-
USCA1 Opinion
November 18, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1031
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN COFRESI-RUIZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Skinner,* Senior District Judge.
_____________________
____________________
Edwin Cofresi on brief pro se.
_____________
Daniel F. Lopez Romo, United States Attorney, Antonio R. Bazan,
______________________ ________________
Assistant United States Attorney, and Jose A. Quiles Espinosa, Senior
________________________
Litigation Counsel, on brief for appellee.
____________________
____________________
_______________________________
*Of the District of Massachusetts, sitting by designation.
Per Curiam. Edwin Cofresi-Ruiz was convicted of
__________
aiding and abetting co-defendant, Evaristo Carrasquillo-
Ramos, in distributing cocaine in violation of 21 U.S.C.
841(a)(1) and 18 U.S.C. 2, and of carrying a firearm during
and in relation to that drug trafficking offense in violation
of 18 U.S.C. 924(c)(1). He now challenges the sufficiency
of the evidence and the district court's denial of his motion
to sever his trial from that of his co-defendant. We affirm.
BACKGROUND
__________
The relevant facts are not in dispute. In a taped
telephone call, a confidential informant for the government
arranged to purchase cocaine from Carrasquillo. By pre-
arrangement, the informant met Carrasquillo at a shopping
center where the exchange of cocaine for cash was to take
place. Cofresi, whose name had not been mentioned in the
telephone conversation, drove Carrasquillo to the shopping
center. While seated in the car with Cofresi, Carrasquillo
instructed the informant to drive to a restaurant parking lot
located nearby since there were too many people at the
shopping center. Cofresi drove Carrasquillo to the
restaurant parking lot. While waiting for the informant to
arrive at the new location, Carrasquillo and Cofresi were
seen standing and conversing next to Cofresi's car. After
the informant arrived, Carrasquillo gave her the cocaine.
During the transfer of cocaine, Cofresi stood apart from
Carrasquillo and the informant, and at one point was observed
to have leaned into his car. Carrasquillo then accompanied
the informant back to her car to pick up the money, and was
arrested when the informant opened her car trunk. As the
police arrested Carrasquillo, Cofresi, who had seated himself
in his car, got out of the car and moved swiftly toward the
front of the car. At that point, police officers approached
and arrested him. When one of the officers looked into
Cofresi's car, he saw a .44 Magnum revolver located in a
console between the driver's and front passenger's seat with
the handle turned up. The gun, which was loaded at the time
and licensed to Cofresi, subsequently was found to be
operable.
DISCUSSION
__________
I. Aiding and Abetting
___________________
Cofresi claims that the evidence was insufficient
to show that he had aided and abetted Carrasquillo in the
sale of the cocaine. He points out that the informant had
not seen whether the cocaine had been taken from his car and
had not testified that she knew Cofresi or knew that he was
involved in drug trafficking activity. Rather than engaging
in a drug transaction, he contends that he was giving
Carrasquillo a ride home, and thought that they were stopping
at the restaurant for a beer. Because his only demonstrated
-3-
involvement in the drug sale was his presence at the scene of
the sale, Cofresi claims that the evidence was insufficient
to convict him even if he knew that a drug sale was taking
place.
Although the evidence may not have shown that
Cofresi was a prime mover behind the drug sale, we are
satisfied that it showed that he participated willingly in
the transaction in order to ensure its success. He drove
Carrasquillo to the site of the prearranged drug deal, he was
in the car with Carrasquillo when Carrasquillo told the
informant to move to a new location since he apparently
believed that the presence of so many people could interfere
with the sale, and he drove Carrasquillo to the new location.
He made no attempt to go into the restaurant upon their
arrival there, but remained in conversation in the parking
lot with Carrasquillo while Carrasquillo awaited the
informant's arrival, and he stood by as the cocaine was given
to the informant. He was also observed leaning into his car
at one point, and subsequently a loaded gun registered to him
was found in the console next to the driver's seat with the
handle turned up. Finally, when Carrasquillo was arrested,
he attempted to leave the scene. These facts are almost
identical to those in United States v. Paone, 758 F.2d 774
______________ _____
(1st Cir. 1985), in which we sustained the defendant's
conviction for aiding and abetting a cocaine sale. There we
-4-
stated that defendant's presence at "several critical steps
of the transaction" made it "entirely reasonable for the jury
to conclude that his appearances were not coincidental and
that he was a participant who sought to bring about the
cocaine sale." Id. at 776. See also United States v. Ortiz,
___ ______________________ _____
966 F.2d 707, 712 (1st Cir. 1992) (suggesting that "a person
. . . brought to a neutral site by a drug trafficker
preliminary to the actual consummation of a narcotic
transaction" is unlikely to be an "innocent bystander", and
affirming the conviction of a defendant who had accompanied
the principal drug dealer to the prearranged site of a drug
sale because there was no evidence that he came
involuntarily, the cocaine was in plain view on the car seat
next to the defendant, and the defendant listened to the drug
dealer's negotiations with an undercover agent and was
subsequently found to have been carrying a beeper). Thus, we
find that the evidence supports the jury's determination that
Cofresi was a willing participant who aided and abetted
Carrasquillo in the drug sale.
