 100
small packets marked with the unicorn symbol and filled with
cocaine. Under a sofa, the agents found a bullet that fit
the semiautomatic pistol found in Room 311.
Later that day, Leon and Diaz, who had been present
for one of the transactions the night before, but who had not
been present during the search of Room 311, arrived at the
hotel. Leon exclaimed, "Oh, my god, they busted my
people."3 The agents asked Leon and Diaz if they knew the
occupants of Room 311. They replied in the affirmative.
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3. The parties agree that the exclamation was in Spanish,
not English. One report stated that the exclamation was more
closely translated as "They busted the people." Nonetheless,
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the officer who allegedly heard the remark testified at trial
that the exclamation was, "Oh, my god, they busted my
people."
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Leon was carrying over $6700 in cash and a key to Room 310.
Diaz had over $1400 in cash anda hotel receipt for Room 327.
The agents subsequently searched two cars in the
hotel parking lot. In the first car, a green Ford LTD, they
found a loaded .357 six-shot revolver, along with a
photograph of Nieves-Burgos and a parking receipt with
Nieves-Burgos' fingerprint on it. The second car searched
was the gray Buick, keys to which had been found in the
search of Room 311. In the Buick, the agents found a loaded
nine millimeter pistol, with additional ammunition and one
"spent" or fired bullet cartridge. Though the Buick was not
registered in Santiago-Alicea's name, the registration to the
car was found in Santiago-Alicea's wallet.
Defendants were tried together. Torres-Maldonado,
Gotay-Colon, Santiago-Alicea, Leon, and Diaz were all
convicted of conspiring to possess cocaine with intent to
distribute, and of possession of cocaine with intent to
distribute. See 21 U.S.C. 841(a)(1), 846.4 Gotay-Colon
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was also convicted of possession of cocaine based on the
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4. Section 841(a)(1) states in relevant part that "it shall
be unlawful for any person knowingly or intentionally . . .
to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance."
Section 846 states, "Any person who attempts or
conspires to commit any offense defined in this subchapter
shall be subject to the same penalties as those prescribed
for the offense, the commission of which was the object of
the attempt or conspiracy."
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amount found in her purse. See 21 U.S.C. 844(a).5 In
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addition, Torres-Maldonado, Gotay-Colon and Santiago-Alicea
were convicted of using a firearm during and in relation to a
drug offense. See 18 U.S.C. 924(c)(1).6 Defendants raise
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various grounds for appeal. We address them in turn.
II.
II.
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DISCUSSION
DISCUSSION
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A. Sufficiency of the Evidence
A. Sufficiency of the Evidence
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1. Standard of Review
1. Standard of Review
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In reviewing challenges to the sufficiency of the
evidence, "[o]ur task is to review the record to determine
whether the evidence and reasonable inferences therefrom,
taken as a whole and in the light most favorable to the
prosecution, would allow a rational jury to determine beyond
a reasonable doubt that the defendants were guilty as
charged." Mena-Robles, 4 F.3d at 1031. Moreover, "``[w]e do
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____________________
5. Section 844(a) states, in relevant part, "It shall be
unlawful for any person knowingly or intentionally to possess
a controlled substance . . . ."
6. Section 924(c)(1) provides, in relevant part:
Whoever, during and in relation to any crime
of violence or drug trafficking crime (including a
crime of violence or drug trafficking crime which
provides for an enhanced punishment if committed by
the use of a deadly or dangerous weapon or device)
for which he may be prosecuted in a court of the
United States, uses or carries a firearm, shall, in
addition to the punishment provided for such crime
of violence or drug trafficking crime, be sentenced
to imprisonment for five years . . . .
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not weigh witness credibility, but resolve all credibility
issues in favor of the verdict. The evidence may be entirely
circumstantial and need not exclude every reasonable
hypothesis of innocence; that is, the factfinder may decide
among reasonable interpretations of the evidence." United
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States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993)
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(quoting United States v. Batista-Polanco, 927 F.2d 14, 17
_____________ _______________
(1st Cir. 1991)).
