United States v. de la Cruz Paulino

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 94-1985

UNITED STATES,
Appellee,

v.

VANESSA DE LA CRUZ PAULINO,
Defendant, Appellant,

No. 94-1986

UNITED STATES,
Appellee,

v.

WANDA DIAZ-PEREZ,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Rachel Brill with whom Jose Fernando Irizarry was on brief for

appellant Diaz-Perez.
Enrique Velez-Rodriguez for appellant de la Cruz Paulino.

Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom

Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assistant

United States Attorney, were on brief for appellee.

August 3, 1995

STAHL, Circuit Judge. Defendants-appellants Wanda
STAHL, Circuit Judge.

D az-P rez and Vanessa de la Cruz-Paulino (collectively,

"defendants") appeal their convictions for aiding and

abetting each other and others in the unlawful possession of,

with intent to distribute, approximately eighty kilograms of

cocaine, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C.

2. D az-P rez also appeals her conviction for using a

communications facility on six separate occasions to

facilitate the distribution of cocaine, in violation of 21

U.S.C. 843(b). D az-P rez argues that she is entitled to a

new trial because the government violated Fed. R. Crim. P.

12(d)(2) by failing to designate certain of the evidence it

intended to use during its case in chief; because the

district court admitted hearsay tape recordings into

evidence; and because the trial judge made prejudicial

comments in front of the jury. Both D az-P rez and de la

Cruz-Paulino argue that the district court abused its

discretion in allowing a representative sample of cocaine to

be sent into the jury deliberation room. Finally, de la

Cruz-Paulino argues that the evidence was insufficient to

establish her guilt beyond a reasonable doubt. We affirm

D az-P rez's conviction, but reverse de la Cruz-Paulino's

conviction for insufficient evidence.

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I.
I.

Background
Background

On January 21, 1994, Federal Drug Enforcement

Administration ("DEA") agents in Puerto Rico met with a

cooperating individual known as "Chita," who spoke with them

about a pending drug transaction involving 200 kilograms of

cocaine. Chita told the agents that the Puerto Rican contact

was known as "Negro." He did not refer to either defendant.

Between 12:00 noon and 4:20 p.m., DEA agents

recorded four telephone conversations placed by Chita to a

Colombian contact known as "Jota." During the trial, the

district court admitted tapes of these recorded conversations

into evidence without objection from defense counsel. In one

of the conversations, Jota told Chita that he would make

arrangements for the Puerto Rican contact, whom he referred

to as a female schoolteacher, to telephone Chita at the

number Chita provided, which in reality was the number for a

DEA cellular telephone. It was established at trial that

D az-P rez was a teacher.

Not long after these telephone calls ended, the DEA

decided to abort the operation, and Agents Andaluz and

Salazar transported Chita to the airport. While en route to

the airport, however, the agents received a call from D az-

P rez on the DEA telephone. The ensuing conversation was not

recorded. However, at trial, D az-P rez testified that

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during that unrecorded conversation, she was told that the

wrapped packages she was transporting contained coffee for

which excise taxes had not been paid and was instructed not

to mention any names during subsequent conversations.

Andaluz testified that he was the one who had spoken with

D az-P rez during the unrecorded conversation and that he

never mentioned the word "coffee."

After dropping Chita off at the airport, Andaluz

and Salazar returned to DEA headquarters and conferred with

other agents regarding the contents of the call. They then

decided to contact D az-P rez and arrange for a transfer of

the cocaine. To accomplish this, Andaluz placed five

telephone calls to D az-P rez between 7:10 p.m. and 9:55 p.m.

and received one telephone call from D az-P rez. The DEA

recorded all of these conversations, and the district court

admitted the recordings into evidence, D az-P rez stipulating

that the voice in the recordings belonged to her. None of

the conversants explicitly referred to cocaine or coffee in

the recorded conversations, although Andaluz did use the word

"kilos" once.

During the six recorded conversations, Andaluz and

D az-P rez discussed the details of the delivery, including

the mode of transportation and the size of the shipment.

After a brief exchange in which D az-P rez attempted to

solicit Andaluz s help in carrying the bags containing the

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cocaine down from a second-story apartment, Andaluz asked,

"Can t you give somebody there $30, $40 I ll pay you back

over here, to place it in the trunk, only to place it in the

trunk, don t bring him over or anything, to come over here?"

D az-P rez indicated that she would, and eventually Andaluz

and D az-P rez agreed to meet in the parking lot of a Burger

King restaurant.

At trial, Andaluz testified that after D az-P rez

and de la Cruz-Paulino arrived at the Burger King parking

lot, but before he and Salazar approached them, he activated

a concealed microcassette recorder. The district court

admitted the recording of the subsequent conversation into

evidence without objection. After greeting defendants,

Salazar asked, "Did you get it down," and de la Cruz-Paulino

answered, "Of course we did." A short discussion about the

$40 followed, after which Andaluz asked D az-P rez, "Which is

your car?" D az-P rez stated, "That black one there, in the

trunk, two bales and . . . eight doubles. . . ." Andaluz and

Salazar opened the trunk and one of the garbage bags, Andaluz

stating that he had "[t]o check it out girl, because what

will I do with [unintelligible]." D az-P rez then exclaimed,

"Shut up! Oh, God, the two bales and the other stuff."

Andaluz then said, "No, relax, we are getting involved here

to get a party." De la Cruz-Paulino then said, "No, watch

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out the police is around, going around here." Defendants

were arrested immediately thereafter.

DEA agents searched D az-P rez s car at the time of

defendants arrest. The trunk contained approximately eighty

kilograms of cocaine with a stipulated value of $1.2 million.

The cocaine was wrapped and sealed in such a way that it was

impossible to see the contents.1 Also seized were a

cellular telephone, a package of coffee, and a piece of

cardboard. Chita s name was written on the cardboard, along

with the DEA telephone number, several figures that totaled

eighty, and the words "coffee" and "large garbage bags." DEA

agents did not find any weapons, nor did they test

defendants clothing for the presence of cocaine.

