united states v. matos, 1st cir. (1993)

7/26/2019 United States v. Matos, 1st Cir. (1993)

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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] ___________________

____________________


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Before

Torruella, Circuit Judge, _____________ Campbell, Senior Circuit Judge,

____________________ and Skinner,* Senior District Judge. _____________________

____________________

Rachel Brill, Assistant Federal Public Defender, wit_____________

Benicio Sanchez Rivera, Federal Public Defender, was on bri_______________________

appellant Victor Manuel Alvarez. Joseph C. Laws, Jr., by Appointment of the Court, for ap ____________________ Diana Matos.

Ivan Dominguez, Assistant United States Attorney, wit

_______________ Daniel F. Lopez Romo, United States Attorney, and Jose A.

______________________ ________ Espinosa, Senior Litigation Counsel, were on brief for appellee

________ States.

____________________

March 11, 1993 ____________________

_____________________


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*Of the District of Massachusetts, sitting by designation.

SKINNER, District Judge.______________


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Appellants Victor M. Alvarez and Diana Matos, com

law husband and wife, were convicted by a jury in t

District of Puerto Rico for aiding and abetting several dr

offenses.1 Miguel Flores, though not a party to t

appeal nor convicted in the same trial, played a centr

role in the alleged cocaine trafficking scheme and plea

guilty to the identical charges. Appellants defen

against the charges alleging that they were unwitti

participants in defendant Flores' cocaine trafficki

scheme. Flores offered testimony to the same end. Ea

appellant advances numerous grounds for reversal.

Appellant Alvarez appeals his convictions allegi

that the district court (1) erroneously refused to acce

defendant Flores' guilty plea prior to the trial of Alvar

and Matos, (2) improperly prohibited Flores from testifyi

that his testimony exposed him to criminal penalties f

cocaine trafficking, and (3) errored in denying appellant

____________________

1 Alvarez and Matos were convicted for the possession

cocaine with intent to distribute in violation of 18 U.S.

2 and 21 U.S.C. 841(a)(1); the importation of cocai into the customs territory of the United States in violati of 18 U.S.C. 2 and 21 U.S.C. 952(a); and the failure

declare cocaine in the cargo manifest or supply list of t aircraft which brought them into the customs territory

the United States in violation of 18 U.S.C. 2 and

U.S.C. 955.

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motion for judgment of acquittal. We affirm with respect

Alvarez.

Appellant Matos joins the arguments of Alvarez a

further appeals her convictions, alleging that the distri

court failed to exclude government evidence that

produced in violation of Rule 16, Federal Rules of Crimin

Procedure. As to Matos, we reverse and remand to t

district court for a new trial.

I. Evidence __ ________

We recite the evidence in the light most favorab

to the prosecution. United States v. Campbell, 874 F.

__________________________

838, 839 (1st Cir. 1989). The evidence showed that

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

A. Flores arrived at the Luis Munoz Marin Internation

Airport, San Juan, Puerto Rico, on American Airlines fli

904 from Caracas, Venezuela. A U.S. Customs Inspecto

Francis Aponte, noticed that the three individuals appear

to be nervous and were talking secretively among themselve


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Inspector Aponte approached the individuals, made routi

inquiries of them, and referred the group to the seconda

inspection station (a table used to examine the contents

a passenger's luggage). At that time, appellant Alvarez

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permitted to leave the customs enclosure to purcha

airplane tickets to New York for each member of the grou

Inspector Aponte testified on cross-examination that he

not made any written record of the group's suspicio

behavior even though such information would have been

important part of the case report.

Carlos Ortiz, also a U.S. Customs Inspecto

testified that he noticed two individuals, later identifi

as Flores and Matos, pushing two carts stacked with lugga

and that he motioned for them to approach his seconda

station. Inspector Ortiz requested Matos' and Flore


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customs declaration cards, noting that both cards appear

to have been filled out by the same person. Mat

complained that the airline had broken a bottle of liqu

that she packed in her suitcase. During his search of t

luggage, Ortiz noticed that the luggage contained both men

and women's clothing and he discovered a heavy, newspap

wrapped package. Ortiz unwrapped the package to find

aged painting of a young girl in a wooden frame. Ort

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

which she answered "yes."

