USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1441

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL DIMARZO, a/k/a MICHAEL DIMARZO,

Defendant, Appellant.

____________________

No. 95-1442

UNITED STATES OF AMERICA,

Appellee,

v.

MARIO J. ALZATE-YEPEZ,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr and Lynch, Circuit Judges.

______________

____________________

David J. Wenc for appellant DiMarzo.

_____________

Alan Black, with whom Morton & Black was on brief for appellan
__________
______________
Alzate-Yepez.
Andrew Levchuk, Assistant United States Attorney, with whom
______________

Donald K. Stern, United States Attorney, was on brief for appellee.

_______________

____________________

April 10, 1996

____________________

CYR,
CYR,

Circuit Judge.
Circuit Judge.
______________

Appellants

Mario Alzate-Yepez

("Mario" or "Alzate") and Miguel

DiMarzo were jointly tried and

convicted of possessing cocaine,

with intent to distribute, see

___

21 U.S.C.

Appellants

841(a)(1) (1994),

assign

error

by

and conspiracy, see

___

the district

court

id.
___

in

846.

allowing

certain trial testimony and denying their respective motions for

judgments of

acquittal.

Appellant Alzate additionally

claims

that the district court erred in denying his pretrial motion for

severance and imposed too

harsh a sentence.

Finding

no error,

we affirm.

I
I

BACKGROUND
BACKGROUND
__________

In

Task Force

April

brokered

Robert Schultz,

first

agreed

1994, the

a cocaine

an undercover

phase, Alonzo

that

Western

Massachusetts Narcotics

deal among

Task Force

appellants and

agent.

Alzate-Yepez ("Alonzo"),

he would

arrange

to

deliver

During

one

the

Mario's brother,

five kilograms

of

cocaine to Schultz at the Westfield Motor Inn on April 12, 1994,

in return

for $100,000.

If

all went well on

April 12, Alonzo

promised to deliver to

Schultz another five kilograms a

day or

two later, and ten kilograms per week thereafter.

On

April 12,

at approximately

5:00 a.m.,

Mario and brother Alonzo set out in Mario's car on the

trip

Motor

from Boston to Westfield.

Upon arrival

appellant

100-mile

at the Westfield

Inn, Mario remained in the car while Alonzo registered at

the Inn.

After waiting about fifteen minutes, Mario entered the

Inn and

requested a separate room overlooking

the parking lot.

Meanwhile, a Task Force surveillance team had taken up positions

around

the Inn.

later

identified

Shortly

as Mario,

thereafter, the

lingering

agents saw

around

a male,

the office

and

parking lot of the Inn while carefully observing cars and people

in the area.

Agent Schultz

the

restaurant parking

and another undercover agent arrived at

lot next

to the

Inn around

9:30 a.m.

Alonzo approached them, introductions ensued, and the three went

into the restaurant for coffee.

Alonzo told Schultz that he was

expecting

with the

Soon

a courier

to arrive

cocaine at

any time.

Schultz left the restaurant to "beep" the courier from his

car phone, while Alonzo returned to his room at the Inn to await

call

beside

from the

courier.

While

Agent Schultz

was standing

his car, he noticed that Mario was observing him and the

surrounding area.

A short time

the ground floor,

later, Schultz went to Alonzo's

where Alonzo

gotten

lost,

should

arrive within ten minutes.

eight cars,

he was not

10:45 a.m.,

but now

told him that

had correct

directions

white Oldsmobile

to the

had

Inn and

carrying cocaine, but

used for this deal.

At about

entered

lot

the parking

stopped just outside Alonzo's ground-floor room.

to meet the driver

the courier

Alonzo added that "they" had

with secret compartments for

sure which was being

room on

and

Before leaving

as it turned out, appellant Miguel DiMarzo

Alonzo advised Schultz to stay put.

After

greeting

one

conversed as DiMarzo scanned

another,

Alonzo

and

DiMarzo

the area and the two walked to the

restaurant.

Shortly after entering the restaurant, Alonzo left,

and invited

Schultz to join

unlocked the driver's door

the passenger

side.

him in the

parking lot, where

of the Oldsmobile to let

he

Schultz in

After fidgeting with the defroster, Alonzo

reached under the

panels in the rear

cocaine

dashboard and popped

seat area which contained several

wrapped in duct tape and plastic.

brick-like

packages,

Agent Schultz

surveillance team, and Alonzo,

The

open two interior

cocaine recovered

Oldsmobile weighed

bricks of

After inspecting the

signalled

the

Task Force

Mario and DiMarzo were arrested.

from the

4.94

side

concealed compartments

kilograms,

almost

exactly

in the

the

five

kilograms Alonzo had agreed to supply.

