US v. de la Cruz Paulino
Case Date: 08/03/1995
Court: United States Court of Appeals
Docket No: 94-1985
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United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit ____________________ No. 94-1985 UNITED STATES, Appellee, v. VANESSA DE LA CRUZ PAULINO, Defendant, Appellant, No. 94-1986 UNITED STATES, Appellee, v. WANDA DIAZ-PEREZ, Defendant, Appellant. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Bownes, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ ____________________ Rachel Brill with whom Jose Fernando Irizarry was on brief for _____________ _______________________ appellant Diaz-Perez. Enrique Velez-Rodriguez for appellant de la Cruz Paulino. _______________________ Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom ________________________ Guillermo Gil, United States Attorney, and Antonio R. Bazan, Assistant _____________ ________________ United States Attorney, were on brief for appellee. ____________________ August 3, 1995 ____________________ STAHL, Circuit Judge. Defendants-appellants Wanda STAHL, Circuit Judge. _____________ D az-P rez and Vanessa de la Cruz-Paulino (collectively, "defendants") appeal their convictions for aiding and abetting each other and others in the unlawful possession of, with intent to distribute, approximately eighty kilograms of cocaine, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. D az-P rez also appeals her conviction for using a communications facility on six separate occasions to facilitate the distribution of cocaine, in violation of 21 U.S.C. 843(b). D az-P rez argues that she is entitled to a new trial because the government violated Fed. R. Crim. P. 12(d)(2) by failing to designate certain of the evidence it intended to use during its case in chief; because the district court admitted hearsay tape recordings into evidence; and because the trial judge made prejudicial comments in front of the jury. Both D az-P rez and de la Cruz-Paulino argue that the district court abused its discretion in allowing a representative sample of cocaine to be sent into the jury deliberation room. Finally, de la Cruz-Paulino argues that the evidence was insufficient to establish her guilt beyond a reasonable doubt. We affirm D az-P rez's conviction, but reverse de la Cruz-Paulino's conviction for insufficient evidence. -2- 2 I. I. __ Background Background __________ On January 21, 1994, Federal Drug Enforcement Administration ("DEA") agents in Puerto Rico met with a cooperating individual known as "Chita," who spoke with them about a pending drug transaction involving 200 kilograms of cocaine. Chita told the agents that the Puerto Rican contact was known as "Negro." He did not refer to either defendant. Between 12:00 noon and 4:20 p.m., DEA agents recorded four telephone conversations placed by Chita to a Colombian contact known as "Jota." During the trial, the district court admitted tapes of these recorded conversations into evidence without objection from defense counsel. In one of the conversations, Jota told Chita that he would make arrangements for the Puerto Rican contact, whom he referred to as a female schoolteacher, to telephone Chita at the number Chita provided, which in reality was the number for a DEA cellular telephone. It was established at trial that D az-P rez was a teacher. Not long after these telephone calls ended, the DEA decided to abort the operation, and Agents Andaluz and Salazar transported Chita to the airport. While en route to the airport, however, the agents received a call from D az- P rez on the DEA telephone. The ensuing conversation was not recorded. However, at trial, D az-P rez testified that -3- 3 during that unrecorded conversation, she was told that the wrapped packages she was transporting contained coffee for which excise taxes had not been paid and was instructed not to mention any names during subsequent conversations. Andaluz testified that he was the one who had spoken with D az-P rez during the unrecorded conversation and that he never mentioned the word "coffee." After dropping Chita off at the airport, Andaluz and Salazar returned to DEA headquarters and conferred with other agents regarding the contents of the call. They then decided to contact D az-P rez and arrange for a transfer of the cocaine. To accomplish this, Andaluz placed five telephone calls to D az-P rez between 7:10 p.m. and 9:55 p.m. and received one telephone call from D az-P rez. The DEA recorded all of these conversations, and the district court admitted the recordings into evidence, D az-P rez stipulating that the voice in the recordings belonged to her. None of the conversants explicitly