Inspector Ortiz consulted with a senior inspecto

took the picture to a search room, and drilled into t

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picture frame using a small drill bit. Ortiz discovere

white powdery substance inside the wooden frame, whic

field test indicated was cocaine. Matos and Flores we

arrested and searched. Customs inspectors then locat


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

arrest. Inspectors conducted a thorough search of t

group's luggage, finding two additional paintings t

concealed cocaine and discovering false bottoms in each

the six suitcases that also concealed cocaine. Custo

agents determined that the group carried more than t

kilograms of cocaine.

A grand jury returned a three count indictment

January 3, 1990, against Matos, Alvarez, and Flores. Ea

defendant pleaded not guilty. On October 2, 1990, Flor

filed a notice to plead guilty on one count of t

indictment. It appears, however, that Flores intended

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

amended his petition accordingly. On October 5, 1990, t

district court extensively questioned Flores befo

declining to accept his plea. Flores asserted that Alvar

and Matos had been unaware of any plan to import cocaine a

that he, himself, was solely responsible for the crime. T

judge suspended the proceeding because she was unsu

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whether Flores could plead guilty to aiding and abettin

crime while simultaneously proclaiming the innocence of t

other alleged participants.

On October 9, 1990, the Flores plea hearing resume

The judge explained that Flores' refusal to acknowledge t

aiding and abetting modality did not preclude his guil

plea. The court then engaged in an extensive colloquy wi

defendant Flores in accordance with Rule 11 of the Fed.

Crim. P. The judge noted that Flores had proclaimed t

innocence of Alvarez and Matos in a confidential letter t

Flores had written to the judge from prison. Flor

confirmed sending the letter and explained that appellan

were friends of his from New York, the home of all t

parties. Flores had invited appellants to join him on

cruise from San Juan to several caribbean islands, includi

a stop in Caracas, Venezuela. While on the cruise, Flor

met a man who offered him three thousand dollars to bri

several pictures from Venezuela to Puerto Rico. Flor

agreed to meet the man at a hotel in Caracas and to car

the pictures into Puerto Rico as a passenger on a commerci

airline. Flores did not tell Alvarez or Matos of

scheme.


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Flores, Alvarez, and Matos left the ship while

was in port in Caracas to visit the beach. Flores clai

to have tricked the appellants into missing the ship

scheduled departure because he did not want to fly to Puer

Rico alone. After missing the ship, Flores took Alvarez a

Matos to the predesignated hotel, checked the group into t

rooms, secretly picked up the pictures, and borrowed sever

pieces of luggage from the man after explaining that t

group had left their bags on the cruise ship. Flor

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

would deliver the pictures and return the borrowed lugga

Flores claimed that he never saw the cocaine or even kn

for certain that he was carrying cocaine,2 but "imagine

that the frames concealed cocaine because "nobody is goi

to pay you three thousand dollars just to bring in thr

pictures." Flores also denied knowing that the borro


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suitcases concealed cocaine. Flores explained that Alvare

Matos, and he purchased new cloths in Caracas and spe

several days in the hotel before returning to Puerto Ric

Flores packed the three pictures in separate bags a

____________________

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

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covered them with cloths. Flores maintained that appellan

were totally unaware of his trafficking scheme during t

entire trip.

The district court declined Flores' plea, stating:

Now, you have stated that you did not know whatin the picture frames, you did not know what was

any of the luggage that you carried. That in itse carries with it a defense that you could present

the jury. So I am not convinced that you have ma

a plea of guilty that I could accept that hasbasis in fact that contains all elements of t


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offenses charged which is a requirement for t court to accept your plea of guilty. Among tho elements, those of knowledge and intent.

Flores then moved to sever his trial from that of t

appellants. Finding that it would be impossible to mount

adequate defense if Flores testified in favor of Alvarez a

Matos, the district court granted both the motion to se

Flores' trial and Flores' request to be tried aft

appellants.

At trial, Matos called Flores as a witness

offered essentially the same testimony as given to the ju

during his attempted plea. During examination by Alvare

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

cocaine into the United States, but he was not permitted

testify as to the punishment that could be imposed for

crime or as to his aborted plea attempt. The jury fou

Matos and Alvarez guilty on all charges.