2. Conspiracy and Possession with Intent to Distribute
2. Conspiracy and Possession with Intent to Distribute
_______________________________________________________
Torres-Maldonado and Gotay-Colon claim that the
evidence at trial showed no more than their "mere presence"
at the hotel. We have recently stated that "the culpability
of a defendant's presence hinges upon whether the
circumstances fairly imply participatory involvement. In
other words, a defendant's ``mere presence' argument will fail
in situations where the ``mere' is lacking." United States v.
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Echeverri, 982 F.2d 675, 678 (1st Cir. 1993). While the
_________
government's evidence against Torres-Maldonado and Gotay-
Colon is less abundant than its evidence against several
other defendants, it is nonetheless sufficient to support a
finding of guilt beyond a reasonable doubt as to the
conspiracy and possession counts.
Hotel personnel testified that both Torres-
Maldonado and Gotay-Colon were associated with the group that
occupied Rooms 310, 311 and 327. A front desk supervisor
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10
identified Torres-Maldonado as a member of the group who had
been present when cash payments were made for the three
rooms, and the floor supervisor mentioned above testified
that she observed Gotay-Colon passing between the three
rooms. She recalled a specific instance when Gotay-Colon
went to Room 327 with Santiago-Alicea.
In addition, drugs and drug paraphernalia were
lying in open view in Room 311 at the time of Torres-
Maldonado's and Gotay-Colon's arrest. Torres-Maldonado was
talking on the phone when the agents entered, allowing an
inference that he and Gotay-Colon were more than mere
visitors. The cocaine found in Gotay-Colon's purse, which
was packaged in a bag bearing the unicorn symbol, further
supports that inference. Finally, the bundle of cash,
secured characteristically with a rubber band, provides
further evidence linking the couple to the group in the hotel
and to drug-related activity. In sum, there is sufficient
record evidence from which a reasonable jury could conclude
beyond a reasonable doubt that Torres-Maldonado and Gotay-
Colon were guilty of both conspiracy and possession with
intent to distribute the drugs found at the hotel, and that,
on the basis of the drugs found in her purse, Gotay-Colon was
guilty of simple possession.
Even more compelling evidence, both direct and
circumstantial, supports the conspiracy and possession
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convictions of the other defendants in this case. For
example, a jury could reasonably infer that Leon, Diaz, and
Santiago-Alicea were observed by ATF agents making the very
drug transactions which serve as the basis for their
conspiracy and possession convictions. Therefore, we
conclude that sufficient evidence supports those convictions.
3. The Firearms Convictions
3. The Firearms Convictions
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Santiago-Alicea, Torres-Maldonado and Gotay-Colon
also challenge the sufficiency of the evidence supporting
their convictions under 18 U.S.C. 924(c)(1) for using a
firearm during and in relation to a drug offense.
a. Santiago-Alicea
a. Santiago-Alicea
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Santiago-Alicea was observed wearing a bullet-proof
vest with a protruding bulge beneath it. So clad, he engaged
in what appeared to be a drug deal in the parking lot of the
Hotel Carib Inn. Using the same standard of review recited
above, we conclude that a reasonable jury could have found
beyond a reasonable doubt that the bulge was one of the guns
found in the drug raid, and that Santiago-Alicea was "using"
the gun, as that term is used in section 924(c)(1), during
and in relation to a drug offense. Accordingly, we affirm
his conviction.
b. Torres-Maldonado and Gotay-Colon
b. Torres-Maldonado and Gotay-Colon
____________________________________
While there are several possible grounds upon which
section 924(c)(1) liability may rest, the evidence against
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Torres-Maldonado and Gotay-Colon is insufficient to support a
section 924(c)(1) conviction under any applicable theory.
(1) Pinkerton Liability
(1) Pinkerton Liability
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We begin by noting that, although members of a
conspiracy may be held liable for substantive crimes
committed by a coconspirator in furtherance of the
conspiracy, see, e.g., Pinkerton v. United States, 328 U.S.
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640, 646-47 (1946); United States v. Barker Steel Co., 985
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F.2d 1123, 1128-29 (1st Cir. 1993), the jury in this case was
not so instructed.7 On appeal, we will not infer either
that the jury found guilt based on a theory upon which it was
not instructed, or that the jury would have found guilt had
it been given a Pinkerton instruction. See United States v.
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Labat, 905 F.2d 18, 23 (2d Cir. 1990) (citing Nye & Nissen v.
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United States, 336 U.S. 613, 618 (1949)); United States v.