referred to cocaine or coffee in the recorded conversations, although Andaluz did use the word "kilos" once. During the six recorded conversations, Andaluz and D az-P rez discussed the details of the delivery, including the mode of transportation and the size of the shipment. After a brief exchange in which D az-P rez attempted to solicit Andaluz s help in carrying the bags containing the -4- 4 cocaine down from a second-story apartment, Andaluz asked, "Can t you give somebody there $30, $40 I ll pay you back over here, to place it in the trunk, only to place it in the trunk, don t bring him over or anything, to come over here?" D az-P rez indicated that she would, and eventually Andaluz and D az-P rez agreed to meet in the parking lot of a Burger King restaurant. At trial, Andaluz testified that after D az-P rez and de la Cruz-Paulino arrived at the Burger King parking lot, but before he and Salazar approached them, he activated a concealed microcassette recorder. The district court admitted the recording of the subsequent conversation into evidence without objection. After greeting defendants, Salazar asked, "Did you get it down," and de la Cruz-Paulino answered, "Of course we did." A short discussion about the $40 followed, after which Andaluz asked D az-P rez, "Which is your car?" D az-P rez stated, "That black one there, in the trunk, two bales and . . . eight doubles. . . ." Andaluz and Salazar opened the trunk and one of the garbage bags, Andaluz stating that he had "[t]o check it out girl, because what will I do with [unintelligible]." D az-P rez then exclaimed, "Shut up! Oh, God, the two bales and the other stuff." Andaluz then said, "No, relax, we are getting involved here to get a party." De la Cruz-Paulino then said, "No, watch -5- 5 out the police is around, going around here." Defendants were arrested immediately thereafter. DEA agents searched D az-P rez s car at the time of defendants arrest. The trunk contained approximately eighty kilograms of cocaine with a stipulated value of $1.2 million. The cocaine was wrapped and sealed in such a way that it was impossible to see the contents.1 Also seized were a cellular telephone, a package of coffee, and a piece of cardboard. Chita s name was written on the cardboard, along with the DEA telephone number, several figures that totaled eighty, and the words "coffee" and "large garbage bags." DEA agents did not find any weapons, nor did they test defendants clothing for the presence of cocaine. Defendants were subsequently indicted for aiding and abetting each other and others in possession of, with intent to distribute, a controlled substance, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. D az-P rez was also indicted on six counts of using a communications facility in furtherance of a narcotics transaction, in violation of 21 U.S.C. 843(b). Prior to trial, defendants requested, pursuant to Fed. R. Crim. P. 12(d)(2), that the government designate the ____________________ 1. Each kilogram was wrapped individually in a tan-colored wrapping, then two kilograms were bundled together and wrapped in a black wrapping. The bundles were then placed into three large garbage bags. -6- 6 evidence it intended to introduce at trial. In response, the government designated the seized cocaine, the materials in which the cocaine had been wrapped, and various tape recordings and photographs. In addition, the government stated, "Any other physical and/or documentary evidence will be notified at least five (5) days before the date of trial." The government never notified defendants that it intended to introduce the telephone or the cardboard seized from D az- P rez s car into evidence. Nonetheless, the government referred to both pieces of evidence during its opening statement at defendants' jury trial. Immediately following the opening statement of D az-P rez, both defense counsel moved to exclude the telephone and the cardboard because they had not been designated as evidence by the government as required under Rule 12(d)(2). During the discussion on defendants' motion, the government never admitted that it had not designated either piece of evidence, but instead repeatedly insisted that it had provided defendants with full discovery, stating, for example, they were fully aware that this was a piece of evidence and this is not [a] surprise to them they had it from about three weeks after the defendants had been arrested this is no surprise to them, they should be aware that this was a piece of evidence and the government could attempt to use such evidence. -7- 7 The district court denied the motion, stating, "it's been provided." When defense counsel objected that