USCA1 Opinion
United States Court of Appeals
For the First Circuit ____________________
No. 95-1889
UNITED STATES OF AMERICA,
Appellee,
v.
CHARLES ROGERS, JR.
Defendant, Appellant.
____________________
No. 96-2032
UNITED STATES OF AMERICA,
Appellee,
v.
ANDREW J. BEAGAN,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________
____________________
Before
Selya and Lynch, Circuit Judges, ______________
and Pollak, Senior District Judge.* _____________________ ____________________
Robert D. Watt, with whom Frederick Q. Watt and Brian J. Sylvia ______________ _________________ ________________
were on brief, for appellant Charles Rogers, Jr.
Mark J. Gardner for appellant Andrew J. Beagan. _______________
Stephanie S. Browne, Assistant U.S. Attorney, with whom Sheldon ____________________ _______
Whitehouse, U.S. Attorney, was on brief, for appellee. __________
____________________
August 26, 1997
____________________
____________________
*Of the Eastern District of Pennsylvania, sitting by designation.
LYNCH, Circuit Judge. A sting operation involving LYNCH, Circuit Judge. ______________
cocaine led to the arrests and convictions of Charles Rogers
and Andrew Beagan. They, along with two others, were charged
with conspiracy to distribute and to possess with intent to
distribute over five kilograms of cocaine in violation of 21
U.S.C. 846, and attempt to distribute and to possess with
intent to distribute over five kilograms of cocaine in
violation of 21 U.S.C. 841(a)(1). Rogers and Beagan both
raise numerous challenges to their convictions. The most
substantial of these is Rogers' sufficiency of the evidence
claim. Beagan's claims revolve around his defense of
entrapment. We affirm.
I.
During the Fall of 1994, members of the Providence
Police Department met with Ronald Rego, an informer, to
discuss a drug sting. Agreement was reached that Rego would
receive 10% from a drug sting. In return, Rego would
arrange a meeting between Detective Fred Rocha and Andrew
Beagan, a codefendant here. Detective Rocha would arrange a
cocaine sale to Beagan and arrest him at the time of the
sale.
On November 16, 1994, Rego introduced Rocha to
Beagan. The meeting was tape recorded. Rocha claimed he was
a large-scale cocaine dealer and Beagan indicated he was
interested in buying as much as 25 kilograms. Other
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telephone conversations and meetings took place in early
December. Some of these were recorded. Rocha and Beagan
agreed on a December 12 sale date.
Beagan and Rocha met on that day. Beagan told
Rocha that "his people" did not want to carry all their money
at once, so Beagan and Rocha agreed they would split the
transaction into two parts. Rocha would first deliver 10
kilograms of cocaine and Beagan would pay. If Beagan's
people liked the quality, then the remaining 15 kilograms
would be exchanged.
Beagan and Rocha worked out the details of the
exchange on the telephone. Rocha was to call Beagan later
that day to tell him where to bring the "drop car" in which
the cocaine was to be loaded. Rocha would then pick up the
drop car, load it with 10 kilograms of cocaine and drive the
car to an undisclosed location. Beagan would meet Rocha at a
third location to show Rocha the money for the 10 kilograms.
Once Rocha saw the money, he would tell Beagan where he had
left the drop car. Beagan's people would pick up the drop
car, and, if they were satisfied with the cocaine, Beagan
would release the money to Rocha. If Beagan's people wanted
to buy the remaining 15 kilograms, they would have to do so
within the hour.
As planned, Beagan called Rocha to tell him that
the drop car, a white Taurus, was in the University Heights
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parking lot in Providence. Rocha and another police officer
picked up the car, which had been rented by David Scialo (the
third codefendant in the case). The rental agreement listed
Rogers as the second driver.
The police officers loaded into the car 25
kilograms of oatmeal packaged to look like cocaine. They
moved the car to the parking lot of a ball field in
Providence. Rocha called Beagan and told him to bring the
money to the India Point Days Inn in Providence. Beagan
arrived at the motel parking lot around 4 p.m., accompanied
by the final codefendant in the case, Ruben DeLeon. DeLeon
was carrying a black bag. Rocha saw that the bag contained
bundles of money.