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Raffone, 693 F.2d 1343, 1346 (11th Cir. 1982) (similar),
_______
cert. denied, 461 U.S. 931 (1983). Accordingly, we decline
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to affirm defendants' firearms convictions on Pinkerton
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grounds.
(2) Actual or Constructive Possession
(2) Actual or Constructive Possession
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7. Nor has the government argued, either below or on appeal,
that Pinkerton liability should apply to hold Torres-
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Maldonado and Gotay-Colon liable for the use of firearms by
their coconspirators.
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The government argues essentially that the physical
proximity of Torres-Maldonado and Gotay-Colon to the gun
found in the tote bag at the time of the arrest is sufficient
to support an inference that they "used" or were prepared to
use the gun in a drug transaction for section 924(c)(1)
purposes.8 We disagree.
It is well established that a weapon need not be
"brandished, displayed, or discharged" in order to sustain a
conviction under section 924(c)(1). See United States v.
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Castro-Lara, 970 F.2d 976, 983 (1st Cir. 1992), cert. denied,
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113 S. Ct. 2935 (1993); United States v. Plummer, 964 F.2d
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1251, 1255 (1st Cir.), cert. denied, 113 S. Ct. 350 (1992).
_____ ______
Nonetheless, "there must be some facilitative nexus between
the weapon and the criminal activity." Castro-Lara, 970 F.2d
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at 983. Moreover, in order to establish that a defendant
"used" a firearm for purposes of section 924(c)(1), "the
government must prove that the defendant actually or
constructively possessed it." United States v. Harrison, 931
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F.2d 65, 71 (D.C. Cir.), cert. denied, 112 S. Ct. 408 (1991).
_____ ______
See also United States v. Long, 905 F.2d 1572, 1576 & n.6
___ ____ ______________ ____
(D.C. Cir.), cert. denied, 498 U.S. 948 (1990). In this
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case, we find neither actual nor constructive possession.
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8. The government does not argue, nor does the evidence
support an inference, that Torres-Maldonado and Gotay-Colon's
convictions under Section 924(c) could be supported by the
gun found during the searches of the two cars in this case.
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The government's evidence does not establish that
either Torres-Maldonado or Gotay-Colon had any direct or
actual possessory interest in the firearm in the bag. In
fact, one government witness, who had been asked to identify
particular government exhibits, was also asked to state which
defendant appeared to own or control each exhibit. Upon
identifying the bag which contained the gun at issue, the
witness replied that it was linked to "[n]o defendant." No
further evidence in the record tends to show that either
Torres-Maldonado or Gotay-Colon ever exercised actual
possession over the gun or the bag. The evidence of
constructive possession is equally scant. Constructive
possession 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
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States v. Garcia, 983 F.2d 1160, 1164 (1st Cir. 1993)
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(citations and internal quotations omitted). Unlike the
evidence against the other defendants who are party to this
appeal, the evidence against Torres-Maldonado and Gotay-Colon
failed to establish any connection between these two
defendants, on one hand, and those drug distribution
transactions which appeared to involve guns, on the other.
When viewed in the light most favorable to the
government, the evidence shows that only one group of the
defendants, which did not include either Torres-Maldonado or
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Gotay-Colon, was involved in armed drug deals in and around
the hotel. Additional evidence linking Torres-Maldonado and
Gotay-Colon to the group generally falls far short of
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establishing that either defendant knew of or participated in
the armed drug deals. Cf. United States v. Matthews, 942
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F.2d 779, 783-84 (10th Cir. 1991) (affirming drug conspiracy
and possession convictions and reversing conviction under
section 924(c)(1) where the sole explanation for the presence
of the weapons was to provide conspirators with protection on
drug-selling "excursions," and where evidence showed that
defendant had not participated in any such excursions);
United States v. Bruce, 939 F.2d 1053, 1055-56 (D.C. Cir.
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1991) (reversing conviction under section 924(c)(1) despite
gun's presence in an apartment containing drugs, on grounds
that gun's intended use was "for defendant's protection at
the time and place of subsequent distribution") (emphasis
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added).
