United States v. Rullan Rivera

USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-1890

UNITED STATES OF AMERICA,

Appellee,

v.

ARNALDO L. RULLAN-RIVERA,

Defendant, Appellant.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge] ___________________


____________________

Cyr, Circuit Judge, _____________

Bownes, Senior Circuit Judge, ____________________

and Boudin, Circuit Judge. _____________

____________________



Luis R. Rivera-Gonzalez, with whom Joseph C. Laws, Jr. was on _______________________ ___________________
brief for appellant.
Jos A. Quiles Espinosa, Senior Litigation Counsel, with whom _______________________
Guillermo Gil, United States Attorney, and Warren V zquez, Assistant _____________ ______________
United States Attorney, were on brief for appellee.


____________________

July 21, 1995
____________________
















CYR, Circuit Judge. Arnaldo L. Rullan-Rivera CYR, Circuit Judge. _______________

("Rullan") appeals the judgment of conviction entered against him

for possessing cocaine with intent to distribute. See 21 U.S.C. ___

841(a)(1); 18 U.S.C. 2. As there was no reversible error, we

affirm the district court judgment.


I I

BACKGROUND BACKGROUND __________

The relevant facts are recounted in the light most

favorable to the verdict. United States v. Tuesta-Toro, 29 F.3d _____________ ___________

771, 773 (1st Cir. 1994), cert. denied, 115 S. Ct. 947 (1995). _____ ______

Appellant Rullan and Humberto Prada-Cordero ("Prada") enlisted

Erasto Miranda-Rodriguez ("Miranda") to transport one kilogram of

cocaine from Puerto Rico to the continental United States.1 On

November 10, 1992, Prada, Miranda, Rullan and his wife went to

the Luis Munoz Marin International Airport in Carolina, Puerto

Rico, where Prada and Miranda were to board a flight to the

mainland. After twice triggering the security checkpoint magne-

tometer alarm, Miranda abandoned his handbag, passport and

airline ticket, and fled the checkpoint area rather than risk

disclosure of the cocaine concealed on his person.

Shortly thereafter, Miranda surrendered to the police,

became a cooperating witness for the government and implicated

appellant Rullan, who was arrested and indicted for conspiring to

possess cocaine with intent to distribute, see 21 U.S.C. 846, ___
____________________

1Rullan had supplied Miranda with small amounts of cocaine
for personal use in years past.

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and possessing cocaine with intent to distribute, see id. ___ ___

841(a)(1); 18 U.S.C. 2. Rullan filed a pretrial motion to

compel disclosure of any prior "bad acts" evidence the government

intended to introduce at trial. Although the motion was granted,

the government disclosed no Rule 404(b) evidence.

At trial, the court ruled that no Rule 404(b) evidence

was to be introduced. The prosecutor accordingly assured the

court that Miranda had been instructed not to mention his previ-

ous cocaine purchases from Rullan. See supra note 1. Neverthe- ___ _____

less, on the third day of trial, when the prosecutor asked

Miranda whether he had "known Mr. Rullan in relation to [codefen-

dant] Humberto Prada prior to [November 8, 1992]," Miranda

blurted out: "No, I was totally surprised. Arnaldo Rullan sur-

prised me because he was my drug dealer."

On the following day, codefendant Prada failed to

appear for trial. The district court denied Rullan's motion for

mistrial, and ordered that the joint trial proceed, with Prada in __

absentia. After the district court allowed a defense motion to ________

dismiss the conspiracy charge, both defendants were convicted on

the substantive cocaine charge, and Rullan appealed.


II II

DISCUSSION DISCUSSION __________

A. The Rule 404(b) Evidence A. The Rule 404(b) Evidence ________________________

The government does not dispute that Miranda's unex-

pected reference to Rullan as his former drug dealer constituted

prohibited "bad acts" evidence, but simply contends that a

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mistrial was not necessary to cure any inadvertent harm. For

present purposes, therefore, we assume that the challenged

testimony violated the prohibition against Rule 404(b) evidence.



A ruling denying a motion for mistrial is reviewed for

manifest abuse of discretion, United States v. Romero-Carrion, _____________ ______________

No. 94-1792, slip op. at 4 (1st Cir. May 9, 1995); United States _____________

v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994), cert. denied, 115 S. ______ _____ ______

Ct. 919 (1995), and will be upheld absent a clear showing of

prejudice by the defendant-appellant. United States v. Hahn, 17 _____________ ____

F.3d 502, 508 (1st Cir. 1994) (citing United States v. Sclamo, ______________ ______

578 F.2d 888, 891 (1st Cir. 1978)). Mistrial is a last resort,

to be employed only if the demonstrated harm can be cured by no

less drastic means, such as a contemporaneous jury instruction.

