United States v. Berrios , 132 F.3d 834 ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2035
UNITED STATES,
Appellee,
v.
GEORGE BERRIOS, A/K/A ANTONIO CANDELARIO,
Defendant - Appellant.
No. 95-2036
UNITED STATES,
Appellee,
v.
MARIO MENDEZ, A/K/A PABLO,
Defendant - Appellant.
No. 95-2038
UNITED STATES,
Appellee,
v.
PEDRO GONZALEZ, A/K/A FRANK CASTILLO-PEREZ,
Defendant - Appellant.
No. 97-1121
UNITED STATES,
Appellee,
v.
HANNOVER ALBERTO SEGURA,
Defendant - Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Chief Judge,
Godbold,* Senior Circuit Judge,
and Barbadoro,** District Judge.
Malcolm J. Barach, by appointment of the Court, for
appellant George Berr os.
Jos A. Espinosa, with whom Paul F. Murphy and MacDonald &
Murphy were on brief for appellant Mario M ndez.
Paul J. Garrity, by appointment of the Court, for appellant
Pedro Gonz lez.
Karl R.D. Suchecki, by appointment of the Court, with whom
Jennifer Petersen and Petersen & Suchecki were on brief for
appellant Hannover Alberto Segura.
William F. Sinnott, Assistant U.S. Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for
appellee.
January 6, 1998
* Of the Eleventh Circuit, sitting by designation.
** Of the District of New Hampshire, sitting by designation.
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GODBOLD, Senior Circuit Judge. This appeal arises from
GODBOLD, Senior Circuit Judge.
the conviction of four defendants, Mario M ndez, Pedro Gonz lez,
George Berr os, and Hannover Alberto Segura of various offenses
relating to possession and distribution of heroin. Their arrests
and convictions were the result of an extended undercover and
surveillance operation conducted by law enforcement agents
seeking to discover the source of an increased heroin trade in
Portland, Maine. Each defendant was convicted of participating
in a conspiracy to possess and distribute heroin and various
other crimes. They appeal, questioning their convictions and
their sentences. We AFFIRM the convictions and sentences.
FACTUAL SUMMARY
FACTUAL SUMMARY
The following factual synopsis summarizes evidence
introduced at trial. The facts are resolved in the light most
favorable to the verdict and consistent with the record, as is
required by our standard of review in an appeal from a final
judgment of conviction. U.S. v. Maraj, 947 F.2d 520, 522 (1st
Cir. 1991).
Between July 8, 1994 and August 23, 1994, Agent Scott
Pelletier of the Maine Drug Enforcement Agency engaged in four
heroin transactions with a man named Pablo, later proved to be
Mario M ndez. Pelletier had been introduced to Pablo by Lawrence
Freeman, a cooperating government informant familiar with
regional drug trade. Each of the four transactions took place in
Lowell, Massachusetts, where all four defendants resided. In
each transaction Pelletier purchased between 50 and 500 bags of
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heroin from Pablo. During the course of these transactions,
Pelletier saw Gonz lez accompanying and assisting M ndez several
times and witnessed Segura conducting counter-surveillance at two
different locations on July 8, 1994. After the fourth
transaction between Pelletier and M ndez, which took place at a
residence located at 36 Park Street, law enforcement officers
began arresting individuals involved. Gonz lez was found hiding
near the Merrimack River, and M ndez was arrested outside 36 Park
Street, later shown to be the location of the heroin "store" that
the conspiracy operated.
The police then executed a search warrant for 173
University Avenue, also in Lowell, Massachusetts. Based on
extensive surveillance and investigation the officers had
identified numerous phone calls between the residence of M ndez
and 173 University Avenue and between 36 Park Street and 173
University. Upon entering the apartment they observed Segura
running from the bathroom where plastic bags containing white
powder were going down the toilet. Also, within 173 University
Avenue, the officers seized numerous items of drug distribution
paraphernalia, including scales, sieves, and a "No Way Out" stamp
used for labeling the type of heroin purchased by Pelletier from
M ndez. They also found a large amount of cash, 107.6 grams of
crack cocaine and a loaded .357 Magnum handgun.
