USCA1 Opinion

January 4, 1994
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-1535
UNITED STATES,
Appellee,
v.
JOHNNY BETANCES DIAZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Rosenn,* Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________

Justin Levin for appellant Johnny Betances Diaz.

____________
Geoffrey E. Hobart, Assistant United States Attorney, with w
___________________
A. John Pappalardo, United States Attorney, and Jeffrey A. Loc
___________________
_______________
Assistant United States Attorney, were on brief for appellee.
____________________

____________________

_____________________
*Of the Third Circuit, sitting by designation.

Rosenn,
Betances
United

Senior Circuit Judge.

______________________

Diaz was
States

Massachusetts

tried to
District

for

jury and

Court

conspiracy

Appellant Johnny
convicted in

for

the

to possess

with

the

District

of

intent

to

distribute five or

more kilograms of cocaine,

in violation

of

841(a)(1)

appeals

21

U.S.C.

conviction and contends

against him was

that:

and

846.

(1) the

He

his

evidence introduced

insufficient to support the

guilty verdict

returned

by

admitting
(3) the

the

jury, (2)

the

district

court erred

in

a hearsay statement made by a co-conspirator, and

district court improperly

severance.

denied his motion

for a

We affirm.1
I.
As

recounted

in

United
States v. Matiz,
__________________________

companion case decided contemporaneously herewith, this case

arose

out of

various

large

government

Colombia,
activities
(the

South

scale

agencies

America

of a number

Government) had

into

investigation
in

the
the

United
cocaine

of individuals.
the assistance

of

conducted

by

States

and

distribution

The United States

Pedro Alvarez,

defendant in another criminal matter.

____________________
1 The district court possessed subject matter jurisdiction
pursuant to 18 U.S.C.
3231. This court has jurisdiction
pursuant to 28 U.S.C.
1291 and 18 U.S.C.
3742 (a)(2).

Alvarez, at the behest of the Government, posed as

a purchaser and
Colombia.

contacted a number of
Negotiations

pertaining to the
In

the

informed

early

difficulties
States.
to
the

in

over

several

purchase of large quantities

part

Alvarez

ensued

cocaine suppliers in

of

that

1991,
they

smuggling

the
were

the

of cocaine.

suppliers in

Colombia

experiencing

cocaine

months

into

temporary
the

United

In light of these difficulties, they asked Alvarez

assist them in transporting the shipment.

suppliers asked

Alvarez to

store

Additionally,

and distribute

the

cocaine to their associates.

The Government
from

instructed Alvarez

up-front

payment

the suppliers

troubles

and expenses.

and told

Alvarez that the

of

Reluctantly, the

to request
$30,000

an

for his

suppliers agreed

payment would be made

by one of

their New York based associates, "La Negra," a code name for
Nancy Esperanza Matiz.
Alvarez and Matiz
for

May 23, 1991,

ultimately scheduled a

for Matiz to

hand over the

meeting

money to an

associate of Alvarez, actually Special Agent Dominick Lopez,

at a

Burger King

restaurant in Queens,

New York.

Matiz,

however, failed to appear at the scheduled hour.

Only after

Matiz twice contacted Diaz at his residence did

she finally

-33

arrive

together

with him,

two

hours

late,

in a

Nissan

Pathfinder.
As Lopez approached the vehicle he stated the code
word

for the transaction, "Cubito."

apparently correcting Lopez's

the word.

use of the masculine

form of

After Lopez entered the vehicle, Matiz instructed

Diaz to get the money.

regarding

the

gave

Diaz, without receiving instructions

location

underneath the seat

then

Diaz replied "Cubita,"

it to

of the

money,

of the car and

Lopez.

In

retrieved

it from

passed it to Matiz

response to

Lopez's

who
query

regarding the amount of money contained in each bundle, both

Matiz and Diaz disclosed the correct amount.2
After
contact

with

personally

this

exchange,

Alvarez.

expecting

She
to

Matiz
informed

receive a

cocaine shipment upon its arrival.

remained
him

large

in

close

that she
portion

Upon learning the

was

of the
date

on which the shipment consisting of 615 kilograms of cocaine

would arrive,

Matiz placed

duration to Diaz.

nine telephone

calls of

short

After the cocaine shipment arrived, Alvarez called

Matiz on numerous

occasions to discuss

the details of

the

____________________
2The sum amounted to only $20,000 and Matiz promised to make
an additional payment of $5,000 the next day, explaining
that she had been told that the amount due was $25,000.
-44

pickup

of

her

conversations,
share as

portion
Matiz

of

the

cocaine.

expressed her

soon as possible.

desire

During

these

to obtain

Initially, she also

her

voiced an

interest in purchasing some of

the cocaine that Alvarez had

received

transporting

as

Ultimately,

his

fee

however,

for

she

decided

the

against it

cocaine.
because

of

Finally, Alvarez informed Matiz that she would

be

financial constraints.

able to
1991.
assumed

collect her allocation

Alvarez

reserved a

of the cocaine on

hotel room

for Matiz

June 12,
under an

name in Middleboro, Massachusetts near the site for

the transfer of the cocaine.