Defendants were subsequently indicted for aiding

and abetting each other and others in possession of, with

intent to distribute, a controlled substance, in violation of

21 U.S.C. 841(a)(1) and 18 U.S.C. 2. D az-P rez was also

indicted on six counts of using a communications facility in

furtherance of a narcotics transaction, in violation of 21

U.S.C. 843(b).

Prior to trial, defendants requested, pursuant to

Fed. R. Crim. P. 12(d)(2), that the government designate the

1. Each kilogram was wrapped individually in a tan-colored
wrapping, then two kilograms were bundled together and
wrapped in a black wrapping. The bundles were then placed
into three large garbage bags.

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evidence it intended to introduce at trial. In response, the

government designated the seized cocaine, the materials in

which the cocaine had been wrapped, and various tape

recordings and photographs. In addition, the government

stated, "Any other physical and/or documentary evidence will

be notified at least five (5) days before the date of trial."

The government never notified defendants that it intended to

introduce the telephone or the cardboard seized from D az-

P rez s car into evidence. Nonetheless, the government

referred to both pieces of evidence during its opening

statement at defendants' jury trial.

Immediately following the opening statement of

D az-P rez, both defense counsel moved to exclude the

telephone and the cardboard because they had not been

designated as evidence by the government as required under

Rule 12(d)(2). During the discussion on defendants' motion,

the government never admitted that it had not designated

either piece of evidence, but instead repeatedly insisted

that it had provided defendants with full discovery, stating,

for example,

they were fully aware that this was a
piece of evidence and this is not [a]
surprise to them they had it from about
three weeks after the defendants had been
arrested this is no surprise to them,
they should be aware that this was a
piece of evidence and the government
could attempt to use such evidence.

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The district court denied the motion, stating, "it's been

provided." When defense counsel objected that the evidence,

although provided under Fed. R. Crim. P. 16, had not been

designated as required by Rule 12(d)(2), the district court

stated, "It is not [a] surprise, it[']s there and you have

it." The evidence was subsequently admitted without further

objection.

At the close of the government's case in chief,

both defendants moved pursuant to Fed. R. Crim. P. 29 for

judgments of acquittal; the district court denied both

motions. D az-P rez then testified in her own defense, but

offered no other evidence. De la Cruz-Paulino did not

testify and offered no evidence. At the close of trial, both

defendants renewed their Rule 29 motions, and each defendant

also objected to the district court's decision to allow a

representative sample of unpackaged cocaine, which had been

admitted into evidence without objection, into the jury room.

Defendants now appeal their convictions.

II.
II.

Discussion
Discussion

A. Rule 12(d)(2) Violation

D az-P rez argues that the district court abused

its discretion in admitting into evidence the cellular

telephone and the piece of cardboard because the government

did not disclose its intent to use the evidence during its

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case in chief as required by Fed. R. Crim. P. 12(d)(2).2

D az-P rez first argues that the district court erred in

holding that the government did not violate Rule 12(d)(2)

since it had provided defendants with open-file discovery.

We agree. "To the extent that the government's open files

contain information that is subject to Rule 16 discovery,

Rule 12(d)(2) creates a notice requirement. The open file

policy does not, in and of itself, satisfy this notice

requirement because it does not specify which evidence the

government intends to use at trial." United States v. Brock,

863 F. Supp. 851, 868 (E.D. Wis. 1994). Providing open-file

discovery does not satisfy Rule 12(d)(2) because "the

defendant is still `left in the dark' as to exactly what

evidence, discoverable under Rule 16, the government intends

2. Fed. R. Crim. P. 12(d)(2) provides:

(d) Notice by the Government of the
(d) Notice by the Government of the
Intention to Use Evidence.
Intention to Use Evidence.
. . . .
(2) At the Request of the
(2) At the Request of the
Defendant. At the arraignment
Defendant.
or as soon thereafter as is
practicable the defendant may,
in order to afford an
opportunity to move to suppress
evidence under subdivision
(b)(3) of this rule, request
notice of the government's
intention to use (in its
evidence in chief at trial) any
evidence which the defendant
may be entitled to discover
under Rule 16 subject to any
relevant limitations prescribed
in Rule 16.

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to rely upon in its case in chief at trial." United States

v. Kelley, 120 F.R.D. 103, 107 (E.D. Wis. 1988). Thus the

district court erred in ruling that the government's open-

file discovery satisfied the requirement of Rule 12(d)(2).

The government's failure to designate either the telephone or

the cardboard as evidence was a violation of the rule.

D az-P rez next argues that to remedy the

government's Rule 12(d)(2) violation, we should reverse her

conviction and remand for a new trial as we did for the

victim of a Rule 16 violation in United States v. Alvarez,

987 F.2d 77, 85-86 (1st Cir.), cert. denied, 114 S. Ct. 147

(1993). We do not agree.3

We have not yet addressed the effect of a violation

of Rule 12(d)(2). In reviewing discovery violations,

however, we have made clear that "[a] defendant must prove

that the alleged violation prejudiced his case to succeed in

obtaining a reversal on appeal." United States v. Nickens,

955 F.2d 112, 126 (1st Cir.), cert. denied, 113 S. Ct. 108

(1992); see also United States v. Valencia, 656 F.2d 412, 416

3. We would review a district court's decision to impose a
particular sanction only for abuse of discretion. United

States v. Valencia, 656 F.2d 412, 415 (9th Cir.) (reviewing

sanctions imposed for Rule 12(d)(2) violation for abuse of
discretion), cert. denied, 454 U.S. 877 (1981); see also

Alvarez, 987 F.2d at 85 (reviewing district court's treatment

of government's failure to provide pretrial discovery for
abuse of discretion). In this case, however, the district
court did not consider imposing a sanction since it did not
find that a violation occurred. Accordingly, we must
ourselves determine whether a sanction was necessary.

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(9th Cir.), cert. denied, 454 U.S. 877 (1981). We extend

this prejudice requirement to violations of Rule 12(d)(2).

D az-P rez argues that the government's Rule

12(d)(2) violation prejudiced her in three ways: (1) she was

not prepared to file a motion to suppress the evidence, (2)

the evidence forced her to alter her trial strategy, and (3)

the evidence had an effect on her plea strategy. None of

these reasons warrants reversal in this case.

