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USCA1 Opinion
June 12, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1688
UNITED STATES,
Appellee,
v.
VICTOR SERNA-VEGA,
Defendant - Appellant.
____________________
No. 94-1689
UNITED STATES,
Appellee,
v.
ANGEL RAMOS-SANTIAGO,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
_____________________
Carlos A. V zquez-Alvarez, Assistant Federal Public _____________________________
Defender, with whom Benicio S nchez-Rivera, Federal Public _______________________
Defender, was on joint brief for appellant Angel Ramos-Santiago;
and Jorge E. Rivera-Ortiz, by Appointment of the Court, for ______________________
appellant V ctor Serna-Vega.
Lisa A. Kahn, Attorney, Department of Justice, with whom _____________
Guillermo Gil, United States Attorney, and Warren V zquez, ______________ _______________
Assistant United States Attorney, were on brief for appellee.
____________________
____________________
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Per Curiam. Defendants Victor Serna-Vega and Angel Per Curiam ___________
Ramos-Santiago were each charged with one count of conspiracy to
possess with intent to distribute approximately one hundred
kilograms of cocaine, and one count of possession with intent to
distribute eleven kilograms of cocaine. Serna-Vega was also
charged with two counts of using a telephone in facilitating the
drug conspiracy. Following a six-day trial, the jury found
Serna-Vega guilty on all counts. The jury found Ramos-Santiago
guilty on the substantive possession count and not guilty on the
conspiracy count. Serna-Vega was sentenced to 235 months in
prison and Ramos-Santiago was sentenced to 120 months in prison.
Both defendants appeal their convictions, and Serna-Vega appeals
his sentence. For the reasons stated herein, we affirm.
BACKGROUND BACKGROUND __________
The facts are presented in the light most favorable to
the verdict. United States v. Echeverri, 982 F.2d 675, 676 (1st _____________ _________
Cir. 1993). In early March 1993, Drug Enforcement Agency ("DEA")
Special Agent Jefferson Mor n ("Agent Mor n") and DEA
confidential informant Freddy V lez-Torres ("V lez-Torres") began
negotiations with H ctor Ayala-Rodr guez ("Ayala-Rodr guez"), the
owner of a car dealership in Gu nica, Puerto Rico, to sell him
one hundred kilograms of cocaine. At the first meeting in which
the drug transaction was discussed, Ayala-Rodr guez introduced
appellant Victor Serna-Vega ("Serna-Vega") as his "right-hand
man." Serna-Vega was present for most of the subsequent meetings
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where the drug transaction was discussed, and he conducted some
of the early negotiations with the government agents.
V lez-Torres and Agent Mor n -- whom V lez-Torres
introduced as his Colombian partner -- visited the car dealership
on June 14, 1993. In a conversation recorded by Agent Mor n, he
and Ayala-Rodr guez discussed the logistics for completing the
drug transaction, including who would pick up the drugs. Serna-
Vega was present for this discussion.
V lez-Torres testified that he met with Ayala-Rodr guez
and Serna-Vega at the car dealership on June 22, 1993, and
discussed the final plans for the drug transaction. He testified
that he asked Ayala-Rodr guez whether they were interested in the
hundred kilos and Ayala-Rodr guez responded, "Yes, yes, as we
have been from the start." They agreed that the transaction
would occur the next day.
On the morning of June 23, V lez-Torres met Serna-Vega
and appellant Angel Ramos-Santiago ("Ramos-Santiago") at a
restaurant in Caguas, Puerto Rico. Serna-Vega called Ayala-
Rodr guez on a cellular phone and informed him that V lez-Torres
had arrived. Ayala-Rodr guez told Serna-Vega to bring V lez-
Torres to the TMT pier in Isla Grande where he was waiting for
two cars from the United States to use to transport the drugs.
Serna-Vega and Ramos-Santiago drove to the pier in Serna-Vega's
car and V lez-Torres followed.
After meeting with Ayala-Rodr guez at the pier, Serna-
Vega, Ramos-Santiago, and V lez-Torres went with him to a
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restaurant in Isla Verde. They discussed how they would complete
the drug transaction with only three cars.1 Serna-Vega stated
that three cars would be sufficient because one could hold fifty
kilos in its trunk and the other two could hold twenty-five kilos
each. Ramos-Santiago reminded Ayala-Rodr guez that he had
promised Ramos-Santiago one kilo of cocaine for his assistance in
the transaction.
After about an hour, V lez-Torres drove each member of
the group individually to a Holiday Inn where agent Mor n and
other DEA agents were waiting. As each of the four individuals
arrived at the Holiday Inn, agent Mor n led them, one by one, to
a designated room where a transaction involving eleven kilos of
cocaine was completed. The transactions were recorded by the
government on both audio and videotape, which were played for the
jury. The individuals were placed under arrest as they departed
the hotel room.
