USCA1 Opinion

March 11, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-1286
UNITED STATES,
Appellee,
v.
VICTOR MANUEL ALVAREZ,
Defendant, Appellant.
____________________
No. 91-1287
UNITED STATES,
Appellee,
v.
DIANA MATOS,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
___________________
____________________

Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Skinner,* Senior District Judge.
_____________________
____________________

Rachel Brill, Assistant

Federal Public Defender, with w
_____________
Benicio Sanchez Rivera, Federal Public Defender, was on brief
_______________________
appellant Victor Manuel Alvarez.
Joseph C. Laws, Jr., by Appointment of the Court, for appell
____________________
Diana Matos.
Ivan Dominguez, Assistant United States Attorney, with w
_______________
Daniel F. Lopez Romo, United States Attorney, and Jose A. Quil
______________________
_____________
Espinosa, Senior Litigation Counsel, were on brief for appellee Uni
________
States.
____________________
March 11, 1993
____________________
_____________________

*Of the District of Massachusetts, sitting by designation.

SKINNER, District Judge.

______________

Appellants Victor M. Alvarez and

law

husband and

wife,

Diana Matos, common

were convicted

by

a jury

in

the

District of Puerto Rico for aiding and abetting several drug

offenses.1

Miguel Flores,

appeal nor

convicted in the

role in

though

not

same trial,

the alleged cocaine trafficking

guilty

to

against

the

the

participants
scheme.

identical

charges
in

Flores

charges.

alleging

defendant

a party

Flores'

offered testimony

played a

this

central

scheme and pleaded

Appellants

that

to

they

were

cocaine

defended
unwitting

trafficking

to the same

end.

Each

appellant advances numerous grounds for reversal.

Appellant
that the

Alvarez

district court

appeals his

convictions alleging

(1) erroneously refused

defendant Flores' guilty plea prior to the trial

and Matos,
that

to accept
of Alvarez

(2) improperly prohibited Flores from testifying

his testimony

exposed him

cocaine trafficking, and (3)

to criminal

penalties for

errored in denying appellant's

____________________
1 Alvarez and Matos were convicted for the possession of
cocaine with intent to distribute in violation of 18 U.S.C.
2 and 21 U.S.C.
841(a)(1); the importation of cocaine
into the customs territory of the United States in violation
of 18 U.S.C.
2 and 21 U.S.C.
952(a); and the failure to
declare cocaine in the cargo manifest or supply list of the
aircraft which brought them into the customs territory of
the United States in violation of 18 U.S.C.
2 and 21
U.S.C.
955.
-33

motion for judgment of acquittal.

We affirm with respect to

Alvarez.
Appellant Matos

joins the arguments

further appeals her convictions,

court

failed

to

exclude

of Alvarez

alleging that the district

government

evidence

produced in violation of Rule 16, Federal Rules

Procedure.

As

to

Matos, we

and

reverse

that

was

of Criminal

and remand

to

the

district court for a new trial.

I.
__

Evidence
________
We recite

to the
838,

the evidence in

prosecution.
839

the light most

favorable

United States v. Campbell,

__________________________

(1st Cir.

1989).

The

874 F.2d

evidence showed

that on

December 8, 1989, Victor M. Alvarez, Diana Matos, and Miguel

A.

Flores arrived

at

the Luis

Airport, San Juan, Puerto

904

from Caracas,

Munoz Marin

International

Rico, on American Airlines flight

Venezuela.

Francis Aponte, noticed that

U.S. Customs

Inspector,

the three individuals appeared

to be nervous and were talking secretively among themselves.

Inspector

Aponte approached

inquiries of them,

the individuals,

and referred the group

made routine

to the secondary

inspection station (a table used to examine the contents

a passenger's luggage).

of

At that time, appellant Alvarez was

-44

permitted

to

leave

airplane tickets to New

the

customs

made

behavior

any

written

even though

to

York for each member of

Inspector Aponte testified on

not

enclosure

purchase
the group.

cross-examination that he had

record of

the

such information

group's

suspicious

would have

been an

important part of the case report.

Carlos
testified

that

station.

also

U.S.

Customs

Inspector,

that he noticed two individuals, later identified

as Flores and
and

Ortiz,

Matos, pushing two carts stacked with luggage

he motioned
Inspector

for them

to approach

Ortiz requested

Matos'

his secondary
and

Flores'

customs declaration cards,

to

have

been

filled

complained that

noting that both cards

out

by

the

the airline had

that she packed in

same

appeared

person.

broken a bottle

her suitcase.