Rule 12(d) is "a matter of procedure," Fed. R.

Crim. P. 12 advisory committee's note (internal quotation

omitted), rather than a rule designed to ensure fairness at

trial. As its text makes clear, Rule 12(d)(2) allows

defendants to request notice of the government's intent to

use evidence "in order to afford an opportunity to move to

suppress evidence under subdivision (b)(3) of this rule."

Fed. R. Crim. P. 12(d)(2) (emphasis added).4 Rule 12(d)

"provides a mechanism for insuring that a defendant knows of

the government's intention to use evidence to which the

4. Fed. R. Crim. P. 12(b) provides:

(b) Pretrial Motions. Any defense,
(b) Pretrial Motions.
objection, or request which is capable of
determination without the trial of the
general issue may be raised before trial
by motion. Motions may be written or
oral at the discretion of the judge. The
following must be raised prior to trial:
. . . .
(3) Motions to suppress
evidence . . . .

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defendant may want to object" so that the defendant may

"avoid the necessity of moving to suppress evidence which the

government does not intend to use." Fed. R. Crim. P. 12

advisory committee's note; see also 1 Charles A. Wright,

Federal Practice and Procedure: Criminal 197, at 735 (2d

ed. 1982) (Rule 12(d) "is intended to facilitate the making

of a pretrial motion for suppression of evidence."). Thus,

Rule 12(d) aids defendants in complying with their Rule

12(b)(3) obligation to make motions to suppress evidence

prior to trial. This in turn preserves the integrity of a

trial by not interrupting it with suppression motions. See

Fed. R. Crim. P. 12 advisory committee's note (Rule 12(b)(3)

"`is designed to eliminate from the trial disputes over

police conduct not immediately relevant to the question of

guilt'") (quoting Jones v. United States, 362 U.S. 257, 264

(1960) (emphasis eliminated)).5

As "a matter of procedure," Rule 12(d) differs from

discovery rules designed to ensure fairness. See Fed. R.

5. We think that government violations of Rule 12(d)(2)
should excuse a defendant's failure to move to suppress
evidence prior to trial, as required by Rule 12(b)(3), since
defendants have no incentive to move to suppress evidence
that the government will not be introducing. See United

States v. Poole, 794 F.2d 462, 464 n.1 (9th Cir. 1986)

(excusing the defendant's failure to move to suppress
evidence prior to trial since the government had not warned
the defendant that the evidence would be used); Fed. R. Crim.
P. 12(f) ("Failure by a party to raise defenses or objections
or to make requests which must be made prior to trial . . .
shall constitute waiver thereof, but the court for cause
shown may grant relief from the waiver.").

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Crim. P. 12(d) advisory committee's note; cf. Fed. R. Crim.

P. 12.1 (Notice of Alibi) advisory committee's note ("[t]he

major purpose of a notice-of-alibi rule is to prevent unfair

surprise"); Fed. R. Crim. P. 16 (Discovery and Inspection)

advisory committee's note ("broad discovery contributes to

the fair and efficient administration of criminal justice by

providing the defendant with enough information to make an

informed decision as to plea; by minimizing the undesirable

effect of surprise at the trial; and by otherwise

contributing to an accurate determination of the issue of

guilt or innocence"). Rule 12(d) was not designed to aid the

defendant in ascertaining the government's trial strategy,

but only in effectively bringing suppression motions before

trial, as required by Rule 12(b)(3).

We first consider D az-P rez's argument that she

was prejudiced because, not expecting the government to

introduce the telephone or the cardboard, she was unprepared

to file a motion to suppress either of them. On appeal,

D az-P rez does not articulate any basis for suppression of

the evidence; we note that D az-P rez did not seek to

suppress other evidence seized from her car, nor does there

appear to us to be a basis for suppressing the evidence.

Absent some discussion regarding suppression, we will not

view the lack of opportunity for a suppression hearing as

prejudicial. Merely stating that "the decision to file a

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motion to suppress . . . could have been significantly

affected by the knowledge prior to trial[] that the

government intended to present those items in evidence" is

not enough.

D az-P rez also argues that the admission of the

telephone and the cardboard greatly affected her trial

strategy and her incentives to plead guilty since the

government's case became markedly stronger with that

evidence. Rule 12(d) was not, however, designed to alert

defendants to the strength or weakness of the government's

case against them; rather, it was designed to aid defendants

in fulfilling their Rule 12(b)(3) obligation to make

suppression motions prior to trial. Since trial strategy and

plea strategy are simply not implicated by Rule 12(d), the

alleged effect of a Rule 12(d) violation upon trial strategy

or plea strategy cannot satisfy the prejudice requirements

for reversal on appeal.

We recognize, however, that even though Rule 12(d)

was not designed to give defendants notice of the

government's trial strategy, the government's failure to

designate certain pieces of evidence could work an unfairness

if the defendant were not prepared immediately to rebut it.

In such cases, we think that a district court would not abuse

its discretion by granting the defendant a continuance,

rather than allowing the government effectively to sandbag

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the defendant by introducing previously undesignated

evidence. Whether or not a defendant should be granted a

continuance for fairness reasons, however, is a matter best

left to the discretion of the district court. On appeal, we

will only consider prejudice stemming from the function of

Rule 12(d), namely matters regarding potential motions to

suppress.

Thus, although the government violated Rule

12(d)(2) by not indicating prior to trial its intention to

introduce the telephone and the cardboard into evidence

during its case in chief, reversal is not mandated because

D az-P rez suffered no prejudice. That having been said, we

pause to make clear that we do not condone governmental

violations of this sort. Like the Advisory Committee,

however, we believe that in general, "attorneys for the

government will in fact comply [with Rule 12(d)(2)]." Fed.

