USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 95-2332

UNITED STATES OF AMERICA,

Appellee,

v.

STANLEY PROU,

Defendant, Appellant.

____________________

No. 95-2333

UNITED STATES OF AMERICA,

Appellee,

v.

RAHEAM JOHNSON,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin and Campbell, Senior Circuit Judges.

_____________________

____________________

Wayne R. Foote for appellant Prou.

______________
Bruce A. Jordan for appellant Johnson.
_______________
Margaret E. Curran, Assistant United States
___________________

Attorney, with

whom Sheldon Whitehouse, United States Attorney, and Stephanie S.

__________________
____________
Browne,
______

Assistant

United States

Attorney,

appellee.

____________________

November 20, 1996

___________________

were

on brief

for

Per curiam.
__________

seek reversal

grounds.

Codefendants

of their

We find

Stanley Prou and

Raheam Johnson

drug trafficking convictions

none of their

claims to

on various

be meritorious, and

therefore affirm.

The facts,

favorable

briefly

stated and

to the government, are

were arrested on April

agent, Rocha,

for

the

viewed

in the

as follows.

of

purchasing

most

Prou and Johnson

3, 1995 while meeting with

purpose

light

an undercover

cocaine.

The

defendants had

been in

February, when an

the

premise

frequent contact

informant arranged a

that

Rocha

was

with Rocha

since late

meeting between them

large-scale

cocaine

on

dealer.

Testimony showed that the defendants had planned to receive eight

kilograms of cocaine on the day of their arrest: two and one-half

for cash, two and one-half on consignment, and three for free, as

reward for providing information to Rocha.

the defendants met,

carrying a

needed

Rocha

both defendants were

bag of cash

for the

When the agent and

armed and Johnson

that contained about

purchase.

questioned Johnson

The arrests

half of

the money

occurred shortly

about the amount

of cash

was

after

and shortly

before the drug exchange was supposed to occur.

Both

failing

defendants

to

define

argue that

the

term

the

district

"distribution"

court erred

as

part

of

in

its

instructions on the drug

trafficking counts.1

Neither defendant

____________________

Count

distribute and

charged

the

defendants

possess with intent to

or more of cocaine, in violation

Count
possess

II charged
with

them with

intent to

with

to

distribute five kilograms

of 21 U.S.C.

aiding and

distribute

conspiring

841(a) and 846.

abetting an

five kilograms

attempt to
or

more of

-3-

timely

objected to

this

omission

at

trial, however,

and

we

therefore

may review only for plain error.

no such error

occurred.

Not only was the

understanding the concept of

It is apparent that

jury fully capable of

"distribution" in this context, but

the evidence and remaining instructions negate any possibility of

prejudicial

misunderstanding.

testimony established

from

the

particularly

note that

that defendants sought to

some cocaine from Rocha

pay

We

obtain at least

on consignment, i.e., with a

____

proceeds

obtaining

"distribution" was an integral part of

by

the

selling

promise to

it.

Thus,

the scheme set up by

the

defendants.

Prou

additionally argues

that

the court

committed

plain

error by failing to give an aiding and abetting instruction as to

him

on Count II, which charged the defendants with the attempted

possession of cocaine with

intent to distribute.

This

claim is

wholly

without

instruction,

Prou

merit.

Lacking

the jury was left

either was

Thus, omission of

guilty as

an

aiding

with the option

a principal

the aiding and

would have permitted conviction

or

and

abetting

of finding that

not guilty

abetting instruction --

based on a less central

the transaction -- arguably worked to Prou's benefit.

at all.

which

role in

The jury's

____________________

cocaine,
U.S.C.

in violation
2.

of 21 U.S.C.

841(a)

Counts III, IV and V related

of firearms.

-4-

and 846,

and 18

to possession and use

determination

that he

was culpable as

a principal

disposes of

this claim.2

Finally, we

Supreme

1624

Zorrilla,
________

se challenge,

based on

Court's decision in United States v. Lopez,

______________
_____

(1995), to

statutes

reject Prou's pro

the constitutionality

under which

93 F.3d

7,

he was

of the

convicted.

8-9 (1st

Cir.

the

115 S. Ct.

drug trafficking

See United States v.

___ ______________

1996); United States

______________

v.

Lerebours, 87 F.3d 582, 584-85 (1st Cir. 1996).

_________

Affirmed.
________

____________________

To the

extent that

Prou's complaint

failed to instruct the jury that he could

is that

not be convicted based

on his "mere

presence" at the meeting with Rocha,

potent.

failed

He

to ask

for

such an

evidence overwhelmingly belied that defense.

-5-

the court

it is no more

instruction

and

the