U.S. v. Campa, 81-1236

• Citation: 679 F.2d 1006
• Decision Date: 27 May 1982
• Docket Number: No. 81-1236,81-1236
• Parties: 10 Fed. R. Evid. Serv. 1293 UNITED STATES of America, Plaintiff-Appellee, v. Arturo M. CAMPA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1006

679 F.2d 1006

10 Fed. R. Evid. Serv. 1293

UNITED STATES of America, Plaintiff-Appellee, v. Arturo M. CAMPA, Defendant-Appellant.

No. 81-1236.

United States Court of Appeals,

First Circuit.

Argued Feb. 2, 1982.

Decided May 27, 1982.

Irwin G. Lichter, Miami, Fla., for defendant-appellant.

H. Manuel Hernandez, Asst. U. S. Atty., Hato Rey, P. R., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for plaintiff-appellee.

Before GIBSON, ^* Senior Circuit Judge, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Arturo M. Campa was convicted by a jury of aiding and abetting in the possession with intent to distribute, and distribution of, 158.2 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) ¹ and 18 U.S.C. § 2 ² (Count Eight) and of aiding and abetting in the possession with intent to distribute 820 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Eleven). The case started with a twelve-count indictment against six defendants. Five of the defendants pled guilty. Only Counts Eight and Eleven applied to Campa.

Campa raises five arguments on appeal: first, that the evidence adduced at trial was insufficient to prove aiding and abetting on Count Eight; second, that it was improper for the prosecution to display to the jury cassettes containing recorded conversations which were not going to be offered into evidence; third, that the prosecution made comments at trial which attempted to shift the burden of proof to the defendant and/or were comments on his right to remain silent; fourth, that a defendant may not be charged with aiding and abetting when no one is named as principal; and fifth, that defendant was denied effective assistance of counsel at trial and prior thereto.

The chain of events ³ leading to appellant's conviction began on September 22, 1980, when Puerto Rico Police Officer Manuel Suarez and other members of a task force ⁴ were contacted by Gerardo Palacio Rivera Velez, an informant, who told them that Angel Mendez Ayala, a subsequent codefendant, had large quantities of cocaine to distribute. Officer Suarez and other members of the task force formulated a plan which would enable them to purchase one-eighth of a kilo of cocaine from Mendez. Through the informant, Officer Suarez made arrangements with Mendez for the purported purchase of the cocaine. Mendez took Officer Suarez to the apartment of Sierra Diaz, also an indicted codefendant, where the "buy" was confirmed. Sierra Diaz stated that he would contact appellant in Miami, and that the cocaine would be brought to Puerto Rico on the following day. Sierra Diaz agreed to contact Officer Suarez through Mendez and the informant when the cocaine was available.

On September 23, 1980, the informant contacted Officer Suarez and told him that Mendez had notified him that the cocaine was ready. Officer Suarez and the informant next met Mendez in a parking lot in front of Sierra Diaz's apartment. While Officer Suarez and Mendez went up to the apartment, the informant waited in the car. After entering the apartment, Officer Suarez was introduced to appellant. Sierra Diaz removed the cocaine from a plastic bag, sifted it, and allowed Officer Suarez to test it. Sierra Diaz weighed out one-eighth of a kilo and bagged it. Officer Suarez returned to his car with Mendez to get the $8,500 for payment of the cocaine. Sierra Diaz counted the money, putting it in stacks of $1,000 each. Appellant, who had been sitting across the table from Officer Suarez, picked up the money and placed it into an envelope and then put it back on the table. Before he left, Officer Suarez indicated that he would be interested in purchasing a kilo of cocaine at a later date. At all times throughout this transaction, Officer Suarez had a Kell transmitting and recording device attached to his body. The cassette recording of the transaction was marked as Government's Exhibit 1 for identification, but was not offered into evidence due to its alleged poor quality.

On October 15, 1980, Mendez contacted the informant and told him that one kilo of cocaine was available if Officer Suarez still wished to purchase it. Officer Suarez subsequently contacted Mendez and made arrangements to purchase the kilo for $62,000. The conversation between Officer Suarez, the informant, and Mendez was also recorded. This tape was marked as Government's Exhibit 2 and was introduced into evidence. The next day Mendez contacted the informant and asked him to get in touch with Suarez. Someone in Miami wanted assurance that the money would be there. Suarez later that night met with Mendez, showed him the money, and the two then proceeded to Sierra Diaz's apartment. Sierra Diaz agreed to make the necessary arrangements to have the kilo of cocaine brought up from Miami on the following day. These conversations were also recorded and the cassette containing the recorded conversations was marked for identification, but was not entered into evidence due to its poor quality.