R. Crim. P. 12 advisory committee's note.6 We rely on

6. The Advisory Committee's notes discuss why no sanctions
were provided for violations of Rule 12(d)(2):

No sanction is provided for the
government's failure to comply with the
court's order because the committee
believes that attorneys for the
government will in fact comply and that
judges have ways of insuring compliance.
An automatic exclusion of such evidence,
particularly where the failure to give
notice was not deliberate, seems to
create too heavy a burden upon the
exclusionary rule of evidence, especially
when defendant has opportunity for broad

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district courts to impose appropriate sanctions for

governmental noncompliance and encourage them to grant

continuances and hold additional suppression hearings where

warranted. Cf. Valencia, 656 F.2d at 416 (finding no error

in admission of undesignated evidence where the district

court conducted a second suppression hearing to determine

admissibility of undesignated evidence). Where governmental

noncompliance is the result of bad faith, exclusion of the

undesignated evidence may be appropriate. Cf. United States

v. Flores-Rivera, No. 93-1558, slip op. at 17 n.7 (1st Cir.

June 1, 1995) (repeating admonishment against government

misconduct and stating that court may use supervisory power

to dismiss an indictment to deter future prosecutorial

misconduct).

B. Tape Recordings

D az-P rez next argues that the district court

committed reversible error by admitting into evidence three

discovery under rule 16. Compare ABA
Project on Standards for Criminal
Justice, Standards Relating to Electronic
Surveillance (Approved Draft, 1971) at
p.116: "A failure to comply with the
duty of giving notice could lead to the
suppression of evidence. Nevertheless,
the standards make it explicit that the
rule is intended to be a matter of
procedure which need not under
appropriate circumstances automatically
dictate that evidence otherwise
admissible be suppressed."

Fed. R. Crim. P. 12 advisory committee's note.

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tape recordings of conversations between Chita and two

unnamed and uncharged Colombian contacts. D az-P rez

believes that the contents of the tape recordings constitute

hearsay subject to no exception. D az-P rez argues that the

tapes could not have been (implicitly) admitted pursuant to

Fed. R. Evid. 801(d)(2)(E)7 since the district court made no

factual finding that the persons on the tapes were

participating in a conspiracy with D az-P rez and speaking in

furtherance of that conspiracy as required by United States

v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). In

addition, D az-P rez contends that had an inquiry been

conducted, the court could not have found that "the declarant

and the defendant were members of a conspiracy when the

hearsay statement was made, and that the statement was in

furtherance of the conspiracy." Id. at 23. Because D az-

P rez failed to object in the district court, the issue has

not been preserved for appeal. As we explained in United

States v. Figueroa, 818 F.2d 1020, 1026 (1st Cir. 1987)

(alteration in Figueroa):

[T]he Petrozziello rule is designed to

protect the integrity of the trial in
borderline situations where the
prosecution may or may not be able to
muster sufficient proof of the existence,
scope, shape, and duration of an alleged

7. Fed. R. Evid. 801(d)(2)(E) states that a statement is not
hearsay if "[t]he statement is offered against a party and is
. . . a statement by a coconspirator of a party during the
course and in furtherance of the conspiracy."

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conspiracy. If the defendant elects not
to put the government to this test --
either for tactical reasons or because
the outcome, realistically, is
foreordained -- he is in a poor position
to complain after the fact. As we stated
in United States v. David E. Thompson,

Inc., 621 F.2d 1147, 1153 (1st Cir.

1980), "[i]n the absence of a proper
objection, Fed. R. Evid. 103(a)(1), a
deviation from the standard announced in
Petrozziello will be reversed only upon a

showing of plain error."

The "plain error" standard requires the reviewing

court to ask: (1) whether there is an error; (2) whether the

error is "plain," a term synonymous with "clear" or

"obvious"; and (3) whether the error affected substantial

rights. United States v. Olano, 113 S. Ct. 1770, 1777-1778

(1993); see also Fed. R. Crim. P. 52(b) ("Plain errors or

defects affecting substantial rights may be noticed although

they were not brought to the attention of the court."). An

"error rises to this level only when it is so shocking that

it seriously affected the fundamental fairness and basic

integrity of the proceedings conducted below." United States

v. Ortiz, 23 F.3d 21, 26 (1st Cir. 1994) (internal quotations

omitted).

Applying the plain-error standard, we reject D az-

P rez's argument. Even assuming arguendo that D az-P rez was

not involved in a conspiracy with the persons on the tapes

and, therefore, that the judge could not have made the

required findings under Petrozziello, we do not believe that

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the error passes the "clear" or "obvious" hurdle. "Where the

error defendant asserts on appeal depends upon a factual

finding the defendant neglected to ask the district court to

make, the error cannot be `clear' or `obvious' unless the

desired factual finding is the only one rationally supported

by the record below." United States v. Olivier-Diaz, 13 F.3d

1, 5 (1st Cir. 1993) (emphasis added). In this case, D az-

P rez's "desired" factual finding is that she was not

involved in a conspiracy with the Chita's Colombian

contacts.8 We do not believe, however, that such a finding

is the "only one rationally supported by the record below."

Rather, the non-hearsay evidence presented at trial makes it

plausible that D az-P rez was involved in a conspiracy to

distribute cocaine. In fact, Count One of the Indictment

charged both defendants with "aiding and abetting each other,

and others to this Grand Jury unknown." Additionally, while

the tape recordings between Chita and his Colombian contacts

do not mention D az-P rez by name, the Colombian contacts did

8. To the extent that D az-P rez also challenges the
admission of Chita's statements, we think that his part of
the conversations served as "`reciprocal and integrated
utterance(s),'" United States v. McDowell, 918 F.2d 1004,

1007 (1st Cir. 1990) (quoting United States v. Metcalf, 430

F.2d 1197, 1199 (8th Cir. 1970)), to put the Colombian
contacts' statements "into perspective and make them
`intelligible to the jury,'" id. (quoting United States v.

Lemonakis, 485 F.2d 941, 948 (D.C. Cir. 1973), cert. denied,

415 U.S. 989 (1974)). Because Chita's statements were
offered only for context and not for the truth of the matter
asserted, those statements are not hearsay under Fed. R.
Evid. 801(c).

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indicate that the informant would be contacted by a female

schoolteacher in Puerto Rico. See United States v. Ortiz,

966 F.2d 707, 716 (1st Cir. 1992) (holding that there was no

plain error in district court's failure to make an

unrequested Petrozziello finding because enough evidence

existed to support a finding, based on a preponderance of the

evidence, that the codefendants were participating in a

conspiracy at the time the statements were made), cert.

denied, 113 S. Ct. 1005 (1993).