Beagan handed Rocha a cellular telephone (which
belonged to Scialo) so that Rocha could tell Beagan's
confederate at the other end of the line where the drugs
were. However, the line went dead. Beagan plugged the
telephone into an outlet in his car and the telephone soon
rang. Beagan handed the phone to Rocha, who told the caller
that the drop car was parked at the ball field parking lot at
Power Street in Providence. Rocha then returned the
telephone to Beagan, who remained on the line until he was
arrested.
Officers who were stationed near the ball field saw
a green Toyota pull up next to the drop car. Rogers was
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driving; Scialo and one other were passengers. The car was
rented to Scialo. Scialo got out of the Toyota, into the
drop car and began to drive away, following Rogers. Two
officers saw that Rogers was holding a cellular phone to his
ear. The authorities stopped the two cars and arrested
Rogers and Scialo.1
Soon afterwards, FBI agents and Providence police
arrested Beagan and DeLeon at the Days Inn. Telephone
records established that around 4 p.m.(the approximate time
that Rocha spoke to Beagan's confederate on the telephone and
told him where to find the drop car), the telephone Rogers
was holding was used to twice call the telephone Beagan was
holding.
Procedural History __________________
The four codefendants -- Rogers, Beagan, Scialo and
DeLeon -- were charged and tried before a jury on the two
drug trafficking counts. At the close of the government's
case, Rogers moved for a judgment of acquittal as well as for
a mistrial based on an allegedly improper statement by the
prosecutor in his opening. The prosecutor had said that he
would show that Rocha had spoken on the telephone to someone
named Chuck during the drug deal. No such evidence was
admitted at trial. The district court denied the motions,
____________________
1. They also arrested the other passenger in the car, Juan
Toribio, but he later was released.
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stating that defense counsel could argue in closing that the
government had failed to produce promised evidence.
After beginning deliberations, the jury requested
that the court instruct them once again on the meaning of
predisposition. The court did so. Beagan objected to the
instruction, asking that the jurors be told that in
considering whether he was predisposed to commit the charged
crimes, they might only consider his behavior prior to his
contact with the government agents. The court declined to
give the additional instruction. The jury returned to its
deliberations, and Beagan, Rogers and DeLeon2 were convicted
on the two drug trafficking charges. Scialo was acquitted.
Beagan and Rogers moved for a new trial, each on
different grounds. Rogers argued that the verdict was
against the weight of the evidence and that there was newly
discovered evidence, in the form of Scialo's testimony, which
would exculpate Rogers. The district court ruled against
him.
Beagan moved for a new trial on several grounds,
only one of which warrants discussion: his claim of juror
misconduct. Beagan filed an affidavit from Matthew Beagan,
Jr., his brother, alleging that after the trial, Matthew
Beagan had spoken to one of the jurors, who stated that the
____________________
2. DeLeon has petitioned for habeas relief, claiming that
his attorney failed to file and perfect his appeal.
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jury had been very confused about the meaning of the term
"predisposition" and that some of the jurors had consulted
dictionaries. The court called in the juror to whom Matthew
Beagan had spoken, as well as one other juror, and questioned
them regarding their post-trial contact with Matthew Beagan
and the use of dictionaries by jurors. The questioning took
place in the presence of counsel for all the parties in
interest. After meticulous inquiry, the court denied
Beagan's motion for a new trial. It found that although
there had been juror misconduct in that at least one juror
had consulted a dictionary on the term predisposition, the
conduct was not prejudicial to Beagan because it occurred
prior to the time the jurors requested additional legal
instruction on the legal definition of the term.
Rogers was sentenced to 78 months' imprisonment.
Beagan was subject to a statutory minimum of 240 months'
imprisonment.
II.
Rogers ______
Rogers' primary claim is that there was
insufficient evidence to convict him on the two drug
trafficking counts. He argues that he was merely present at
the scene of the crime and that there is no evidence of his
actual involvement.
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The case against Rogers is admittedly
circumstantial and requires some inferences. We review the
facts in the light most favorable to the verdict. United ______
States v. Montas, 41 F.3d 775, 778 (1st Cir. 1994). Seen in ______ ______
this light, the evidence is sufficient to support Rogers'
convictions on both counts.
It is true, as Rogers argues, that mere presence at
the scene of a crime is insufficient to establish guilt.