the evidence, although provided under Fed. R. Crim. P. 16, had not been designated as required by Rule 12(d)(2), the district court stated, "It is not [a] surprise, it[']s there and you have it." The evidence was subsequently admitted without further objection. At the close of the government's case in chief, both defendants moved pursuant to Fed. R. Crim. P. 29 for judgments of acquittal; the district court denied both motions. D az-P rez then testified in her own defense, but offered no other evidence. De la Cruz-Paulino did not testify and offered no evidence. At the close of trial, both defendants renewed their Rule 29 motions, and each defendant also objected to the district court's decision to allow a representative sample of unpackaged cocaine, which had been admitted into evidence without objection, into the jury room. Defendants now appeal their convictions. II. II. ___ Discussion Discussion __________ A. Rule 12(d)(2) Violation ___________________________ D az-P rez argues that the district court abused its discretion in admitting into evidence the cellular telephone and the piece of cardboard because the government did not disclose its intent to use the evidence during its -8- 8 case in chief as required by Fed. R. Crim. P. 12(d)(2).2 D az-P rez first argues that the district court erred in holding that the government did not violate Rule 12(d)(2) since it had provided defendants with open-file discovery. We agree. "To the extent that the government's open files contain information that is subject to Rule 16 discovery, Rule 12(d)(2) creates a notice requirement. The open file policy does not, in and of itself, satisfy this notice requirement because it does not specify which evidence the government intends to use at trial." United States v. Brock, _____________ _____ 863 F. Supp. 851, 868 (E.D. Wis. 1994). Providing open-file discovery does not satisfy Rule 12(d)(2) because "the defendant is still `left in the dark' as to exactly what evidence, discoverable under Rule 16, the government intends ____________________ 2. Fed. R. Crim. P. 12(d)(2) provides: (d) Notice by the Government of the (d) Notice by the Government of the Intention to Use Evidence. Intention to Use Evidence. . . . . (2) At the Request of the (2) At the Request of the Defendant. At the arraignment Defendant. or as soon thereafter as is practicable the defendant may, in order to afford an opportunity to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the government's intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under Rule 16 subject to any relevant limitations prescribed in Rule 16. -9- 9 to rely upon in its case in chief at trial." United States _____________ v. Kelley, 120 F.R.D. 103, 107 (E.D. Wis. 1988). Thus the ______ district court erred in ruling that the government's open- file discovery satisfied the requirement of Rule 12(d)(2). The government's failure to designate either the telephone or the cardboard as evidence was a violation of the rule. D az-P rez next argues that to remedy the government's Rule 12(d)(2) violation, we should reverse her conviction and remand for a new trial as we did for the victim of a Rule 16 violation in United States v. Alvarez, ______________ _______ 987 F.2d 77, 85-86 (1st Cir.), cert. denied, 114 S. Ct. 147 _____ ______ (1993). We do not agree.3 We have not yet addressed the effect of a violation of Rule 12(d)(2). In reviewing discovery violations, however, we have made clear that "[a] defendant must prove that the alleged violation prejudiced his case to succeed in obtaining a reversal on appeal." United States v. Nickens, _____________ _______ 955 F.2d 112, 126 (1st Cir.), cert. denied, 113 S. Ct. 108 _____ ______ (1992); see also United States v. Valencia, 656 F.2d 412, 416 ___ ____ _____________ ________ ____________________ 3. We would review a district court's decision to impose a particular sanction only for abuse of discretion. United ______ States v. Valencia, 656 F.2d 412, 415 (9th Cir.) (reviewing ______ ________ sanctions imposed for Rule 12(d)(2) violation for abuse of discretion), cert. denied, 454 U.S. 877 (1981); see also _____ ______ ___ ____ Alvarez, 987 F.2d at 85 (reviewing district court's treatment _______ of government's failure to provide pretrial discovery for abuse of discretion). In this case, however, the district court did not consider imposing a sanction since it did not find that a violation occurred. Accordingly, we must ourselves determine whether a sanction was necessary. -10- 10 (9th Cir.), cert. denied, 454 U.S. 877 (1981). We extend _____ ______ this prejudice requirement to violations of Rule 12(d)(2). D az-P rez argues that the government's