On

May 17,

1994, a

federal grand jury

Alzate brothers and

DiMarzo under

846.

pled guilty to both counts,

Alonzo Alzate

lants Mario

Alzate and

convicted on both

21 U.S.C.

Miguel DiMarzo

counts.

indicted the

841(a)(1)

whereas appel-

were jointly

In due course,

and

tried and

the district

court

imposed sentences

March 31,

1995.

on appellants

and final judgment

DiMarzo filed

a notice of appeal

entered on

on April 3.

Appellant Mario Alzate did not do so until April 13.1

____________________

1The government
latter

appeal

within the

contends that

because Mario

did not

ten-day period.

App. P.

8 F.3d

864,

867 (1st

However

that may

be, this is

resolve

the appeal on the merits.

29

n.3 (1st

a notice

Fed. R.

Morillo,
_______

F.3d 27,

file

See
___

United States v.
______________

we lack jurisdiction

an appropriate

Cir.

of appeal

4(b), 26(a);
Cir.

case in

1993).

which to

See United States v. Connell,

___ _____________
_______

1993) (foregoing

of the

resolution

of

____________________

jurisdictional question where same party inevitably will

prevail

on merits).

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

The Severance Motion

The Severance Motion
____________________

Appellant Mario

Alzate filed a pretrial

motion for a

separate trial

that

pursuant to Fed. R.

the "spillover"

would prejudice

effect

drug deal at

the Inn.

"mere presence"

jury likely

of the

Mario unfairly.

that they had not known that

Crim. P. 14, on

evidence against

Appellants

concluded

evidence against Mario

DiMarzo

contended at trial

Alonzo Alzate planned to conduct a

Mario argues on

defense was

the ground

appeal that

DiMarzo's

so patently "ridiculous"

without

separately

that both were guilty.

that the

considering

the

His contention

fails.

Severance

rulings

reviewed only for manifest

under

Fed.

R. Crim.

abuse of discretion.

P.

rule, persons . .

are

United States
______________

v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995).

_____________

As a

14

. indicted together

should be
.

tried together[, which] helps . .

prevent inconsistent verdicts

conserve resources
rial).

and .

. .

(judicial and prosecuto-

Thus, . . . a defendant who seeks a

separate trial can ordinarily

succeed . . .

only by making

a strong showing

prejudice. . .

of evident

Supreme Court

precedent

instructs that a district court should grant

a severance under Rule 14 only if there is a
serious risk

that a joint trial

would com-

promise a specific trial right of one of the

defendants, or prevent the jury
a

reliable

judgment

about

from making

guilt

or

in-

nocence.

Id.
___

(internal citations

severance required

in

and

quotations omitted).

a conspiracy

case.

Rarely

is

United States
______________

v.

Brandon, 17 F.3d
_______

80 (1994).

Appellants were

an identical

trial.

showing

of

More

prejudice,

instruction

Id.
___

all in the

no unfairness

particularly, Mario

especially

by the court that

dence against

verdicts.

discloses

denied, 115 S. Ct.

______

charged as coconspirators, and with

substantive offense,

Careful review

joint

409, 440 (1st Cir.), cert.

_____

attributable to

makes

in light

the jury must

each defendant independently and

The trial

court acted

same indictment.

of

their

no

plausible

the

repeated
________

consider the evi-

return separate

well within

its broad

discretion in denying the motion to sever.

B.
B.

The Schultz Testimony

The Schultz Testimony
_____________________

On redirect
________

testify

that, in

invited

to accompany

deal.

Appellant

examination Agent Schultz

his

experience, innocent

criminals

DiMarzo

engaged in

argues that

(1)

was allowed to

observers are

not

completing a

drug

Fed. R.

Crim.

P.

16(a)(1)(E) obligated the government to provide him with pretri-

al

discovery

testify to

under

relating

this matter,

both Daubert
_______

to

Schultz' expert

(2) Schultz' opinion

qualifications

to

was inadmissible

v. Merrell Dow Pharmaceuticals, Inc., 509

___________________________________

U.S. 579 (1993), and Fed. R. Evid. 704(b) (prohibiting testimony

on ultimate jury issue).