However, this court has distinguished between "mere" presence
and "culpable" presence. A defendant's presence during the
commission of a crime can establish guilt where the
surrounding circumstances imply participation. United States _____________
v. Montilla-Rivera, 115 F.3d 1060, 1064 (1st Cir. 1997); _______________
United States v. Paulino, 13 F.3d 20, 25 (1st Cir. 1994); _____________ _______
United States v. Ortiz, 966 F.2d 707, 711-12 (1st Cir. 1992). _____________ _____
Such is the case here.
It was Rogers who drove Scialo to the baseball
field to pick up the drop car and who was listed as the
second driver in the rental agreement. Most significantly,
it was Rogers who was observed talking on a cellular phone in
the middle of the drug deal. Records place his call to the
cellular phone Beagan was using. Rogers was not merely
present, he was talking on a cellular telephone with one of
the conspirators while the deal was in progress. A jury
could reasonably find that Rogers was discussing the cocaine
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sale, was a knowing participant in the drug conspiracy, see ___
United States v. Piper, 35 F.3d 611, 615 (1st Cir. 1994) ______________ _____
(defining conspiracy), and knowingly attempted to possess
cocaine with the intent to distribute it, see Paulino, 13 ___ _______
F.3d at 25.3
Rogers' claim that he should be granted a new trial
because his conviction was inconsistent with Scialo's
acquittal also fails. Rogers' argument essentially is that
there was more evidence of Scialo's involvement in the
conspiracy than of his own, and that the jury's acquittal of
Scialo shows that there was insufficient evidence to convict
Rogers. To the extent that Rogers has preserved this claim,
it is without merit.
A not guilty verdict against one co-conspirator is
not the equivalent of a finding that the evidence was
insufficient to sustain the conspiracy conviction of a second
co-conspirator. United States v. Bucuvalas, 909 F.2d 593, _____________ _________
595-97 (1st Cir. 1990). If the reviewing court finds the
evidence was sufficient to support the verdict against the
convicted defendant, the conviction must stand despite the
co-conspirator's acquittal. Id. The evidence was ___
sufficient.
____________________
3. Rogers' citation to United States v. Thomas, 114 F.3d 403 _____________ ______
(3d Cir. 1997), provides him no comfort. Thomas is ______
distinguishable on its facts: unlike this case, it did not
involve telephone calls between the defendant and a known
conspirator while a drug deal was in progress.
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Rogers also argues that the district court erred in
denying his motion for a mistrial based on the prosecutor's
opening statement. The prosecutor referred to someone
identified as Chuck as being on the telephone receiving
instructions from Rocha at the time of the drug deal (Rogers'
given name is Charles). When the prosecutor attempted to
elicit testimony from Rocha concerning that conversation, the
court ruled the evidence inadmissible. Rogers argues that,
given the importance of whether he spoke on the telephone
with Rocha and Beagan during the drug deal, the court should
have granted a mistrial. We disagree.
Rocha appropriately has not claimed the
prosecutor's reference during his opening statement was made
in bad faith to mislead the jury. In closing, defense
counsel argued that there was no evidence linking Rogers to
the telephone call during the drug deal. And the district
court charged the jury that statements by counsel argument
are not evidence. The district court did not err in denying
the motion for a mistrial. See United States v. D'Alora, 585 ___ _____________ _______
F.2d 16, 21 (1st Cir. 1978) ("[A] defendant is not entitled
to two trials, one before the judge to filter out
inadmissible evidence and then a jury trial to determine
guilt or innocence.")
Nor did the court abuse its discretion in refusing
to grant Rogers' motion for a severance. Such motions are
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only to be granted where the defendant makes out a strong
showing of prejudice; a defendant is not entitled to
severance merely because he may have a better chance of
acquittal if tried separately. Zafiro v. United States, 506 ______ _____________
U.S. 534, 540 (1993). A district court's decision to deny a
motion for severance is accorded significant deference.
United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993). _____________ ________
Rogers has not presented any reason why this case
is different from most drug conspiracy cases with multiple
defendants involved in the conspiracy to differing degrees,
and co-conspirators generally are tried together. United ______
States v. Perkins, 926 F.2d 1271, 1280 (1st Cir. 1991). ______ _______
Contrary to Rogers' claim, his defense and Beagan's were not
antagonistic, merely different. Beagan argued that he was
entrapped, Rogers that he was merely present at the crime
scene. These two theories of the case are not necessarily
inconsistent. The district court scrupulously instructed the
jurors that they must consider the evidence as to each charge
and each defendant separately. The court did not abuse its
discretion in refusing to sever.
