United States v. Taba , 282 F. App'x 1 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2584
UNITED STATES,
Appellee,
v.
SABARIAN TABA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Lawrence A. Vogelman and Nixon, Raiche, Vogelman Barry &
Slawsky, P.A., on brief for appellant.
William D. Weinreb, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on motion for summary
disposition.
June 27, 2008
Per Curiam. Pending before the court is the government's
motion for summary disposition. Following a bench trial, Sabarian
Taba was convicted of conspiracy to distribute cocaine, in
violation of 21 U.S.C. §§ 841 and 846, and possession with intent
to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).
Moreover, the indictment alleged, and the district court found,
that Taba was subject to a 240-month mandatory minimum sentence
pursuant to 21 U.S.C. § 841(b)(1)(A) because the conspiracy
involved more than five kilograms of cocaine and Taba was shown to
have a prior felony conviction. He was sentenced to 240 months'
imprisonment. As there are no substantial issues presented by this
appeal, we grant the government's motion and summarily affirm the
judgment of the district court.
Taba argues that the evidence adduced at trial was
insufficient for the district court to determine that Taba was
responsible for five kilograms of cocaine as part of the charged
conspiracy and, consequently, that the district court erred by
finding beyond a reasonable doubt that Taba was eligible for the
enhanced penalty under § 841(b)(1)(A).1 While we require proof
1
While Taba actually asserts that his conviction should be
reversed, even assuming arguendo that Taba's factual arguments are
correct, he is not entitled to a reversal of his conviction--Taba
confuses criminal liability with sentencing issues. See United
States v. Yeje-Cabrera, 430 F.3d 1, 13 (1st Cir. 2005) (explaining
that a defendant may be convicted of drug conspiracy even where the
quantity proven at trial is less than that alleged in the
indictment).
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beyond a reasonable doubt regarding the drug quantity attributable
to the conspiracy as a whole to support an enhancement under
§ 841(b)(1)(A), see United States v. De La Cruz, 514 F.3d 121, 136-
37 & n.7 (1st Cir. 2008), determinations regarding the drug
quantity attributable to specific conspirators may be made by the
sentencing court based on a preponderance standard. See United
States v. González-Vélez, 466 F.3d 27, 40-41 (1st Cir. 2006). To
the extent that Taba challenges the district court's findings
regarding the drugs attributable to the conspiracy as a whole,
"[w]e review challenges to the sufficiency of the evidence
following bench trials de novo, evaluating whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." United States v. Meléndez-
Torres, 420 F.3d 45, 48-49 (1st Cir. 2005) (citation omitted). In
contrast, the court reviews a district court's findings of fact
regarding drug quantity during sentencing--i.e., the quantity
attributable directly to Taba--for clear error. See United States
v. Vázquez-Rivera, 470 F.3d 443, 446 (1st Cir. 2006), cert. denied,
127 S. Ct. 2951 (2007). Although it is somewhat unclear whether
Taba challenges the quantity of drugs attributable to the
conspiracy as a whole or himself specifically, the same evidence
forms the basis for our conclusion in either instance. The
government presented ample evidence from which the district court
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could conclude, whatever the standard, that more than five
kilograms of cocaine were attributable to Taba as part of the
charged conspiracy.
We briefly summarize the evidence adduced at trial. First,
Taba stipulated that 2,989 grams of cocaine were recovered from his
vehicle upon his arrest. Second, Taba admitted to Federal Bureau
of Investigation Agent John Woudenberg that he had known Frederick
Martineau, a codefendant, for "quite some time," and that he sold
him kilogram quantities of cocaine "from time to time on a monthly
basis." Taba also confessed to Agent Woudenberg that he typically
purchased two kilograms of cocaine per month from his supplier in
New York for resale to Martineau or other individuals. Third, in
a recorded conversation with another drug dealer, Martineau
indicated that his drug distribution relationship with Taba had
spanned the course of "many years." Fourth, wiretap evidence
suggests at least two prior transactions between Taba and
Martineau.
On appeal, Taba argues that two of the kilograms of cocaine
found in his vehicle were destined for buyers who were not part of
the conspiracy charged in the indictment. "Whether a single
conspiracy exists is a question of fact for the [finder of fact]."
United States v. Escobar-Figuero, 454 F.3d 40, 48 (1st Cir. 2006).
Our case law makes plain that "[e]ach coconspirator need not know
of or have contact with all other members, nor must they know all
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of the details of the conspiracy or participate in every act in
furtherance of it." Id. (citation omitted). Rather, the finder of
fact "may infer an agreement circumstantially by evidence of, inter
alia, a common purpose (such as a purpose to sell illicit drugs),
overlap of participants, and interdependence of various elements in
the overall plan." Id. (citation omitted).
Here, the common purpose of the conspiracy was to distribute
cocaine; the different sales involved several of the same
participants, i.e., Taba and his own suppliers; and each individual
sale was predicated upon the continued flow of cocaine down the
same supply chain, demonstrating interdependence. See id. at 48-
49; United States v. Rivera-Ruiz, 244 F.3d 263, 268 (1st Cir.
2001); United States v. Portela, 167 F.3d 687, 697 (1st Cir. 1999).
Thus, the district court did not clearly err by attributing all of
the cocaine discovered in Taba's vehicle at the time of his arrest
to his role in the conspiracy alleged by the indictment.
Likewise, the district court did not clearly err by concluding
that Taba was responsible for more than five kilograms of cocaine
for his role in the conspiracy even if two of the kilograms of
cocaine found in his vehicle were attributable to his participation
in separate, unindicted conspiracies. A fact-finder may rely on
circumstantial evidence in drawing conclusions regarding drug
quantity. See United States v. Hall, 434 F.3d 42, 61 (1st Cir.
2006). As detailed above, the evidence adduced at trial revealed
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a lengthy, ongoing cocaine distribution relationship between Taba
and Martineau. The district court, as the finder of fact, was
entitled to infer that Taba was responsible for more than five
kilograms of cocaine as part of the charged conspiracy.
Accordingly, Taba's challenge presents no substantial issues
for appellate review and summary disposition is warranted.
Affirmed.
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