938 F.2d 1406 (1st Cir. 1991), 90-1196, United States v. Olivo-Infante
| Citation | 938 F.2d 1406 |
| Docket Number | 90-1197.,90-1196 |
| Date | 07 June 1991 |
| Parties | UNITED STATES, Appellee, v. Americo OLIVO-INFANTE, Defendant, Appellant. UNITED STATES, Appellee, v. Jose GONZALEZ, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
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Heard March 7, 1991.
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Lawrence Rizman, Boston, Mass., for defendant, appellant Olivo-Infante.
Arthur R. Silen, with whom Serra, Jordan and Carbone, were on brief, Boston, Mass., for defendant, appellant Gonzalez.
Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., was on brief, Providence, R.I., for appellee.
Before CAMPBELL and CYR, Circuit Judges, and BOWNES, Senior Circuit Judge.
BOWNES, Senior Circuit Judge.
Following a joint jury trial, defendants-appellants Jose Gonzalez and Americo Olivo-Infante were convicted of conspiracy to distribute or possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846 (Count I), and distribution or possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B) (Count II). Olivo-Infante was also convicted of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(C) (Count III). A third defendant, Milton Castillo, was also convicted on the above counts and pled guilty to a fourth one, transfer of a firearm with knowledge that the firearm would be used to commit a drug trafficking crime. Castillo is not involved in this appeal. Olivo-Infante was sentenced to 85 months imprisonment on each of the three counts, to be served concurrently, and a period of supervised release. He was ordered deported after completion of the sentence. Gonzalez was sentenced to 70 months on each count, to be served concurrently, and a period of supervised release.
Olivo-Infante claims that the district court erroneously: (1) denied his motion for directed verdict of acquittal on Count III for distributing cocaine on June 6, 1989; (2) failed to sever his trial from that of his co-defendants; and (3) admitted hearsay evidence
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under the co-conspirator exception to the hearsay rule articulated in United States v. Petrozziello, 548 F.2d 20 (1st Cir.1977). Gonzalez claims that the district court erroneously: (1) denied his motion for a directed verdict of acquittal on both counts; (2) failed to exclude inadmissible, prejudicial testimony; and (3) failed to provide the jury with cautionary instructions regarding certain evidence. We affirm the convictions.
Background
Because both defendants challenge the denial of their motions for directed verdicts of acquittal, we review the evidence and all legitimate inferences which may be drawn therefrom in the light most favorable to the government. United States v. Smith, 680 F.2d 255, 259 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983).
Gonzalez, Olivo-Infante, and Castillo were arrested during a joint undercover operation conducted by agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) and the Drug Enforcement Administration (DEA). In early 1989, Agent Matthew W. Horace of ATF, acting undercover, contacted Castillo several times to negotiate the purchase of drugs and firearms. The two met on June 6, 1989, at Elmwood and Cadillac Streets in Providence, Rhode Island. Castillo, driving a silver Mercury, signalled Agent Horace to follow him by car; they drove two blocks to Melrose Avenue and parked in front of an electric company. There, Agent Horace agreed to pay Castillo $1,455 for three ounces of "crack" cocaine and a firearm. Half an hour later, Castillo returned in a different car driven by Olivo-Infante. Again, Castillo motioned Horace to follow. Four blocks later, Horace got out of his car, briefly spoke to Castillo at the passenger side of Castillo's vehicle, paid him $1,455, and received in exchange a tissue box containing cocaine and a gun. Olivo-Infante sat in the driver's seat while Castillo and Agent Horace consummated the transaction.
On June 15, Agent Horace called Castillo to complain that he had been sold cocaine rather than crack. Castillo promised to supply crack at a later date; and after several discussions, they agreed to meet again. On June 20, 1989, Castillo met Agent Horace at Elmwood and Cadillac Streets, and they drove separately to 37 Stanwood Street in Providence. After they parked, Castillo told Agent Horace to relax because they were at the house of his friends. Initially, Agent Horace noticed Olivo-Infante in front of the residence. Thirty minutes later, Agent Horace observed Gonzalez five or ten feet away from him, speaking in Spanish to Castillo and Olivo-Infante. Agent Horace had never seen Gonzalez prior to that time. Although Agent Horace could not understand Spanish, he thought he overheard Gonzalez say the word "kilo" to Castillo and Olivo-Infante. After forty minutes, Agent Horace told Castillo he could wait no longer. Castillo replied that the half kilo of crack he had requested was on hand but that an additional four ounces had not yet arrived. Agent Horace agreed to buy the half kilo, whereupon Castillo advised him to go with Olivo-Infante to a blue Chevrolet Nova parked nearby to see the cocaine. The Nova was registered under Rhode Island plate number JU 436 to Jose Gonzalez.
Agent Horace entered the Nova from the passenger's side; Olivo-Infante got in from the driver's side. Olivo-Infante pulled from under his seat a package containing a white powdery substance later determined to be cocaine. Castillo and Gonzalez stood at the right rear corner of the car speaking to one another while Olivo-Infante showed Agent Horace the cocaine. After examining the cocaine, Agent Horace exited the car and told Castillo he would get his money. As Agent Horace walked back to his own automobile, government agents moved in to make the arrests. Olivo-Infante ran in the direction of Agent Horace, who apprehended and arrested him. When Agent Horace returned to the blue Nova, he seized the cocaine, which had been moved from the front seat to the rear floorboard. Gonzalez was arrested inside the Nova.
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Olivo-Infante
Olivo-Infante claims that the district court erroneously denied his motion for directed verdict of acquittal on Count III of the indictment, distributing cocaine on June 6, 1989. Viewing the evidence in the light most favorable to the government, our inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Barnes, 890 F.2d 545, 549 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990).
According to Olivo-Infante, on June 6, 1989, he had merely given Castillo a ride and did not participate in the drug sale. He cites United States v. Bethea, 442 F.2d 790, 793 (D.C.Cir.1971), for the proposition that "[m]erely showing that appellant was a passenger in the car and in proximity to the heroin is, without more, insufficient to support a finding of possession."
The evidence shows that Olivo-Infante was more than merely present. On June 6, Agent Horace met with Castillo to settle the price of the gun and the drugs. Half an hour later, Castillo reappeared with the merchandise, this time in a car driven by Olivo-Infante. While Olivo-Infante sat in the driver's seat, Agent Horace and Castillo spoke and made the exchange. Olivo-Infante claims that there was no evidence that he could see what was in the box or that he was in a position to know what was happening as Agent Horace handed Castillo money and Castillo handed Agent Horace the box. That Olivo-Infante's fingerprints were not found on the box does not absolve him. It is commonly accepted that "[d]rivers generally have dominion and control over the vehicles that they drive"; from this a jury may infer knowing possession of drugs found within such a vehicle. United States v. Lochan, 674 F.2d 960, 966 (1st Cir.1982). Furthermore, the jury could reasonably have inferred that under these potentially dangerous circumstances, an insider rather than an outsider would chauffeur the dealer. We recently noted 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). The jury could reasonably have found that on June 6, 1989, Olivo-Infante was more than "merely present," and was part of Castillo's drug operations. Viewing the evidence in the light most favorable to the government, we affirm the district court's denial of Olivo-Infante's...
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