Matos
of liquor

During his search

of the

luggage, Ortiz noticed that the luggage contained both men's

and women's
wrapped
aged

clothing and

package.

painting of

he discovered a

Ortiz unwrapped
a young

heavy, newspaper

the package to

girl in a

wooden frame.

find an
Ortiz

asked Matos if she had purchased the picture on her trip, to

which she answered "yes."
Inspector Ortiz
took

the picture

consulted with

a senior

search room,

and drilled

to a

inspector,
into the

-55

picture frame using a

white

small drill bit.

powdery substance

field test
arrested

indicated was
and searched.

inside the
cocaine.
Customs

Ortiz

discovered a

wooden frame,
Matos and

which a

Flores were

inspectors then

located

Alvarez in the airport's main concourse and placed him under

arrest.

Inspectors conducted

group's

luggage,

finding

concealed cocaine
the

two

thorough

search of

additional

paintings

and discovering false bottoms

six suitcases

agents

that

determined

also concealed

that the

group

that

in each of

cocaine.

carried

the

Customs

more than

ten

kilograms of cocaine.
A grand
January 3,

three count indictment

1990, against Matos, Alvarez, and

defendant pleaded
filed

jury returned a

notice

indictment.

not guilty.
to

plead

It appears,

Flores.

On October 2,

guilty

on

one

on
Each

1990, Flores
count

however, that Flores

of

the

intended to

plead guilty on all three counts, and on October 5, 1990, he

amended his petition accordingly.
district

court

extensively

declining

to accept his plea.

On October 5, 1990,
questioned

Flores

the

before

Flores asserted that Alvarez

and Matos had been unaware of any plan to import cocaine and
that he, himself, was solely responsible for the crime.
judge

suspended

the

proceeding
-66

because

she

was

The

unsure

whether Flores could plead

crime while

guilty to aiding and

abetting a

simultaneously proclaiming the innocence of the

other alleged participants.

On October 9, 1990, the Flores plea hearing
The judge explained that

resumed.

Flores' refusal to acknowledge the

aiding

and abetting

modality did

plea.

The court then engaged in an extensive colloquy with

defendant Flores in accordance

Crim. P.

The judge

not preclude

his guilty

with Rule 11 of the

noted that Flores

Fed. R.

had proclaimed

the

innocence of Alvarez and Matos in a confidential letter that

Flores had

written

to

confirmed sending the

were friends
parties.

of his

Flores

the

judge

from

prison.

letter and explained that

from

New York,

had invited

Flores
appellants

the home

of all

appellants to join

him on

the
a

cruise from San Juan to several caribbean islands, including

a stop in Caracas,
met

Venezuela.

a man who offered

several
agreed to

pictures from

While on the

him three thousand

Venezuela

meet the man at

cruise, Flores
dollars to bring

to Puerto

a hotel in Caracas

Rico.

Flores

and to carry

the pictures into Puerto Rico as a passenger on a commercial

airline.
scheme.

Flores

did

not tell

Alvarez

or Matos

of

his

-77

Flores, Alvarez,
was in
to

and Matos

port in Caracas to visit

have

tricked the

appellants

left the

ship while

the beach.
into

it

Flores claimed

missing the

ship's

scheduled departure because he did not want to fly to Puerto

Rico alone.

After missing the ship, Flores took Alvarez and

Matos to the predesignated hotel, checked the group into two

rooms, secretly picked up the pictures, and borrowed several
pieces
group

of luggage from
had left

their

the man
bags on

after explaining
the

that the

cruise ship.

Flores

arranged to meet the man in Puerto Rico at which time Flores

would deliver the pictures
Flores

and return the borrowed luggage.

claimed that he never

for certain
that the
to pay you
pictures."

that he

saw the cocaine

was carrying cocaine,2

frames concealed cocaine because

three thousand
Flores

dollars just to

also denied

or even knew
but "imagined"

"nobody is going
bring in

knowing that

three

the borrowed

suitcases concealed cocaine.

