January 4, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1535
UNITED STATES,
Appellee,
v.
JOHNNY BETANCES DIAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Breyer, Chief Judge,
Rosenn,* Senior Circuit Judge,
and Cyr, Circuit Judge.
Justin Levin for appellant Johnny Betances Diaz.
Geoffrey E. Hobart, Assistant United States Attorney, with whom
A. John Pappalardo, United States Attorney, and Jeffrey A. Locke,
Assistant United States Attorney, were on brief for appellee.
*Of the Third Circuit, sitting by designation.
Rosenn, Senior Circuit Judge. Appellant Johnny
Betances Diaz was tried to a jury and convicted in the
United States District Court for the District of
Massachusetts for conspiracy to possess with intent to
distribute five or more kilograms of cocaine, in violation
of 21 U.S.C. 841(a)(1) and 846. He appeals his
conviction and contends that: (1) the evidence introduced
against him was insufficient to support the guilty verdict
returned by the jury, (2) the district court erred in
admitting a hearsay statement made by a co-conspirator, and
(3) the district court improperly denied his motion for a
severance. We affirm.1
I.
As recounted in United States v. Matiz, a
companion case decided contemporaneously herewith, this case
arose out of a large scale investigation conducted by
various government agencies in the United States and
Colombia, South America into the cocaine distribution
activities of a number of individuals. The United States
(the Government) had the assistance of Pedro Alvarez, a
defendant in another criminal matter.
1 The district court possessed subject matter jurisdiction
pursuant to 18 U.S.C. 3231. This court has jurisdiction
pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742 (a)(2).
Alvarez, at the behest of the Government, posed as
a purchaser and contacted a number of cocaine suppliers in
Colombia. Negotiations ensued over several months
pertaining to the purchase of large quantities of cocaine.
In the early part of 1991, the suppliers in Colombia
informed Alvarez that they were experiencing temporary
difficulties in smuggling the cocaine into the United
States. In light of these difficulties, they asked Alvarez
to assist them in transporting the shipment. Additionally,
the suppliers asked Alvarez to store and distribute the
cocaine to their associates.
The Government instructed Alvarez to request an
up-front payment from the suppliers of $30,000 for his
troubles and expenses. Reluctantly, the suppliers agreed
and told Alvarez that the payment would be made by one of
their New York based associates, "La Negra," a code name for
Nancy Esperanza Matiz.
Alvarez and Matiz ultimately scheduled a meeting
for May 23, 1991, for Matiz to hand over the money to an
associate of Alvarez, actually Special Agent Dominick Lopez,
at a Burger King restaurant in Queens, New York. Matiz,
however, failed to appear at the scheduled hour. Only after
Matiz twice contacted Diaz at his residence did she finally
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arrive together with him, two hours late, in a Nissan
Pathfinder.
As Lopez approached the vehicle he stated the code
word for the transaction, "Cubito." Diaz replied "Cubita,"
apparently correcting Lopez's use of the masculine form of
the word. After Lopez entered the vehicle, Matiz instructed
Diaz to get the money. Diaz, without receiving instructions
regarding the location of the money, retrieved it from
underneath the seat of the car and passed it to Matiz who
then gave it to Lopez. In response to Lopez's query
regarding the amount of money contained in each bundle, both
Matiz and Diaz disclosed the correct amount.2
After this exchange, Matiz remained in close
contact with Alvarez. She informed him that she was
personally expecting to receive a large portion of the
cocaine shipment upon its arrival. Upon learning the date
on which the shipment consisting of 615 kilograms of cocaine
would arrive, Matiz placed nine telephone calls of short
duration to Diaz.
After the cocaine shipment arrived, Alvarez called
Matiz on numerous occasions to discuss the details of the
2The sum amounted to only $20,000 and Matiz promised to make
an additional payment of $5,000 the next day, explaining
that she had been told that the amount due was $25,000.
