United States of America, Appellee, v. John Tejeda, Defendant, Appellant.united States of America, Appellee, v. Paul Christian, Defendant, Appellant, 974 F.2d 210 (1st Cir. 1992)

At their jury trial, defendants John Tejeda and Paul Christian were convicted of conspiracy to possess 500 or more grams of cocaine, with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a) (1), (b) (1) (B) (ii). Christian was convicted of the related substantive offense under 21 U.S.C. § 841(a) (1), (b) (1) (B) (ii), and of possessing one-half ounce of cocaine, with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). Defendants raise several issues on appeal. Tejeda alone challenges the sufficiency of the evidence. We affirm their convictions.

* BACKGROUND

During July 1990, after Thomas Miller, a paid government informant, first made known his interest in buying cocaine and defendant Paul Christian indicated that he was receptive to the idea, Miller contacted the United States Drug Enforcement Agency (DEA) and was put in touch with DEA Special Agent Stephen Tomaski. Shortly thereafter, Miller and Christian arranged and consummated a "sample" one-half ounce cocaine transaction at Sun Foods Plaza in Lowell, Massachusetts. A series of phone calls promptly led to their final transaction, for approximately two kilograms of cocaine.

On August 3, while several DEA agents and local police officers watched, Miller again met Christian at Sun Foods Plaza. During their on-scene negotiations, it immediately became apparent that Christian was not acting alone, as he left Miller three times to confer with a small group of individuals standing in the nearby parking lot. Defendant John Tejeda was among the individuals in the group. After the two kilogram transaction was consummated, Christian and Tejeda were arrested.

II

DISCUSSION

Tejeda challenges the sufficiency of the evidence supporting his conspiracy conviction. We view the evidence in the light most favorable to the verdict, in order to determine whether a rational trier of fact could have found guilt beyond a reasonable doubt. United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992); United States v. Vargas, 945 F.2d 426, 427-28 (1st Cir. 1991). All reasonable inferences are drawn in favor of the verdict and any credibility determination must be compatible with the judgment of conviction. United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991). A sustainable conspiracy conviction requires direct or circumstantial evidence which establishes beyond a reasonable doubt " 'that the defendant and one or more coconspirators intended to agree and ... to commit the substantive criminal offense which was the object of their unlawful agreement.' " United States v. Lopez, 944 F.2d 33, 39 (1st Cir. 1991) (quoting United States v. Sanchez, 917 F.2d 607, 610 (1st Cir. 1990), cert. denied, --- U.S. ----, 111 S. Ct. 1625, 113 L. Ed. 2d 722 (1991)). "Due to the clandestine nature of criminal conspiracies, the law recognizes that the illegal agreement may be either 'express or tacit' and that a ' "common purpose and plan may be inferred from a development and collocation of circumstances." ' " Sanchez, 917 F.2d at 610 (quoting United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989) (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942))). The record discloses ample evidence that Tejeda conspired with Christian to possess more than 500 grams of cocaine, with the intent to distribute it to informant Miller.

The goings-on at Sun Foods Plaza on August 3 were detailed in trial testimony by Miller and various law enforcement officers who witnessed the following events. After informant Miller and undercover DEA Agent Tomaski showed Christian $50,000 in cash, Miller asked to see the cocaine. Christian said he needed to speak to some people whom he had "had to" bring with him. Christian walked a short distance from Miller and Tomaski, out of hearing range, to a small group of three or four Hispanic males. At trial, government witnesses testified that Christian appeared to be engaged in conversation while in the presence of the group. Christian returned to Miller, handed him a car key, pointed toward a brown Pontiac Bonneville, and told Miller that there were two kilograms of cocaine in the trunk. After opening the car trunk with the key given to him by Christian, Miller examined the cocaine. Upon returning to Christian, Miller expressed dissatisfaction with the quality of the cocaine and demanded a lower price.