Matos, and

he purchased

Flores explained that Alvarez,

new cloths

in

Caracas and

several days in the

hotel before returning to

Flores

three

packed

the

pictures in

spent

Puerto Rico.

separate

bags

and

____________________
2 Flores explained to the judge, "At no time did [the man]
tell me it was cocaine.
He told me, `I want you to take
these pictures for me.
Take them there.'
He says, `it
doesn't contain anything dangerous.'"
-88

covered them with cloths.

were totally

unaware of

Flores maintained that appellants

his trafficking scheme

during the

entire trip.
The district court declined Flores' plea, stating:
Now, you have stated that you did not know what was
in the picture frames, you did not know what was in
any of the luggage that you carried. That in itself
carries with it a defense that you could present to
the jury.
So I am not convinced that you have made
a plea of guilty that I could accept that has a
basis in fact that contains all elements of the

offenses charged which is a requirement for the

court to accept your plea of guilty.
Among those
elements, those of knowledge and intent.
Flores

then moved

appellants.

to

sever his

trial

from that

of

the

Finding that it would be impossible to mount an

adequate defense if Flores testified in favor of Alvarez and

Matos, the district court
Flores'

trial

and

granted both the motion to

Flores'

request

to

be

sever

tried

after

appellants.
At

trial,

Matos called

Flores

as

witness

who

offered essentially the same testimony as given to the judge

during his

attempted plea.

During

examination by Alvarez,

Flores was permitted to testify that it was a crime to bring

cocaine

into the United States, but he was not permitted to

testify as to the
crime or as

to his

punishment that could be imposed

aborted plea attempt.

Matos and Alvarez guilty on all charges.

-99

The jury

for his
found

One

week

later,

Flores

district

court to offer his

admitted

that

he knew

picture frames.

II.
___

again

came

guilty plea, but

cocaine

was

before

the

this time he

concealed within

the

The court accepted his plea.

Alvarez's Conviction
____________________
Appellant

fronts.

Alvarez

First,

attacks

Alvarez

alleges

prejudiced because the district

accept defendant Flores'
Alvarez

and Matos.

his conviction
that

his

on three

defense

was

court erroneously failed to

guilty plea prior to the

Alvarez claims

the

trial of

judge relied

on

"perceived technical deficiencies" with Flores' plea, rather

than

crediting

indicated he

the

weight

accepted full

This error, Alvarez argues,

he

was deprived of

plea before the jury

of

Flores'

testimony

responsibility

for the

prejudiced his defense

the opportunity

to put

that
crime.

because

Flores' guilty

as persuasive evidence of Mr.

Flores'

credibility and sincerity.

We

are

unpersuaded

appellant's

criminal

defendant has

guilty.

North Carolina v. Alford, 400

__________________________

(1970)

(a

trial

no

by

judge

argument.

constitutional right

need
-1010

not

to

A
plead

U.S. 25,

38 n.11

"accept

every

constitutionally

valid

defendant wishes so
Federal

Rules of

guilty

plea

to plead").

merely

Nor does Rule

Criminal Procedure

Here, the

hearing

to determine

carefully
reach

district

court

the

365-66 (1st Cir.

prolonged

of Flores'

testimony.

a right.

conducted a

the sufficiency

considered his

11 of

create such

United States v. Bednarski, 445 F.2d 364,

___________________________
1971).

because

While

plea and

Alvarez might

different

conclusion

than the

judge

as

factual sufficiency

of Flores'

attempted plea, we

to the
find no

error in district court's determination.

Second,

Alvarez

violated both the

Clauses of
scope

of

alleges

the Sixth
Flores'

testimony

and,

credibility.

On

thereby,

of

criminal

under

oath

offense.

court

Confrontation
limiting the
depriving the

Flores' sincerity

direct examination,

have testified
of

district

Amendment by improperly

forceful evidence

[sic]

the

Compulsory Process and the

defendants of

"You

that

Matos

asked Flores,

regarding the
Are

you

and

exceptance

aware

of

the

punishment that could be imposed for this crime?"

The
objection
actually

district
to the

court

sustained

question, reasoning

pleaded guilty and that

found guilty at a later

trial.

the

government's

that Flores

he might or

had not

might not be

Moreover, Flores' testimony

-1111

would not necessarily be

trial unless he
judge

admissible against him in

chose to testify

did, however,

allow Matos

his own

in his own defense.

to ask

Flores if

The
he had

previously asserted the appellants' innocence.

Alvarez

then

conducted

what he

termed

"cross-

examination" of Flores -- a characterization rejected by the

trial court.