Finally, there was no additional evidence tending
to show that either Torres-Maldonado or Gotay-Colon exercised
any "dominion and control" over any firearms, see, e.g.,
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Garcia, 983 F.2d at 1164, that they had any "appreciable
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ability to guide the destiny" of firearms, see, e.g., United
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States v. Staten, 581 F.2d 878, 883 (D.C. Cir. 1978), or that
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these defendants ever had "some stake in, some power over"
the firearms found, see, e.g., United States v. Pardo, 636
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F.2d 535, 549 (D.C. Cir. 1980). Cf. Matthews, 942 F.2d at
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783-84 (reversing section 924(c)(1) conviction where there
was no evidence "that [defendant] intended to avail himself
of the firearms in question"); United States v. Feliz-
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Cordero, 859 F.2d 250, 254 (2d Cir. 1988) (holding that a
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loaded gun "found in the same room as drug paraphernalia
during the course of a search pursuant to a warrant" was,
standing alone, insufficient to support a conviction under
section 924(c)(1)). We conclude that there was insufficient
evidence to allow a jury to conclude beyond a reasonable
doubt that Torres-Maldonado or Gotay-Colon actually or
constructively possessed a firearm for purposes of section
924(c)(1).
(3) Aiding and Abetting
(3) Aiding and Abetting
________________________
Given such a lack of evidence of actual or
constructive possession, the firearms convictions of Torres-
Maldonado and Gotay-Colon may stand, if at all, only upon a
theory that they aided and abetted in the use of the gun.9
The government's evidence, however, is insufficient to uphold
a conviction on an aiding and abetting theory.
It is well settled in the case law interpreting
section 924(c)(1) that an accomplice "must have known to a
practical certainty that the principal would be [using] a
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9. The indictment in this case included one count which
charged all defendants with using, and with aiding and
abetting in the use of, a firearm.
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gun." United States v. Powell, 929 F.2d 724, 728 (D.C. Cir.
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1991). See also United States v. Williams, 985 F.2d 749, 756
___ ____ _____________ ________
(5th Cir.) ("Because the evidence does not support an
inference that [nonpossessing defendants] knew the gun was
available to [possessing codefendant], the evidence is
insufficient to support [nonpossessing defendants']
convictions on [a section 924(c)(1)] count."), cert. denied,
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114 S. Ct. 148 (1993); United States v. Nelson, 733 F.2d 364,
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371 (5th Cir.) ("[W]e believe that in order to convict
[defendant] on the theory that [coconspirator] aided and
abetted [defendant], the government had to prove that
[defendant] knew that [coconspirator] was carrying a firearm
while the latter was carrying out the directions of the
former."), cert. denied, 469 U.S. 937 (1984).
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In this case, there is insufficient evidence from
which a jury could conclude beyond a reasonable doubt that
Torres-Maldonado or Gotay-Colon knew of the use of the gun at
any time. As noted above, while it is clear that Torres-
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Maldonado and Gotay-Colon had some ties to the group at the
hotel, there is no evidence that they were involved in, or
knew of, that part of the group's activities which involved
guns. In addition, given that the gun was concealed in a
tote bag when the officers entered the room, there is no
evidence that either Torres-Maldonado or Gotay-Colon knew of
the gun's presence at the time of the arrest. Thus, we
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conclude that there was insufficient evidence to support the
section 924(c)(1) convictions of either Torres-Maldonado or
Gotay-Colon on a theory of aiding and abetting. Cf. United
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States v. Thomas, 987 F.2d 697, 701-02 (11th Cir. 1993)
______ ______
(reversing section 924(c)(1) conviction where nothing in the
government's case linked defendant to gun possessed by a
codefendant).
In sum, no evidence links either Torres-Maldonado
or Gotay-Colon to the gun in the zippered bag, to the armed
drug transactions or even to the bullet-proof vest found in
the closet of Room 311. Given this dearth of evidence
connecting either of these defendants to any firearm in this
case, we reverse their convictions under section 924(c)(1).
B. Severance
B. Severance
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1. Torres-Maldonado and Gotay-Colon
1. Torres-Maldonado and Gotay-Colon
____________________________________
Prior to trial, Torres-Maldonado and Gotay-Colon
filed a joint motion for severance. Attached to the motion
was an affidavit from codefendant Santiago-Alicea, who stated
that he was willing to testify at a separate trial that
Torres-Maldonado and Gotay-Colon were "unaware" of any
activities related to drugs or firearms, and that the couple
had merely come to the Carib Inn Hotel in order to pick up
money that Santiago-Alicea owed on a car that he had
purchased from Gotay-Colon's brother.