June

10, along

fictitious
Alvarez

with Diaz

address to

and Matiz

arrangements

for

Matiz arrived
who also used

check in.

met at
the

the

a false

name and

The following

evening,

hotel to

pickup.

assistants, who had arrived at the

at the hotel on

review the

number

of

final
Matiz's

hotel on the same day as

Matiz, were designated to collect the cocaine.

At
assistants
where the

the
followed

time

of

the

an undercover

car was loaded.

at the hotel with another

Matiz,

pickup,

one

agent to

of

Matiz's

the warehouse

however, remained behind

undercover agent, Dillon, who was

to accompany her to a meeting with Alvarez to discuss future

-55

cocaine shipments.
to

Before departing, Matiz introduced

Dillon as her husband.

boys" had gone

loading

to load the

would take and

Diaz

She then informed Diaz that "the

car.

Diaz

offered his own

asked how long

the

estimate regarding

the length of the task.

her

As Matiz was leaving,

successful meeting.

In

decided to purchase a bottle

deal.

On

whether

the way to the

Diaz minded

night, as they
that Diaz
working,

the car,

Matiz

liquor store, Dillon

met with

liked the money.

Shortly

of the

late at

Matiz responded

that he understood that

was aware

the

asked Matiz

other men

had done the night before.

that he

and Dillon

of champagne to celebrate

that she

did not mind,

Diaz wished

business, and

Matiz was
that he

after an agent placed Matiz under

arrest, another agent arrested Diaz outside the hotel.

II.
A.

Sufficiency of the Evidence

Diaz first

contends that the evidence produced at

trial does not show that he was a member of

the conspiracy.

Essentially, he

present at

claims that

he was merely

time of Matiz's activities but

In

evaluating a

did not participate in them.

claim

of insufficiency

evidence, we "review the evidence as a whole,

-66

the

of

the

including all

reasonable

inferences from that evidence, in the light most

favorable
996

to the government."

F.2d 1300,

direct

and

appeal.

1303 (1st

circumstantial

United States v. Argencourt,

___________________________

Cir. 1993).
evidence must

Thus, as long as a jury

guilt beyond

a reasonable doubt,

affirm.

be

credited

on

could rationally find

we have no choice

but to

Argencourt, 996 F.2d at 1303.

__________
Although, as the district

evidence

against

sufficient

to

Contrary

to

passively

and

with respect
of

example,

at

was

"thin",

it

convict

him

beyond

his

assertions,

Diaz

innocently accompany

retrieved

the

and

acknowledged the

pertaining

court acknowledged, the

Diaz

to

knowledge

each

addition, both

United States v. Echeverri, 982 F.2d 675, 677 (1st

___________________________

Cir. 1993).

also

In

cocaine

the

reasonable

did

encounter

with

more

Matiz in

purchase.

participation in

nevertheless

the

He

doubt.

than

exhibited

Lopez,

money

without receiving

a
For

Diaz

correct code term for the transaction.

the

just

her dealings

conspiracy.

agent

was

He

instructions

to its location and stated the correct amount in

bundle.

In

addition, at

key

moments

of

Matiz's

involvement with the cocaine purchase, she communicated with

Diaz.

Furthermore,

on the day of the

cocaine pickup, Diaz

revealed his familiarity

with the cocaine shipment

when he

-77

asked

about the

estimate of

length of

the time

The reasonable

the

trip and

it would take

offered his

to complete

inference to be drawn from

own

the task.

this evidence is

that Diaz was intimately involved with Matiz in planning and

executing the

conspiracy.

agent Dillon

that Diaz knew

the business,

money.

a jury reasonably

Diaz knowingly

explicitly told

she was working, was

and that he liked the

admitted evidence,
that

Finally, Matiz

Based upon the

could have

participated in the

aware of

concluded

conspiracy rather

than merely acting as a disinterested bystander.

II.
B.

Statement of Co-Conspirator

Diaz next maintains that the

in

admitting,

pursuant

to

Federal

district court erred

Rule

of

Evidence

801(d)(2)(E),
conspiracy.

