U.S. v. Machor, BRITO-MEJI

• Decision Date: 08 December 1988
• Docket Number: D,Nos. 87-1603,BRITO-MEJI,s. 87-1603
• Parties: 28 Fed. R. Evid. Serv. 705 UNITED STATES of America, Appellee, v. Winston MACHOR, Defendant, Appellant. UNITED STATES of America, Appellee, v. Armand Allen STEVENSON, Defendant, Appellant. UNITED STATES of America, Appellee, v. Valerianoefendant, Appellant. UNITED STATES of America, Appellee, v. Gumersindo Eduardo CARRASCO, Defendant, Appellant. to 87-1606. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 945

879 F.2d 945

28 Fed. R. Evid. Serv. 705

UNITED STATES of America, Appellee, v. Winston MACHOR, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Armand Allen STEVENSON, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Valeriano BRITO-MEJIA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Gumersindo Eduardo CARRASCO, Defendant, Appellant.

Nos. 87-1603 to 87-1606.

United States Court of Appeals First Circuit.

Heard Dec. 8, 1988.

Decided June 29, 1989.

Rehearing and Rehearing En Banc in No. 87-1606 Denied Aug. 1, 1989.

Francis K. Morris, by Appointment of the Court, with whom Morris & Collins, Framingham, Mass., was on brief, for defendant, appellant Gumersindo Eduardo Carrasco.

Benjamin S. Waxman with whom Frederick S. Robbins and Weiner, Robbins, Tunkey & Ross, P.A., Miami, Fla., were on brief, for defendant, appellant Armand Allen Stevenson.

Seth M. Kalberg, Jr., Boston, Mass., by Appointment of the Court, for defendant, appellant Valeriano Brito-Mejia.

Marshall T. Cary, Bangor, Me., by Appointment of the Court, for defendant, appellant Winston Machor.

Luis A. Plaza, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

After a joint jury trial, the four appellants, Valeriano Brito-Mejia ("Brito"), Gumersindo Carrasco ("Carrasco"), Winston Machor ("Machor") and Armand Allen Stevenson ("Allen") were convicted under 21 U.S.C. Sec. 841(a)(1) for aiding and abetting each other in the possession with intent to distribute cocaine. Each appellant alleges the commission of several errors by the district court. We find that no reversible error was committed and affirm the four convictions.

The facts which the jury could have found are as follows. At the time of the relevant facts, Mario Castillo ("Castillo") was employed as a cabin steward on board the vessel VICTORIA and worked as an informant for the United States Customs Service. Carrasco, who also worked on the VICTORIA, had known Castillo for approximately eight months to a year. On November 16, 1986, Carrasco told Castillo that he was looking for someone to buy a kilogram of cocaine that Carrasco had "in the company of Mr. Brito" and "two Costa Ricans" who were to arrive in San Juan in the vessel SONG OF AMERICA. (Machor and Allen are in fact Costa Rican nationals and did arrive afterwards on the ship SONG OF AMERICA). Castillo informed Customs about Carrasco's offer. Castillo was directed to arrange a meeting between Carrasco and agent Rivera, who would pose as a prospective buyer. This meeting took place several days later at the Don Ricardo Restaurant in Old San Juan. Agent Rivera and Carrasco agreed to the sale of one kilogram of cocaine for $30,000. Carrasco told the agent that the cocaine would arrive "in the company of two Costa Ricans" who were arriving in the ship SONG OF AMERICA and that, as soon as the cocaine arrived, he would contact Rivera through informant Castillo. Carrasco also mentioned that Brito was "the one in charge."

The next day Carrasco phoned Castillo to inform him that the cocaine had arrived. Carrasco, accompanied by Allen, picked up Castillo. Castillo then asked Carrasco to stop the car so that he could phone the buyer and tell him that the cocaine had arrived. Castillo called Customs and arranged for a second meeting later that day at the Don Ricardo Restaurant. Castillo went back into the car where Allen showed him a blue and white bag containing cocaine. Then they picked up Brito and Machor and proceeded on to the Don Ricardo Restaurant.

