USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
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No. 95-2332
UNITED STATES OF AMERICA,
Appellee,
v.
STANLEY PROU,
Defendant, Appellant.
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No. 95-2333
UNITED STATES OF AMERICA,
Appellee,
v.
RAHEAM JOHNSON,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin and Campbell, Senior Circuit Judges.
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Wayne R. Foote for appellant Prou.
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Bruce A. Jordan for appellant Johnson.
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Margaret E. Curran, Assistant United States Attorney, with
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whom Sheldon Whitehouse, United States Attorney, and Stephanie S.
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Browne, Assistant United States Attorney, were on brief for
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appellee.
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November 20, 1996
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Per curiam. Codefendants Stanley Prou and Raheam Johnson
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seek reversal of their drug trafficking convictions on various
grounds. We find none of their claims to be meritorious, and
therefore affirm.
The facts, briefly stated and viewed in the light most
favorable to the government, are as follows. Prou and Johnson
were arrested on April 3, 1995 while meeting with an undercover
agent, Rocha, for the purpose of purchasing cocaine. The
defendants had been in frequent contact with Rocha since late
February, when an informant arranged a meeting between them on
the premise that Rocha was a large-scale cocaine 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
a reward for providing information to Rocha. When the agent and
the defendants met, both defendants were armed and Johnson was
carrying a bag of cash that contained about half of the money
needed for the purchase. The arrests occurred shortly after
Rocha questioned Johnson about the amount of cash and shortly
before the drug exchange was supposed to occur.
Both defendants argue that the district court erred in
failing to define the term "distribution" as part of its
instructions on the drug trafficking counts.1 Neither defendant
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1 Count I charged the defendants with conspiring to
distribute and possess with intent to distribute five kilograms
or more of cocaine, in violation of 21 U.S.C. 841(a) and 846.
Count II charged them with aiding and abetting an attempt to
possess with intent to distribute five kilograms or more of
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timely objected to this omission at trial, however, and we
therefore may review only for plain error. It is apparent that
no such error occurred. Not only was the jury fully capable of
understanding the concept of "distribution" in this context, but
the evidence and remaining instructions negate any possibility of
prejudicial misunderstanding. We particularly note that the
testimony established that defendants sought to obtain at least
some cocaine from Rocha on consignment, i.e., with a promise to
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pay from the proceeds obtaining by selling it. Thus,
"distribution" was an integral part of 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 merit. Lacking an aiding and abetting
instruction, the jury was left with the option of finding that
Prou either was guilty as a principal or not guilty at all.
Thus, omission of the aiding and abetting instruction -- which
would have permitted conviction based on a less central role in
the transaction -- arguably worked to Prou's benefit. The jury's
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cocaine, in violation of 21 U.S.C. 841(a) and 846, and 18
U.S.C. 2. Counts III, IV and V related to possession and use
of firearms.
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determination that he was culpable as a principal disposes of
this claim.2
Finally, we reject Prou's pro se challenge, based on the
Supreme Court's decision in United States v. Lopez, 115 S. Ct.
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1624 (1995), to the constitutionality of the drug trafficking
statutes under which he was convicted. See United States v.
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Zorrilla, 93 F.3d 7, 8-9 (1st Cir. 1996); United States v.
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Lerebours, 87 F.3d 582, 584-85 (1st Cir. 1996).
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Affirmed.
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2 To the extent that Prou's complaint is that the court
failed to instruct the jury that he could not be convicted based
on his "mere presence" at the meeting with Rocha, it is no more
potent. He failed to ask for such an instruction and the
evidence overwhelmingly belied that defense.
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