II. Carrying a Firearm
__________________
Cofresi argues that his conviction on the aiding
and abetting charge precludes his conviction for using or
carrying a firearm during and in relation to a drug offense.
Cofresi contends that the evidence showed that he was away
from his car during the delivery of the cocaine and that his
-5-
gun was in the car. Because it was not on his person and not
within his immediate reach, he claims that he cannot be found
to have used or carried the gun during and in relation to the
sale of the cocaine. This argument has no merit in light of
our cases on this point. In United States v. Castro-Lara,
______________ ___________
970 F.2d 976 (1st Cir. 1992), a defendant named Obijo claimed
that his conviction for using or carrying a firearm during
and in relation to any drug crime was erroneous. In that
case Obijo's co-defendant Castro had placed a bag of cocaine
into Obijo's car, and both men were preparing to drive away
together when they were arrested. While searching the trunk
of the car, the police found a briefcase owned by Obijo. In
the briefcase was an unloaded but operable gun, live
ammunition and a large amount of cash. We rejected Obijo's
argument that the gun had not been within his immediate
reach. We explained that our "concern is not whether the gun
was 'instantly available' or 'exclusively dedicated to the
narcotics trade,' but whether it was 'available for use' in
connection with the narcotics trade." Id. at 983. We
___
concluded that a jury reasonably could have found that the
gun was "available for use" during and in relation to a drug
trafficking crime because the gun had been found in Obijo's
car at the scene of a drug pickup near a large sum of cash
and live ammunition. Id. See also United States v. Wight,
___ ___ ____ _____________ _____
968 F.2d 1393 (1st Cir. 1992) (the court sustained a
-6-
defendant's conviction for using a firearm during and in
relation to a drug trafficking crime where the gun was
delivered to a co-defendant to be used, if necessary, during
the drug deal; the defendant was arrested while attempting to
sell drugs in the van in which the gun was found; the gun was
found under some newspapers behind the defendant's seat in a
half-open case with the open end toward the place where the
defendant had sat). Here, Cofresi remained in the vicinity
of the car, at one point was observed to have leaned into the
front seat, and had reseated himself in the car by the time
the arrests were made. Clearly, the gun, which was located
in the car between the driver's seat and the front
passenger's seat, was available to him for use in connection
with the drug transaction then taking place in the parking
lot.
III. Severance
_________
Finally, Cofresi argues that the district court
erred in denying his motion for severance of his trial from
Carrasquillo's. In his appellate brief Cofresi contends that
the evidence against Carrasquillo was so strong that he
became "guilty by association" and was not convicted on the
basis of evidence as to his "individual involvement."1 He
____________________
1. In his Motion for Severance, Cofresi also stated that he
intended to take the witness stand to testify that he did not
know that Carrasquillo intended to effect a drug sale at the
restaurant parking lot. Without describing what
Carrasquillo's defense would be, he contended that his
-7-
also states that the government would have had no evidence to
present against him had his trial been severed from
Carrasquillo's.
We review the district court's denial of this
motion for "manifest abuse" of discretion, see United States
___ _____________
v. Boylan, 898 F.2d 230, 246 (1st Cir.), cert. denied, 111 S.
______ _____ ______
Ct. 139 (1990), and find no such abuse here. Cofresi's
burden on appeal is to make a "strong showing" that the
court's failure to sever his trial prejudiced him, a burden
which we have characterized as a "difficult battle for a
defendant to win." Id.