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One week later, Flores again came before t

district court to offer his guilty plea, but this time

admitted that he knew cocaine was concealed within t

picture frames. The court accepted his plea.

II. Alvarez's Conviction ___ ____________________

Appellant Alvarez attacks his conviction on thr

fronts. First, Alvarez alleges that his defense

prejudiced because the district court erroneously failed

accept defendant Flores' guilty plea prior to the trial

Alvarez and Matos. Alvarez claims the judge relied

"perceived technical deficiencies" with Flores' plea, rat

than crediting the weight of Flores' testimony t

indicated he accepted full responsibility for the cri

This error, Alvarez argues, prejudiced his defense becau

he was deprived of the opportunity to put Flores' guil

plea before the jury as persuasive evidence of Mr. Flore

credibility and sincerity.

We are unpersuaded by appellant's argument.

criminal defendant has no constitutional right to ple

guilty. North Carolina v. Alford, 400 U.S. 25, 38 n. __________________________

(1970) (a trial judge need not "accept eve

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constitutionally valid guilty plea merely because

defendant wishes so to plead"). Nor does Rule 11 of t

Federal Rules of Criminal Procedure create such a rig

United States v. Bednarski, 445 F.2d 364, 365-66 (1st Ci ___________________________

1971). Here, the district court conducted a prolon

hearing to determine the sufficiency of Flores' plea a

carefully considered his testimony. While Alvarez mi

reach a different conclusion than the judge as to t

factual sufficiency of Flores' attempted plea, we find

error in district court's determination.

Second, Alvarez alleges that the district cou

violated both the Compulsory Process and the Confrontati

Clauses of the Sixth Amendment by improperly limiting t

scope of Flores' testimony and, thereby, depriving t

defendants of forceful evidence of Flores' sincerity a

credibility. On direct examination, Matos asked Flore

"You have testified under oath regarding the exceptan

[sic] of a criminal offense. Are you aware of t


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punishment that could be imposed for this crime?"

The district court sustained the government

objection to the question, reasoning that Flores had n

actually pleaded guilty and that he might or might not

found guilty at a later trial. Moreover, Flores' testimo

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would not necessarily be admissible against him in his o

trial unless he chose to testify in his own defense. T

judge did, however, allow Matos to ask Flores if he

previously asserted the appellants' innocence.

Alvarez then conducted what he termed a "cros

examination" of Flores -- a characterization rejected by t

trial court. The government argued that even though Flor

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

was unavailable because Flores was clearly testifying

Alvarez's favor. Though we are inclined to agree with t

trial court, we need not decide the issue because Alvarez


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Sixth Amendment objection fails regardless of how t

examination is characterized. Flores was permitted

testify on "cross-examination" that he knew it was a cri

to bring cocaine into the United States and that he

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

The Confrontation Clause of the Sixth Amendme

provides that "[i]n all criminal prosecutions, the accus

shall enjoy the right . . . to be confronted with t

witnesses against him." Cross-examination, the prima

interest secured by the Confrontation Clause, is "t

principal means by which the believability of a witness a

the truth of his testimony are tested." Kentucky_________

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Stincer, 482 U.S. 730, 736 (1987) (quoting Davis v. Alas _______ _____________

415 U.S. 308, 316 (1974)). The Confrontation Clau


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"mandates a `minimum threshold of inquiry' be afforde

defendant in the cross-examination of adverse witnesses

Brown v. Powell, 975 F.2d 1, 5 (1st Cir. 1992) (quoti

________________

United States v. Jarabek, 726 F.2d 889, 902 (1st Ci

__________________________

1984)), cert. dismissed, 122 L. Ed. 2d 179 (1993), but t _______________

right to cross-examination is, of course, not absolut

Trial judges retain broad discretion to impose reasonab

limits on the scope of cross-examination. Delaware v.

_____________

Arsdall, 475 U.S. 673, 679 (1986). On appeal, we review_______

determine:

whether the jury had sufficient other informati before it, without the excluded evidence, to make

discriminating appraisal of the possible biases a motivations of the witnesses.