Similarly, Mario Alzate

contends that

he

was entitled to a mistrial, or

ance for further discovery

cations.2

at the very least a continu-

relating to Schultz' expert qualifi-

We do not agree.

____________________

2We review these discovery and evidentiary rulings under

"abuse of discretion" standard.
966, 973 (1st

an

United States v. Lanoue, 71 F.3d

_____________
______

Cir. 1995) (discovery

rulings); United States

_____________

v.

On cross-examination, both defense

counsel repeatedly

invited

Agent Schultz

enforcement

drug crime

officer.

upon his

For example,

experience as

a drug

Schultz was

asked whether

participants typically carry weapons.

On redirect,

the prosecutor asked

your

to draw

Schultz:

"[C]an you tell us

experience drug dealers bring along

casual innocent observer?"

how often in

with them to a deal a

Over defense objections, Schultz was

allowed to respond that he had never "seen a person just casual-

ly come along for a drug deal."

We reject appellants' contentions that either Criminal

Rule

16(a)(1)(E) or

testimony.

Daubert was
_______

implicated by

the challenged

First, the Schultz response expressed neither

a lay

nor an expert opinion, as distinguished from a statement of fact

___
_______

as

to what Schultz

had witnessed

during his

29 years

in law

enforcement.

lay

As the

or expert,

challenged testimony proffered no opinion,

__ _______

but

simply the

relating to a subject

witness's personal

bearing directly upon the appropriateness

of a jury

inference, see United States

___ _____________

F.2d

18 (1st

heroin

14,

Cir. 1991)

v. Batista-Polanco, 927
_______________

(extended

presence at

scene of

packaging operation supports "common sense" inference of

guilt), long held permissible

States
______

experience

v. Smith,
_____

680

in such circumstances, see United

___ ______

F.2d 255,

260

(1st Cir.

1982),

cert.
_____

denied, 459 U.S. 1110 (1983), we reject the claim.

______

____________________

Neal, 36 F.3d
____

1190, 1205 (1st

States v. Pierro, 32
______
______

Cir. 1994) (continuance);

F.3d 611, 617 (1st Cir.

United
______

1994) (mistrials),

cert.
_____

denied, 115
______

S. Ct.

919 (1995);

United States
_____________

v. Cotto______

Aponte, 30 F.3d 4, 6 (1st Cir. 1994) (evidentiary rulings).

______

Nor did the Schultz testimony encroach upon the jury's

factfinding function regarding the ultimate issue of guilt.

district court

alertly gave an immediate

"mere presence" at

a crime scene

The

jury instruction that

is insufficient to

establish

guilt, and that ultimately it was for the jury to decide whether

the

government had met its burden

of proof.

See United States

___ _____________

v. Myers, 972 F.2d 1566, 1577 n.8 (11th Cir. 1992) (Bownes, J.),
_____

cert.
_____

denied, 507 U.S. 1017

______

(1993).

When

Agent Schultz later

was subjected to further cross-examination, see United States v.

___ _____________

Paiva,
_____

892 F.2d

possibility

148,

that

a driver

transporting someone

challenged

Schultz

157 (1st

to

Cir.

might not

crime

testimony

in

1989), he

have

scene.

conceded

known that

Thus,

the context

of

he was

viewing

the

the

the

entire

examination, we find neither error nor unfair prejudice.

C.
C.

Evidence of Prospective Sentence

Evidence of Prospective Sentence
________________________________

In an effort

to forfend

against an

argument by

the

government that DiMarzo had known the cocaine was in the Oldsmo-

bile

based on

the improbability that

criminal conspirators

would entrust such valuable contraband to an innocent third par-

ty

DiMarzo sought to inform the jury of the harsh sentence he

would face upon conviction, to demonstrate the strong inducement

the

"real" drug dealers had

transport

appeal,

denied

unsuspecting dupe to

their drugs, so as to avoid detection themselves.

DiMarzo

him

inference

to select an

contends that

the "only

way" he

suggested by the

the

rejection

had

to counteract

government.

10

We

of his

On

proffer

the adverse

think the district

court soundly excluded the evidence.

at

6 (applying

rulings).

"abuse of

Accordingly,

See Cotto-Aponte, 30
___ ____________

discretion" standard

it was

proper as

F.3d

to evidentiary

well to

reject the

requested instruction that the jury not draw the inference urged

by the government.