United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993), _____________ _________

cert. denied, 114 S. Ct. 2714 (1994). _____ ______

Miranda testified in Spanish. The problematic portion

of the testimony, see supra p. 3 ("[Rullan] was my drug dealer"), ___ _____

was never translated into English before Miranda was interrupted

in mid-sentence by a defense objection. The official trial

transcript of the exchange reads, in full:

Q: Had you known Mr. Rullan in relation to
Humberto Prada prior to that day?

A: No, I was totally surprised. Arnold
Rullan surprised me --






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The trial judge immediately ordered Miranda's response stricken

from the record and contemporaneously directed the jury to

disregard it.

It would be unrealistic, nonetheless, to suggest that

the Puerto Rico jury did not hear and understand the entire

response given by Miranda in Spanish. Be that as it may, the

normal presumption that juries follow the court's instructions

can be rebutted only on a sufficient showing that the offend-

ing testimony reasonably could not have been ignored and that

serious prejudice likely resulted. Id. at 1185. See also Greer ___ ___ ____ _____

v. Miller, 483 U.S. 756, 766 n.8 (1987) ("We normally presume ______

that a jury will follow an instruction to disregard inadmissible

evidence inadvertently presented to it, unless there is an

'overwhelming probability' that the jury will be unable to follow

the court's instructions.") (quoting Richardson v. Marsh, 481 __________ _____

U.S. 200, 208 (1987)). Although Rullan points out that a limit-

ing instruction is not always sufficient to insulate against

improper evidentiary prejudice, see, e.g., Bruton v. United ___ ____ ______ ______

States, 391 U.S. 123, 135 (1968), mistrial was not required in ______

the instant case.

There was strong evidentiary support for the jury

verdict. Miranda testified that Rullan: (1) telephoned Miranda

to arrange the first meeting at which the cocaine distribution

scheme was discussed; (2) drove Prada to Miranda's apartment for

their meetings; (3) relayed drug smuggling messages between

Miranda and Prada; (4) removed cocaine from his own car and


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carried it into Miranda's residence prior to their trip to the

airport; (5) accompanied Miranda and Prada to the airport; and

(6) discussed with Miranda and Prada their plans for investing

the drug profits.

The overwhelming weight of the direct and circumstan-

tial evidence, combined with the firm, contemporaneous instruc-

tion, demonstrates to a "high probability" that the inadvertent

introduction of the "bad acts" evidence did not contribute to the

verdict. Therefore, the reference to prior drug dealings with

Rullan was "harmless." United States v. Tejeda, 974 F.2d 210, ______________ ______

215 (1st Cir. 1992) ("nonconstitutional evidentiary error under

Rule 404(b) will be treated as harmless if it is `highly prob-

able' that the error did not contribute to the verdict") (cita-

tions omitted).

B. Sufficiency of the Evidence B. Sufficiency of the Evidence ___________________________

Rullan could be convicted of aiding and abetting the

possession of cocaine, with intent to distribute, see 21 U.S.C. ___

841(a)(1) and 18 U.S.C. 2, only if the government proved beyond

a reasonable doubt that he "associated himself with the underly-

ing venture, participated in it as something he wished to bring

about, and sought by his actions to make it succeed." United ______

States v. Clifford, 979 F.2d 896, 899 (1st Cir. 1992) (citing Nye ______ ________ ___

& Nissen v. United States, 336 U.S. 613, 619 (1949)). We review ________ _____________

the evidence in the light most favorable to the government,

indulging all reasonable inferences in its favor, with a view to




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determining whether a rational jury could have found guilt beyond

a reasonable doubt. Hahn, 17 F.3d at 506. ____

Rullan contends that Miranda's trial testimony was not

credible because Miranda had made contrary statements to the

grand jury, and he was motivated by the expectation of a reduced

sentence. We find this challenge unavailing, since Miranda was

impeached, both with his prior inconsistent grand jury testimony

and his plea agreement, and the credibility assessment was a

matter for the trial jury. See Sepulveda, 15 F.3d at 1175; Hahn, ___ _________ ____

17 F.3d at 506. Thus, there was ample credible evidence to

establish Rullan's guilt beyond a reasonable doubt. See supra p. ___ _____

5.