DISCUSSION DISCUSSION __________
The defendants raise a host of issues on appeal. We
address their arguments seriatim.
I. I.
Ramos-Santiago argues that the evidence was
insufficient to support his conviction for possession with intent
to distribute approximately eleven kilograms of cocaine. See ___
Fed. R. Crim. P. 29. He bears "the heavy burden of demonstrating
____________________
1 Ayala-Rodr guez had informed them at the pier that the two
cars he was waiting for were not going to be delivered.
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that no reasonable jury could have found [him] guilty beyond a
reasonable doubt." United States v. Innamorati, 996 F.2d 456, _____________ __________
469 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993). We review ____________
the evidence in the light most favorable to the government,
"drawing all plausible inferences in its favor and resolving all
credibility determinations in line with the jury's verdict." Id. __
The evidence adduced at trial was sufficient to sustain
the verdict. DEA informant V lez-Torres testified that Ramos-
Santiago was present approximately an hour before the scheduled
pick-up during a discussion concerning the logistics of splitting
up the cocaine among the three cars. V lez-Torres testified that
Ramos-Santiago reminded Ayala-Rodr guez during this meeting that
he had promised Ramos-Santiago one kilo of cocaine for his
assistance in the transaction. V lez-Torres also testified that
he and Ramos-Santiago drove together to the Holiday Inn for the
pick-up, and that Ramos-Santiago questioned V lez-Torres
concerning which car he was supposed to use to transport the
cocaine. Finally, the jury viewed an audio and videotape showing
Ramos-Santiago receiving eleven kilos of cocaine at the Holiday
Inn. From this evidence, a reasonable jury could infer that
Ramos-Santiago knowingly and intentionally possessed the eleven
kilograms of cocaine. See United States v. Akinola, 985 F.2d ___ _____________ _______
1105, 1109 (1st Cir. 1993). The jury could also infer, from the
quantity of cocaine involved, that it was intended for
distribution. See, e.g., United States v. Vargas, 945 F.2d 426, ___ ____ _____________ ______
429 (1st Cir. 1991) (possession of one kilogram of cocaine is
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sufficient quantity to support jury inference that it was not
intended merely for personal consumption). The evidence was
therefore sufficient for the jury to conclude beyond a reasonable
doubt that Ramos-Santiago knowingly and intentionally possessed
eleven kilograms of cocaine with the intent to distribute it.
II. II.
Serna-Vega argues that the district court erred in
admitting certain co-conspirator statements into evidence. An
out-of-court statement by a co-conspirator is not hearsay if the
government established by a preponderance of the evidence that
the defendant and the declarant were members of a conspiracy when
the statement was made and that the statement was made in
furtherance of the conspiracy. See United States v. McCarthy, ___ _____________ ________
961 F.2d 972, 977 (1st Cir. 1992) (citing United States v. ______________
Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977)); Fed. R. Evid. ____________
801(d)(2)(E). We need not determine whether the challenged
statements in this case are admissible as co-conspirator
statements, however, because we conclude that they are, in any
case, admissible as admissions by a party. See Fed. R. Evid. ___
801(d)(2)(A) (an admission offered against a party is not
hearsay).
We generally review a district court's decision to
admit or exclude evidence under an abuse of discretion standard.
United States v. Tuesta-Toro, 29 F.3d 771, 775 (1st Cir. 1994), _____________ ___________
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cert. denied, 115 S. Ct. 947 (1995).2 We find no abuse of ____________
discretion in this case. Serna-Vega specifically challenges only
two statements. First, he challenges the testimony of V lez-
Torres that Serna-Vega said: "Look, Ayala, if he has the
capacity, ask for a hundred, because fifty, I can distribute that
in two or three days." Second, he challenges the testimony of
V lez-Torres that Serna-Vega said that "the white car is so big,
has such a big trunk, that they could get fifty kilos into it,
twenty-five in the Chevrolet and twenty-five in the one the old
man has, and there's your hundred." These statements were
contrary to Serna-Vega's position during trial. Accordingly,
they were admissible through V lez-Torres as admissions against
interest under Federal Rule of Evidence 801(d)(2)(A). See United ___ ______
States v. Palow, 777 F.2d 52, 56 (1st Cir. 1985).3 ______ _____
III. III.
Serna-Vega argues that the district court erred in not
providing a multiple conspiracy jury instruction. Serna-Vega did
____________________
2 We review a district court's decision whether to admit co-
conspirator statements pursuant to Federal Rule of Evidence
801(d)(2)(E), however, under a clearly erroneous standard because
the decision is predicated on the court's findings of fact in
applying the Petrozziello test (supra). See McCarthy, 961 F.2d ____________ _____ ___ ________
at 977; United States v. Patterson, 644 F.2d 890, 894 (1st Cir. ______________ _________
1981).