Brown, 975 F.2d at 5 (quoting United States v. Tracey, 6 _____ ________________________

F.2d 433, 437 (1st Cir. 1982)). The issue here is whet

the district court abused its discretion and committe

reversible error when it prevented the jury from learning

the exact penalties that Flores would face if convicted

cocaine trafficking. We conclude the court committed

error.

Flores was allowed to put his entire story befo

the jury, including important information that supported

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credibility. The jury heard Flores testify that importi

cocaine into the U.S. is a crime. We are confident that t

jury knew that a conviction for importing a large quanti

of cocaine carries a serious punishment. Though the ju

did not learn of the precise penalty imposed for dr

trafficking or that Flores had attempted to plead guilt

the decision to exclude this evidence was within t

district court's discretion. The judge could proper

conclude that such testimony might mislead or confuse t

jury; particularly where, as here, the witness sought

testify to the same penalties faced by the defendants.

We note that Sixth Amendment right of cros

examination is directed at uncovering witness bias a

untruthfulness. In this case, however, Alvarez sought

use "cross-examination" to bolster the witness' credibilit

Contrary to appellant's assertion, exposing a witness' bi

to lie can, indeed, be more important than exploring

witness' motivation for telling the truth. Cf. Fed.

___


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Evid. 608 (evidence of truthful character is admissible on

after the character of the witness for truthfulness has be

attacked); Fed. R. Evid 801 (prior consistent statemen

generally admissible only to rebut an express or impli

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charge of recent fabrication or improper influence

motivation).

Alvarez also asserts that the district cou

violated the Compulsory Process Clause of the Six

Amendment. According to Alvarez, the district cou

interfered with his constitutional right to prese

witnesses in his own defense when it excluded an importa

portion of Flores' testimony that weighed in favor

Flores' credibility. The Compulsory Process Clau

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

compulsory process for obtaining witnesses in his favor .


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." This fundamental right, however, is not absolut

Campbell, 874 F.2d at 851; Chappee v. Vose, 843 F.2d 25,________ _______________

(1st Cir. 1988). The Supreme Court has explained, "T

Sixth Amendment does not confer the right to prese

testimony free from the legitimate demands of t

adversarial system . . ." United States v. Nobles, 422 U. _______________________

225, 241 (1975). As explained more fully above, we conclu

that the district court acted properly to limit Flore

testimony which might have mislead or confused the jury.

Third, Alvarez complains that the district cou

errored in denying his Rule 29 motion for judgment

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acquittal.3 Alvarez contends that the evidence

insufficient to prove beyond a reasonable doubt that he


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an active participant in the scheme to import cocaine.

review the evidence to determine whether the evidence as

whole, taken in the light most favorable to the prosecutio

together with all reasonable inferences favorable to i

would allow a rational fact finder to conclude beyon

reasonable doubt that the defendant was guilty as charge

United States v. Maraj, 947 F.2d 520, 522-23 (1st Ci ________________________

1991); United States v. Vargas, 945 F.2d 426, 427-28 (1 ________________________

Cir. 1991). A conviction may be grounded in whole or

part on circumstantial evidence. Maraj, 947 F.2d at 52 _____

Moreover, because the jury is entrusted with t

responsibility for making credibility determinations and

empowered to accept or reject, in whole or in part,

witness' testimony, we will not weigh witness credibility

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 o

motion shall order the entry of judgmentacquittal of one or more offenses charged in t

indictment or information after the evidenceeither side is closed if the evidenceinsufficient to sustain a conviction of such offen

or offenses.

Fed. R. Crim. Proc. 29.

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Guilt for aiding and abetting attaches only whe

"the defendant associated himself with the ventur

participated in it as in something he wished to bring abou

and sought by his actions to make it succeed." Unit ___

States v. Rodriguez Cortes, 949 F.2d 532, 539 (1st Ci ____________________________