The

DiMarzo proffer would have necessitated an unwar-

ranted departure

from the fundamental division of responsibili-

ties between judge and jury.

S. Ct. 2419, 2424 (1994).

See Shannon v. United States, 114

___ _______
_____________

As a general rule, under our criminal

justice

guilt

system it

or

whereas

is

innocence on

the

sentencing

court

is

Id.
___

and

Thus,

sentencing range

See Fed.
___

other

has found,

things,

guilty verdict.

for

As federal

function, "providing jurors

distracts them

creates a

even

from their

strong possibility

assuming that

sen-

DiMarzo's

factfinding

of confu-

guideline

a dubious

the district court did not err in reject-

the DiMarzo proffer given the

Shannon.
_______

facts it

had some minimal probative value

proposition at best

ing

of the

determine

invites them to ponder matters that are not

their province,

responsibilities,

responsibility to

responsible, among

no sentencing

tencing information

sion."

the basis

defendant after

juries perform

within

the jury's

considerations alluded to in

R. Evid. 403; cf. United States

___ _____________

v. Luciano________

Mosquera,
________

63 F.3d 1142,

Amendment

challenge

to

1153 (1st Cir.

restriction

1995) (rejecting Sixth

upon

cross-examination

relating to potential punishment).

D.
D.

Sufficiency of the Evidence

Sufficiency of the Evidence
___________________________

11

Appellants

claim reversible

their respective motions

error in

the denial

for judgments of acquittal.

of

See Fed.

___

R. Crim. P. 29.

in

the

light most

plausible

tions

Under

favorable

inferences and

to the

(1st Cir. 1995).

rational factfinder

government,

resolving all

in line with the verdicts.

F.3d 231, 234

the

Criminal Rule 29, we review the evidence

drawing all

credibility determina-

United States v. Spinney, 65

_____________
_______

We

will uphold a verdict

could have found each

offense beyond a reasonable doubt.

if a

essential element of

United States v. Gomez_____________

______

Pabon, 911 F.2d 847, 852 (1st Cir. 1990), cert. denied, 498 U.S.
_____
_____ ______

1074 (1991).

The government

met

its

test.

Under

21

U.S.C.

841(a)(1), it was required to establish that defendants knowing-

ly

and intentionally

possessed

controlled

substance

with

intent to

distribute.

F.2d

23 (1st

18,

Under

21 U.S.C.

United States v.
_____________

Cir.), cert.
_____

Aguilar-Aranceta, 957
________________

denied,
______

506 U.S.

834 (1992).

846, the government was required to establish

that defendants agreed, at least tacitly, to commit the substan-

tive offense

and

which constituted

the object of

their agreement,

that defendants voluntarily participated in the conspiracy.

Flores-Rivera, 56 F.3d at 323-24.

_____________

upon circumstantial evidence

The jury was entitled to rely

such as

scene

and association with others

infer

essential elements

dence,

standing alone, is
________ _____

Id. at 324.
___

of the

presence at the

involved in the

crime, except that

insufficient to

crime

crime

to

such evi-

support conviction.

Although appellants hold themselves out

as excep-

12

tions that prove the rule, there is ample record evidence, above

and

beyond their

rational

mere presence

and association,

to permit

jury to find guilt under both counts, beyond a reason-

able doubt.

Appellant Mario

Alzate and his

brother Alonzo

drove

approximately 100 miles to the crime scene where Alonzo had made

prior arrangements for the cocaine to be delivered to undercover

Agent Schultz in return for $100,000.

inating

circumstantial

between

Alonzo (the

evidence,

the

"pointman") and

Together with the incrim-

familial

Mario (the

relationship

"lookout" and

driver) permitted a rational jury inference that Mario well knew

he was involved

Cartagena,
_________

in a drug deal.

987 F.2d

See
___

849, 851-52

ample evidence to enable the

the "lookout" at the

United States v. Morales_____________

________

(1st Cir.

1993).

There was

jury to find that Mario served

as

crime scene, see United States

___ _____________

v. Hernan_______

dez, 995 F.2d 307, 314 (1st Cir.), cert. denied, 114
___
_____ ______

S. Ct. 407

(1993),

rooms

parking

especially

at the

since the

Inn and

brothers registered

Mario requested

a room

in separate

overlooking the

lot from where he surveilled the crime scene before the

drugs arrived.