The government argued that even though Flores

was not a joint witness of the appellants, cross-examination

was

unavailable because

Alvarez's favor.
trial

Though

Flores was

clearly

testifying in

we are inclined to agree

with the

court, we need not decide the issue because Alvarez's

Sixth

Amendment

examination

objection

is

fails

characterized.

testify on "cross-examination"
to

bring cocaine

into the

regardless
Flores

of

how

was permitted

that he knew it

United States

the
to

was a crime

and that

he had

"wanted to talk about [his story] for some time."

The

Confrontation

provides that
shall

interest

of

the Sixth

"[i]n all criminal prosecutions,

enjoy the

witnesses

Clause

right

against
secured

. .

him."
by

the

to be

Amendment
the accused

confronted

Cross-examination,
Confrontation

with the

the primary

Clause,

is

"the

principal means by which the believability of a witness

the

truth

of

his

testimony are

tested."

and

Kentucky v.
____________

-1212

Stincer, 482 U.S. 730, 736 (1987)

_______
415

U.S.

308,

316

(1974)).

(quoting Davis v. Alaska,

_______________
The

Confrontation

Clause

"mandates

a `minimum

defendant

in the

Brown v. Powell,
________________

threshold of

cross-examination of
975 F.2d

1, 5

United States v. Jarabek,

__________________________

726

1984)), cert. dismissed, 122

_______________
right

to

retain broad

limits on the scope

Arsdall, 475
_______

afforded a

adverse witnesses,"

(1st Cir.
F.2d 889,

1992) (quoting
902

(1st

L. Ed. 2d 179 (1993),

cross-examination is,

Trial judges

inquiry' be

of

course, not

discretion to impose

of cross-examination.

U.S. 673, 679 (1986).

Cir.

but the
absolute.

reasonable

Delaware v. Van
________________

On appeal, we review to

determine:
whether the jury had sufficient other information
before it, without the excluded evidence, to make a
discriminating appraisal of the possible biases and
motivations of the witnesses.
Brown, 975 F.2d at
_____

5 (quoting United States v. Tracey, 675

________________________

F.2d 433, 437 (1st Cir.

the

district court

1982)).

abused its

The issue here

discretion and

is whether
committed a

reversible error when it prevented the jury from learning of

the

exact penalties that Flores would

cocaine

trafficking.

We conclude

face if convicted of

the court

committed no

error.
Flores was

allowed to

put his

entire story

before

the jury, including important information that supported his

-1313

credibility.

The jury heard Flores

cocaine into the U.S. is a crime.

jury knew that

testify that importing

We are confident that the

a conviction for importing

of cocaine carries

a serious punishment.

did

the

not

learn of

trafficking or
the

that Flores

decision

to

district court's
conclude that
jury;

precise

exclude

Though the

penalty imposed

had attempted to
this

discretion.

such testimony

particularly where,

a large quantity

evidence
The

drug

within

could

might mislead or

as here,

for

plead guilty,

was

judge

jury

the

properly

confuse the

the witness

sought to

testify to the same penalties faced by the defendants.

We
examination

note

that

Sixth

is

directed

untruthfulness.

In this

at

Amendment
uncovering

right

of

cross-

witness bias

case, however, Alvarez

and

sought to

use "cross-examination" to bolster the witness' credibility.

Contrary to
to lie

can,

appellant's assertion, exposing a witness' bias

indeed, be

witness' motivation

more

for telling

important than

exploring

the truth.

Cf. Fed.
___

R.

Evid. 608 (evidence of truthful character is admissible only

after the character of the witness for truthfulness has been
attacked);

Fed. R.

generally

Evid

801 (prior

admissible only

to rebut

consistent statements
an express

or implied

-1414

charge

of

recent

fabrication

or

improper

that

the

influence

or

motivation).
Alvarez
violated

the

Amendment.

asserts

Compulsory
According

interfered

with

witnesses
portion

also

his

Process

to

of

Flores'

Flores'

credibility.

Clause

Alvarez,

constitutional

in his own defense

testimony
The

district

the

of

court

the

Sixth

district

court

right

to

present

when it excluded an important

that weighed
Compulsory

in

favor

Process

of

Clause

guarantees every criminal defendant "the right . . . to have

compulsory

process for obtaining witnesses in his favor . .

."

This

fundamental

right, however,

is

not

absolute.

Campbell, 874 F.2d at 851; Chappee v. Vose, 843 F.2d

________
_______________
(1st

Cir. 1988).

Sixth

Amendment

testimony

free

The
does

Supreme Court
not

from

the

adversarial system . . ."