Carrasco dropped off Castillo, Allen, Machor and Brito at the restaurant and went to park the car. While Allen, Machor and Brito remained inside the restaurant, informant Castillo and agent Rivera met outside. Castillo brought out Brito and introduced him to the prospective buyer, agent Rivera. Brito said that the "Costa Ricans" had the kilogram of cocaine inside the restaurant. Rivera asked how much cocaine they could supply in the future and Brito replied they could get two kilograms each time the ship arrived in San Juan. Afterwards Brito went inside the restaurant and came out with Machor. Machor agreed to show Rivera the cocaine. Machor again went inside the restaurant and later came out with Allen. Allen placed himself next to a parked car and started to look in both directions. Machor was carrying a white plastic bag with blue designs. Machor and Rivera walked towards a store near the restaurant where Machor opened the bag and showed Rivera the cocaine. After Rivera saw the "merchandise" he approached Allen, shook his hand, and told him "this is fine." Allen replied: "everything is fine, fine, fine." Thereafter Rivera gave a pre-arranged signal to surveillance agents who proceeded to arrest Machor, Allen and Brito. The cocaine was found on a chair in the restaurant, where it apparently had been returned before the arrests. Carrasco was arrested later in his car at Pier Six, some distance from the restaurant.

After the trial, the four codefendants were found guilty on Count One of the indictment: aiding and abetting in the possession of cocaine with intent to distribute it. We will now address the arguments advanced by appellants.

I. Sufficiency of the Evidence

Defendants contend that the evidence presented at trial against them was insufficient to sustain their conviction. In considering the sufficiency of the evidence in criminal cases, the proper standard of review is whether, viewing the evidence in the light most favorable to the government and without assessing the credibility of the witnesses, a rational fact finder could have adjudged the defendant guilty beyond a reasonable doubt. See United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989) and cases therein cited. The elements of the crime charged do not have to be proven with direct evidence; the government can use circumstantial evidence as long as the evidence, viewed as a whole, is sufficient to warrant a reasonable jury to conclude that the defendant is guilty beyond a reasonable doubt. United States v. Campa, 679 F.2d 1006, 1010 (1st Cir.1982).

An essential element that the government was required to prove in this case was that the defendants "aided and abetted" in the possession with intent to distribute the controlled substance. Thus, the government had to show that each defendant "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." Id., (quoting United States v. Martinez, 479 F.2d 824, 829 (1st Cir.1973)).

In evaluating the evidence presented against defendants in the light most favorable to the government we are compelled to conclude that it was more than sufficient. From the very first meeting between the informant and Carrasco, the latter identified Brito and "two Costa Ricans" as the persons interested in selling cocaine. At the first meeting with agent Rivera, Carrasco again mentioned two Costa Ricans who were to arrive in the ship SONG OF AMERICA as the persons who were bringing the cocaine. As it turned out, Machor and Allen are Costa Rican nationals and did arrive in the ship SONG OF AMERICA. Carrasco also mentioned that Brito was "the one in charge." On the day of the arrests, Carrasco picked up the other codefendants, including Brito and Machor for the purpose of attending the pre-arranged meeting with the purported buyer of the cocaine, agent Rivera. At that time, Allen had possession of the cocaine. At the restaurant Brito specifically stated the Costa Ricans had the cocaine inside the restaurant. He even arranged for future cocaine sales. Later on Brito came out of the restaurant with Machor who showed agent Rivera the cocaine. These facts obviously amounted to more than "a mere presence at the scene and knowledge that a crime is being committed," United States v. Tarr, 589 F.2d 55, 59 (1st Cir.1978), as defendants contend. On the contrary, the facts show that defendants shared the criminal intent necessary to be convicted for aiding and abetting.

Defendants also challenge the sufficiency of the evidence on the grounds that the cocaine was found on a chair inside the restaurant. We reject this argument. The fact that the cocaine was not found in the possession of one of the codefendants is not dispositive. The jury was reasonable in inferring the commission of the crime beyond a reasonable doubt based on the totality of the evidence introduced.

II. The Admission of Alleged Hearsay

Machor and Allen object to the admission of statements of other co-defendants introduced through the testimony of government witnesses. They question the admissibility of the statements on two interrelated grounds. First, they argue that the lack of a formal Petrozziello finding amounted to a reversible procedural error. See United States v. Petrozziello, 548 F.2d 20 (1st Cir.1977). Second, they contend that the statements were inadmissible because they were not within the coconspirators' statements exception to the hearsay rule. Fed.R.Evid. 801(d)(2)(E).

In order to determine whether the lack of a formal Petrozziello finding constitutes reversible error we shall review the relevant facts. During the course of the trial the informant Castillo testified that defendant Carrasco had stated that he had a kilogram of cocaine "in the company" of Brito and "two Costa Ricans." The defense did not object to this testimony. Castillo also testified that at the initial meeting at the restaurant Carrasco had told agent Rivera that he had the cocaine "in the company of the Costa Ricans and Mr. Brito." At this point, defense counsel objected on hearsay grounds. After a brief bench conference, the court conditionally admitted the statements "subject to tie up" under Fed.R.Evid. 801(d)(2)(E), as to coconspirators' statements. See Petrozzi...