In addition, Mario testified in his own defense,

either

contradicting

(e.g.,

in

requested

the

contrast to

room

testimony

the Inn

overlooking

innocent explanations for

of

government

manager,

the parking

denying that

lot)

or

he had

offering

other suspicious conduct (e.g.,

he had strolled around the Inn parking lot just to

countryside"), which the

witnesses

take in "the

jury was entitled to reject

13

that

and treat

as evidence of

consciousness of

Hadfield, 918 F.2d 987,

________

guilt.

See
___

United States
_____________

999 (1st Cir. 1990), cert.

_____

v.

denied, 500
______

U.S. 936 (1991).3

The

without

had

with

merit as well.

challenge

The evidence

mounted

by

DiMarzo

is

demonstrated that Alonzo

anticipated that the cocaine would arrive in a car equipped

secret compartments, and that

driver en route.

the

sufficiency

he knew how

to contact the

Agent Schultz testified that Alonzo spoke with

driver of the vehicle

the drug deal, conceivably

Oldsmobile, and gave him

short time later, DiMarzo

carrying the cocaine

the morning of

via the cellular phone in

the white

the correct directions to the Inn.

arrived at the Inn with

the cocaine,

pulled up just outside the ground-floor room occupied by Alonzo,

and immediately met

parking lot

with him.

as the two

DiMarzo was

men walked to

seen scanning

the restaurant.

the

Alonzo

returned with the keys to the Oldsmobile and, in the presence of

Schultz,

opened the concealed

interior compartments containing

bricks of cocaine in the promised amount.

As we repeatedly

have recognized, a

jury is free

to

rely on its common sense, see, e.g., Hernandez, 995 F.2d at 314,
___ ____ _________

and may infer that criminal conspirators normally do not involve

innocent persons at critical

United States v.
______________

Tejeda, 974
______

Thus, the jury reasonably

____________________

stages of a drug deal,

F.2d 210,

213 (1st

see, e.g.,
___ ____

Cir. 1992).

could infer that DiMarzo knew

he was

3As there was no abuse of discretion, we likewise affirm the

denial of Mario's motion for new trial under Fed. R. Crim. P. 33.
United States v. Garcia, 978 F.2d 746, 748 (1st Cir. 1992).
_____________
______

14

delivering the cocaine needed to consummate the prearranged deal

with Alonzo, rather than that

had entrusted to

bility

Alonzo and appellant Mario Alzate

an unsuspecting

nonparticipant the

responsi-

for delivering $100,000 worth of cocaine to the scene of

the exchange. E.
E.

The Alzate Sentencing Claims

The Alzate Sentencing Claims
____________________________

Mario Alzate

claims that

pant," see U.S.S.G.

___

5K2.0.

"minimal partici-

3B1.2(a) (1995), and that he

been granted a downward

see id.
___ ___

he was a

should have

departure based on "aberrant behavior,"

Neither contention helps him.

First, the

district court found that

tled to a two-level downward

Mario was enti-

adjustment under U.S.S.G.

(b), as a "minor participant."

3B1.2-

On appeal, Mario argues that

he

deserved a three or four-level adjustment, based on his "minimal

role."

The record evidence

finding that

Mario did not

See United States

___ _____________

noted above, however, warrants

merit a "minimal

v. Munoz, 36 F.3d 1229, 1238

_____

the

role" adjustment.

(1st Cir. 1994)

(off-loading portion of single

drug shipment or smuggling drugs

for small transaction may indicate minimal participation), cert.

_____

denied, 115 S. Ct. 1164 (1995).

______

Thus, there was no clear error.

United States v. Neal, 36 F.3d 1190, 1211 (1st Cir. 1994).

_____________
____

Finally, the

foreclosed

second assignment

because the

authority to grant a

district court

was well

squarely

aware

of its

downward departure and declined to

do so.

We therefore lack jurisdiction

to review the refusal to

unless based on a mistake of law.

No. 95-1674, 1996 WL

of error is

United States v. Grandmaison,

_____________
___________

80411 (1st Cir. Mar. 1,

15

depart

1996) (clarifying

"aberrant behavior"

1325, 1345 (1st

standard); United States v.

_____________

Cir. 1994).

There is

Lewis, 40 F.3d
_____

no indication that

the

district court misapprehended the confines of its legal authori-

ty.

Affirmed.
Affirmed.
________

16