225, 241 (1975).
that

confer

25, 28

has explained,

the

right

legitimate

to

demands

"The

present
of

the

United States v. Nobles, 422 U.S.

_______________________

As explained more fully above, we conclude

the district

court

acted properly

to limit

Flores'

testimony which might have mislead or confused the jury.

Third,
errored

Alvarez

in denying

his

complains that
Rule

29

the

district

motion for

court

judgment

of

-1515

acquittal.3
insufficient

Alvarez

contends

that

the

evidence

was

to prove beyond a reasonable doubt that he was

an active participant in
review the

the scheme to import cocaine.

evidence to determine whether the

We

evidence as a

whole, taken in the light most favorable to the prosecution,

together with
would

all

allow a

reasonable inferences

rational fact

reasonable doubt

finder to

that the defendant was

United States v. Maraj,

________________________

947 F.2d

1991); United States v. Vargas, 945

________________________
Cir.

1991).

part on

A conviction may

because

the

jury

conclude

beyond a

520,

522-23 (1st

Cir.

F.2d 426, 427-28

(1st

whole or in

Maraj, 947 F.2d

_____
is

entrusted

to accept

or

reject, in

whole

or in

at 523.

with

responsibility for making credibility determinations

empowered

it,

guilty as charged.

be grounded in

circumstantial evidence.

Moreover,

favorable to

the
and is

part,

witness' testimony, we will not weigh witness credibility on

appeal.

Maraj, 947 F.2d at 523; Vargas, 945 F.2d at 427.

_____
______

____________________
3 Rule 29 provides in relevant part,
The court on motion of a defendant or of its own
motion shall
order the
entry of judgment
of
acquittal of one or more offenses charged in the
indictment or information after the evidence on
either
side
is closed
if
the
evidence
is
insufficient to sustain a conviction of such offense
or offenses.
Fed. R. Crim. Proc. 29.
-1616

"the

Guilt for

aiding and

abetting

defendant

associated

himself

attaches only
with

the

where

venture,

participated in it as in something he wished to bring about,

and

sought

by his

actions to

make

States v. Rodriguez Cortes, 949

____________________________
1991).

it succeed."

F.2d 532,

United
______

539 (1st

Cir.

Neither mere association with the principal nor mere

presence

at the scene of

a crime, even

when combined with

knowledge that a crime was to be committed, is sufficient to

establish aiding

and abetting liability.

Aponte-Suarez, 905 F.2d 483,

_____________
States v. Francomano, 554
_____________________

491 (1st Cir.) (quoting United

______
F.2d 483, 486

cert. denied, 111 S. Ct. 531 (1990).

____________
standards

of

conviction
There is

review,

we

is supported
no

dispute

extended period of

United States v.
________________

are
by

that

time with

(1st Cir. 1977)),

Guided

persuaded

by

these

that

Alvarez's

sufficient evidence

of guilt.

Alvarez was

traveling

Matos and Flores

for

and that

an
a

very large quantity of cocaine was concealed

in the luggage

carried

is

by

the

group.

evidence upon which a

Moreover,

there

sufficient

reasonable jury could conclude beyond

a reasonable doubt that Alvarez participated in or sought to

assist Flores' scheme to import cocaine into the U.S.
The

evidence established

that

Customs Inspector

noticed the group talking "secretively" at the airport; that

-1717

two of the
bearing
wife

had

stamps,
fly

bags that

carried name

tags

Alvarez's name; and that Alvarez and his common law

no means

of

support

and odd jobs and,

to Puerto

other than

yet, they could

Rico, travel

Venezuelan hotel
to

concealed cocaine

on

a cruise

for several days, and

replace those purportedly left

addition, the
inconsistencies

government
in the

was

able

testimony

welfare,

still afford to
ship, stay

in a

purchase new cloths

on the cruise
to

food

ship.

highlight

offered

by

In

certain

Flores

and

Matos.4

Most

significantly, the

photograph apparently
Matos wearing

government

taken on the cruise

a striped dress

produced

ship that showed

that according to

her story

was not purchased until after she disembarked from the

_____
in

Caracas.

Matos

explained

mistaken about

the items of

when

the ship.

she left

evidence that the cruise

used

by Matos,

luggage

she

was

clothing she carried

The

government

ship

apparently
with her

also introduced

ship operators searched the cabins

Alvarez, and

purportedly left

that

Flores and

behind

by the

did not

find the

appellants.