Police next executed a search warrant at 205 and 203
University Avenue where they arrested George Berr os, the
resident. There the officers seized large amounts of heroin,
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crack cocaine, and various items identified as distribution
paraphernalia and found a notebook containing the telephone
number for 173 University Avenue.
Other evidence at trial included the testimony of
Christopher Coughlin, who admitted purchasing heroin and crack
from the defendants. Coughlin identified M ndez as Pablo and
Gonz lez as a man who participated in the transactions but whose
name he did not know.
After a nineteen day trial, the jury returned a
verdict convicting each defendant of various counts of the nine
count indictment. All appellants were convicted of Count I,
which charged that the defendants had participated in a
conspiracy to possess with intent to distribute and to distribute
heroin in violation of 21 U.S.C. 846. After considering the
presentencing report of probation officers, as well as the
objections of both parties to the report, the district court
sentenced the four defendant to various prison terms ranging from
84 months for Berr os to 151 months for M ndez.
DISCUSSION
DISCUSSION
We have considered the arguments of each defendant and
find no error in their convictions or sentences. Accordingly, we
affirm. Because each individual raises different and numerous
issues and each is represented by different counsel, we will
address the contentions of each defendant separately with some
necessary repetition.
I. M ndez
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M ndez was convicted of Counts I-V, consisting of
various charges relating to possession and conspiracy to possess
heroin and cocaine with the intent to distribute. He was
sentenced to 151 months for each conviction to be served
concurrently. The sentence was the result of several
enhancements which M ndez contests and a significant downward
departure. The district court explained the downward departure
by noting that the lengthy sentences for possession of cocaine
base (crack) were unjustified because the conspiracy was
primarily one to distribute heroin rather than crack. The court
found that, by including the amount of confiscated crack cocaine
in the sentencing calculation, the sentence of each defendant was
increased by as much as six levels. The court acknowledged that
its reason could be construed as a discouraged ground for
departure but found that the case fell out of the heartland of
prescribed conduct, thus warranting departure. This downward
departure is not questioned by the government; therefore, we do
not reach whether it was proper. The departure resulted in an
offense level of 35 for M ndez. Based on his criminal history
category he received a 151 month sentence.
We affirm M ndez's convictions and sentences.
A. Testimony of defense witness Fortin
M ndez contends that his conviction should be reversed
because he was precluded from offering the testimony of Loretta
Fortin. The essence of her testimony would have been that M ndez
was not the "Pablo" she was introduced to during a drug sale in
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June of 1994. Furthermore, M ndez called Fortin to discuss her
meeting with Special Agent Connick in August of 1994, during
which she identified the photograph of another defendant as
Pablo. The relevancy of this testimony is that an individual
named Pablo was the supposed leader of the conspiracy and the
dealer with whom the government initially dealt. Differences
existed as to which member of the conspiracy was actually Pablo,
but several witnesses testified that M ndez was in fact Pablo and
that M ndez carried a beeper with the number belonging to Pablo.
The substance of Loretta Fortin's proposed testimony
was that she had one meeting with Pablo in which he entered the
back seat of her car while she remained in the front. Her
husband introduced the man as Pablo, and they conducted a drug
transaction. Fortin was willing to testify that M ndez was not
the Pablo that entered her car and that she selected a different
defendant as Pablo from police photographs. The court excluded
this testimony because it was based on the inadmissable hearsay
of the introduction of Pablo by her husband. M ndez contends
that this exclusion was erroneous because Federal Rule of
Evidence 801(d)(1)(c) provides that if a witness is available for
cross examination, prior statements of identification are not
hearsay. This assertion misses the point. Fortin's proposed
testimony about her husband's introduction of Pablo created the
hearsay problem, not her prior identification statements to Agent
Connick. To make her testimony credible she had to admit that
her knowledge of Pablo's identity was based on the hearsay
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statement of her husband - "this is Pablo."
By echoing her husband's introduction of Pablo,
Fortin's proposed testimony meets the prerequisites of hearsay.