On October 17, 1980, Mendez again contacted the informant who notified Suarez. Suarez telephoned Mendez and was told that only three-quarters of a kilo of cocaine would be available, not the full kilo as planned. Suarez agreed to purchase this for $42,500 and was told that it would be delivered the following day. The cassette of these conversations was marked in evidence as Government's Exhibit 4.

On October 18, 1980, Suarez and the informant went to Sierra Diaz's apartment house where they met Mendez. While the informant waited in the car, Suarez and Mendez went up to Sierra Diaz's apartment, where he met them at the door. Suarez observed appellant in the living room. Appellant asked Suarez if he had the money, and Suarez stated that he first wanted to test the cocaine. Appellant then said that he did not have the cocaine with him, but that it was in a nearby hotel. Appellant and Mendez left the apartment and returned a short time later carrying a briefcase which contained the cocaine. Appellant opened the bags of cocaine and let Suarez test it. Appellant then weighed and bagged the three-quarters of a kilo of cocaine and asked for the money. Suarez replied that he had left it in his car but would go and get it. As Suarez was leaving the apartment, the task force agents entered and arrested the appellant and the others. This conversation was also recorded. The cassette was marked as Government's Exhibit 5 for identification, but was not offered in evidence due to its poor quality.

On February 10, 1981, after a two-day trial, a jury found appellant guilty on Counts Eight and Eleven of the indictment.

Sufficiency of the Evidence

The first argument raised by appellant is that there was insufficient evidence that he aided and abetted Sierra Diaz in possessing with intent to distribute, and distribution of, cocaine (Count Eight of indictment-September 23, 1980 transactions). ⁵ In examining this contention, we view the evidence, together with all reasonable inferences that may legitimately be drawn therefrom, in the light most favorable to the government. United States v. Lochan, 674 F.2d 960 (1st Cir. 1980); United States v. Indorato, 628 F.2d 711, 719 (1st Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980), citing United States v. Gabriner, 571 F.2d 48, 50 (1st Cir. 1978). The burden is on the government to prove beyond a reasonable doubt each and every element of the crime charged. Id. at 50. The government may prove its case through the use of circumstantial evidence so long as the total evidence, including reasonable inferences, is sufficient to warrant a jury to conclude that the defendant is guilty beyond a reasonable doubt. United States v. Mehtala, 578 F.2d 6, 10 (1st Cir. 1978); United States v. Gabriner, 571 F.2d at 50. The court's role is not to assess the credibility of the witnesses, that judgment is left to the trier of fact. United States v. Nardi, 633 F.2d 972, 974 (1st Cir. 1980).

The elements that the government was required to prove in this case were that appellant "associated himself with the venture, that he participated in it as something he wished to bring about, that he sought by his action to make it succeed." United States v. Martinez, 479 F.2d 824, 829 (1st Cir. 1973), citing United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). See United States v. Indelicato, 611 F.2d 376, 385 (1st Cir. 1979); United States v. Tarr, 589 F.2d 55, 59 (1st Cir.1978). Mere presence at the scene and knowledge that a crime is being committed is generally insufficient to establish aiding and abetting. Id. at 59. The government must prove some affirmative participation by the aider and abettor. United States v. Indelicato, 611 F.2d at 385; United States v. Martinez, 479 F.2d at 829. The vital element to be proven is that the aider and abettor shared in the principal's essential criminal intent. This may be inferred from the attendant facts and circumstances. United States v. Tarr, 589 F.2d at 59; United States v. Beck, 615 F.2d 441, 449 (7th Cir. 1980).

The evidence of appellant's participation in the September 23 transaction (Count Eight) was as follows. Suarez testified that in setting up the "buy," Sierra Diaz stated that he would "make a phone call to Miami, Florida, to make contact with Arturo Campa, and Arturo Campa would have a man that would bring it (the cocaine) up." ⁶ On the following day, when Officer Suarez went to Diaz's apartment, he was introduced to a person whom he later identified as Campa (appellant). Throughout the entire transaction, appellant sat across the table from Suarez. After Sierra Diaz counted the money, appellant stood up and placed it in an envelope and then returned it to the table. Appellant remained in the apartment with the other codefendants and the money when Suarez left.

Appellant argues that the sale was completed before he placed the money into the envelope and, as such, any action he took...