The

witness, however, did not conduct the search himself and had
no knowledge of how the search was conducted.

____________________
4 Alvarez did not testify at trial.
-1818

Though

the

evidence

against

Alvarez

is

not

overwhelming, when it is viewed in a light most favorable to

the

prosecution it

is sufficient

to support

the verdict.

We, therefore, affirm Alvarez's conviction.

III.
____

Matos' Conviction
_________________
In addition to

joining in the arguments advanced

by

Alvarez, Matos contends that her conviction must be reversed

because

the government

presented in

oral statement allegedly made

its

case-in-chief an

by Matos which the government

failed to disclose during pre-trial discovery as required by

Fed.

R. Crim. P. Rule 16.

portion of
Customs
Ortiz
she

the testimony

Inspector who

Specifically, Matos challenges a

given

by Officer

Ortiz, a

U.S.

searched

Matos' luggage.

Officer

testified that during the

search he asked

Matos if

had purchased

answered

"yes."

the picture
Ortiz's

on her

testimony

trip, to
was

which she

the only

direct

evidence that the incriminating picture belonged to Matos.

The substance of Officer Ortiz's testimony came as

surprise to Matos because she had made two prior requests of

the

government -- first by

second by formal
with

the

motion on

discovery

letter on January
January 22, 1990

provisions
-1919

of Rule

16,

11, 1990 and

-- to

comply

including

specific request for any "oral statement[s of the defendant]

which the
trial."
its

Government intends

evidence at

the

The government responded by expressly acknowledging

obligations

documents.
Matos'

to offer in

The

under Rule

16

government,

and

by producing

however, made

several

no mention

of

alleged statement at that time or at any time before

the damaging testimony

came before the jury.

During cross-

examination, Officer Ortiz admitted that his prior testimony

at a preliminary

hearing and

before a grand

jury did

not

include any reference to Matos' alleged statement concerning

the picture.
The
Ortiz's

following morning, Matos moved to strike Officer

testimony and for the court to admonish the jury to

disregard

the testimony.

Matos argued

that

prosecution

records showed that Officer Ortiz had told the government of

Matos'

alleged

statement

government failed to produce

requests by

Matos.

giving an explanation.

in

April

1990,

but

that

the

the statement despite repeated

The judge

denied

the motion

without

Rule 16

imposes an obligation

defendant and the

opposing party

on both the

government to produce or

certain relevant

evidence

criminal

disclose to the
prior to

trial.

-2020

The

provisions of Rule 16(a)(1)(A) in effect at the time of

trial provided, in relevant part:

Upon request of a defendant the government
shall permit the defendant to inspect and
copy . . .
the substance of any oral
statement which the government intends to
offer in evidence at the trial made by the
defendant whether before or after arrest in
response to interrogation by any person then
known by the defendant to be a government
agent.
Fed.

R. Crim.

provisions
efficient

are

P. 16(a)(1)(A).
intended

to

administration of

These

mandatory discovery

contribute to
criminal justice

the

fair

and

by providing

the defendant with sufficient information upon which to base

an intelligent a plea;

by minimizing the undesirable effect

of surprise at trial; and by contributing to the accuracy of

the fact finding
committee's note.
_________________

process.

Fed. R. Crim.

P. 16,

advisory
________

Where a party fails to comply with these

discovery provisions, Rule 16 empowers the district court to

order

the

party

continuance,
other

to

exclude the

such relief as it

16(d)(2).

comply

with

the

rule,

non-complying evidence,
considers just.

grant

or enter

Fed. R. Crim. P.

We review a district court's ruling on the effect

of a failure to provide pretrial discovery only for abuse of

discretion.

United States v. Nickens,

_________________________

(1st Cir.), cert. denied, 113 S. Ct.

_____________

955 F.2d

112, 126

108 (1992); Rodriguez

_________

-2121

Cortes, 949 F.2d at 546; see Fed. R. Crim. P.

______
___
succeed

16(d)(2).

To

in obtaining a reversal on appeal, a defendant must

prove both an
955 F.2d at

abuse of discretion and

prejudice.

126; Rodriguez Cortes, 949

_________________

F.2d at

Nickens,
_______
546.

