United States v. Torres Maldonado

United States Court of Appeals
For the First Circuit

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.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]

Before

Stahl, Circuit Judge,

Coffin, Senior Circuit Judge,

and DiClerico,* District Judge.

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.

Carlos R. Noriega on brief for appellant Ayala.

Harry R. Segarra on brief for appellant Diaz Cruz.

Kathleen A. Felton, with whom Charles E. Fitzwilliam, United

States Attorney, Warren Vazquez, Assistant United States Attorney, and

Nina Goodman, Department of Justice, were on brief for appellee.

January 20, 1994

*Of the District of New Hampshire, sitting by designation.

STAHL, Circuit Judge. Defendants-appellants

challenge various aspects of their drug and firearms

convictions, arguing, inter alia, that insufficient evidence

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.

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

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,

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.

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,

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

was also convicted of possession of cocaine based on the

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

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

various grounds for appeal. We address them in turn.

II.

DISCUSSION

A. Sufficiency of the Evidence

1. Standard of Review

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

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

States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993)

(quoting United States v. Batista-Polanco, 927 F.2d 14, 17

(1st Cir. 1991)).

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.

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

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

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

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

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.

640, 646-47 (1946); United States v. Barker Steel Co., 985

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.

Labat, 905 F.2d 18, 23 (2d Cir. 1990) (citing Nye & Nissen v.

United States, 336 U.S. 613, 618 (1949)); United States v.

Raffone, 693 F.2d 1343, 1346 (11th Cir. 1982) (similar),

cert. denied, 461 U.S. 931 (1983). Accordingly, we decline

to affirm defendants' firearms convictions on Pinkerton

grounds.

(2) Actual or Constructive Possession

7. Nor has the government argued, either below or on appeal,
that Pinkerton liability should apply to hold Torres-

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.

Castro-Lara, 970 F.2d 976, 983 (1st Cir. 1992), cert. denied,

113 S. Ct. 2935 (1993); United States v. Plummer, 964 F.2d

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

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

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

case, we find neither actual nor constructive possession.

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

States v. Garcia, 983 F.2d 1160, 1164 (1st Cir. 1993)

(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

establishing that either defendant knew of or participated in

the armed drug deals. Cf. United States v. Matthews, 942

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.

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

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.,

Garcia, 983 F.2d at 1164, that they had any "appreciable

ability to guide the destiny" of firearms, see, e.g., United

States v. Staten, 581 F.2d 878, 883 (D.C. Cir. 1978), or that

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

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-

Cordero, 859 F.2d 250, 254 (2d Cir. 1988) (holding that a

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

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

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.

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,

114 S. Ct. 148 (1993); United States v. Nelson, 733 F.2d 364,

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).

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-

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

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

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

v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993) (quoting United

States v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert.

denied, 112 S. Ct. 986 (1992)). Moreover, the Supreme Court

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,

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

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)).

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

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

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.

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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