The introduction of Pablo is a statement not made by the
declarant in testimony offered to prove the truth of the matter
asserted. For Loretta Fortin's testimony to be tenable the
statement made by her husband must have been true. Because we
have no way of verifying that Mr. Fortin was sufficiently
familiar with Pablo to identify him to Mrs. Fortin, her testimony
about Pablo is classic hearsay and was properly excluded.
Accordingly, the district court did not err in
disallowing Fortin's testimony on hearsay grounds. Moreover, if
error, it would have been harmless. Even if the introduction was
not hearsay, given Fortin's limited interaction with Pablo, the
weight of her testimony could not overcome the substantial
testimony of other credible witnesses who had more contact with
M ndez/Pablo and who testified that M ndez was in fact Pablo.
See U.S. v. Southard, 700 F.2d 1, 21 (1st Cir. 1983) (harmless
error to improperly exclude admissible evidence as hearsay where
substantial evidence existed to convict defendant).
B. M ndez' sentence was based on acquitted conduct
M ndez also challenges the fact that his sentence was
based in part on acquitted conduct. Specifically, he asserts
that the crack cocaine seized by the officers during the arrests
should not have been considered for sentencing purposes because
he was acquitted on all counts involving possession or
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distribution of cocaine. This assertion has no merit because "a
jury's verdict of acquittal does not prevent the sentencing court
from considering conduct underlying the acquitted charge, so long
as that conduct has been proved by a preponderance of the
evidence." U.S. v. Watts, 117 S. Ct. 633, 638 (1997).
C. Enhancement of M ndez' sentence
I. M ndez' role as an organizer or leader
The evidence was not insufficient to support M ndez'
four-level enhancement as an organizer or leader of the
conspiracy as provided by U.S.S.G 3B1.1(a). Evidence showed
that M ndez was always the person contacted when heroin was to be
purchased, and that he always returned pager calls. He set
prices and determined the location of the transactions.
Witnesses testified that it appeared that men who accompanied
M ndez were his subordinates and that he hired a person to man
the heroin "store" at 36 Park Street from 9:00 a.m. to 6:00 p.m.
daily. Other evidence offered by the government in its objection
to the presentence report tended to suggest that M ndez was in
fact the leader of a conspiracy that consisted of five or more
individuals.
We will not reverse a district court's finding of fact
regarding the role of the defendant unless it is clearly
erroneous or based on a mistake of law. U.S. v. Cali, 87 F.3d
571, 574 (1st Cir. 1996). Based on the extensive evidence
offered at trial and to the sentencing court that M ndez was in
fact an organizer and a leader, we hold that the court's
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sentencing was not clearly erroneous.
ii. Transacting of drug sales in a school zone
M ndez questions his one-level enhancement for
transacting a drug sale in a school zone on the ground that
evidence of the proximity of a school to any drug transaction was
not introduced at trial. However, the record indicates that such
evidence was introduced at the sentencing hearing and was not
objected to by any defendant. The evidence supporting the school
zone enhancement consisted of an affidavit signed by Special
Agent Bruce Tavers stating that the drug transactions at Fort
Hill Park in Lowell, Massachusetts took place within one thousand
feet of a junior high school.
At a sentencing hearing the court may consider evidence
that would be inadmissable at trial so long as the sentencing
court determines that the evidence has a "sufficient indicia of
reliability to support its probable accuracy." U.S. v. Tardiff,
969 F.2d 1283, 1287 (1st Cir. 1992). The affidavit of a law
enforcement officer familiar with the locale of the drug
transaction and the surrounding area is sufficiently reliable
that a court can accept it as evidence for sentencing purposes.
M ndez did not object to this evidence, and we find no plain
error. The affidavit was properly admitted to support the one-
level school zone enhancement.
iii. Codefendant's possession of a firearm
M ndez' two-level enhancement for possession of a
firearm during the drug offense was not error although he never
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actually possessed or used a gun during any of the drug
transactions. He was arrested at a different locale from where
the gun was found, but evidence showed that he was seen exiting
the residence where the gun was found, that he had made many
calls to this residence, that the residents were coconspirators,
and that the residence was a center for the drug operation.