Rule 12(d)(2) violation prejudiced her in three ways: (1) she was not prepared to file a motion to suppress the evidence, (2) the evidence forced her to alter her trial strategy, and (3) the evidence had an effect on her plea strategy. None of these reasons warrants reversal in this case. Rule 12(d) is "a matter of procedure," Fed. R. Crim. P. 12 advisory committee's note (internal quotation omitted), rather than a rule designed to ensure fairness at trial. As its text makes clear, Rule 12(d)(2) allows defendants to request notice of the government's intent to use evidence "in order to afford an opportunity to move to ______________________________________________ suppress evidence under subdivision (b)(3) of this rule." __________________ Fed. R. Crim. P. 12(d)(2) (emphasis added).4 Rule 12(d) "provides a mechanism for insuring that a defendant knows of the government's intention to use evidence to which the ____________________ 4. Fed. R. Crim. P. 12(b) provides: (b) Pretrial Motions. Any defense, (b) Pretrial Motions. objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial: . . . . (3) Motions to suppress evidence . . . . -11- 11 defendant may want to object" so that the defendant may "avoid the necessity of moving to suppress evidence which the government does not intend to use." Fed. R. Crim. P. 12 advisory committee's note; see also 1 Charles A. Wright, ___ ____ Federal Practice and Procedure: Criminal 197, at 735 (2d __________________________________________ ed. 1982) (Rule 12(d) "is intended to facilitate the making of a pretrial motion for suppression of evidence."). Thus, Rule 12(d) aids defendants in complying with their Rule 12(b)(3) obligation to make motions to suppress evidence prior to trial. This in turn preserves the integrity of a trial by not interrupting it with suppression motions. See ___ Fed. R. Crim. P. 12 advisory committee's note (Rule 12(b)(3) "`is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt'") (quoting Jones v. United States, 362 U.S. 257, 264 _____ _____________ (1960) (emphasis eliminated)).5 As "a matter of procedure," Rule 12(d) differs from discovery rules designed to ensure fairness. See Fed. R. ___ ____________________ 5. We think that government violations of Rule 12(d)(2) should excuse a defendant's failure to move to suppress evidence prior to trial, as required by Rule 12(b)(3), since defendants have no incentive to move to suppress evidence that the government will not be introducing. See United ___ ______ States v. Poole, 794 F.2d 462, 464 n.1 (9th Cir. 1986) ______ _____ (excusing the defendant's failure to move to suppress evidence prior to trial since the government had not warned the defendant that the evidence would be used); Fed. R. Crim. P. 12(f) ("Failure by a party to raise defenses or objections or to make requests which must be made prior to trial . . . shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver."). -12- 12 Crim. P. 12(d) advisory committee's note; cf. Fed. R. Crim. ___ P. 12.1 (Notice of Alibi) advisory committee's note ("[t]he major purpose of a notice-of-alibi rule is to prevent unfair surprise"); Fed. R. Crim. P. 16 (Discovery and Inspection) advisory committee's note ("broad discovery contributes to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to plea; by minimizing the undesirable effect of surprise at the trial; and by otherwise contributing to an accurate determination of the issue of guilt or innocence"). Rule 12(d) was not designed to aid the defendant in ascertaining the government's trial strategy, but only in effectively bringing suppression motions before trial, as required by Rule 12(b)(3). We first consider D az-P rez's argument that she was prejudiced because, not expecting the government to introduce the telephone or the cardboard, she was unprepared to file a motion to suppress either of them. On appeal, D az-P rez does not articulate any basis for suppression of the evidence; we note that D az-P rez did not seek to suppress other evidence seized from her car, nor does there appear to us to be a basis for suppressing the evidence. Absent some discussion regarding suppression, we will not view the lack of opportunity for a suppression hearing as prejudicial. Merely stating that "the decision to file a -13- 13 motion to suppress . . . could have been significantly affected by the knowledge prior to trial[] that the government intended to present those items in evidence" is not enough. D az-P rez also argues that the admission of the telephone and the cardboard greatly affected her trial strategy and her incentives to plead guilty since the government's case became markedly stronger with that