Accordingly, because D az-P rez failed to produce

any evidence at trial to deny her role in a conspiracy, we

cannot conclude that the district court committed obvious

error in allowing the tapes into evidence. Therefore,

because the alleged error is not clear or obvious, we need

not reach the other elements of the plain-error review.

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C. Judicial Bias

D az-P rez also complains that throughout the

trial, the district court "overstepp[ed] its bounds and

assum[ed] the role of an advocate for the prosecution" and

"constantly interjected in a manner that indicated annoyance

and bias against [defense] counsel," thus preventing D az-

P rez from having a fair trial.

"It cannot be gainsaid that `[a] fair trial in a

fair tribunal is a basic requirement of due process.'"

United States v. Nueva, 979 F.2d 880, 885 (1st Cir. 1992)

(quoting In re Murchison, 349 U.S. 133, 136 (1955))

(alteration in Nueva), cert. denied, 113 S. Ct. 1615 (1993).

Accordingly, a trial judge should be fair and impartial in

his or her comments during a jury trial. United States v.

Twomey, 806 F.2d 1136, 1140 (1st Cir. 1986). However, "a

finding of partiality should be reached only `from an abiding

impression left from a reading of the entire record.'" Id.

(quoting Offutt v. United States, 348 U.S. 11, 12 (1954)).

After scrutinizing the entire record with care, we are left

with no such abiding impression.

D. Cocaine in the Jury Room

Both defendants argue that the district court

abused its discretion when it permitted an unwrapped sample

of cocaine to be sent into the jury room during

deliberations. The unwrapped cocaine had been offered into

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evidence by the government, without objection, as part of a

representative sample of the cocaine that had been seized at

the time of defendants arrest. Immediately after the jury

charge, however, defense counsel did object to the unwrapped

cocaine being sent into the jury room on the grounds that the

evidence was confusing, unnecessary, and inflammatory. We

are not persuaded.

We review a district court s decision to send

evidence into the jury room for abuse of discretion. United

States v. McCarthy, 961 F.2d 972, 978 (1st Cir. 1992)

("Whether evidentiary exhibits properly admitted should or

should not accompany the jury to the jury room is a

discretionary matter for the trial court.") (internal

quotations omitted); United States v. Rawwad, 807 F.2d 294,

297 (1st Cir. 1986) (reviewing the district court's decision

to send more than fifteen pounds of heroin into the jury room

for abuse of discretion), cert. denied, 482 U.S. 909 (1987).

District courts have discretion to allow properly admitted

evidence to accompany the jury into the jury room. Rawwad,

807 F.2d at 297. This is true even when the evidence is

drugs, for the presence of drugs in the jury room is not per

se prejudicial or inflammatory. Id.

Defendants argue that even if it would generally be

within a district court's discretion to allow drugs to be

sent into the jury room, the district court nonetheless

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22

abused its discretion in this case because defendants'

knowledge of what was in the wrapped packages was at issue.

In particular, defendants contend that the jurors "would

[have been] instantly struck by the clear plastic bags of a

white powdery substance" during their deliberations and would

have been confused. We do not agree. In reviewing the

record, we find no reason why the presence of the unwrapped

cocaine sample in the jury room would have been particularly

inflammatory or prejudicial to defendants. During trial,

there was substantial, uncontroverted testimony that the

cocaine was wrapped in such a way that it would not have been

possible for anyone to see through the packaging.

Additionally, during the charge, the court instructed the

jurors that the government had stipulated that no one could

"see from the outside what was in the wrapped bags," and that

defendants' pleas of not guilty put all the essential

elements of the charged offense at issue, including knowledge

and intent. Finally, in addition to the unwrapped cocaine,

other items of evidence were also sent into the jury room,

including samples of the packaging material and kilograms of

cocaine in their original wrapping.

E. Sufficiency of the Evidence as to de la Cruz-Paulino

At the close of the government's case in chief, de

la Cruz-Paulino moved, pursuant to Fed. R. Crim. P. 29, for a

judgment of acquittal, contending that the government had not

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23

presented sufficient evidence to sustain a conviction. After

the district court denied the motion, de la Cruz-Paulino

presented no evidence in her own defense. Accordingly,

unlike defendants who do present evidence, de la Cruz-Paulino

did not waive review of the district court's initial Rule 29

decision. United States v. Clotida, 892 F.2d 1098, 1100 (1st

Cir. 1989); 2 Charles A. Wright, Federal Practice and

Procedure: Criminal 463, at 642 (2d ed. 1982). This is so

even though de la Cruz-Paulino's codefendant did mount a

defense by testifying in her own behalf. See Clotida, 892

F.2d at 1103. Thus, on appeal we must determine whether,

"when examined in a light most favorable to the government,

the evidence presented in the government's case-in-chief,

including all inferences that may be drawn therefrom, would

permit a reasonable juror to find guilt beyond a reasonable

doubt." Id.. Even though D az-P rez's testimony might have

influenced the jury in its decision to convict de la Cruz-

Paulino, we may not consider that testimony on appeal. See

id.; cf. McGautha v. California, 402 U.S. 183, 215 (1971) ("a

defendant whose motion for acquittal at the close of the

Government's case is denied must decide whether to stand on

his motion or put on a defense, with the risk that in doing

so he will bolster the Government case enough for it to

support a verdict of guilty"); 2 Wright, Federal Practice and

Procedure: Criminal 463, at 645 (if the defendant presents

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24

evidence after the denial of his or her Rule 29 motion,

"[t]he conviction will be affirmed, even though the

prosecution may have failed to make a prima facie case, if

the evidence for the defense supplied the defect, and the

whole record is sufficient to sustain a conviction").