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pickup of her portion of the cocaine. During these
conversations, Matiz expressed her desire to obtain her
share as soon as possible. Initially, she also voiced an
interest in purchasing some of the cocaine that Alvarez had
received as his fee for transporting the cocaine.
Ultimately, however, she decided against it because of
financial constraints.
Finally, Alvarez informed Matiz that she would be
able to collect her allocation of the cocaine on June 12,
1991. Alvarez reserved a hotel room for Matiz under an
assumed name in Middleboro, Massachusetts near the site for
the transfer of the cocaine. Matiz arrived at the hotel on
June 10, along with Diaz who also used a false name and
fictitious address to check in. The following evening,
Alvarez and Matiz met at the hotel to review the final
arrangements for the pickup. A number of Matiz's
assistants, who had arrived at the hotel on the same day as
Matiz, were designated to collect the cocaine.
At the time of the pickup, one of Matiz's
assistants followed an undercover agent to the warehouse
where the car was loaded. Matiz, however, remained behind
at the hotel with another undercover agent, Dillon, who was
to accompany her to a meeting with Alvarez to discuss future
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cocaine shipments. Before departing, Matiz introduced Diaz
to Dillon as her husband. She then informed Diaz that "the
boys" had gone to load the car. Diaz asked how long the
loading would take and offered his own estimate regarding
the length of the task. As Matiz was leaving, Diaz wished
her a successful meeting. In the car, Matiz and Dillon
decided to purchase a bottle of champagne to celebrate the
deal. On the way to the liquor store, Dillon asked Matiz
whether Diaz minded that she met with other men late at
night, as they had done the night before. Matiz responded
that Diaz did not mind, that he understood that Matiz was
working, that he was aware of the business, and that he
liked the money. Shortly after an agent placed Matiz under
arrest, another agent arrested Diaz outside the hotel.
II.
A. Sufficiency of the Evidence
Diaz first contends that the evidence produced at
trial does not show that he was a member of the conspiracy.
Essentially, he claims that he was merely present at the
time of Matiz's activities but did not participate in them.
In evaluating a claim of insufficiency of the
evidence, we "review the evidence as a whole, including all
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reasonable inferences from that evidence, in the light most
favorable to the government." United States v. Argencourt,
996 F.2d 1300, 1303 (1st Cir. 1993). In addition, both
direct and circumstantial evidence must be credited on
appeal. United States v. Echeverri, 982 F.2d 675, 677 (1st
Cir. 1993). Thus, as long as a jury could rationally find
guilt beyond a reasonable doubt, we have no choice but to
affirm. Argencourt, 996 F.2d at 1303.
Although, as the district court acknowledged, the
evidence against Diaz was "thin", it nevertheless was
sufficient to convict him beyond a reasonable doubt.
Contrary to his assertions, Diaz did more than just
passively and innocently accompany Matiz in her dealings
with respect to the cocaine purchase. He exhibited a
knowledge of and participation in the conspiracy. For
example, at the encounter with agent Lopez, Diaz
acknowledged the correct code term for the transaction. He
also retrieved the money without receiving instructions
pertaining to its location and stated the correct amount in
each bundle. In addition, at key moments of Matiz's
involvement with the cocaine purchase, she communicated with
Diaz. Furthermore, on the day of the cocaine pickup, Diaz
revealed his familiarity with the cocaine shipment when he
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asked about the length of the trip and offered his own
estimate of the time it would take to complete the task.
The reasonable inference to be drawn from this evidence is
that Diaz was intimately involved with Matiz in planning and
executing the conspiracy. Finally, Matiz explicitly told
agent Dillon that Diaz knew she was working, was aware of
the business, and that he liked the money. Based upon the
admitted evidence, a jury reasonably could have concluded
that Diaz knowingly participated in the conspiracy rather
than merely acting as a disinterested bystander.
II.
