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.
2
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
3
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 --
4
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
5
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
6
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.
7
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.
8
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
9
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).
10