Christian again left Miller and met with the group, which had thinned to two or three individuals. Miller testified that Tejeda stood face-to-face with Christian during this encounter. Shortly, Christian returned to Miller and offered him a slightly lower price. Miller suggested that he would give Christian $5,000 for himself, if Christian would lower the price further. For a third time, Christian met with his apparent confederates, Tejeda still among them. Upon Christian's return, he and Miller closed the deal. As Miller again opened the trunk of the Pontiac Bonneville, ostensibly to make a final examination of the cocaine, defendants were arrested.

Tejeda argues on appeal that the evidence was insufficient to establish more than "mere presence" at the scene of the crime. See, e.g., United States v. Ocampo, 964 F.2d 80, 82 (1st Cir. 1992) ("Mere presence at the scene of a crime is insufficient to prove membership in a conspiracy."). On the contrary, the circumstantial evidence alone was sufficient to defeat Tejeda's claim of mere presence. As we have said many times, "the fact-finder may fairly infer ... that it runs counter to human experience to suppose that criminal conspirators would welcome innocent nonparticipants as witnesses to their crimes. See United States v. Passos-Paternina, 918 F.2d [979,] 985 [ (1st Cir. 1990) ] ('understanding of human behavior' may ground reasonable inference from circumstantial evidence)." Batista-Polanco, 927 F.2d at 18. See also Ortiz, 966 F.2d at 712.

The claim of mere presence is belied by the testimony of Inspector Robert Caron of the Lowell Police Department as well. At the time of the third and final encounter between Christian and the nearby group which included Tejeda, Inspector Caron was stationed in a vehicle approximately thirty feet away, with an unobstructed view. Caron testified that he saw Christian conversing with Tejeda, observed head and lip movements, saw Christian pointing back toward where Miller was standing, and saw Tejeda nod his head. Thus, the jury reasonably could have found, on Caron's testimony, that Tejeda directly conversed with Christian during their third and final meeting. " 'Neither juries nor judges are required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.' " Batista-Polanco, 927 F.2d at 18 (quoting United States v. Smith, 680 F.2d 255, 260 (1st Cir. 1982)); Ortiz, 966 F.2d at 712 ("[J]urors are neither required to divorce themselves from their common sense nor to abandon the dictates of mature experience."); see Vargas, 945 F.2d at 429 (deference is owed to reasonable inferences drawn by the jury based on its collective knowledge of human behavior); see also Batista-Polanco, 927 F.2d at 19 (agreement to violate the law inferable from a " 'development and a collocation of circumstances' ") (quoting Glasser, 315 U.S. at 80, 62 S. Ct. at 469).¹  There was sufficient circumstantial evidence to convict Tejeda on the conspiracy charge.

Tejeda asserts that the district court twice improperly admitted "other act" evidence under Federal Evidence Rule 404(b). The first instance involved testimony about a beeper seized from Tejeda's person; the second a 1988 search of Tejeda's apartment.

a. The Beeper Evidence

DEA Agent Tomaski testified that a beeper, seized from Tejeda's person at the time of his arrest, activated four days later. Tomaski dialed the calling number. The person who answered asked if the caller was "Johnny." Tomaski responded that he was taking care of Johnny's business. The individual on the other end said: "I need a quarter"; and "Make sure to break the quarter into two halves." Within the next half hour, Tomaski set up a meeting and arranged to have another officer make the undercover cocaine sale. Tomaski testified that the putative purchaser tendered $250, the approximate price for an eighth of an ounce of cocaine at the time. Tejeda does not contend that his possession of the beeper at the time of arrest was inadmissible evidence, but that Tomaski's testimony was inadmissible under Rule 404(b), as it was relevant only to show bad character. We disagree.