Beagan ______
Beagan's sole defense at trial and focus on appeal4
____________________
4. Beagan's only unrelated argument is that a new trial is
warranted because the district court never instructed the
jury to ignore a drug rally outside the courthouse. This
issue has been waived. Beagan's counsel requested that the
court recess until the drug rally was over, and the court
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was that he was entrapped. Beagan first argues that the
district court's instruction on entrapment was legally
incorrect. Specifically, he argues that the district court
should have instructed the jury that the government was
required to prove his predisposition to commit the charged
crime based on evidence that predated his contact with the
government. This is not a correct statement of the law. It
is true that, when a defendant raises a defense of
entrapment, the government must show that he was predisposed
to commit the charged crime prior to his contact with
government agents; however, the government may use the
defendant's behavior after he was approached by government
agents as evidence of his predisposition prior to meeting the
agents. See, e.g., United States v. Acosta, 67 F.3d 334, 339 _________ _____________ ______
(1st Cir. 1995).
Beagan next argues that he is entitled to a new
trial because jurors impermissibly used extrinsic material (a
dictionary) to understand the meaning of the term
"predisposition." Where, as here, a defendant makes a
colorable claim of juror misconduct, the district court must
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agreed. No request was made at the time for a specific
curative instruction. Beagan cannot now claim he is entitled
to a new trial because he did not receive such an
instruction. United States v. Coady, 809 F.2d 119, 123 (1st _____________ _____
Cir. 1987). Furthermore, the court repeatedly reminded the
jury to refrain from considering anything heard outside the
courtroom, which likely made a specific curative instruction
unnecessary.
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determine whether any misconduct has occurred and if so,
whether it was prejudicial. United States v. Boylan, 898 ______________ ______
F.2d 230, 258 (1st Cir. 1990). We review the district
court's refusal to grant a new trial for abuse of discretion.
Id. at 262; see also United States v. Cheyenne, 855 F.2d 566, ___ ________ _____________ ________
568 (8th Cir. 1988) (giving "substantial weight to the trial
court's appraisal of the prejudicial effects of extraneous
information on the jury, since the trial judge has the
advantages of close observation of the jurors and familiarity
with the issues at trial").
Here, Judge Boyle acted carefully and
conscientiously in response to the allegations of juror
misconduct. The court questioned the two jurors most closely
involved. It determined that although at least one juror had
referred to a dictionary to determine the definition of
predisposition, this occurred before the jury as a whole
sought additional instruction on the legal definition from
the court. The court concluded that whatever use was made of
the dictionary, the jurors had been unsatisfied that they
understood the legal import of the term predisposition and
had properly turned to the court for further instruction.
The court concluded that any misconduct had not been
prejudicial because of the court's additional instruction on
the legal meaning of predisposition.
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There was no abuse of discretion. To the extent
that the jurors' consulting the dictionary was misconduct,5
we agree with the district court that any potential harm to
the defendant was cured by the subsequent legal instructions
on predisposition.
Beagan's final claim is that he was denied
effective assistance of counsel at trial. Trial counsel
introduced evidence concerning Beagan's character, opening
the door to evidence of Beagan's 1991 drug conviction and
thereby, according to Beagan, totally undercutting the
entrapment defense. In accordance with our usual practice,
we will not consider a claim made for the first time on
direct appeal. See, e.g., United States v. Springer, 28 F.3d _________ _____________ ________
236, 239 (1st Cir. 1994); United States v. Mala, 7 F.3d 1058, _____________ ____
1063 (1st Cir. 1993). Determining whether assistance of
counsel was constitutionally deficient is a fact-bound
inquiry that would require us to go beyond the record on
appeal and consider such matters as trial counsel's strategy.
See Springer, 28 F.3d at 239; Mala, 7 F.3d at 1063. ___ ________ ____
Affirmed. _________
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5. Courts that have considered the issue of juror dictionary
use have not generally considered such use to be prejudicial
per se. See, e.g., United States v. Turner, 936 F.2d 221, __________ _____________ ______
226-27 (6th Cir. 1991); United States v. Cheyenne, 855 F.2d _____________ ________
566, 567-68 (8th Cir. 1988). This circuit has not yet passed
on the issue of whether a juror's dictionary use even
constitutes misconduct, and we have no need to do so here.
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