Taken in the light most favorable to the

government, the evidence presented during the government's

case in chief established the following: (1) de la Cruz-

Paulino helped move garbage bags containing sealed packages

of cocaine into D az-P rez's car; (2) de la Cruz-Paulino was

in the car while D az-P rez spoke with Agent Andaluz on her

cellular telephone; (3) de la Cruz-Paulino was present at the

Burger King delivery scene; and (4) after Agents Andaluz and

Salazar opened one of the garbage bags, de la Cruz-Paulino

stated, "No, watch out the police is around, going around

here." De la Cruz-Paulino argues that because this evidence

is insufficient to allow a jury to conclude beyond a

reasonable doubt that she aided and abetted D az-P rez and

others in the possession of cocaine with intent to

distribute, the district court should have granted her Rule

29 motion for judgment of acquittal at the close of the

government's case in chief. We agree.

To be convicted of aiding and abetting, more than

"mere presence" at the scene is required. United States v.

Mehtala, 578 F.2d 6, 9 (1st Cir. 1978). The classic

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25

definition of aiding and abetting, adopted by the Supreme

Court, was first enunciated by Learned Hand:

In order to aid and abet another to
commit a crime it is necessary that a
defendant "in some sort associate himself
with the venture, that he participate in
it as something that he wishes to bring
about, that he seek by his action to make
it succeed."

Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)

(quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.

1938) (L. Hand, J.)). Thus, for de la Cruz-Paulino to have

been convicted under an aiding-and-abetting theory, the

government had to prove (1) that D az-P rez committed the

underlying substantive crime and (2) that de la Cruz-Paulino

shared D az-P rez's criminal intent. See United States v.

Valerio, 48 F.3d 58, 64 (1st Cir. 1995). The government

fulfilled the first prong, for D az-P rez was convicted. To

fulfill the second prong, the government had to prove that de

la Cruz-Paulino "consciously shared [D az-P rez's] knowledge

of the underlying criminal act, and intended to help [her],"

United States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995);

see also United States v. Loder, 23 F.3d 586, 591 (1st Cir.

1994) (discussing specific-intent requirement for aiding and

abetting). This the government did not do.

"[T]he line that separates mere presence from

culpable presence is a thin one, often difficult to plot."

Ortiz, 966 F.2d at 712. On the one hand, "[m]ere association

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26

between the principal and those accused of aiding and

abetting is not sufficient to establish guilt; nor is mere

presence at the scene and knowledge that a crime was to be

committed sufficient to establish aiding and abetting."

Mehtala, 578 F.2d at 10 (internal quotation omitted); see

also United States v. Campa, 679 F.2d 1006, 1010 (1st Cir.

1982) ("Mere presence at the scene and knowledge that a crime

is being committed is generally insufficient to establish

aiding and abetting. The government must prove some

affirmative participation by the aider and abettor.")

(internal citation omitted). On the other hand, "there are

circumstances where presence itself implies participation --

as where a 250-pound bruiser stands silently by during an

extortion attempt, or a companion stands by during a robbery,

ready to sound a warning or give other aid if required."

Ortiz, 966 F.2d at 712 (internal quotation omitted).

In the instant case, the government presented no

direct evidence9 during its case in chief that de la Cruz-

9. Of course, a conviction may be premised entirely on
circumstantial evidence. United States v. Torres-Maldonado,

14 F.3d 95, 100 (1st Cir.), cert. denied, 115 S. Ct. 193

(1994). As we explained in Clotida, 892 F.2d at 1104

(alterations in Clotida),

Circumstantial evidence has been defined
as "proof which does not actually assert
or represent the proposition in question,
but which asserts or describes something
else, from which the trier of fact may
either (i) reasonably infer the truth of
the proposition, . . . or (ii) at least

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27

Paulino (1) had any knowledge that the garbage bags contained

cocaine, (2) had any connection to the drugs prior to Andaluz

suggesting to D az-P rez, during their 7:55 p.m.

conversation, that she pay someone $40 to help her carry the

packages to her car,10 or (3) was to be paid more than $40

reasonably infer an increase in the
probability that the proposition is in
fact true. . . ." 1 D. Louisell & C.
Mueller, Federal Evidence 94 (1977).

It has been noted that "[t]he . . .
general problem of circumstantial proof
is to determine whether proffered
evidence indirectly or inferentially
supports the proposition sought to be
proved." Id. at 91.

It cannot be doubted, however, that
circumstantial evidence is often very
probative. As Professor Wigmore notes,
without allowing the introduction of
evidence that permits "an inference upon
an inference," "hardly a single trial
could be adequately prosecuted." 1A J.
Wigmore, Evidence 41 (1983). Indeed,

"the courts in general have recognized
that circumstantial evidence may, in
given settings, have equal if not greater
weight than direct evidence." 1 C.
Torcia, Wharton's Criminal Evidence 5

(14th ed. 1985). Furthermore, it is
important to note that, in the context of
review of a motion for acquittal, "no
legal distinction exists between
circumstantial and direct evidence."
United States v. Sutton, 801 F.2d 1346,

1358 (D.C. Cir. 1986).

10. During their 7:10 p.m. conversation, D az-P rez, upon
being asked where she was, responded, "I'm here in . . .
what's the name of this place, girl? In Trujillo Alto." The
government did not establish the identity of the person D az-
P rez conferred with during its case in chief, and we do not
think the jury was entitled to infer that de la Cruz-Paulino
was involved in the drug venture prior to Andaluz's later
suggestion that D az-P rez pay someone $40 to help her move

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28

for her involvement in the drug venture. The government

argues that the jury was nevertheless entitled to find beyond

a reasonable doubt that de la Cruz-Paulino aided and abetted

D az-P rez in the possession of cocaine with intent to

distribute because (1) criminals do not usually welcome

nonparticipants as witnesses to their criminal activities and

(2) the facts, especially her involvement in moving the

packages from an apartment to D az-P rez's car and her

statement about the police being around, imply that de la

Cruz-Paulino knowingly participated in the venture and

intended to help it succeed. We do not agree.11

The evidence suggests that de la Cruz-Paulino was

brought in to do a menial task, namely carrying the cocaine

the packages from the fact that D az-P rez questioned an
unidentified female, whose voice does not register on tape,
about their whereabouts.
During cross-examination, D az-P rez agreed that de
la Cruz-Paulino was the off-tape person who told her that
they were in Trujillo Alto, where de la Cruz-Paulino lived.
Because D az-P rez's testimony was outside the government's
case in chief, however, we will not consider it. See

Clotida, 892 F.2d at 1105 n.1.