These facts are sufficient for the enhancement because the
sentencing guidelines require only that a gun be present during
some portion of an ongoing crime. See U.S.S.G. 2D1.1(b)(1),
commentary at n.3. Because the defendants were convicted of a
continuing conspiracy the firearm was present during the crime.
Once the presence of a weapon is established
enhancement is proper unless the defendant demonstrates special
circumstances that show a clear improbability that the weapon was
connected to the drug offense. U.S. v. Lagasse, 87 F.3d 18, 22
(1st Cir. 1996). The government offered proof that the gun was
present during the drug conspiracy, and the defendant did not
offer any special circumstances that would make the connection
between the gun and the crime improbable; therefore, the
enhancement was proper.1
1 M ndez mentions Bailey v. U.S., 116 S. Ct. 501, 508-9 (1995),
as authority that the enhancement was improper, but Bailey has
been construed as not affecting sentencing enhancements based on
the possession of firearms during certain offenses. See U.S. v.
Gary, 74 F.3d 304, 317 n.11 (1st Cir.), cert denied, 116 S. Ct.
2567 (1996). Bailey only restricted convictions under 18 U.S.C.
924(c)(1) to those instances where a defendant actively
employed a firearm during the offense. Bailey, 116 S. Ct. at 508-
9(recognizing that sentencing guidelines may provide enhancements
for mere possession of a firearm during other offenses).
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II. Gonz lez
Pedro Gonz lez was convicted of Counts I, IV, and V
consisting of various charges relating to possession and
conspiracy to possess heroin with intent to distribute. He was
sentenced to 135 months concurrent for each conviction. His
original sentence was calculated by his being held responsible
for 113.7 grams of crack cocaine and 307 grams of heroin,
resulting in a base offense level of 33. He was then given a
two-level adjustment for obstruction of justice for providing a
false name and personal history and a two-level enhancement for
possession of a firearm during a drug trafficking offense,
resulting in a total offense level of 37. The district court
departed downward four levels because it found that the
conspiracy was primarily for the distribution of heroin rather
than crack cocaine. Because he found that the crack offenses
were outside the heartland offenses under the applicable
guideline, he granted a four-level downward departure, resulting
in a new base offense level of 33. After the court considered
his criminal history category, he was sentenced to 108 months in
prison. We affirm his sentence.
A. Obstruction of justice enhancement
Gonz lez contends that he did not deserve a two-level
enhancement for obstruction of justice because the false
statements he made concerning his identity did not amount to
materially false information as required by U.S.S.G. 3C1.1.
Section 3C1.1 provides that a two level enhancement for
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obstruction is proper where a defendant provides "materially
false information" to a judge, magistrate or a probation officer.
U.S.S.G. 3C1.1, commentary at n.3(f)&(h). For information to
be material it need only have the potential to affect the issue
under determination, including incarceration period, condition of
release, or whether the wrongful conduct has been mitigated in
some way. U.S.S.G. 3C1.1, commentary at n.5; U.S. v. Kelley, 76
F.3d 436, 441 (1st Cir. 1996).
By offering a false name, date of birth, and personal
history throughout the trial and during sentencing Gonz lez hid a
prior conviction, his age, his residence, and the fact that he
was seeking to defraud immigration officials by participating in
a sham marriage for the purpose of obtaining citizenship. The
substance and nature of these misrepresentations are material for
their potential to affect sentencing determinations. Because the
falsehoods "could have impacted the decisions of the sentencing
court" the two-level enhancement for obstruction of justice was
proper. Kelley, 76 F.3d at 441.
B. Failure to prove the substance found was crack cocaine
The government did not fail to sustain its burden of
proving that the substance confiscated from the conspiracy was
actually crack cocaine rather than some other form of cocaine.
Gonz lez did not argue at trial that the substance may have been
some other form of cocaine than crack, thus we would have to find
plain error. We cannot find plain error unless the desired
factual finding is the only one rationally supported by the
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record below. See U.S. v. Olivier-D az, 13 F.3d 1, 12 (1st Cir.