evidence. Rule 12(d) was not, however, designed to alert defendants to the strength or weakness of the government's case against them; rather, it was designed to aid defendants in fulfilling their Rule 12(b)(3) obligation to make suppression motions prior to trial. Since trial strategy and plea strategy are simply not implicated by Rule 12(d), the alleged effect of a Rule 12(d) violation upon trial strategy or plea strategy cannot satisfy the prejudice requirements for reversal on appeal. We recognize, however, that even though Rule 12(d) was not designed to give defendants notice of the government's trial strategy, the government's failure to designate certain pieces of evidence could work an unfairness if the defendant were not prepared immediately to rebut it. In such cases, we think that a district court would not abuse its discretion by granting the defendant a continuance, rather than allowing the government effectively to sandbag -14- 14 the defendant by introducing previously undesignated evidence. Whether or not a defendant should be granted a continuance for fairness reasons, however, is a matter best left to the discretion of the district court. On appeal, we will only consider prejudice stemming from the function of Rule 12(d), namely matters regarding potential motions to suppress. Thus, although the government violated Rule 12(d)(2) by not indicating prior to trial its intention to introduce the telephone and the cardboard into evidence during its case in chief, reversal is not mandated because D az-P rez suffered no prejudice. That having been said, we pause to make clear that we do not condone governmental violations of this sort. Like the Advisory Committee, however, we believe that in general, "attorneys for the government will in fact comply [with Rule 12(d)(2)]." Fed. R. Crim. P. 12 advisory committee's note.6 We rely on ____________________ 6. The Advisory Committee's notes discuss why no sanctions were provided for violations of Rule 12(d)(2): No sanction is provided for the government's failure to comply with the court's order because the committee believes that attorneys for the government will in fact comply and that judges have ways of insuring compliance. An automatic exclusion of such evidence, particularly where the failure to give notice was not deliberate, seems to create too heavy a burden upon the exclusionary rule of evidence, especially when defendant has opportunity for broad -15- 15 district courts to impose appropriate sanctions for governmental noncompliance and encourage them to grant continuances and hold additional suppression hearings where warranted. Cf. Valencia, 656 F.2d at 416 (finding no error ___ ________ in admission of undesignated evidence where the district court conducted a second suppression hearing to determine admissibility of undesignated evidence). Where governmental noncompliance is the result of bad faith, exclusion of the undesignated evidence may be appropriate. Cf. United States ___ _____________ v. Flores-Rivera, No. 93-1558, slip op. at 17 n.7 (1st Cir. _____________ June 1, 1995) (repeating admonishment against government misconduct and stating that court may use supervisory power to dismiss an indictment to deter future prosecutorial misconduct). B. Tape Recordings ___________________ D az-P rez next argues that the district court committed reversible error by admitting into evidence three ____________________ discovery under rule 16. Compare ABA Project on Standards for Criminal Justice, Standards Relating to Electronic Surveillance (Approved Draft, 1971) at p.116: "A failure to comply with the duty of giving notice could lead to the suppression of evidence. Nevertheless, the standards make it explicit that the rule is intended to be a matter of procedure which need not under appropriate circumstances automatically dictate that evidence otherwise admissible be suppressed." Fed. R. Crim. P. 12 advisory committee's note. -16- 16 tape recordings of conversations between Chita and two unnamed and uncharged Colombian contacts. D az-P rez believes that the contents of the tape recordings constitute hearsay subject to no exception. D az-P rez argues that the tapes could not have been (implicitly) admitted pursuant to Fed. R. Evid. 801(d)(2)(E)7 since the district court made no factual finding that the persons on the tapes were participating in a conspiracy with D az-P rez and speaking in furtherance of that conspiracy as required by United States _____________ v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). In ____________ addition, D az-P rez contends that had an inquiry been conducted, the court could not have found that "the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy." Id. at 23. Because D az- __ P rez failed to object in the district court, the issue has not been preserved for appeal. As we explained in United ______ States v. Figueroa, 818 F.2d 1020, 1026 (1st Cir. 1987) ______ ________ (alteration in Figueroa): ________ [T]he Petrozziello rule is designed to ____________ protect the integrity of the trial in borderline situations where the prosecution may or may not be able to muster sufficient proof of the existence, scope, shape, and duration of an alleged ____________________ 7. Fed. R. Evid. 801(d)(2)(E) states that a statement is not hearsay if "[t]he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." -17- 17 conspiracy. If the defendant elects not to put the government to this test -- either for tactical reasons or because the outcome, realistically, is foreordained -- he is in a poor position to complain after the fact. As we stated in United States v. David E. Thompson, _____________ ___________________ Inc., 621 F.2d 1147, 1153 (1st Cir. ____ 1980), "[i]n the absence of a proper objection, Fed. R. Evid. 103(a)(1), a deviation from the standard announced in Petrozziello will be reversed only upon a ____________ showing of plain error." The "plain error" standard requires the reviewing court to ask: (1) whether there is an error; (2) whether the error is "plain," a term synonymous with "clear" or "obvious"; and (3) whether the error affected substantial rights. United States v. Olano, 113 S. Ct. 1770, 1777-1778 _____________ _____ (1993); see also Fed. R. Crim. P. 52(b) ("Plain errors or ___ ____ defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). An "error rises to this level only when it is so shocking that it seriously affected the fundamental fairness and basic integrity of the proceedings conducted below." United States _____________ v. Ortiz, 23 F.3d 21, 26 (1st Cir. 1994) (internal quotations _____ omitted). Applying the plain-error standard, we reject D az- P rez's argument. Even assuming arguendo that D az-P rez was ________ not involved in a conspiracy with the persons on the tapes and, therefore, that the judge could not have made the required findings under Petrozziello, we do not believe that ____________ -18- 18 the error passes the "clear" or "obvious" hurdle. "Where the error defendant asserts on appeal depends upon a factual finding the defendant neglected to ask the district court to make, the error cannot be `clear' or `obvious' unless the desired factual finding is the only one rationally supported _______ by the record below." United States v. Olivier-Diaz, 13 F.3d _____________ ____________ 1, 5 (1st Cir. 1993) (emphasis added). In this case, D az- P rez's "desired" factual finding is that she was not involved in a conspiracy with the Chita's Colombian contacts.8 We do not believe, however, that such a finding is the "only one rationally supported by the record below." Rather, the non-hearsay evidence presented at trial makes it plausible that D az-P rez was involved in a conspiracy to distribute cocaine. In fact, Count One of the Indictment charged both defendants with "aiding and abetting each other, and others to this Grand Jury unknown." Additionally, while the tape recordings between Chita and his Colombian contacts do not mention D az-P rez by name, the Colombian contacts did ____________________ 8. To the extent that D az-P rez also challenges the admission of Chita's statements, we think that his part of the conversations served as "`reciprocal and integrated utterance(s),'" United States v. McDowell, 918 F.2d 1004, _____________ ________ 1007 (1st Cir. 1990) (quoting United States v. Metcalf, 430 _____________ _______ F.2d 1197, 1199 (8th Cir. 1970)), to put the Colombian contacts' statements "into perspective and make them `intelligible to the jury,'" id. (quoting United States v. ___ ______________ Lemonakis, 485 F.2d 941, 948 (D.C. Cir. 1973), cert. denied, _________ _____ ______ 415 U.S. 989 (1974)). Because Chita's statements were offered only for context and not for the truth of the matter asserted, those statements are not hearsay under Fed. R. Evid. 801(c). -19- 19 indicate that the informant would be contacted by a female schoolteacher in Puerto Rico. See United States v. Ortiz, ___ ______________ _____ 966 F.2d 707, 716 (1st Cir. 1992) (holding that there was no plain error in district court's failure to make an unrequested Petrozziello finding because enough evidence ____________ existed to support a finding, based on a preponderance of the evidence, that the codefendants were participating in a conspiracy at the time the statements were made), cert. _____ denied, 113 S. Ct. 