C. Flight by Codefendant C. Flight by Codefendant _____________________

Following an evidentiary hearing, the district court

found that Prada voluntarily absented himself from the final two

days of trial. Rullan moved for a mistrial, claiming that his

codefendant's flight might prompt a jury inference that both

defendants were guilty. The district court directed that the

trial proceed against both defendants. See Crosby v. United ___ ______ ______

States, U.S. , , 113 S. Ct. 748, 752-753 (1993); Fed. ______ ___ ___ ____

R. Crim. P. 43(b).

Rullan asserts three claims of error. First, he says,

the district court mistakenly believed Rullan might avoid retrial

on double jeopardy grounds if a mistrial were declared. Second,

a limiting instruction could not prevent a jury inference that

both defendants were guilty because Prada absconded during trial.


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Third, the instruction given by the court was "over extensive in

content" and prejudicial. We review the two latter claims for

manifest abuse of discretion. Pierro, 32 F.3d at 617. ______

First, Rullan correctly asserts that double jeopardy

does not bar retrial where a mistrial is ordered at the request

of the defendant. United States v. Scott, 437 U.S. 82, 93 _____________ _____

(1978); United States v. Aguilar-Aranceta, 957 F.2d 18, 21-22 _____________ ________________

(1st Cir.), cert. denied, 113 S. Ct. 105 (1992). The district _____ ______

court nonetheless correctly predicated its denial of Rullan's

motion for mistrial on the ground that Prada's voluntary failure

to appear, in and of itself, did not necessarily mean that the ___________

joint trial could not proceed with Prada in absentia. See _____ ____ _____ __ ________ ___

Crosby, 113 S. Ct. at 752 (treating voluntary failure to appear, ______

after trial begins, as waiver of right to be tried in person);

Fed. R. Crim. P. 43(b).

On the other hand, treating the motion for mistrial as

a de facto motion for severance by a non-absconding codefendant, __ _____

see Fed. R. Crim. P. 14, we review its denial under the "plain ___

error" standard, since severance was never broached before the

district court. See United States v. Palow, 777 F.2d 52, 54 (1st ___ ______ ______ _____

Cir. 1985), cert. denied, 475 U.S. 1052 (1986). Viewed in this _____ ______

light, Rullan's motion rests exclusively on the conclusory

assertion that the jury could have inferred that he was guilty

because his codefendant absconded. We see no compelling rational ___________

force in the suggestion that Rullan, who did not flee, must have

been tainted with the same brush as the absconding Prada.


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Moreover, Rullan's conclusory claim runs counter to the

longstanding presumption that jurors normally follow the instruc-

tions given them by the trial court. See United States v. Olano, ___ ______ ______ _____

113 S. Ct. 1770, 1781 (1993). The district court firmly in-

structed the jury that Prada's disappearance was immaterial to

the verdict on Rullan. The record further reflects that the jury

understood.

THE COURT: The absence of defendant
Prada from trial is no way attributable [sic]
to the other defendant on trial. And may not
be considered by you in determining the guilt
or innocence of defendant Rullan. You may
use this only as to defendant Prada itself.
[sic] Is that clear? Let the record show
that the jury has assented.

We therefore reject the conclusory contention that no

jury instruction could protect Rullan against an inference of

guilt arising from his codefendant's voluntary flight. See ___

United States v. Phibbs, 999 F.2d 1053, 1067 (6th Cir. 1993) (any ______ ______ ______

adverse effect upon nonfleeing defendant neutralized by "a

cautionary instruction that each defendant's case was to be

considered separately and, further, that [codefendant's] flight

could not be used as evidence against anyone but him"), cert. _____

denied, 114 S. Ct. 1071 (1994); cf. United States v. Wright, 932 ______ ___ ______ ______ ______

F.2d 868, 877 (10th Cir.) (upholding denial of severance, in part

because trial court twice instructed jury that "it should not

construe the absence of [codefendant] as evidence of guilt of







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either [the defendant or the codefendant]"), cert. denied, 502 _____ ______

U.S. 972 (1991).2


III III

CONCLUSION CONCLUSION __________

As there was no reversible error, the district court

judgment is affirmed. ________



























____________________

2Rullan also challenges, as too extensive and prejudicial,
the very language he asked the district court to use in the jury
instruction relating to Prada's disappearance. But even assuming
the instruction had not been invited, the claim of error is
groundless. There was no error in the instruction, let alone
"plain error." See Palow, 777 F.2d at 54. ___ _____
Lastly, at oral argument Rullan withdrew his so-called
"ineffective assistance of counsel" claim. See Sainz Gonzalez v. ___ ______________
Banco de Santander-Puerto Rico, 932 F.2d 999, 1000 n.1 (1st Cir. _______________________________
1991); Bunol v. George Engine Co., 996 F.2d 67, 70 (5th Cir. _____ __________________
1993).

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