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Initially, a magistrate judge recommended that
severance be granted. Santiago-Alicea, however, after
conferring additionally with counsel, subsequently withdrew
his offer to testify at a separate trial, whereupon the
district court denied the motion for severance. Torres-
Maldonado and Gotay-Colon appeal the order denying their
severance motion.
We begin by noting that "a trial judge has
``considerable latitude' in deciding severance questions and
that the judge's resolution of them ``will be overturned only
if that wide discretion is plainly abused.'" United States
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v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993) (quoting United
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States v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert.
______ _______ _____
denied, 112 S. Ct. 986 (1992)). Moreover, the Supreme Court
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has recently stated that "a district court should grant a
severance under Rule 14 only if there is a serious risk that
a joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence." Zafiro v. United States,
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113 S. Ct. 933, 938 (1993). Finally, we have recently
reiterated that where, as here, a defendant seeks severance
in order to secure the testimony of a codefendant, s/he must
demonstrate, inter alia, that the codefendant "``will in fact
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testify if the cases are severed.'" See United States v.
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Nason, 9 F.3d 155, 158 (1st Cir. 1993) (quoting United States
_____ _____________
v. Drougas, 748 F.2d 8, 19 (1st Cir. 1984)).
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Torres-Maldonado and Gotay-Colon sought severance
in order to secure Santiago-Alicea's testimony. Aside from
an unsubstantiated blanket claim of prejudice, Santiago-
Alicea's initial offer to provide exculpatory testimony
formed the sole basis for Torres-Maldonado and Gotay-Colon's
____
motion for severance. Thus, even by the reasoning set out in
Torres-Maldonado and Gotay-Colon's own motion for severance,
once Santiago-Alicea withdrew his offer to testify at a
separate trial, he also withdrew the entire basis of his
codefendants' severance motion. Because the district court
was given no additional justification for ordering a separate
trial, we find no abuse in its denial of Torres-Maldonado and
Gotay-Colon's severance motion.
Moreover, nothing at the joint trial prevented
Torres-Maldonado and Gotay-Colon from putting on evidence
from sources other than Santiago-Alicea in order to
_____ ____
corroborate their contention that they were merely visiting
the hotel with regard to car payments. In fact, one witness
so testified. In sum, Torres-Maldonado and Gotay-Colon
failed to establish that a joint trial would compromise any
"specific trial right," see Zafiro, 113 S. Ct. at 938, nor
___ ______
did they make the "strong showing of evident prejudice,"
O'Bryant, 998 F.2d at 25, which is required to obtain
________
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severance. Accordingly, the district court did not abuse its
discretion in denying their motion.
2. Leon
2. Leon
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Leon sought severance based upon the opening
remarks of counsel for one of his codefendants, Pedro
Panzardi Fuentes (Panzardi), who was acquitted below. During
his opening, Panzardi's counsel stated, inter alia, "It is
_____ ____
not my job to be a prosecutor in this case. So I don't have
to prove who did it. It is the government's duty to prove
our client guilty beyond a reasonable doubt. But we will
prove to you, from the same evidence the government
collected, that during a period of time, starting at the
beginning of the year, the group which was trafficking in
drugs was . . . using the name Panzardi from those days."
Leon understood these remarks and others in
Panzardi's opening statement to mean that Panzardi planned to
bring evidence which would at once aid the government in
proving its case against all of the other defendants and
exonerate Panzardi. Leon unsuccessfully sought severance
based upon potential prejudice from Panzardi's trial tactics.
Upon careful review, we find no error in the district court's
denial of this motion.
The sole basis for Leon's severance motion, both
below and on appeal, has been the opening statement of
Panzardi's counsel. A close reading of that opening
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statement shows that it was carefully, indeed artfully,
worded by Panzardi's counsel to emphasize that Panzardi's
innocence would be proven irrespective of the guilt of any of
____________
his codefendants.10 Moreover, Leon points to no evidence
at trial which was introduced or referred to by Panzardi that
inculpated Leon or any of the other defendants.
