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USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT

____________________

No. 95-1131

UNITED STATES OF AMERICA,

Appellee,

v.

JOS

NEGRON GIL DE RUBIO,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos

Antonio Fust , U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


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Coffin, Senior Circuit Judge,


____________________

and Cyr, Circuit Judge.


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____________________

Jos A. Pagan Nieves, with whom Jos A. Pagan Nieves Law Offic
____________________
______________________________
was on brief for appellant.
Juan A. Pedrosa, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, Sen


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_______________________
Litigation Counsel, and Nelson P rez-Sosa, Assistant United States
_________________
Attorney, were on brief for appellee.

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August 6, 1996
____________________

Per Curiam.
Per Curiam.
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appeals his

conviction and

cocaine with intent

846.

Jos

Finding

Negron

Gil

sentence for

to distribute, see
___

de

Rubio

("Negron")

conspiring to

21 U.S.C.

possess

841(a)(1),

no error, we affirm the district court judgment in

all respects.

Negron

rejecting his

first claims that

motion

for a

bill

the district court

of particulars,

erred in

because

the

indictment failed to name all coconspirators and alleged no overt

acts involving Negron.1

The lone count against Negron alleged an

eighteen-month conspiracy

cocaine.

It named all

to possess

28 indicted coconspirators,

two unindicted cooperating


____________________

with intent

witnesses.2

to distribute

but omitted

No more was exigible, as

1Rulings disallowing bills of


for abuse

of discretion.

United States
_____________

1161, 1193 (1st Cir. 1993),


In

the

present context,

defendant

that the

other prejudice
Hallock, 941 F.2d
_______

v. Sepulveda,
_________

a demonstration

resulted in

a "substantial

prejudice at

right."

36, 40 (1st Cir. 1991)

hereby incorpo-

rated and realleged herein by reference.

From

on or about

including May

September 1991, up

of 1993,

in

to and

the District

of

P.R., FL, N.Y., MA, and elsewhere, within the


jurisdiction of this court, . . .

[list of 23 defendants, including Negron, but


not including 2 of the 4 cooperating witnesses]

. . the

trial, or

v.

(quoting United States


_____________

2Count One alleged:

allegations are

by the

United States
______________

v. Paiva, 892 F.2d 148, 154 (1st Cir. 1989)).


_____

The general

15 F.3d

cert. denied, 114 S.Ct. 2714 (1994).


_____ ______
this requires

denial

to

particulars are reviewed only

defendants herein, and

others to

the Grand Jury known


ingly

and

confederate,

and unknown, did

intentionally
and agree

know-

combine, conspire,
together, with

each

the

indictment

constituting

substantially

described

the

the charged offense, within the

Crim. P. 7(c)(1).

See United States


___ _____________

(1st Cir.

Compare
_______

1991).

essential

facts

meaning of Fed. R.

v. Hallock, 941 F.2d 36, 40


_______

United States v. Tomasetta,


_____________
_________

429 F.2d

978, 979 (1st Cir.

location

offense).

of

1970) (more precise averments as to

crime may

be

The government

needed when

charging

need not describe

date and

a substantive

"the precise dates

and locations" of all overt acts, Hallock, 941 F.2d at 40-41; see
_______
___

United States v. Paiva, 892 F.2d 148, 155 (1st Cir. 1989), absent
_____________
_____

a showing of actual prejudice or surprise.

Bills of particulars are designed to provide sufficient

additional

detail

to enable

an

accused to

mount

an adequate

____________________

other and with


Grand Jury known

diverse other persons

to the

and unknown, to commit

following offense against

the

the United States,

that is, possession with intent to distribute


cocaine,

a Schedule

II

narcotic drug

trolled substance, in violation


U.S.C.,

841(a)(1) and 846.

con-

of Title 21,

Object of the
of

the

conspiracy: It was the

conspiracy

that

coconspirators would and


with the intent to
did distribute

object

codefendants

and

did possess cocaine

distribute, and would and

the same for

the purpose

of

obtaining monetary gain.

