USCA1 Opinion
July 18, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2323
UNITED STATES,
Appellee,
v.
MARCELINA ENRIQUE ADAMES-SANTOS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Michael c. Shklar on brief for appellant.
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Sheldon Whitehouse, United States Attorney, and Zechariah Chafee,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Marcelina Enrique Adames-Santos
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appeals his conviction on three grounds. We summarily
affirm.
I. Brady Violation
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The first argument is that the government's failure
to disclose prior to trial the identity of the confidential
informant Miguel Morel, violated Brady v. Maryland, 373 U.S.
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83 (1963). "[F]avorable evidence is material, and
constitutional error results from its suppression by the
government, 'if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.'" Kyles v. Whitley,
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115 S. Ct. 1555, 1565 (1995). The Brady rule does not
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require the prosecution to reveal before trial the names of
all witnesses who will testify against the defendant. See
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Weatherford v. Bursey, 429 U.S. 545, 559 (1977). "There is
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no requirement under F.R. Crim. P. 16 or otherwise in the
law, mandating the disclosure to the defense of the identity
of the government's trial witnesses. . . . [T]he decision to
admit the testimony or evidence is within the discretion of
the trial judge." United States v. Reis, 788 F.2d 54, 58
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(1st Cir. 1986); see also United States v. Edwards, 47 F.3d
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841, 843 (7th Cir. 1995) ("It is well-settled that the
Constitution does not require pretrial disclosure of
prosecution witnesses.")
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Appellant has failed to show a reasonable
probability that if he had been informed of Morel's identity
prior to trial, the result of the proceeding would have been
different. Morel testified on cross-examination that the
money he earned as an informant for the Drug Enforcement
Administration ("DEA") was his main source of income. Even
now, appellant has failed to identify any additional evidence
that could have been used to further impeach the witness.
The government's failure to disclose Morel's identity prior
to trial does not undermine confidence in the jury's verdict.
See Kyles, 115 S. Ct. at 1566. Therefore, there was no
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constitutional violation.
II. Sufficiency of the Evidence
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To establish a violation of 21 U.S.C. 846, the
government is required to show, beyond a reasonable doubt, in
addition to the existence of the conspiracy itself, an intent
on the part of the defendant: "to agree and . . . to
effectuate the commission of the substantive offense. A
defendant need not have had the intent personally to commit
the substantive crime." United States v. Piper, 35 F.3d 611,
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615 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118 (1995).
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The government establishes the requisite intent by proving
beyond a reasonable doubt that the defendant "agree[d] to
undertake activities that facilitate[d] commission of a
substantive offense, [notwithstanding that he did] not intend
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to commit the offense himself." Id.1 "[T]he Government
1
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need not prove the commission of any overt acts in
furtherance of the conspiracy." United States v. Shabani,
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115 S. Ct. 382, 385 (1994).
"When a criminal defendant undertakes a sufficiency
challenge, all the evidence, direct and circumstantial, must
be viewed from the government's coign of vantage, and the
viewer must accept all reasonable inferences from it that are
consistent with the verdict." United States v. Valle, 72
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F.3d 210, 216 (1st Cir. 1995). The government's burden of
proof "may be satisfied by either direct or circumstantial
evidence, or any combination thereof." United States v.
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Gifford, 17 F.3d 462, 467 (1st Cir. 1994).
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The evidence presented to the jury was sufficient
to sustain defendant's guilty verdict. The record contains,
among other evidence, accounts of frequent meetings between
Morel, Domingo Peguero and appellant in which they discussed
drugs and, specifically, ways to "make some transactions of
crack." Morel recounted a specific conversation in which
appellant said that he had contacts in New York who could
supply crack to Morel's contacts in Boston. The evidence
also included the transcript of a telephone call from
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1Defendant argues that the evidence does not show "an
1
intent on the defendant's part to engage in the sale of
crack." Appellant's Brief, p. 15. No such showing is
required,however.
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appellant to Morel, made for the purpose of notifying Morel
that Peguero was in Boston "doing business" and that "in case
these people call you, tell them to hold on until Monday."
DEA agents testified that during the October 30 drug
transaction, appellant was circlingthe area in Peguero's car.
"[I]t is not a pre-requisite of conviction that the
prosecution adduce evidence to preclude 'every reasonable
hypothesis of innocence.'" United States v. Montas, 41 F.3d
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775, 779 (1st Cir. 1994), cert. denied, 115 S. Ct. 1986
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(1995). In addition, this court must "resolve all
credibility disputes in the verdict's favor." United States
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v. Taylor, 54 F.3d 967, 974 (1st Cir. 1995). Our review of
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the record persuades us that a rational jury could have found
beyond a reasonable doubt that the government had
successfully proved the essential elements of the conspiracy
charge.
III. Failure to Grant Mistrial
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Appellant's final argument is that the district
court erred in not granting a mistrial because of the
testimony by DEA agent John D. Adams that he had purchased a
firearm from Peguero. "[B]ecause mistrials are strong
medicine, . . . it is only rarely -- and in extremely
compelling circumstances -- that an appellate panel, informed
by a cold record, will venture to reverse a trial judge's on-
the-spot decision that the interests of justice do not
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require aborting an ongoing trial." United States v. Pierro,
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32 F.3d 611, 617 (1st Cir. 1994), cert. denied, 115 S. Ct.
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919 (1995). In United States v. Sepulveda, 15 F.3d 1161,
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1184-85 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714
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(1994), this court identified three factors that should be
considered in reviewing a district court's decision to deny a
mistrial: 1) the appropriateness of the curative instruction,
2) the swiftness of the judicial response, and 3) the
presumption that jurors will follow a direct curative
instruction.
In this case, consideration of the three Sepulveda
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factors indicates that there was no abuse of discretion in
the district court's decision to deny a mistrial or its
failure to revisit the issue sua sponte at the end of the
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trial. The court's curative instructions, given almost
immediately after the testimony in question, were swift,
clear and direct. There was no room for misinterpretation by
the jurors regarding the meaning of the court's instructions.
Finally, appellant's claim that the evidence against him was
so weak that the jurors must have relied upon the firearm
testimony is belied by the record. As discussed above, the
evidence was sufficient to support the conviction. Appellant
has failed to rebut the presumption that the jury followed
the court's curative instructions.
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Appellant's conviction is summarily affirmed. See
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Loc. R. 27.1.
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