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____________________
No. 94-1890
Appellee,
v.
ARNALDO L. RULLAN-RIVERA,
Defendant, Appellant.
____________________
____________________
____________________
_______________________
____________________
CYR,
CYR,
Circuit
Judge.
Circuit
Judge.
_______________
Arnaldo
L.
Rullan-Rivera
for
841(a)(1); 18 U.S.C.
2.
See 21 U.S.C.
___
I
I
BACKGROUND
BACKGROUND
__________
The
favorable
771, 773
Appellant
relevant facts
to the verdict.
are
the light
most
Rullan and
recounted in
Humberto Prada-Cordero
947 (1995).
("Prada") enlisted
November
the Luis
Munoz Marin
Rico,
where
mainland.
International Airport in
Prada and
After twice
tometer
alarm,
airline
ticket, and
Miranda were
to board
On
wife went to
Carolina, Puerto
a flight
to the
Miranda
abandoned
fled the
his
handbag,
passport
and
than risk
became a
cooperating witness
the police,
and implicated
____________________
846,
1Rullan had
amounts of cocaine
and
possessing
841(a)(1); 18
cocaine with
U.S.C.
2.
intent
to distribute,
Rullan filed
see
___
id.
___
a pretrial motion
to
At trial,
was to be
court
introduced.
The prosecutor
the
less,
accordingly assured
on the
third
day of
trial,
when the
Neverthe-
prosecutor
asked
dant]
Humberto
blurted out:
Prada
"No,
prior
to [November
8,
1992],"
Miranda
On
appear
the
for trial.
following
day, codefendant
Prada
failed
to
mistrial, and ordered that the joint trial proceed, with Prada in
__
absentia.
________
After the
motion to
II
II
DISCUSSION
DISCUSSION
__________
A.
A.
The government
does not
prohibited
"bad
acts"
evidence,
but simply
unex-
dealer constituted
contends
that
present
purposes,
necessary to
therefore,
we
assume
that
abuse of
For
challenged
manifest
the
harm.
is reviewed for
v. Romero-Carrion,
______________
v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994), cert. denied, 115 S.
______
_____ ______
Ct.
919 (1995),
and will be
upheld absent
a clear
showing of
F.3d
to
Mistrial
less drastic
17
means, such as a
is a last resort,
Cir. 1993),
in
mid-sentence by
defense objection.
The official
trial
Q:
Rullan in relation to
A:
No,
was totally
surprised.
Arnold
Rullan surprised me --
The trial
response stricken
from
the
record
and
contemporaneously directed
the
jury
to
disregard it.
It
the
Puerto
would be unrealistic,
Rico jury
response given
did not
by Miranda in
normal presumption
and understand
Spanish.
Be
U.S. 756,
not have
resulted.
that as it
inadvertently
presented
been ignored
Id. at 1185.
___
evidence
the entire
may, the
reasonably could
v. Miller, 483
______
hear
ing testimony
to
and that
("We normally
presume
disregard inadmissible
it, unless
there
is
an
the
court's instructions.")
ing
instruction is
improper
States,
______
Although
not
evidentiary
(quoting Richardson
__________
481
always sufficient
prejudice,
v. Marsh,
_____
see,
___
to insulate
e.g.,
____
against
Bruton v.
______
United
______
not required in
There
verdict.
to
Miranda
was strong
scheme was
their
Miranda
meeting at which
support
for
the
jury
meetings;
and
evidentiary
(3)
relayed
Prada; (4)
drug
smuggling messages
removed cocaine
from
his own
between
car and
carried
airport; (5)
(6) discussed
prior to their
trip to the
Prada to the
airport; and
for investing
The overwhelming
tion, demonstrates
weight of the
contemporaneous instruc-
to a "high probability"
verdict.
Rullan
215
was "harmless."
to prior drug
dealings with
treated as harmless
if it is `highly
prob-
verdict") (cita-
tions omitted).
B.
B.
Rullan could
be convicted
of aiding and
abetting the
underly-
about, and
sought by
it as something he wished
his actions to
make it succeed."
to bring
United
______
States v. Clifford, 979 F.2d 896, 899 (1st Cir. 1992) (citing Nye
______
________
___
& Nissen
________
the
evidence in
indulging
the
light most
favorable
to the
We review
government,
a reasonable doubt.
credible
because Miranda
had
made contrary
sentence.
We find
his plea
at 506.
the
Thus,
was
agreement, and
17 F.3d
statements to
and
the
credibility assessment
was a
there was
ample
credible evidence
to
See supra p.
___ _____
5.
C.
C.
Flight by Codefendant
Flight by Codefendant
_____________________
found that
days of
court
trial.
codefendant's
Rullan moved
flight might
defendants were
trial proceed
States,
______
the district
guilty.
against both
U.S.
___
,
___
prompt
a jury
The district
defendants.
that his
inference that
court directed
See
___
Crosby v.
______
both
that the
United
______
R. Crim. P. 43(b).
claims of error.
First, he says,
on
Second,
a limiting instruction
a jury inference
that
Third,
content"
and prejudicial.
We
First,
of
Rullan correctly
court
United States
_____________
United States
_____________
(1st Cir.),
double jeopardy
the defendant.
(1978);
asserts that
v.
Scott, 437
_____
v. Aguilar-Aranceta,
________________
nonetheless correctly
U.S. 82,
957 F.2d
predicated its
at the request
18, 21-22
The district
denial of
Rullan's
to appear, in
joint
_____
Crosby,
______
after
trial could
not
failure
proceed with
____
Prada
_____
93
in absentia.
__ ________
the
See
___
trial begins, as
waiver of right to
be tried in person);
see Fed.
___
R. Crim. P. 14,
error" standard,
district court.
since severance
Rullan's
assertion
before the
light,
motion
rests
1052 (1986).
exclusively
on
Viewed in
the
conclusory
he was guilty
this
113
S. Ct.
structed the
1770, 1781
jury that
understood.
(1993).
The
district court
firmly in-
immaterial to
THE COURT:
The absence
of
defendant
defendant Rullan.
You
to defendant Prada
Is that clear?
Let the
may
itself.
record show
We therefore
jury
instruction could
guilt
arising
from his
protect Rullan
against an
codefendant's
voluntary
that no
inference of
flight.
See
___
United States v. Phibbs, 999 F.2d 1053, 1067 (6th Cir. 1993) (any
______ ______
______
adverse
effect
upon
nonfleeing
defendant
cautionary
instruction
considered
could not be
denied,
used as
that each
neutralized
defendant's
case
by
"a
was to
be
but him"),
cert.
_____
______
______
because trial
construe
court twice
the absence
instructed jury
of [codefendant] as
that "it
evidence of
should not
guilt of
either [the
defendant or
denied, 502
______
III
III
CONCLUSION
CONCLUSION
__________
As there
was no
judgment is affirmed.
________
district court
____________________
2Rullan
also challenges, as
instruction
groundless.
There
"plain error."
Lastly,
had not
was no
been invited,
the
error in the
in the jury
error is
instruction, let
alone
argument
Rullan
withdrew
his
so-called
Banco de Santander-Puerto Rico, 932 F.2d 999, 1000 n.1 (1st Cir.
_______________________________
1991);
Bunol v.
_____
1993).
10
67, 70
(5th Cir.