Overt Acts
none of

[Indictment lists 44

overt acts,

which specifically name

Negron] in-

clude:

3.

The cocaine

loads were

and safeguarded by

usually retained

members of the

organiza-

tion.
. . . .

5.

A portion of the cocaine was prepared for

distribution in Puerto Rico.

defense,

avoid double jeopardy,

See Hallock, 941


___ _______

F.2d at 40.

and prevent surprise

There is no basis

at trial.

for concluding

that this indictment was impermissibly vague, so as to materially

hamper

trial preparation, cause surprise, or prevent Negron from

forfending against

double jeopardy.

have

of full

the

benefit

ordered that

Negron be

These

opportunities

but

discovery

later testified for the

resources

to inform himself

did he

the district

accorded reasonable access

cooperating witnesses who

trial.

discovery,

Moreover, not only

afforded

of the evidence

to the

court

four

government at

Negron

adequate

the government

was prepared to present at trial.

factual

foundation for his

Negron has

neither provided a

conclusory alibi-defense

claim, nor

indicated a basis for the claim that any vagueness in the present

indictment may expose him to

has been acquitted

Burgos, 44 F.3d
______

prosecution for conduct of which he

in the past.

See United States


___ _____________

17, 19 (1st Cir. 1995)(citations

Double Jeopardy Clause

safeguards against (i) a

v. Ramirez________

omitted) ("The

second prosecu-

tion following acquittal or final conviction for the same offense

and (ii)

multiple punishments

States v.
______

112 S.

Abreu, 952 F.2d


_____

for the

same offense.");

1458, 1464 (1st Cir.),

Ct. 1695 (1992)(same).

United
______

cert. denied,
_____ ______

Finally, even though

Negron has

been apprised of the relevant times, transactions and persons, he

neither

precisely defines

an alibi

nor

demonstrates that

the

present

conspiracy

Moreover, since

to

charge

is barred

by

the indictment contained

apprise Negron

of the

criminal

any

prior acquittal.

sufficient information

conduct with

which he

was

charged,

he was

neither prejudiced

trial by any absence of particulars.

nor

unfairly surprised

at

Negron also claims that

to support the verdict.3

coconspirators, each

conspiracy.

Their

the evidence was

insufficient

At trial, the government presented four

of whom

tied Negron

directly to the

credibility was for the jury.

same

United States
_____________

v. Saccoccia, 58 F.3d 754, 773 (1st Cir. 1995).


_________

Negron

denying

evidence.

tive

further claims that the district court erred in

his motion

The

for

new

trial

based

on

newly-discovered

proffered "newly discovered evidence"

averment by

cooperating

witness

that Negron

a puta-

did

not

participate in

mark, if for

the drug organization

no other reason than that it has

have been "newly discovered."

F.2d

302, 313

(1992);

fell well short

(1st

see also
___ ____

Cir.

of the

not been shown to

See United States v. Natanel, 938


___ _____________
_______

1991), cert.
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United States
______________

denied,
______

v. Tibolt,
______

72

502 U.S.

1079

F.3d 965,

972

(1995).

Further, Negron challenges

ion relied on

at sentencing.

the drug-quantity calculat-

As there

was evidence that Negron

had been involved with considerably more than the five

of

cocaine found by

clear error.

Cir. 1993).

the district court, there

kilograms

can have been no

See United States v. Morillo, 8 F.3d 864, 871 (1st


___ _____________
_______

____________________

3We review the entire record

in the light most favorable to

the government and indulge all reasonable inferences favorable to


the verdict,
(1st Cir.

see United States v. Saccoccia,


___ ______________
_________

1995), in order

58 F.3d

to determine whether a

could have found appellant guilty

754, 773

rational jury

beyond a reasonable doubt. See


___

United States v. Valle, 72 F.3d 210, 216-17 (1st Cir. 1995).


_____________
_____

Finally,

absent

showing

of

any

error,

Negron's

cumulative error claim collapses.

Affirmed.
Affirmed
________