Matiz's

statement

He argues that

implicating

him

the statement was not

in

the

made in

the course of or in furtherance of the conspiracy.

To

admit

co-conspirator's

statement

as

an

exception to the hearsay rule, a court must find that "it is

more likely than

not that the declarant

and defendant were

members of a conspiracy when the hearsay statement was made,

and

that

conspiracy."

the

statement

was

in

furtherance

of

the

United States v. Petrozziello, 548 F.2d 20, 23

_____________________________
-88

(1st

Cir.

Petrozziello
____________

1977).
hearing

The

district

and

found

preponderance of the evidence.

court's finding

unless the

court
these

facts

by

a
a

We must accept the district

finding was

See United States v. Patterson,

___ __________________________

conducted

clearly erroneous.

644 F.2d 890, 894 (1st Cir.

1981).
A
furtherance
objects

co-conspirator's
of a

of the

statement

conspiracy if
conspiracy

is

made

it "'tends to

as

opposed

to

advance the

thwarting

purpose.'"

United States v. Masse, 816 F.2d

_______________________

cir. 1987)

(quoting United States v. Fahey, 769

_______________________

839 (1st Cir. 1985)).

to

discuss

future

whether

husband,

minded the

was

to

F.2d 829,

who

of

cocaine,

Agent

Dillon

was

introduced

as

Matiz's

late night

the

meetings

with other

men.

extent

of

Diaz's

role

in

the

Matiz answered that Diaz knew what was going on

and was

pleased with

during

the conspiracy

because

805, 811 (1st

in this context, the purpose of Dillon's inquiry

determine

conspiracy.

Diaz,

its

way to a meeting with Alvarez

shipments

inquired

Understood

On the

in

the money.
and

it provided Dillon

tended

This statement
to

further

with some measure

-99

was made
its

goals

of assurance

that Matiz could carry out her end of the conspiracy without
obstruction on the part of her husband.3

C. Severance
Finally, Diaz argues that the district court erred
by

denying

severance

his
was

motion

for a

necessary

in

prejudicial spillover.
establishing
against the

severance.
order

to

He

argues that

safeguard

against

Spillover occurs "where evidence

the guilt of one defendant, but not admissible

other, may

create an

atmosphere clouding

jury's ability to evaluate fairly the guilt or innocence

the latter."

the
of

United States v. Perkins, 926 F.2d 1271, 1281

_________________________

(1st Cir. 1991).

We review the
Fed. R.

denial of a severance

Crim. P. 14 for abuse of discretion.

v. Innamorati,
______________

996 F.2d

456,

469

(1st

district court's decision not to sever

upon

a defendant's

maintenance

of

motion under
United States
_____________

Cir. 1993).

can only be reversed

the

showing substantial prejudice amounting to

heavy

burden

of

a miscarriage of

____________________
3Moreover,

in

light

of

the

other

evidence,

albeit

circumstantial, introduced at trial implicating Diaz as a

member of the conspiracy, any error accruing from the
admission of the statement would be harmless.
-1010

justice.

Id.
___

Substantial prejudice, however, is extremely

difficult to prove where, as here, there are obvious reasons

of economy
Fed. R.
tried

in trying

Crim. P.
together

Diaz with

8(b).

"Co-conspirators are

absent

strong

customarily
prejudice."

Evidence regarding

the acts of

at 1280.

Matiz would

been admissible

showing

Matiz.

of

Perkins, 926 F.2d

_______
have

his co-conspirator

against Diaz

even in

separate trial, as co-conspirators are liable for all of the

criminal

acts carried out in furtherance of the conspiracy.

See United States v. Ortiz-Arrigoitia, 996

___ ___________________________________
(1st Cir. 1993).
jury

that the

individually

Moreover,

440

the court's instructions to the

guilt of each
provided

F.2d 436,

defendant must

further

safeguard

be determined
against

the

-1111

spillover

effect.4

Thus,

Diaz

has

failed

substantial prejudice because of the joint trial.

The judgment of the district court is
Affirmed.
_________

to

show

____________________
4 The court warned the jury as follows:
And I will throughout refer mostly to
the defendant, and I will explain to you
later on that as to one part of this
case, you must be very sure to view the
evidence as to each separately, because
each
is
entitled
to
separate
consideration from you. . . .
Now, here it is very important that you
review
the
evidence
as
to
each
separately. The government has to prove
as to each of them that he or she
knowingly and
willfully joined
the
unlawful scheme, with the understanding
of its unlawful character.
-1212