United States v. Negron Gil De Rubio ( 1996 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1131
UNITED STATES OF AMERICA,
Appellee,
v.
JOS NEGRON GIL DE RUBIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Jos A. Pagan Nieves, with whom Jos A. Pagan Nieves Law Offices
was on brief for appellant.
Juan A. Pedrosa, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, Senior
Litigation Counsel, and Nelson P rez-Sosa, Assistant United States
Attorney, were on brief for appellee.
August 6, 1996
Per Curiam. Jos Negron Gil de Rubio ("Negron")
Per Curiam.
appeals his conviction and sentence for conspiring to possess
cocaine with intent to distribute, see 21 U.S.C. 841(a)(1),
846. Finding no error, we affirm the district court judgment in
all respects.
Negron first claims that the district court erred in
rejecting his motion for a bill of particulars, because the
indictment failed to name all coconspirators and alleged no overt
acts involving Negron.1 The lone count against Negron alleged an
eighteen-month conspiracy to possess with intent to distribute
cocaine. It named all 28 indicted coconspirators, but omitted
two unindicted cooperating witnesses.2 No more was exigible, as
1Rulings disallowing bills of particulars are reviewed only
for abuse of discretion. United States v. Sepulveda, 15 F.3d
1161, 1193 (1st Cir. 1993), cert. denied, 114 S.Ct. 2714 (1994).
In the present context, this requires a demonstration by the
defendant that the denial resulted in prejudice at trial, or
other prejudice to a "substantial right." United States v.
Hallock, 941 F.2d 36, 40 (1st Cir. 1991) (quoting United States
v. Paiva, 892 F.2d 148, 154 (1st Cir. 1989)).
2Count One alleged:
The general allegations are hereby incorpo-
rated and realleged herein by reference.
From on or about September 1991, up to and
including May of 1993, in the District of
P.R., FL, N.Y., MA, and elsewhere, within the
jurisdiction of this court, . . .
[list of 23 defendants, including Negron, but
not including 2 of the 4 cooperating witness-
es]
. . . the defendants herein, and others to
the Grand Jury known and unknown, did know-
ingly and intentionally combine, conspire,
confederate, and agree together, with each
2
the indictment substantially described the essential facts
constituting the charged offense, within the meaning of Fed. R.
Crim. P. 7(c)(1). See United States v. Hallock, 941 F.2d 36, 40
(1st Cir. 1991). Compare United States v. Tomasetta, 429 F.2d
978, 979 (1st Cir. 1970) (more precise averments as to date and
location of crime may be needed when charging a substantive
offense). The government need not describe "the precise dates
and locations" of all overt acts, Hallock, 941 F.2d at 40-41; see
United States v. Paiva, 892 F.2d 148, 155 (1st Cir. 1989), absent
a showing of actual prejudice or surprise.
Bills of particulars are designed to provide sufficient
additional detail to enable an accused to mount an adequate
other and with diverse other persons to the
Grand Jury known and unknown, to commit the
following offense against the United States,
that is, possession with intent to distribute
cocaine, a Schedule II narcotic drug con-
trolled substance, in violation of Title 21,
U.S.C., 841(a)(1) and 846.
Object of the conspiracy: It was the object
of the conspiracy that codefendants and
coconspirators would and did possess cocaine
with the intent to distribute, and would and
did distribute the same for the purpose of
obtaining monetary gain.
Overt Acts [Indictment lists 44 overt acts,
none of which specifically name Negron] in-
clude:
3. The cocaine loads were usually retained
and safeguarded by members of the organiza-
tion.
. . . .
5. A portion of the cocaine was prepared for
distribution in Puerto Rico.
3
defense, avoid double jeopardy, and prevent surprise at trial.
See Hallock, 941 F.2d at 40. There is no basis for concluding
that this indictment was impermissibly vague, so as to materially
hamper trial preparation, cause surprise, or prevent Negron from
forfending against double jeopardy. Moreover, not only did he
have the benefit of full discovery, but the district court
ordered that Negron be accorded reasonable access to the four
cooperating witnesses who later testified for the government at
trial. These discovery resources afforded Negron adequate
opportunities to inform himself of the evidence the government
was prepared to present at trial. Negron has neither provided a
factual foundation for his conclusory alibi-defense claim, nor
indicated a basis for the claim that any vagueness in the present
indictment may expose him to prosecution for conduct of which he
has been acquitted in the past. See United States v. Ramirez-
Burgos, 44 F.3d 17, 19 (1st Cir. 1995)(citations omitted) ("The
Double Jeopardy Clause safeguards against (i) a second prosecu-
tion following acquittal or final conviction for the same offense
and (ii) multiple punishments for the same offense."); United
States v. Abreu, 952 F.2d 1458, 1464 (1st Cir.), cert. denied,
112 S. Ct. 1695 (1992)(same). Finally, even though Negron has
been apprised of the relevant times, transactions and persons, he
neither precisely defines an alibi nor demonstrates that the
present conspiracy charge is barred by any prior acquittal.
Moreover, since the indictment contained sufficient information
to apprise Negron of the criminal conduct with which he was
4
charged, he was neither prejudiced nor unfairly surprised at
trial by any absence of particulars.
5
Negron also claims that the evidence was insufficient
to support the verdict.3 At trial, the government presented four
coconspirators, each of whom tied Negron directly to the same
conspiracy. Their credibility was for the jury. United States
v. Saccoccia, 58 F.3d 754, 773 (1st Cir. 1995).
Negron further claims that the district court erred in
denying his motion for new trial based on newly-discovered
evidence. The proffered "newly discovered evidence" a puta-
tive averment by a cooperating witness that Negron did not
participate in the drug organization fell well short of the
mark, if for no other reason than that it has not been shown to
have been "newly discovered." See United States v. Natanel, 938
F.2d 302, 313 (1st Cir. 1991), cert. denied, 502 U.S. 1079(1992); see also United States v. Tibolt, 72 F.3d 965, 972
(1995).
Further, Negron challenges the drug-quantity calculat-
ion relied on at sentencing. As there was evidence that Negron
had been involved with considerably more than the five kilograms
of cocaine found by the district court, there can have been no
clear error. See United States v. Morillo, 8 F.3d 864, 871 (1st
Cir. 1993).
3We review the entire record in the light most favorable to
the government and indulge all reasonable inferences favorable to
the verdict, see United States v. Saccoccia, 58 F.3d 754, 773
(1st Cir. 1995), in order to determine whether a rational jury
could have found appellant guilty beyond a reasonable doubt. See
United States v. Valle, 72 F.3d 210, 216-17 (1st Cir. 1995).
6
Finally, absent a showing of any error, Negron's
cumulative error claim collapses.
Affirmed.
Affirmed
7