1005 (1993). ______ Accordingly, because D az-P rez failed to produce any evidence at trial to deny her role in a conspiracy, we cannot conclude that the district court committed obvious error in allowing the tapes into evidence. Therefore, because the alleged error is not clear or obvious, we need not reach the other elements of the plain-error review. -20- 20 C. Judicial Bias _________________ D az-P rez also complains that throughout the trial, the district court "overstepp[ed] its bounds and assum[ed] the role of an advocate for the prosecution" and "constantly interjected in a manner that indicated annoyance and bias against [defense] counsel," thus preventing D az- P rez from having a fair trial. "It cannot be gainsaid that `[a] fair trial in a fair tribunal is a basic requirement of due process.'" United States v. Nueva, 979 F.2d 880, 885 (1st Cir. 1992) _____________ _____ (quoting In re Murchison, 349 U.S. 133, 136 (1955)) __________________ (alteration in Nueva), cert. denied, 113 S. Ct. 1615 (1993). _____ _____ ______ Accordingly, a trial judge should be fair and impartial in his or her comments during a jury trial. United States v. ______________ Twomey, 806 F.2d 1136, 1140 (1st Cir. 1986). However, "a ______ finding of partiality should be reached only `from an abiding impression left from a reading of the entire record.'" Id. ___ (quoting Offutt v. United States, 348 U.S. 11, 12 (1954)). ______ _____________ After scrutinizing the entire record with care, we are left with no such abiding impression. D. Cocaine in the Jury Room ____________________________ Both defendants argue that the district court abused its discretion when it permitted an unwrapped sample of cocaine to be sent into the jury room during deliberations. The unwrapped cocaine had been offered into -21- 21 evidence by the government, without objection, as part of a representative sample of the cocaine that had been seized at the time of defendants arrest. Immediately after the jury charge, however, defense counsel did object to the unwrapped cocaine being sent into the jury room on the grounds that the evidence was confusing, unnecessary, and inflammatory. We are not persuaded. We review a district court s decision to send evidence into the jury room for abuse of discretion. United ______ States v. McCarthy, 961 F.2d 972, 978 (1st Cir. 1992) ______ ________ ("Whether evidentiary exhibits properly admitted should or should not accompany the jury to the jury room is a discretionary matter for the trial court.") (internal quotations omitted); United States v. Rawwad, 807 F.2d 294, _____________ ______ 297 (1st Cir. 1986) (reviewing the district court's decision to send more than fifteen pounds of heroin into the jury room for abuse of discretion), cert. denied, 482 U.S. 909 (1987). _____ ______ District courts have discretion to allow properly admitted evidence to accompany the jury into the jury room. Rawwad, ______ 807 F.2d at 297. This is true even when the evidence is drugs, for the presence of drugs in the jury room is not per ___ se prejudicial or inflammatory. Id. __ ___ Defendants argue that even if it would generally be within a district court's discretion to allow drugs to be sent into the jury room, the district court nonetheless -22- 22 abused its discretion in this case because defendants' knowledge of what was in the wrapped packages was at issue. In particular, defendants contend that the jurors "would [have been] instantly struck by the clear plastic bags of a white powdery substance" during their deliberations and would have been confused. We do not agree. In reviewing the record, we find no reason why the presence of the unwrapped cocaine sample in the jury room would have been particularly inflammatory or prejudicial to defendants. During trial, there was substantial, uncontroverted testimony that the cocaine was wrapped in such a way that it would not have been possible for anyone to see through the packaging. Additionally, during the charge, the court instructed the jurors that the government had stipulated that no one could "see from the outside what was in the wrapped bags," and that defendants' pleas of not guilty put all the essential elements of the charged offense at issue, including knowledge and intent. Finally, in addition to the unwrapped cocaine, other items of evidence were also sent into the jury room, including samples of the packaging material and kilograms of cocaine in their original wrapping. E. Sufficiency of the Evidence as to de la Cruz-Paulino ________________________________________________________ At the close of the government's case in chief, de la Cruz-Paulino moved, pursuant to