1991). Neither mere association with the principal nor me

presence at the scene of a crime, even when combined wi

knowledge that a crime was to be committed, is sufficient

establish aiding and abetting liability. United States_____________

Aponte-Suarez, 905 F.2d 483, 491 (1st Cir.) (quoting Unit

_____________ ___

States v. Francomano, 554 F.2d 483, 486 (1st Cir. 1977) _____________________

cert. denied, 111 S. Ct. 531 (1990). Guided by the ____________

standards of review, we are persuaded that Alvarez

conviction is supported by sufficient evidence of guil

There is no dispute that Alvarez was traveling for

extended period of time with Matos and Flores and that


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very large quantity of cocaine was concealed in the lugga

carried by the group. Moreover, there is sufficie

evidence upon which a reasonable jury could conclude beyo

a reasonable doubt that Alvarez participated in or sought

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

The evidence established that a Customs Inspect

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

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two of the bags that concealed cocaine carried name ta

bearing Alvarez's name; and that Alvarez and his common l

wife had no means of support other than welfare, fo

stamps, and odd jobs and, yet, they could still afford

fly to Puerto Rico, travel on a cruise ship, stay in

Venezuelan hotel for several days, and purchase new clot

to replace those purportedly left on the cruise ship.

addition, the government was able to highlight certa

inconsistencies in the testimony offered by Flores a


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Matos.4 Most significantly, the government produced

photograph apparently taken on the cruise ship that sho

Matos wearing a striped dress that according to her sto

was not purchased until after she disembarked from the s

_____

in Caracas. Matos explained that she was apparent

mistaken about the items of clothing she carried with

when she left the ship. The government also introduc

evidence that the cruise ship operators searched the cabi

used by Matos, Alvarez, and Flores and did not find t

luggage purportedly left behind by the appellants. T

witness, however, did not conduct the search himself and

no knowledge of how the search was conducted.

____________________

4 Alvarez did not testify at trial.

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Though the evidence against Alvarez is n

overwhelming, when it is viewed in a light most favorable

the prosecution it is sufficient to support the verdic

We, therefore, affirm Alvarez's conviction.

III. Matos' Conviction ____ _________________

In addition to joining in the arguments advanced

Alvarez, Matos contends that her conviction must be revers

because the government presented in its case-in-chief

oral statement allegedly made by Matos which the governme

failed to disclose during pre-trial discovery as required

Fed. R. Crim. P. Rule 16. Specifically, Matos challenges

portion of the testimony given by Officer Ortiz, a U.

Customs Inspector who searched Matos' luggage. Offic

Ortiz testified that during the search he asked Matos

she had purchased the picture on her trip, to which s

answered "yes." Ortiz's testimony was the only dire

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

the government -- first by letter on January 11, 1990 a

second by formal motion on January 22, 1990 -- to comp

with the discovery provisions of Rule 16, including

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specific request for any "oral statement[s of the defendan

which the Government intends to offer in evidence at t

trial." The government responded by expressly acknowledgi

its obligations under Rule 16 and by producing sever

documents. The government, however, made no mention

Matos' alleged statement at that time or at any time befo

the damaging testimony came before the jury. During cros

examination, Officer Ortiz admitted that his prior testimo

at a preliminary hearing and before a grand jury did n

include any reference to Matos' alleged statement concerni

the picture.

The following morning, Matos moved to strike Offic

Ortiz's testimony and for the court to admonish the jury

disregard the testimony. Matos argued that prosecuti

records showed that Officer Ortiz had told the government

Matos' alleged statement in April 1990, but that t

government failed to produce the statement despite repeat

requests by Matos. The judge denied the motion witho

giving an explanation.


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Rule 16 imposes an obligation on both the crimin

defendant and the government to produce or disclose to t

opposing party certain relevant evidence prior to tria

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

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. P. 16(a)(1)(A). These mandatory discove

provisions are intended to contribute to the fair a

efficient administration of criminal justice by providi

the defendant with sufficient information upon which to ba

an intelligent a plea; by minimizing the undesirable effe


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of surprise at trial; and by contributing to the accuracy

the fact finding process. Fed. R. Crim. P. 16, adviso _____

committee's note. Where a party fails to comply with the _________________

discovery provisions, Rule 16 empowers the district court

order the party to comply with the rule, grant

continuance, exclude the non-complying evidence, or ent

other such relief as it considers just. Fed. R. Crim.