B. Statement of Co-Conspirator
Diaz next maintains that the district court erred
in admitting, pursuant to Federal Rule of Evidence
801(d)(2)(E), Matiz's statement implicating him in the
conspiracy. He argues that the statement was not made in
the course of or in furtherance of the conspiracy.
To admit a co-conspirator's statement as an
exception to the hearsay rule, a court must find that "it is
more likely than not that the declarant and defendant were
members of a conspiracy when the hearsay statement was made,
and that the statement was in furtherance of the
conspiracy." United States v. Petrozziello, 548 F.2d 20, 23
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(1st Cir. 1977). The district court conducted a
Petrozziello hearing and found these facts by a
preponderance of the evidence. We must accept the district
court's finding unless the finding was clearly erroneous.
See United States v. Patterson, 644 F.2d 890, 894 (1st Cir.
1981).
A co-conspirator's statement is made in
furtherance of a conspiracy if it "'tends to advance the
objects of the conspiracy as opposed to thwarting its
purpose.'" United States v. Masse, 816 F.2d 805, 811 (1st
cir. 1987) (quoting United States v. Fahey, 769 F.2d 829,
839 (1st Cir. 1985)). On the way to a meeting with Alvarez
to discuss future shipments of cocaine, Agent Dillon
inquired whether Diaz, who was introduced as Matiz's
husband, minded the late night meetings with other men.
Understood in this context, the purpose of Dillon's inquiry
was to determine the extent of Diaz's role in the
conspiracy. Matiz answered that Diaz knew what was going on
and was pleased with the money. This statement was made
during the conspiracy and tended to further its goals
because it provided Dillon with some measure of assurance
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that Matiz could carry out her end of the conspiracy without
obstruction on the part of her husband.3
C. Severance
Finally, Diaz argues that the district court erred
by denying his motion for a severance. He argues that
severance was necessary in order to safeguard against
prejudicial spillover. Spillover occurs "where evidence
establishing the guilt of one defendant, but not admissible
against the other, may create an atmosphere clouding the
jury's ability to evaluate fairly the guilt or innocence of
the latter." United States v. Perkins, 926 F.2d 1271, 1281
(1st Cir. 1991).
We review the denial of a severance motion under
Fed. R. Crim. P. 14 for abuse of discretion. United States
v. Innamorati, 996 F.2d 456, 469 (1st Cir. 1993). A
district court's decision not to sever can only be reversed
upon a defendant's maintenance of the heavy burden of
showing substantial prejudice amounting to a miscarriage of
3Moreover, in light of the other evidence, albeit
circumstantial, introduced at trial implicating Diaz as a
member of the conspiracy, any error accruing from the
admission of the statement would be harmless.
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justice. Id. Substantial prejudice, however, is extremely
difficult to prove where, as here, there are obvious reasons
of economy in trying Diaz with his co-conspirator Matiz.
Fed. R. Crim. P. 8(b). "Co-conspirators are customarily
tried together absent a strong showing of prejudice."
Perkins, 926 F.2d at 1280. Evidence regarding the acts of
Matiz would have been admissible against Diaz even in a
separate trial, as co-conspirators are liable for all of the
criminal acts carried out in furtherance of the conspiracy.
See United States v. Ortiz-Arrigoitia, 996 F.2d 436, 440
(1st Cir. 1993). Moreover, the court's instructions to the
jury that the guilt of each defendant must be determined
individually provided a further safeguard against the
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spillover effect.4 Thus, Diaz has failed to show
substantial prejudice because of the joint trial.
The judgment of the district court is
Affirmed.
4 The court warned the jury as follows:
And I will throughout refer mostly to
the defendant, and I will explain to you
later on that as to one part of this
case, you must be very sure to view the
evidence as to each separately, because
each is entitled to separate
consideration from you. . . .
Now, here it is very important that you
review the evidence as to each
separately. The government has to prove
as to each of them that he or she
knowingly and willfully joined the
unlawful scheme, with the understanding
of its unlawful character.
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