___
There were only two defendants in this case and
only four counts arising out of a single, uncomplicated drug
transaction. Counts one and two alleged use of a
communication facility, i.e., the telephone, to commit a drug
____
crime, and were brought against Carrasquillo. We cannot
conceive that the jury mistakenly would believe that Cofresi
____________________
defense was antagonistic to Carrasquillo's defense, so that
"extreme prejudice" to him would result and the jury would
not be able to "compartmentalize the evidence against each
defendant." The government's reply noted that, as drafted,
Cofresi's motion described a situation prejudicial to
Carrasquillo so that Cofresi had no standing to bring the
motion. The government also argued that the conflict Cofresi
alleged amounted to mere "tattling and finger pointing," and
so was not a basis for severance, see United States v.
___ ______________
Arruda, 715 F.2d 671, 679 (1st Cir. 1983), and that Cofresi
______
had made no showing of prejudice. Cofresi did not testify at
trial, and his argument on appeal appears to allege only that
the jury was unable to sift the evidence against him from
that relating to Carrasquillo. Accordingly, we conclude that
he has abandoned the other arguments made in his motion.
-8-
was implicated in that offense. The government introduced
tape recordings of the phone calls, neither of which
mentioned Cofresi or involved Cofresi in any way. See United
___ ______
States v. Martinez, 479 F.2d 824, 828 (1st Cir. 1973) (The
______ ________
defendant was not prejudiced by a joint trial where there was
"no likelihood of confusion between the proof applicable to
[his co-defendants] and that applicable to [the defendant.] .
. . None of the evidence in the first count pertained to
defendant.")
The third count applied to both Carrasquillo and
Cofresi, and alleged that they had aided and abetted each
other in committing a drug crime. With respect to this
count, the facts relating to Carrasquillo and Cofresi were
inseparably connected. The very nature of the charge against
them required a consideration of their joint actions with
respect to the central allegation that a drug crime had taken
place. Even if Cofresi's trial had been conducted
separately, the government would have had to introduce
evidence as to Carrasquillo's role in the transaction in
order to establish that a drug sale had taken place.
(Cofresi seems to believe, mistakenly, that in a separate
trial the government would be able to introduce only evidence
relating to his own role in the drug sale.) For that reason,
trying Cofresi and Carrasquillo jointly did not prejudice
Cofresi. Cf. id. at 829 (there was no prejudice in not
___ ___
-9-
severing trials where the evidence relating to the principal
drug dealer's actions, whom the defendant was alleged to have
aided and abetted, would have been presented even if the
count relating to the defendant had been tried separately
from the counts relating to his co-defendants, who were
alleged to have aided and abetted the principal drug dealer
on a different occasion); United States v. Martin, 920 F.2d
______________ ______
345, 349 (6th Cir. 1990) (there was no prejudice in not
severing the trials of alleged co-conspirators where the
facts relating to the defendants, the conspiracy and the
substantive drug charge were "inextricably linked"), cert.
_____
denied, 111 S. Ct. 2038 (1991). The fact that most of the
______
evidence presented concerned Carrasquillo does not mean that
Cofresi was prejudiced, especially where, as here, the
district court specifically instructed the jury to consider
the evidence against each defendant separately.2 See United
__________
States v. Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991) (the
______ ________
court rejected the defendant's claim that she had been
convicted because of "spillover" from vivid testimony by the
____________________
2. The court charged the jury as follows: "Now, let's also
discuss the defendants. There are two defendants. Although
the defendants are being tried together, you must consider
the case against each separately. In doing so, you must
decide what the evidence shows about each defendant without
considering any evidence that may have been received solely
against some other defendant or defendants. Each defendant
is entitled to have the case against that defendant decided
solely on the evidence and the law which applies to that
defendant."
-10-
key witnesses against her co-defendant, in which she was not
mentioned at all, because the evidence applied to her as a
co-conspirator and because the court had adequately
instructed the jury to consider only the evidence against
each defendant separately); cf. United States v. Cox, 934
___ ______________ ___
F.2d 1114, 1119 (10th Cir. 1991) (the court stated that the
lengthy testimony about a co-defendant's criminal activities
did not warrant reversal where the defendant did not make an
"actual showing of prejudice").
Finally, the last count, which alleged the use or
carrying of a firearm in connection with a drug crime,
applied only to Cofresi. The evidence clearly linked the gun
to Cofresi. In any event, any jury confusion as to that
issue would have worked to Carrasquillo's, and not Cofresi's,
disadvantage.
Accordingly, we conclude that the court's denial of
Cofresi's motion for a separate trial was not an abuse of
discretion.
CONCLUSION
__________
The decision of the district court is affirmed.
________
-11-
Document Info
Docket Number： 92-1031
Filed Date： 11/18/1992
Precedential Status： Precedential
Modified Date： 9/21/2015