3 Serna-Vega alludes generally to other alleged hearsay
statements, but does not specifically identify any challenged
statements. We cannot conduct effective appellate review of an
evidentiary ruling admitting co-conspirator statements absent
reference to the challenged statement. United States v. Isabel, _____________ ______
945 F.2d 1193, 1199 (1st Cir. 1991). Accordingly, we reject
appellant's general arguments with respect to alleged hearsay
statements.
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not request such a jury charge, nor did he object to the court's
instructions. Consequently, he has the high burden of
establishing that the trial court's failure to give a multiple
conspiracy charge amounted to "plain error." See United States ___ _____________
v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert. denied, 484 U.S. _______ _____________
844 (1987); Fed. R. Crim. P. 52(b). Plain errors are "those so
shocking that they seriously affect the fundamental fairness and
basic integrity of the proceedings." United States v. Alvarado, _____________ ________
982 F.2d 659, 663 (1st Cir. 1992). It follows that such errors
will be noticed only in "exceptional cases or under peculiar
circumstances to prevent a clear miscarriage of justice."
Griffin, 818 F.2d at 100 (quoting Nimrod v. Sylvester, 369 F.2d _______ ______ _________
870, 873 (1st Cir. 1966)); United States v. Ocasio-Rivera, 991 ______________ _____________
F.2d 1, 3 (1st Cir. 1993). The test for plain error, in this
context, is whether there is a prejudicial variance between the
conspiracy charged in the indictment and the evidence adduced at
trial. See United States v. Thomas, 895 F.2d 51, 55 (1st Cir. ___ _____________ ______
1990). A variance will be deemed prejudicial only if it affects
the substantial rights of the accused. Id. __
The indictment charged a single conspiracy involving an
agreement to purchase approximately one hundred kilograms of
cocaine. The government introduced evidence from which the jury
could infer that the negotiations for the purchase of the cocaine
took place over a period of several weeks, and that the object of
the conspiracy was, at all times, the eventual transfer of one
hundred kilograms of cocaine. There was evidence which, if
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credited by the jury, established that the conspiracy began in
early March 1993 when informant V lez-Torres made his initial
visit to Ayala-Rodr guez' car dealership. The jury heard
testimony that Ayala-Rodr guez originally offered to purchase
fifty kilograms of cocaine, but that Serna-Vega encouraged him to
buy one hundred kilograms. Negotiations between the appellants
and the government agent continued over the next few days.
During a taped telephone conversation, Serna-Vega told V lez-
Torres that Ayala-Rodr guez was still interested in purchasing
the cocaine they discussed at the initial meeting. He stated
further that he wanted to buy two kilos first as a sample, and
that he would then bring together money for fifteen kilos.
V lez-Torres testified that it was common in drug transactions of
this size for the buyer to purchase a sample of the drugs before
making the final purchase. He testified that the conversations
regarding the two and fifteen kilos were part of the larger deal
for one hundred kilos.
The continuing negotiations between the defendants and
the government agents support the single conspiracy charge.
V lez-Torres testified that Ayala-Rodr guez showed him a deed to
his dealership property, a deed of sale for a house he owned, and
automobile registration titles to establish that Ayala-Rodr guez
had the necessary collateral to complete the large scale drug
transaction. Finally, appellants took three cars to make the
scheduled pick-up, and the evidence indicated that Ayala-
Rodr guez intended to have a fourth car delivered to help carry
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the cocaine. Serna-Vega assured him that three cars would be
enough because one car could carry fifty kilos and the other two
could carry twenty-five each.
The totality of the evidence indicates a single
conspiracy to purchase one hundred kilograms of cocaine. We find
no prejudicial variance between the indictment and the evidence
adduced at trial. Accordingly, the court's failure to provide a
multiple conspiracy charge was not error, much less plain error.
IV. IV.
Serna-Vega challenges two findings by the district
court with respect to his sentence. First, he challenges the
district court's finding that he was a manager or supervisor of
the possession offense under 3B1.1(c) of the United States
Sentencing Guidelines. We review only for clear error. United ______
States v. Jadusingh, 12 F.3d 1162, 1169 (1st Cir. 1994). ______ _________
Under 3B1.1, a sentencing court may increase a
defendant's base offense level by two points if the evidence
establishes that the crime involved two or more people and the
defendant "was an organizer, leader, manager, or supervisor" of
the criminal activity. An enhancement is appropriate if the
evidence demonstrates that the defendant "exercised some degree
of control over others involved in the commission of the crime."