As the district court correctly observed, Tomaski's testimony did not directly implicate Rule 404(b) at all, inasmuch as it did not purport to evidence Tejeda's participation in the undercover drug sale Tomaski arranged through the beeper following Tejeda's arrest. Moreover, were the jury to find the post-arrest message Tomaski purportedly received on Tejeda's beeper probative of the purpose for which Tejeda had been carrying the beeper at the time of his arrest, it would not be because Tejeda participated in the post-arrest cocaine transaction, but because the jury reasonably inferred that the beeper was an instrumentality of pre-arrest cocaine trafficking by Tejeda. Thus, the beeper evidence was highly probative of Tejeda's knowledge, intent and preparation, and tended to make it less likely that Tejeda's presence at the scene of the cocaine transaction on August 3 was an innocent mistake. See Fed.R.Evid. 401, 404(b).²  The district court correctly determined that Tomaski's testimony, if credited by the jury, tended to demonstrate a relevant purpose served by Tejeda's possession of the beeper at the time of his arrest at the scene of the cocaine transaction related to the conspiracy charge. See, e.g., United States v. Shenker, 933 F.2d 61, 63 (1st Cir. 1991) (district court should exclude evidence if relevant only to show bad character or propensity); see also United States v. Fields, 871 F.2d 188, 196 (1st Cir.) (evidentiary uses listed in Rule 404(b) not exhaustive), cert. denied, 493 U.S. 955, 110 S. Ct. 369, 107 L. Ed. 2d 355 (1989).³ 

In sum, Tomaski's testimony that Tejeda possessed the same beeper through which a third party later attempted to facilitate a cocaine transaction tended to make it more likely that Tejeda's presence during the cocaine transaction at Sun Foods Plaza on August 3 was knowing and intentional. See Fed.R.Evid. 401, 404(b). In any event, the probative value of the evidence outweighed any danger of unfair prejudice, see, e.g., United States v. Rodriguez Cortes, 949 F.2d 532, 540-41 (1st Cir. 1991) (Rule 403 balancing addressed to sound discretion of trial court), particularly in light of the careful limiting instruction given by the district court, see supra note 2.⁴ b. Evidence of 1988 Search

The other evidentiary ruling challenged by Tejeda relates to the testimony of Inspector Hilda Fernandez concerning a search of Tejeda's apartment at 141 Fayette Street in 1988.⁵  The evidence included Tejeda's admission that he knew that cocaine trafficking was being conducted from 141 Fayette Street in 1988--the same apartment at which Tejeda was residing when arrested on August 3, 1990, and the residential address of Elva Collazo, as reflected on a document seized from the brown Pontiac Bonneville in which the cocaine was transported to Sun Foods Plaza on August 3. The cocaine trafficking and residential links between Tejeda and 141 Fayette Street, in 1988 as well as 1990, were admissible to counter Tejeda's primary contention that he was an unwitting member of the small group with whom Christian consulted on three occasions during the course of the presale cocaine negotiations at Sun Foods Plaza on August 3. There was legitimate probative value in the Tejeda admissions.⁶ 

Finally, at most the admission of the Fernandez testimony was harmless nonconstitutional error, as Tejeda declined a limiting instruction. See, e.g., United States v. Arias-Montoya, 967 F.2d 708, 714 (1st Cir. 1992) (applying "harmless error" review to Rule 404(b) ruling). "A nonconstitutional evidentiary error under Rule 404(b) will be treated as harmless if it is 'highly probable' that the error did not contribute to the verdict." Id. (citing United States v. Garcia-Rosa, 876 F.2d 209, 222 (1st Cir. 1989)). The independent circumstantial evidence against Tejeda was overwhelming. See Arias-Montoya, 967 F.2d at 714 (examining strength of government's case in isolation from "other act" evidence). We conclude that it is highly probable that any error in the admission of the Fernandez testimony did not contribute to the verdict, particularly in light of the independent establishment of the contemporaneous circumstantial connection on August 3, 1990, between Tejeda and the cocaine delivery vehicle.