11. We find the government's three-page discussion of de la
Cruz-Paulino's sufficiency-of-the-evidence challenge
disappointingly conclusory. Unlike the government, we do not
think that "[t]he evidence of guilt, as to both appellants,
was simply overwhelming." On the contrary, the evidence
against de la Cruz-Paulino was quite sparse, and a more
thorough discussion from the government would have aided us
greatly in our assessment of its sufficiency. We reiterate
that "[d]espite the prosecution-friendly overtones of the
standard of review, appellate oversight of sufficiency
challenges is not an empty ritual." Ortiz, 966 F.2d at 711-

12. The government should not treat it as one.

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29

from the apartment where it was stored down to D az-P rez's

car. The government presented no evidence that de la Cruz-

Paulino was involved prior to Andaluz suggesting to D az-

P rez that she pay someone $40 to help her carry the packages

to her car.12 No reasonable jury could have concluded,

beyond a reasonable doubt, that D az-P rez would have hired

only someone already participating in the drug venture to do

this menial task and therefore that de la Cruz-Paulino was

already involved. Accordingly, we must determine whether a

reasonable jury could conclude beyond a reasonable doubt that

de la Cruz-Paulino developed the specific intent to aid and

abet D az-P rez in the approximately two hours between

Andaluz's $40 suggestion and the ensuing arrests.

We do not think that the evidence supports the

inference that de la Cruz-Paulino was told about and joined

the drug venture after Andaluz's $40 suggestion. The drugs

were elaborately wrapped in sealed packages13 that were

then placed into three garbage bags. Unless she was a

participant in the drug venture prior to Andaluz's

suggestion, an inference we have held to be impermissible, de

la Cruz-Paulino could not have seen the drugs in their

unpackaged form. The drugs were assuredly packaged before

12. See supra note 10.

13. The government stipulated that it was impossible to see
the cocaine inside of the packages.

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30

Andaluz made the $40 suggestion, for the time period between

that suggestion (made at 7:55 p.m.) and the actual arrest (at

9:55 p.m.) would have been too short to package and transport

the drugs, especially given that D az-P rez spoke with

Andaluz from her car during that time. There is also no

indication from the taped conversations between D az-P rez

and Andaluz that she had anything to do with the drugs other

than move them down from the apartment to her car.14 While

de la Cruz-Paulino admitted to helping carry "it" from the

apartment to the car, responding to Salazar's question, "Did

you get it down?" with "Of course we did," there is no

evidence that de la Cruz-Paulino saw the packages inside the

garbage bags until the time of her arrest.

14. In fact, the recorded conversation that began at 7:27
p.m. contains the following discussion between D az-P rez (D)
and Andaluz (A):

A: Listen, how is that packed?
D: Ah?
A: Do you have it packed already?
D: It's, I told you all complete in a
bag.
A: What do you mean a bag?
D: Like that. Thirty, thirty-two, like
that.
A: It's still in bags, is not in boxes
or suit cases?
D: No.
A: In bags, hell.
D: No, but it's in one black trash bag.
A: Hello?
D: Yes, it's in one black trash bag.

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31

We see no basis for concluding that D az-P rez cut

de la Cruz-Paulino in on the drug transaction after

soliciting her package-carrying services. D az-P rez had a

menial job that de la Cruz-Paulino was willing to do for $40;

there was no need for D az-P rez to cut de la Cruz-Paulino

into the deal to obtain her package-carrying services. Cf.

United States v. Francomano, 554 F.2d 483, 487 (1st Cir.

1977) (holding that there was "no basis for a reasonable

inference" that the defendants were cut in on the drug deal

when the record indicated that they were willing to perform

the required crewmember services with "no special

inducement"). The jury could not, without engaging in

impermissible inference, conclude that de la Cruz-Paulino was

entitled to anything other than $40 for her package-carrying

services. Indeed, there is no evidence about D az-P rez's

own compensation arrangement. As D az-P rez was not supposed

to obtain any money from the government agents when she

turned over the packages to them, there is no basis for

inferring that de la Cruz-Paulino thought she would receive a

portion of the funds collected.

Of course, an aider and abettor need not receive

compensation or have any stake in a transaction to be

convicted. See United States v. Winston, 687 F.2d 832, 834-

35 (6th Cir. 1982). Thus, in United States v. Cuevas-

Esquivel, 905 F.2d 510, 515 (1st Cir.), cert. denied, 498

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32

U.S. 877 (1990), we upheld the conviction of a defendant who

testified that he was only paid $33 for being a deckhand on

board a boat carrying a large amount of marijuana.

Similarly, in United States v. Steuben, 850 F.2d 859, 866

(1st Cir. 1988), we affirmed the conviction of a defendant

who claimed that he was paid $300 for being a crewmember on

board a tugboat carrying $42 million worth of marijuana. In

both cases, however, we held that there was sufficient other

evidence for the jury to conclude that the defendants were

not just crewmembers, but rather full-fledged participants in

the criminal ventures. Unlike those cases, the $40 payment

in the instant case is corroborated by the fact that Andaluz

suggested it, and there is little other evidence indicating

that de la Cruz-Paulino was actually involved in the drug

venture. Thus, while compensation of only $40 would not by

itself counter other evidence establishing that de la Cruz-

Paulino was a participant in the criminal venture, that

compensation, especially suggested as it was by a government

agent, tends to negate an inference that de la Cruz-Paulino

was more heavily involved.