Fed. R. Crim. P. 29, for a judgment of acquittal, contending that the government had not -23- 23 presented sufficient evidence to sustain a conviction. After the district court denied the motion, de la Cruz-Paulino presented no evidence in her own defense. Accordingly, unlike defendants who do present evidence, de la Cruz-Paulino did not waive review of the district court's initial Rule 29 decision. United States v. Clotida, 892 F.2d 1098, 1100 (1st _____________ _______ Cir. 1989); 2 Charles A. Wright, Federal Practice and ______________________ Procedure: Criminal 463, at 642 (2d ed. 1982). This is so ____________________ even though de la Cruz-Paulino's codefendant did mount a defense by testifying in her own behalf. See Clotida, 892 ___ _______ F.2d at 1103. Thus, on appeal we must determine whether, "when examined in a light most favorable to the government, the evidence presented in the government's case-in-chief, including all inferences that may be drawn therefrom, would permit a reasonable juror to find guilt beyond a reasonable doubt." Id.. Even though D az-P rez's testimony might have ___ influenced the jury in its decision to convict de la Cruz- Paulino, we may not consider that testimony on appeal. See ___ id.; cf. McGautha v. California, 402 U.S. 183, 215 (1971) ("a ___ ___ ________ __________ defendant whose motion for acquittal at the close of the Government's case is denied must decide whether to stand on his motion or put on a defense, with the risk that in doing so he will bolster the Government case enough for it to support a verdict of guilty"); 2 Wright, Federal Practice and ____________________ Procedure: Criminal 463, at 645 (if the defendant presents ____________________ -24- 24 evidence after the denial of his or her Rule 29 motion, "[t]he conviction will be affirmed, even though the prosecution may have failed to make a prima facie case, if the evidence for the defense supplied the defect, and the whole record is sufficient to sustain a conviction"). Taken in the light most favorable to the government, the evidence presented during the government's case in chief established the following: (1) de la Cruz- Paulino helped move garbage bags containing sealed packages of cocaine into D az-P rez's car; (2) de la Cruz-Paulino was in the car while D az-P rez spoke with Agent Andaluz on her cellular telephone; (3) de la Cruz-Paulino was present at the Burger King delivery scene; and (4) after Agents Andaluz and Salazar opened one of the garbage bags, de la Cruz-Paulino stated, "No, watch out the police is around, going around here." De la Cruz-Paulino argues that because this evidence is insufficient to allow a jury to conclude beyond a reasonable doubt that she aided and abetted D az-P rez and others in the possession of cocaine with intent to distribute, the district court should have granted her Rule 29 motion for judgment of acquittal at the close of the government's case in chief. We agree. To be convicted of aiding and abetting, more than "mere presence" at the scene is required. United States v. ______________ Mehtala, 578 F.2d 6, 9 (1st Cir. 1978). The classic _______ -25- 25 definition of aiding and abetting, adopted by the Supreme Court, was first enunciated by Learned Hand: In order to aid and abet another to commit a crime it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed." Nye & Nissen v. United States, 336 U.S. 613, 619 (1949) ______________ _____________ (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. _____________ _____ 1938) (L. Hand, J.)). Thus, for de la Cruz-Paulino to have been convicted under an aiding-and-abetting theory, the government had to prove (1) that D az-P rez committed the underlying substantive crime and (2) that de la Cruz-Paulino shared D az-P rez's criminal intent. See United States v. ___ ______________ Valerio, 48 F.3d 58, 64 (1st Cir. 1995). The government _______ fulfilled the first prong, for D az-P rez was convicted. To fulfill the second prong, the government had to prove that de la Cruz-Paulino "consciously shared [D az-P rez's] knowledge of the underlying criminal act, and intended to help [her]," United States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995); ______________ ______ see also United States v. Loder, 23 F.3d 586, 591 (1st Cir. ___ ____ _____________ _____ 1994) (discussing specific-intent requirement for aiding and abetting). This the government did not do. "[T]he line that separates mere presence from culpable presence is a thin one, often difficult to plot." Ortiz, 966 F.2d at 712. On the one hand, "[m]ere association _____ -26- 26 between the principal and those accused of aiding and abetting is not sufficient |