Christian filed a pretrial motion demanding disclosure of the identity and whereabouts of Thomas Miller, the informant who bought cocaine from Christian on July 24 and August 3, 1990. Pretrial disclosure was alleged to be necessary so that Christian could conduct an "appropriate background investigation and otherwise be prepared to effectively cross-examine." The motion was denied, without prejudice to its renewal at trial in the event the informant did not testify. The magistrate correctly ruled that Christian "offered no 'concrete circumstances that might justify overcoming both the public interest in encouraging the flow of information ... and the informant's private interest in his own safety.' " United States v. Estrella, 567 F.2d 1151, 1153 (1st Cir. 1977) (citations omitted). The district court upheld the ruling.

Three days before trial, the government released Miller's full name to the defendants, without disclosing his whereabouts. Thereafter, Christian made no request, either through the court or to the prosecutor, for permission to interview Miller in advance of trial. Nor did Christian request a trial continuance or recess to enable any interview to which Miller might accede, or to conduct discovery relating to the informant's background or his involvement in the relevant events.

Relying on Roviaro v. United States, 353 U.S. 53, 62, 65, 77 S. Ct. 623, 628, 630, 1 L. Ed. 2d 639 (1957) (informant's identity may not be withheld by government under "informer's privilege" in face of repeated demands for disclosure; requiring case-by-case balancing of the public interest in protecting the flow of information against the right to prepare a defense), Christian nonetheless claims on appeal that Miller's central role in the cocaine transactions charged in the indictment, cf. Batista-Polanco, 927 F.2d at 19 ("informer's privilege" must give way if informant is sole participant and witness, other than defendant), mandated pretrial disclosure of Miller's full name and address.

The government responds that Roviaro is inapposite, as Miller was presented as a trial witness and subjected to intensive cross-examination by the defense. The government emphasizes its pretrial declaration of intention to call Miller as a trial witness, claiming that Miller was entitled to the same "protections" as its other witnesses, whose identities the government need not disclose before trial, see United States v. Reis, 788 F.2d 54, 58 (1st Cir. 1986) (government not required to provide pretrial disclosure of the identity of its trial witnesses), and that Miller's name was disclosed three days before trial.⁷ 

We need not consider whether the Roviaro dicta, see Roviaro, 353 U.S. at 65 n. 15, 77 S. Ct. at 630 n. 15, would require disclosure of the address of an informant whom the government has announced its intention to call as a trial witness, as any Roviaro claim based on the failure to disclose the pretrial whereabouts of Miller must fail as surely as the request for pretrial disclosure of Miller's name. The magistrate correctly rejected the Roviaro claim on the ground that Christian "offered no 'concrete circumstances that might justify overcoming both the public interest in encouraging the flow of information ... and the informant's private interest in his own safety.' " (quoting Estrella, 567 F.2d at 1153). See also United States v. Jackson, 918 F.2d 236, 240 (1st Cir. 1990) (upholding denial of demand for pretrial disclosure of informant's identity under Roviaro, as "request was based on 'mere speculation' that disclosure would be helpful" to test probable cause for arrest) (suppression hearing) (footnote omitted).

The disclosure requirement in Roviaro was predicated on the failure of the prosecution to make either the informant or the informant's identity available to the defense in a case where the informant was never called as a witness. In contrast, Miller's identity was disclosed prior to trial and the government called Miller as a witness at trial. As the magistrate recognized, and the district court clearly concurred, the informer's privilege continued to protect the identity of the informant (including his whereabouts) from disclosure by the government until the privilege was dispelled by the government's disclosure of Miller's name prior to trial. Roviaro, 353 U.S. at 60, 77 S. Ct. at 627 ("informer's privilege" disappears once the informer's identity is disclosed "to those who would have cause to resent the communication"). At no time thereafter did the defense request further relief.