We next consider whether the fact that de la Cruz-

Paulino overheard some of D az-P rez's telephone

conversations15 and came to the Burger King delivery site

15. After the government agent made his $40 suggestion at
7:55 p.m., D az-P rez engaged in three more telephone
conversations with him, at 8:35 p.m., 9:29 p.m., and 9:45

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33

is evidence that she was a full-fledged participant in the

drug venture. It is true that "it runs counter to human

experience to suppose that criminal conspirators would

welcome innocent nonparticipants as witnesses to their

crimes." United States v. Batista-Polanco, 927 F.2d 14, 18

(1st Cir. 1991). Thus, we have upheld convictions of

defendants where the facts suggested that they witnessed open

and obvious criminal activity and therefore allowed the

inference that the defendants participated in that criminal

activity. For example, in Batista-Polanco, we upheld the

conviction of a defendant arrested at an apartment while a

large-scale heroin-packaging operation was in process

throughout the apartment, stating "we cannot accept the

hypothesis that participants in a distribution scheme would

permit a noncontributing interloper to remain for an extended

period of time in a small apartment while their conspicuous

criminal conduct continued unabated." Id. In that case,

however, the presence of six seats -- one a makeshift seat

consisting of an overturned bucket with a cushion and one

with the defendant's sweater on it -- around the kitchen

table at which the heroin was packaged also suggested that

the defendant was a participant along with the five other men

arrested at the apartment. Id.

p.m. We assume that de la Cruz-Paulino was present for all
three calls. De la Cruz-Paulino's voice is heard in the
background of the call made at 9:29 p.m.

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34

On the other hand, a defendant who was present at

the scene of a crime and who had knowledge that a crime was

being committed cannot be convicted of aiding and abetting

unless the jury can reasonably infer that the defendant

shared the specific intent of the principal. The fact that

criminal activity occurs in front of someone does not always

allow the inference that that someone was a participant.

Thus, in United States v. Paone, 758 F.2d 774, 776 (1st Cir.

1985), we suggested that if the defendant had merely been a

passenger in the back seat of a car while drugs were handed

over to a purchaser, rather than someone who was repeatedly

present at important junctures of a drug deal, the evidence

might have been insufficient to support his conviction.

We assume that de la Cruz-Paulino overheard D az-

P rez's side16 of the three telephone conversations that

took place after Andaluz suggested that she pay someone to

help her carry the packages. We have scrutinized those

conversations with care and find that they do not provide a

basis for inferring that de la Cruz-Paulino shared D az-

P rez's specific intent to possess cocaine for distribution.

While they would support D az-P rez's conviction, especially

since Andaluz used the word "kilos," we do not think that an

innocent observer to D az-P rez's side of the conversations

16. There is no evidence that the conversations were
conducted on a speaker phone so that de la Cruz-Paulino could
have heard Andaluz's side as well.

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35

would infer that a drug transaction was being discussed. Nor

do we think the fact that D az-P rez felt free to conduct her

side of the conversation in front of de la Cruz-Paulino

indicates that de la Cruz-Paulino was a participant in the

drug venture, for D az-P rez could control her responses.

Indeed, she did not speak explicitly about cocaine at any

time. We note that D az-P rez did mention obtaining the $40

from the government agents during one of those

conversations.17

That de la Cruz-Paulino came to the Burger King

delivery scene also does not indicate that she was a knowing

participant in the drug venture. While criminals generally

might be presumed not to bring along nonparticipants to

witness their criminal activities, we do not think that

necessarily holds true when the criminal activity will not be

open and obvious. Compare Clotida, 892 F.2d at 1105

(reversing as insufficient the defendant's conviction for

aiding and abetting her travelling companion in drug crimes

involving cocaine-laden clothing mixed in suitcases with her

own clothing). In this case, no negotiations were to be

entered into and no money was to be exchanged: the

government agents were simply supposed to take the car for a

17. Andaluz also testified that, although de la Cruz-
Paulino's comment during the 9:29 conversation he had with
D az-P rez was not intelligible on the recording, she said
"something like they're going to have to give us the forty
dollars or words to that effect."

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36

few minutes, unload it, and bring it back. D az-P rez

responded to Andaluz's question, "Which is your car?" by

stating, "That black one over there, in the trunk, two bales

and . . . eight doubles. . . ." Then Andaluz and Salazar

opened the trunk and one of the garbage bags, Andaluz saying

that he had "[t]o check it out girl, because what will I do

with [unintelligible]." D az-P rez became very upset and

exclaimed, "Shut up! Oh God, the two bales and the other

stuff." At this point, Andaluz stated, "No, relax, we are

getting involved here to get a party," and then de la Cruz-

Paulino stated, "No, watch out the police is around, going

around here."

We do not think that de la Cruz-Paulino's comment,

"No, watch out the police is around, going around here," is

sufficient in this context to allow a reasonable jury to

conclude that de la Cruz-Paulino specifically intended to aid

and abet D az-P rez in possessing cocaine for distribution.

Even if de la Cruz-Paulino could have inferred from D az-

P rez's sudden shift in attitude and her statements about the

"two bales," and from the two government agents' opening of

one of the garbage bags, that, unbeknownst to her, a drug

transaction was going on, such last-minute knowledge would

not support the conclusion that she shared the specific

intent to possess cocaine for distribution. See Francomano,

554 F.2d at 487 ("Even if it could be inferred that

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37

appellants acquired knowledge of the throwing of the packages

[of marijuana] overboard, such last minute knowledge together

with all other evidence produced by the Government affords no

legal basis for appellants' conviction as aiders and

abetters."); see also United States v. Lopez-Pena, 912 F.2d

1536, 1538 (1st Cir. 1989) (stating that warning about police

in the area and advice on avoiding arrest were what "anyone

might do as a friend").

The evidence in this case is close to the line of

being enough to sustain a conviction. Nevertheless, in

reversing de la Cruz-Paulino's conviction, we keep in mind

the following:

[E]vidence might raise a question in a
reasonable man's mind. But that is not
enough. Guilt, according to a basic
principle in our jurisprudence, must be
established beyond a reasonable doubt.
And, unless that result is possible on
the evidence, the judge must not let the
jury act; he must not let it act on what
would necessarily be only surmise and
conjecture, without evidence.

United States v. Campbell, 702 F.2d 262, 267 (D.C. Cir. 1983)

(quoting Cooper v. United States, 218 F.2d 39, 42 (D.C. Cir.

1954)) (alteration in Campbell).

III.
III.

CONCLUSION
CONCLUSION

For the forgoing reasons, the conviction of D az-

P rez is affirmed and the conviction of de la Cruz-Paulino is
affirmed

reversed.
reversed

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38