The strongest possible basis for Leon's motion to
sever is his view that Panzardi's defense would be
antagonistic to his own. As we have recently stated,
however, "[t]he fact that two defendants assert antagonistic
defenses does not, per se, require severance, even if
___ __
defendants are hostile or attempt to cast blame on each
other." United States v. McLaughlin, 957 F.2d 12, 18 (1st
_____________ __________
Cir. 1992). Rather, "the antagonism in defenses must be such
that if the jury believes one defense, it is compelled to
convict the other defendant." United States v. Angiulo, 897
_____________ _______
F.2d 1169, 1195 (1st Cir.), cert. denied, 498 U.S. 845
_____________
(1990). Leon has made no such showing in this case. The
jury could have readily believed Panzardi's argument that his
name was used by a group of people at the hotel, and
____________________
10. For example, Panzardi's counsel referred to a "group
which was trafficking drugs" without asserting that
Panzardi's codefendants actually comprised that group. In
fact, counsel concluded his opening statement by arguing that
the government's poor investigation had led "to a very bad
investigation and possibly to the acquittal of more than one
_____________
person in this case. Hopefully, my client and whoever else
____________________ ________________
is innocent." (emphasis supplied).
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nonetheless have acquitted Leon.11 In sum, Panzardi's
opening remarks did not amount to a strong showing of
prejudice to Leon, nor were they subsequently accompanied by
prejudicial tactics at trial. Accordingly, the district
court did not err in denying Leon's motion for severance.
C. Evidence Acquired Incident to the Warrantless Arrest
C. Evidence Acquired Incident to the Warrantless Arrest
________________________________________________________
Both Leon and Diaz argue that they were arrested
without probable cause, and that therefore the items seized
from their persons during their arrest should have been
suppressed. Again, we disagree.
In the context of warrantless arrests, as
elsewhere, "[p]robable cause must be evaluated in light of
the totality of circumstances." United States v. Uricoechea-
_____________ ___________
Casallas, 946 F.2d 162, 165 (1st Cir. 1991). Moreover, in
________
order to establish that probable cause existed for such an
arrest, the government "need not present the quantum of proof
necessary to convict." Id. See also United States v.
___ ___ ____ _____________
Morris, 977 F.2d 677, 684 (1st Cir. 1992) (same), cert.
______ _____
denied, 113 S. Ct. 1588 (1993); United States v. Figueroa,
______ ______________ ________
818 F.2d 1020, 1023 (1st Cir. 1987) (same). Rather, it need
only show that, at the time of the arrest, the facts and
circumstances known to the arresting officers were sufficient
____________________
11. For instance, the jury was free to reason that Leon was
never sufficiently identified as a member of the group at the
hotel, or that, while he was a member of the group, the
government's evidence did not sufficiently link him to the
drug transactions at issue.
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to warrant a prudent person in believing that the defendant
had committed or was committing an offense. Id.; see also
___ ___ ____
Beck v. Ohio, 379 U.S. 89, 91 (1964). The arrests of Leon
____ ____
and Diaz clearly met these standards.
Both Leon and Diaz had been observed on the evening
prior to their arrest engaging in what appeared to be a drug
deal. They were apprehended the following day returning to
an area of the hotel which had recently been searched and
which yielded large quantities of drugs, drug paraphernalia,
and firearms. Finally, they admitted knowing members of the
group who had been arrested earlier in the day. In total,
the circumstances of this case indicate that the arresting
officers had probable cause to believe that both Leon and
Diaz had committed or were committing an offense. Therefore,
their arrest was lawful. Moreover, it is well established
that "[i]f an arrest is lawful, the arresting officers are
entitled to search the individual apprehended pursuant to
that arrest." Uricoechea-Casallas, 946 F.2d at 165.
___________________
Accordingly, the district court did not err in admitting the
evidence recovered in that search.
We have carefully considered all defendants' other
claims and find them to be without merit.
III.
III.
____
CONCLUSION
CONCLUSION
__________
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For the foregoing reasons, the convictions of
Torres-Maldonado and Gotay-Colon under 18 U.S.C. 924(c)(1)
are vacated.
_______
All other convictions and sentences are affirmed.
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Document Info
Docket Number： 92-1849
Filed Date： 1/21/1994
Precedential Status： Precedential
Modified Date： 9/21/2015