The subliminal considerations underlying Christian's pretrial disclosure request warrant no extensive discussion. That the Jencks Act authorizes the government to withhold the recorded statements of a prospective government witness until the witness completes his direct testimony, 18 U.S.C. § 3500(a); United States v. Arboleda, 929 F.2d 858, 863 (1st Cir. 1991); United States v. Grandmont, 680 F.2d 867, 874 (1st Cir. 1982), is too well recognized to require elaboration. That nothing in Criminal Rule 16 requires the government to disclose whom it will call as trial witnesses, as Christian seems to concede, likewise is beyond dispute. See Reis, 788 F.2d at 58; United States v. Barrett, 766 F.2d 609, 617 (1st Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 258, 88 L. Ed. 2d 264 (1985). Finally, that a witness cannot be compelled to submit to a pretrial interview by an opposing party in a criminal case is not only conceded by Christian, but independently established. See Arboleda, 929 F.2d at 868 (" '[n]o right of a defendant is violated when a potential witness freely chooses not to talk....' ") (quoting Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981), cert. denied, 456 U.S. 980, 102 S. Ct. 2250, 72 L. Ed. 2d 856 (1982)). Thus, absent a sustainable Roviaro claim, and there was none, Christian's contention that the government was required to disclose either the identity or the whereabouts of Miller is unfounded.

Christian appeals the denial of an entrapment instruction. We review de novo, United States v. Panet-Collazo, 960 F.2d 256, 259 (1st Cir. 1992), petition for cert. filed (U.S. June 29, 1992) (No. 92-5052), according the record evidence the light most favorable to the defense, United States v. Rodriguez, 858 F.2d 809, 815 (1st Cir. 1988).

The entrapment defense comprises two elements: 1) government inducement, and 2) an absence of predisposition on the part of the defendant to engage in the alleged criminal conduct. Panet-Collazo, 960 F.2d at 259; United States v. Pratt, 913 F.2d 982, 988 (1st Cir. 1990) (citing Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988)), cert. denied, --- U.S. ----, 111 S. Ct. 681, 112 L. Ed. 2d 673 (1991). A defendant is entitled to an entrapment instruction, provided that (1) "he produces some evidence to support fairly both elements," and (2) "[t]his evidence ..., if believed by a rational juror, [would be sufficient] to create a reasonable doubt that the defendant committed the crime of his own accord." Panet-Collazo, 960 F.2d at 259 (citations omitted) (emphasis added); Pratt, 913 F.2d at 988; Rodriguez, 858 F.2d at 814. The entrapment instruction criteria were not met. The record evidence would not support a reasonable inference that Christian was an "unwary innocent" rather than an "unwary criminal." See Mathews, 485 U.S. at 63, 108 S. Ct. at 886; see also Jacobson v. United States, --- U.S. ----, ----, 112 S. Ct. 1535, 1541, 118 L. Ed. 2d 147 (1992) (distinguishing child pornography case from "typical case" involving government-sponsored drug transaction where "the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant's predisposition") (emphasis added); United States v. Sullivan, 919 F.2d 1403, 1418 (10th Cir. 1990) (predisposition can be inferred from history of criminal activity combined with "ready response to the inducement offer").

Christian did not produce evidence fairly supporting a lack of predisposition, "the principal element in the defense of entrapment," Mathews, 485 U.S. at 63, 108 S. Ct. at 886 (quoting United States v. Russell, 411 U.S. 423, 433, 93 S. Ct. 1637, 1643, 36 L. Ed. 2d 366 (1973)). Instead, he contends that the government presented no evidence "of prior drug dealing or high living." Contrary to Christian's contention, however, there was some evidence that he was familiar with the cocaine trade. See Pratt, 913 F.2d at 989 (prior dealings in narcotics indicative of predisposition). Miller testified that Christian informed him during their July 18 meeting that one ounce of cocaine "would cost $1,200." Miller further testified that the going rate at that time was $1,000 to $1,400.⁸ 

Christian argues that (1) at his initial meeting with Miller, he merely agreed to ask "friends" about the availability of cocaine, not to provide cocaine, and (2) on a number of occasions "he didn't have the agreed on cocaine amount and avoided delivery." But there was ample evidence that Christian was eager to entertain Miller's overtures. Contrary to Christian's characterization of their initial meeting, Miller testified that he was told by Christian that Christian "could maybe help me supply the cocaine, he should have no problem with it, because he has lots of friends and most of his friends front him the cocaine." (Emphasis added.) Later the same day, Christian spontaneously remarked: "By the way, the price of a kilo would be $40,000."⁹  Furthermore, Miller testified that after Christian sold him the one-half ounce on July 24, Christian "told me that whenever I'm ready, that he'd supply me with kilos of cocaine anytime." Later, on August 3, Miller made a final "pre-sale" call to Christian and "told him that we're ready to do the deal. Mr. Christian told me that he was waiting for me to call. He thought I'd never get back to him. I told him I'd call him in two hours."