We

reverse.
We
Matos'

believe the

trial

court erred

when

it

denied

motion to exclude the alleged statement or to hold a

suppression

hearing without

first making

whether the

government acted in bad faith and whether Matos

was prejudiced by admission of the

defer

to the

suited to

make factual

observation
judge

judgment of

of the

failed to

circumstances
The court

statement.

a district

In

even a

judge who

leading to

this case,

threshold

nondisclosure

neither heard evidence nor

concerning the potential prejudice

as to

We generally

determinations based on

evidence.

make

a finding

is better
first hand

however, the

inquiry into
of the

the

statement.

made factual findings

flowing from a discovery

violation, the relative importance of Ortiz's testimony, and

the existence of prosecutorial bad faith.
F.2d at 126.

See Nickens, 955

___ _______

This was error.

Moreover,

this

error

prejudiced

appellant

Matos.

The alleged Matos statement provided a critical link between

Matos and

the effort to

smuggle the cocaine

-2222

laden picture

frame into Puerto Rico.

abetting,

"the

government

associated himself
in something he
actions

To establish guilt for

must prove

that

aiding and

the defendant

with the venture, participated

wished to

bring about, and

to make it succeed."

in it as

sought by

his

Rodriguez Cortes, 949 F.2d at

________________

539 (quoting United States v. Garcia-Rosa, 876 F.2d 209, 217

____________________________
(1st Cir. 1989), cert. denied, 493 U.S. 1030 (1990)).
_____________
statement attributed
of evidence
crime,

that indicated Matos

rather

present at the
statement

to Matos was a

than

merely

scene of

very significant piece

was a participant

being

an

a crime.

fundamentally sabotaged

innocent

There

statement

figured

reject

Flores'

is

prominently in
account

of

the

alleged

Matos' defense

substantial

in the

bystander

Similarly, the

was an unwitting participant in Flores'

venture.

The

that she

cocaine trafficking
likelihood

the

that

jury's decision

incident,

which

the
to

wholly

exculpated appellants.
Given

the

central

importance

of

the

alleged

statement,

the

required by
Matos.

government's

Rule 16

First,

opportunity

failure

to

disclose

had additional grave

Matos

was

deprived

it

as

consequences for

of

any

meaningful

to investigate the circumstances of her alleged

statement and to attempt to suppress it.

Significantly, the

-2323

government disclosed during

made

by

Second,

Alvarez,

which

not knowing

of

deprived

of

the

litigation or

pretrial discovery a
Alvarez

successfully suppressed.

the alleged

opportunity

plea strategy

statement

to

statement, Matos
design

was

an

intelligent

that responded to

the alleged

statement.
The government

contends that

no prejudice

attached

because "it is doubtful that counsel for appellant would not

anticipate
exist."

or

Even

contemplate

that

if this argument

such

statement

were not inconsistent

might
with

the mandatory language of Rule 16, we would flatly reject it

as

being

fairness.

incompatible with
The

examination
testimony

government

of

Officer

While

cross-examination

sense

and fundamental

also contends

Ortiz

and essentially

have existed.

common

cured

that the

effectively

cross-

impeached

whatever prejudice

his
might

we have sometimes considered effective

of

witness

when

weighing

potential

prejudice presented by that witness' testimony, Nickens, 955

_______
F.2d at 126; United States v. Samalot Perez, 767
_______________________________
(1st

the admission

of

cumulative evidence that was regarded as harmless error.

In

this

Cir.

case,

1985), those

the

cases

alleged

involved

F.2d 1, 4

statement

was

vital

to

the

that since Matos

did

conviction.
-2424

Finally, the government argues

not

present the trial

judge with any

specific grounds for

suppressing

the

alleged

correctly denied
During

asked

suppress the
of

the

Matos' request for a

discussion

repeatedly

statement,

if

with
the

statement.

statement

Matos'
defendant

the

district

suppression hearing.
counsel,

the

had

grounds

any

Counsel responded

only the

day

court

before,

judge
to

that he learned
that

he had

no

information regarding the statement, and when pressed by the

judge,

stated

suppress

that

at that time
_____________

he

had

no grounds

to

the statement other than the violation of Rule 16.

We are not surprised that Matos was unprepared to articulate

a particular

ground

for suppressing

these circumstances and in the middle

the

statement

of a trial.

The

under
one

possible curative course, suspending the trial and holding a

suppresion hearing, was erroneously rejected by the district
court.
The

government is

wholly responsible

for

unfairly

surprising the defendant and should not benefit from its own
violation of Rule 16.
In summary, we

affirm the conviction of Alvarez

reverse and remand for a new trial as to Matos.

-2525

and