16(d)(2). We review a district court's ruling on the effe

of a failure to provide pretrial discovery only for abuse

discretion. United States v. Nickens, 955 F.2d 112, 1 _________________________

(1st Cir.), cert. denied, 113 S. Ct. 108 (1992); Rodrigu

_____________ ______

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Cortes, 949 F.2d at 546; see Fed. R. Crim. P. 16(d)(2).______ ___

succeed in obtaining a reversal on appeal, a defendant mu


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prove both an abuse of discretion and prejudice. Nicken _____

955 F.2d at 126; Rodriguez Cortes, 949 F.2d at 546.

_________________

reverse.

We believe the trial court erred when it deni

Matos' motion to exclude the alleged statement or to hol

suppression hearing without first making a finding as

whether the government acted in bad faith and whether Mat

was prejudiced by admission of the statement. We general

defer to the judgment of a district judge who is bett

suited to make factual determinations based on first ha

observation of the evidence. In this case, however, t

judge failed to make even a threshold inquiry into t

circumstances leading to nondisclosure of the statemen

The court neither heard evidence nor made factual findin

concerning the potential prejudice flowing from a discove

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

the existence of prosecutorial bad faith. See Nickens, 9 ___ _______

F.2d at 126. This was error.

Moreover, this error prejudiced appellant Mato

The alleged Matos statement provided a critical link betwe

Matos and the effort to smuggle the cocaine laden pictu

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frame into Puerto Rico. To establish guilt for aiding a

abetting, "the government must prove that the defenda

associated himself with the venture, participated in it

in something he wished to bring about, and sought by

actions to make it succeed." Rodriguez Cortes, 949 F.2d________________

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

(1st Cir. 1989), cert. denied, 493 U.S. 1030 (1990)). T _____________

statement attributed to Matos was a very significant pie

of evidence that indicated Matos was a participant in t

crime, rather than merely being an innocent bystan

present at the scene of a crime. Similarly, the alle

statement fundamentally sabotaged Matos' defense that s

was an unwitting participant in Flores' cocaine trafficki

venture. There is a substantial likelihood that t

statement figured prominently in the jury's decision

reject Flores' account of the incident, which whol

exculpated appellants.

Given the central importance of the alle


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statement, the government's failure to disclose it

required by Rule 16 had additional grave consequences f

Matos. First, Matos was deprived of any meaningf

opportunity to investigate the circumstances of her alle

statement and to attempt to suppress it. Significantly, t

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government disclosed during pretrial discovery a stateme

made by Alvarez, which Alvarez successfully suppresse

Second, not knowing of the alleged statement, Matos

deprived of the opportunity to design an intellige

litigation or plea strategy that responded to the alle

statement.

The government contends that no prejudice attac

because "it is doubtful that counsel for appellant would n

anticipate or contemplate that such a statement mi

exist." Even if this argument were not inconsistent wi

the mandatory language of Rule 16, we would flatly reject


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as being incompatible with common sense and fundament

fairness. The government also contends that the cros

examination of Officer Ortiz effectively impeached

testimony and essentially cured whatever prejudice mi

have existed. While we have sometimes considered effecti

cross-examination of witness when weighing potenti

prejudice presented by that witness' testimony, Nickens, 9 _______

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

(1st Cir. 1985), those cases involved the admission

cumulative evidence that was regarded as harmless error.

this case, the alleged statement was vital to t

conviction.

-24- 24

Finally, the government argues that since Matos

not present the trial judge with any specific grounds f


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suppressing the alleged statement, the district cou

correctly denied Matos' request for a suppression hearin

During a discussion with Matos' counsel, the ju

repeatedly asked if the defendant had any grounds

suppress the statement. Counsel responded that he learn

of the statement only the day before, that he had

information regarding the statement, and when pressed by t

judge, stated that at that time he had no grounds_____________

suppress the statement other than the violation of Rule 1

We are not surprised that Matos was unprepared to articula

a particular ground for suppressing the statement un

these circumstances and in the middle of a trial. The o

possible curative course, suspending the trial and holdin

suppresion hearing, was erroneously rejected by the distri

court.

The government is wholly responsible for unfair

surprising the defendant and should not benefit from its o

violation of Rule 16.

In summary, we affirm the conviction of Alvarez a

reverse and remand for a new trial as to Matos.

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united states v. matos, 1st cir. (1993)

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