Finally, there is no basis in the record for Christian's contention that his participation in the two kilogram transaction on August 3 was the result of "persistent badgering" by the government informant. The evidence of so-called "aborted" deliveries was plainly attributable to Tejeda's delays in obtaining the cocaine, see Pratt, 913 F.2d at 989 (defendant's failure to telephone or appear at meetings attributable to difficulties in raising purchase money), or, as the district court suggested, an experienced person's wariness in dealing with a comparative stranger. The record indicates no more than that Miller initiated most of the telephone contacts with Christian and diligently pursued the undercover transactions.¹⁰ 

We conclude that the evidence was insufficient to support a fair inference that Christian was "unprepared to commit the malefaction or that he was corrupted by any government agent." United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987). The government afforded Christian an opportunity to become criminally involved, but the record unmistakably reveals that Christian was an altogether ready and willing, even eager, participant.¹¹ 

Finally, Christian contends that the district court committed reversible error by denying his motions for severance under Criminal Rule 14. Severance will be granted only on a strong showing of prejudice. United States v. McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992); United States v. Martinez, 922 F.2d 914, 922 (1st Cir. 1991). We review the district court ruling for abuse of discretion, reversing only if its refusal to sever "deprived defendant of a fair trial, resulting in a miscarriage of justice." McLaughlin, 957 F.2d at 18; United States v. Perkins, 926 F.2d 1271, 1280 (1st Cir. 1991). Christian contends that the "1988 search" evidence and the "beeper transaction" evidence¹²  against codefendant Tejeda caused "prejudicial spillover," resulting in an unfair trial. We disagree.

Christian nevertheless contends that the jury was "irresistibly drawn" to consider the beeper evidence and the 1988 search evidence. On the contrary, we are satisfied that the district court's explicit limiting instructions that the jury was not to consider the evidence against Christian, together with the instruction in its final charge--that the jury give separate consideration to the evidence against defendant as to each count--provided Christian sufficient protection from "prejudicial spillover." See United States v. Aponte-Suarez, 905 F.2d 483, 494 (1st Cir.) (citing cases), cert. denied, --- U.S. ----, 111 S. Ct. 531, 112 L. Ed. 2d 541 (1990), and cert. denied, --- U.S. ----, 111 S. Ct. 975, 112 L. Ed. 2d 1061 (1991); see also United States v. Molinares Charris, 822 F.2d 1213, 1221 (1st Cir. 1987) (limiting instruction can alleviate risk of prejudice from "other act" evidence admissible against different defendant). Neither type of evidence directly implicated Christian. See, e.g., United States v. Dworken, 855 F.2d 12, 29 (1st Cir. 1988) (codefendant's "other acts" did not involve other defendants). Nor do we have reason to question the adequacy of the instructions, cf., e.g., Molinares Charris, 822 F.2d at 1221 ("other act" evidence instruction may be inadequate where evidence is "complex or confusing"), or that the jury was unable or unwilling to distinguish between the different defendants, see Perkins, 926 F.2d at 1282 ("no reason to believe that the jury was unable to give, or did not give, individualized attention" to appellant's case), or the different charges, see Dworken, 855 F.2d at 29 (trial was not "so long," nor evidence against codefendant "so disproportionate, that the jury could not readily discriminate amongst specific charges and defendants;" difficult to see "how the jury could have been seriously influenced" by evidence of codefendant's "other acts" not involving fellow defendants). The district court did not err in refusing to grant severance.

The district court judgments are affirmed.