U.S. v. Paone, 84-1144

• Decision Date: 07 February 1985
• Docket Number: No. 84-1144,84-1144
• Citation: 758 F.2d 774
• Parties: UNITED STATES of America, Appellee, v. Hector Alfredo Viceconte PAONE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 774

758 F.2d 774

UNITED STATES of America, Appellee, v. Hector Alfredo Viceconte PAONE, Defendant, Appellant.

No. 84-1144.

United States Court of Appeals First Circuit.

Heard Feb. 7, 1985.

Decided March 29, 1985.

Francisco M. Dolz Sanchez, San Juan, P.R., for defendant, appellant.

Antonio R. Bazan, Asst. U.S. Atty., with whom Daniel Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief for appellee.

Before COFFIN, Circuit Judge, WISDOM, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

COFFIN, Circuit Judge.

Appellant, Hector Alfredo Viceconte Paone, appeals his conviction upon an indictment charging him with violations of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 for possession with intent to distribute approximately 309 grams of cocaine. Two co-defendants entered pleas of guilty before trial. Appellant and another co-defendant stood trial and on December 31, 1983, appellant was convicted and his co-defendant was acquitted. Appellant raises the issue of sufficiency of the evidence in this appeal, and a variance claim, arguing that the evidence presented at trial constructively amended the indictment; he also challenges the inconsistency in the verdicts against him and for his co-defendant. We affirm.

The primary issue presented by this appeal is whether there is evidence to support a jury finding that appellant was guilty at least as an aider and abetter. The proper test to be applied when the evidence is largely circumstantial is "whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt." Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964); United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977); United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978).

We look to the test set out by the Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949), to determine whether a party is an aider or abetter.

"In order to aid and abet another to commit a crime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.' L. Hand, J., in United States v. Peoni, 100 F.2d 401, 402 [2 Cir.1938]."

We have characterized this test as meaning that " '[m]ere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt; nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting.' (citations omitted)." United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978).

We cannot say that the evidence in this case, viewed as it must be in the light most favorable to the government, is insufficient to support the jury verdict against appellant. The evidence offered by the government against appellant was as follows: At about 6 p.m. on October 29, 1983, in the parking lot of the Plaza Las Americas shopping center in Hato Rey, Puerto Rico, appellant was sitting in the back seat of a car when co-defendant Elvio Eduardo Gonzalez Rivas allegedly handed a sample consisting of 23.8 grams of cocaine to an undercover police agent. At about 8:15 p.m., appellant was observed talking with co-defendant Gonzalez Rivas in a cafeteria across the street from the Palace Hotel in Isla Verde, Puerto Rico. Appellant appeared to follow Gonzalez Rivas to the hotel, where he waited at the entrance to the lobby while Gonzalez Rivas met with an undercover agent nearby. Finally, appellant followed Gonzalez Rivas and the undercover agent out of the hotel as they walked toward the agent's car supposedly to get the money for the cocaine. When the undercover agent opened the car trunk, Gonzalez Rivas was arrested; appellant, who also had been walking toward the car, but behind the others, suddenly turned and started to walk in the opposite direction. He was then arrested.

The government's theory of appellant's involvement was that he provided security or "counter surveillance" by watching over the transactions with the undercover agents. The government also suggested that appellant owned the cocaine offered for sale. Whether or not...