U.S. v. DiMarzo, ALZATE-YEPE

• Decision Date: 09 February 1996
• Docket Number: ALZATE-YEPE,Nos. 95-1441,D,95-1442,s. 95-1441
• Citation: 80 F.3d 656
• Parties: 44 Fed. R. Evid. Serv. 335 UNITED STATES of America, Appellee, v. Miguel DIMARZO, a/k/a Michael DiMarzo, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mario J.efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 656

80 F.3d 656

44 Fed. R. Evid. Serv. 335

UNITED STATES of America, Appellee, v. Miguel DIMARZO, a/k/a Michael DiMarzo, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Mario J. ALZATE-YEPEZ, Defendant, Appellant.

Nos. 95-1441, 95-1442.

United States Court of Appeals First Circuit.

Heard Feb. 9, 1996.

Decided April 10, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied May 13, 1996.

Appeals from the United States District Court for the District of Massachusetts; Michael A. Ponsor, District Judge.

David J. Wenc, Windsor, CT, for appellant DiMarzo.

Alan Black, with whom Morton & Black was on brief for appellant Alzate-Yepez.

Andrew Levchuk, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief for appellee.

Before TORRUELLA, Chief Judge, CYR and LYNCH, Circuit Judges.

CYR, 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. § 841(a)(1) (1994), and conspiracy, see id. § 846. Appellants assign error by the district court in 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 BACKGROUND

In April 1994, the Western Massachusetts Narcotics Task Force brokered a cocaine On April 12, at approximately 5:00 a.m., appellant Mario and brother Alonzo set out in Mario's car on the 100-mile trip from Boston to Westfield. Upon arrival at the Westfield Motor 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. Shortly thereafter, the agents saw a male, later identified as Mario, lingering around the office and parking lot of the Inn while carefully observing cars and people in the area.

                deal among appellants and one Robert Schultz, an undercover Task Force agent.   During the first phase, Alonzo Alzate-Yepez ("Alonzo"), Mario's brother, agreed that he would arrange to deliver 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
                

Agent Schultz and another undercover agent arrived at the restaurant parking 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 a courier to arrive with the cocaine at any time. Soon Schultz left the restaurant to "beep" the courier from his car phone, while Alonzo returned to his room at the Inn to await a call from the courier. While Agent Schultz was standing beside his car, he noticed that Mario was observing him and the surrounding area.

A short time later, Schultz went to Alonzo's room on the ground floor, where Alonzo told him that the courier had gotten lost, but now had correct directions to the Inn and should arrive within ten minutes. Alonzo added that "they" had eight cars, with secret compartments for carrying cocaine, but he was not sure which was being used for this deal. At about 10:45 a.m., a white Oldsmobile entered the parking lot and stopped just outside Alonzo's ground-floor room. Before leaving to meet the driver--as it turned out, appellant Miguel DiMarzo--Alonzo advised Schultz to stay put.

After greeting one another, Alonzo and DiMarzo conversed as DiMarzo scanned the area and the two walked to the restaurant. Shortly after entering the restaurant, Alonzo left, and invited Schultz to join him in the parking lot, where he unlocked the driver's door of the Oldsmobile to let Schultz in the passenger side. After fidgeting with the defroster, Alonzo reached under the dashboard and popped open two interior side panels in the rear seat area which contained several bricks of cocaine wrapped in duct tape and plastic. After inspecting the brick-like packages, Agent Schultz signalled the Task Force surveillance team, and Alonzo, Mario and DiMarzo were arrested. The cocaine recovered from the concealed compartments in the Oldsmobile weighed 4.94 kilograms, almost exactly the five kilograms Alonzo had agreed to supply.

On May 17, 1994, a federal grand jury indicted the Alzate brothers and DiMarzo under 21 U.S.C. §§ 841(a)(1) and 846. Alonzo Alzate pled guilty to both counts, whereas appellants Mario Alzate and Miguel DiMarzo were jointly tried and convicted on both counts. In due course, the district court imposed sentences on appellants and final judgment entered on March 31, 1995. DiMarzo filed a notice of appeal on April 3. Appellant Mario Alzate did not do so until April 13. ¹

II DISCUSSION

A. The Severance Motion

Appellant Mario Alzate filed a pretrial motion for a separate trial pursuant to Fed.R.Crim.P 14, on the ground that the "spillover" effect of the evidence against DiMarzo would prejudice Mario unfairly. Appellants contended at trial that they had not known that Alonzo Alzate planned to conduct a drug deal at the Inn. Mario argues on appeal that DiMarzo's "mere presence" defense was so patently "ridiculous" that the jury likely concluded--without separately considering the evidence against Mario--that both were guilty. His contention fails.

Severance rulings under Fed.R.Crim.P. 14 are reviewed only for manifest abuse of discretion. United States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir.1995).

As a rule, persons ... indicted together should be tried together[, which] helps ... prevent inconsistent verdicts and ... conserve resources (judicial and prosecutorial). Thus, ... a defendant who seeks a separate trial can ordinarily succeed ... only by making a strong showing of evident prejudice.... 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 compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.

Id. (internal citations and quotations omitted). Rarely is severance required in a conspiracy case. United States v. Brandon, 17 F.3d 409, 440 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 80, 130 L.Ed.2d 34 (1994). Appellants were charged as coconspirators, and with an identical substantive offense, all in the same indictment. Careful review discloses no unfairness attributable to their joint trial. More particularly, Mario makes no plausible showing of prejudice, especially in light of the repeated instruction by the court that the jury must consider the evidence against each defendant independently and return separate verdicts. Id. The trial court acted well within its broad discretion in denying the motion to sever.

B. The Schultz Testimony

On redirect examination Agent Schultz was allowed to testify that, in his experience, innocent observers are not invited to accompany criminals engaged in completing a drug deal. Appellant DiMarzo argues that (1) Fed.R.Crim.P. 16(a)(1)(E) obligated the government to provide him with pretrial discovery relating to Schultz' expert qualifications to testify to this matter, (2) Schultz' opinion was inadmissible under both Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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 at the very least a continuance for further discovery relating to Schultz' expert qualifications. ² We do not agree.

On cross-examination, both defense counsel repeatedly invited Agent Schultz to draw upon his experience as a drug enforcement officer. For example, Schultz was asked whether drug crime participants typically carry weapons. On redirect, the prosecutor asked Schultz: "[C]an you tell us how often in your experience drug dealers bring along with them to a deal a casual innocent observer?" Over defense objections, Schultz was allowed to respond that he had never "seen a person just casually come along for a drug deal."

We reject appellants' contentions that either Criminal Rule 16(a)(1)(E) or Daubert was implicated by the challenged testimony. 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. As the challenged testimony proffered no opinion, lay or expert, but simply the witness's personal experience relating to a subject bearing directly upon the appropriateness of a jury inference, see United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir.1991) (extended presence at scene of heroin packaging operation supports "common sense" inference of guilt), long held permissible in such circumstances, see United States v. Smith, 680 F.2d 255, 260 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983), we reject the claim.

Nor did the Schultz testimony encroach upon the jury's factfinding function regarding the ultimate issue of guilt. The district court alertly gave an immediate jury instruction that "mere presence" at a crime scene 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, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993). When Agent Schultz later was subjected to further cross-examination, see United States v. Paiva, 892 F.2d 148, 157 (1st Cir.1989),...