Id. (quoting United States v. De La Cruz, 996 F.2d 1307, 1315 __ _____________ ___________
(1st Cir.), cert. denied, __ U.S. __, 114 S. Ct. 356 (1993)) ____________
(other citation omitted).
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There was ample evidence presented in this case from
which the sentencing court could conclude that Serna-Vega
exercised some supervisory control of others involved in the
criminal activity. Special Agent Mor n testified that Ayala-
Rodr guez introduced Serna-Vega as his "right-hand man."
Informant V lez-Torres testified that Ayala-Rodr guez told him
that he wanted to buy fifty kilograms of cocaine, and that Serna-
Vega suggested that Ayala-Rodr guez ask for one hundred kilos
because Serna-Vega could distribute fifty in two or three days.
It was Serna-Vega who conducted the initial negotiations -- via
two recorded telephone conversations -- with V lez-Torres for the
purchase of the cocaine. Finally, Serna-Vega was present for the
meeting in which Ayala-Rodr guez and Agent Mor n discussed who
would pick up the cocaine, and Serna-Vega objected to a certain
person being included in the drug pick-up.
The evidence thus indicates that Ayala-Rodr guez
delegated a certain amount of responsibility to Serna-Vega and
that he acted, indeed, as Ayala-Rodr guez' right-hand man. The
evidence also indicates that, in this relatively powerful
position, he exercised supervisory control over Ramos-Santiago.
The court could infer from the evidence presented at trial that
Ramos-Santiago was Serna-Vega's friend and that Serna-Vega
recruited his assistance in the drug transaction. It was Serna-
Vega who brought Ramos-Santiago to San Juan on the day of the
scheduled pick-up.
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Based on the foregoing, we conclude that the district
court's finding that Serna-Vega was a manager or supervisor of
the offense conduct was not clearly erroneous.
Serna-Vega also contends that the trial court erred in
considering the full hundred kilos of cocaine in computing his
base offense level under the sentencing guidelines. Serna-Vega
argues that the court should have found that he was not
reasonably capable of producing the purchase money for the full
amount of drugs and, therefore, that only the eleven kilos he
actually purchased should have been considered for sentencing.
See U.S.S.G. 2D1.1 n.12. For sentencing, the government need ___
prove relevant facts only by a preponderance of the evidence, and
we review the sentencing court's findings only for clear error.
United States v. Cetina-G mez, 951 F.2d 432, 434-35 (1st Cir. ______________ ____________
1991).
The jury found Serna-Vega guilty of participating in a
conspiracy to possess with intent to distribute one hundred
kilograms of cocaine. In addition, there was ample evidence from
which the court could determine that the members of the
conspiracy, principally Ayala-Rodr guez, could raise the money to
complete the transaction. The evidence indicated that Ayala-
Rodr guez intended to put up his car dealership, including the
cars to which he owned title, and some real property he owned, as
collateral for the transaction. Under these circumstances, we
conclude that the court's finding with respect to drug quantity
was not clearly erroneous.
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V. V.
Appellants raise one final argument which requires only
brief discussion. On the first day of trial, the court
instructed the jury that Serna-Vega and Ramos-Santiago had pled
not guilty and, therefore, that issues of fact had to be tried by
the jury. Appellants contend that this instruction implied that
other co-defendants named in the indictment had pled guilty and
that appellants were prejudiced by this implication. Appellants
maintain that the court should have given a cautionary
instruction with respect to the missing co-defendants. Neither
appellant requested such an instruction and, therefore, we review
only for plain error. Alvarado, 982 F.2d at 663. ________
We have approved the use of a cautionary instruction in
cases where co-defendants plead guilty after trial has commenced.
See, e.g., United States v. Chapdelaine, 989 F.2d 28, 32 (1st ___ ____ ______________ ___________
Cir. 1987) (approving court's admonishment that jurors not
speculate as to the reason for the co-defendants' absence). The
same concerns are not implicated in this case because the co-
defendants pled guilty prior to the commencement of the trial.
Therefore, the jurors never saw the co-defendants and would have
no reason to speculate about their sudden absence from the
courtroom. Moreover, there was no suggestion at trial as to how
the charges against the other co-defendants had been disposed.
Under these circumstances, we discern no plain error in the
court's failure to provide, sua sponte, a cautionary instruction __________
with respect to the missing co-defendants.
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CONCLUSION CONCLUSION __________
For the foregoing reasons, appellants' convictions and
sentences are affirmed. affirmed ________
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Document Info
Docket Number： 94-1688
Filed Date： 6/12/1995
Precedential Status： Precedential
Modified Date： 9/21/2015