1993). Gonz lez did not offer any evidence to combat the
government' assertion that the substance was crack. Only if the
record clearly showed that the substance could not have been
crack would we be justified in finding plain error. Id. Because
the record supports the district court's finding for sentencing
purposes, there was no plain error.
C. Ineffective assistance of counsel
Nothing in the record supports Gonz lez' assertion that
he was denied effective assistance of counsel when his attorney
advised him that he could not receive a lesser sentence by
pleading guilty to the crime. "We have held with a regularity
bordering on the monotonous that fact-specific claims of
ineffective assistance cannot make their debut on direct review
of criminal convictions, but, rather, must originally be
presented to, and acted upon by, the trial court." See U.S. v.
Mala, 7 F.3d 1058, 1062-63 (1st Cir 1993); U.S. v. McGill, 952
F.2d 16, 19 (1st Cir. 1991).
Since claims of ineffective assistance
involve a binary analysis--the defendant
must show, first, that counsel's
performance was constitutionally
deficient and, second, that the
deficient performance prejudiced the
defense, such claims typically require
the resolution of factual issues that
cannot efficaciously be addressed in the
first instance by an appellate tribunal.
In addition, the trial judge, by reason
of his familiarity with the case, is
usually in the best position to assess
both the quality of the legal
representation afforded to the defendant
in the district court and the impact of
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any shortfall in that representation.
Under ideal circumstances, the court of
appeals should have the benefit of this
evaluation; elsewise, the court, in
effect, may be playing blindman's buff.
Mala, 7 F.3d at 1062-63 (citation omitted). This court has
dismissed without prejudice portions of an appeal relating to an
ineffective assistance claim and suggested that the defendant
should litigate such a claim through the medium of an application
for post-conviction relief. See Mala, 7 F.3d at 1063. Because
we have no factual record upon which to judge Gonz lez' claims of
ineffective assistance, we reject this claim for now and suggest
that the proper forum for his claim is through application for
post-conviction relief.
III. Berr os
George Berr os was convicted of Counts I, VI, and VII
consisting of various charges relating to possession and
conspiracy to possess heroin and cocaine with intent to
distribute. He was sentenced to 84 months concurrently. His
original sentence was calculated by holding him responsible for
26.08 grams of crack cocaine and 307 grams of heroin which
resulted in a base offense level of 30. He was then given a two-
level adjustment for obstruction of justice for providing a false
name and personal history, resulting in a total offense level of
32. The court then departed downward between three and four
levels based on reasoning discussed previously concerning the
nature of the conspiracy. After consideration of his criminal
history category, Berr os was sentenced to 84 months.
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Berr os questions both his conviction and sentence. We
affirm both.
A. Sufficiency of the evidence
Berr os argues that the evidence presented was
insufficient to sustain his conviction for conspiracy. He says
that the government presented no evidence that he assented to be
a part of the conspiracy or participated in the conspiracy to
distribute heroin. We customarily must decide whether the
evidence, considered in the light most favorable to the
government - "a perspective that requires us to draw every
plausible inference in line with the verdict and to resolve every
credibility conflict in the same fashion" - would allow a
rational jury to find that guilt was proved beyond a reasonable
doubt. U.S. v. Santiago, 83 F.3d 20, 23 (1st Cir. 1996).
Sufficient evidence existed for the jury to find that
Berr os was a member of the conspiracy. Police officers observed
him carrying several bags of heroin and found large amounts of
drugs and distribution paraphernalia at his residence.
Furthermore, the sentencing court found that Berr os was the
supplier of heroin to M ndez and the other conspirators. We
reject Berr os' contention that the evidence showed only that a
buyer-seller relationship rather than a conspiracy existed
between him and M ndez.
Whether a true conspiracy exists turns on whether the
seller knew that the buyer was reselling the drugs and intended
to facilitate those resales. Santiago, 83 F.3d at 23-24.
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Therefore, knowledge and intent are the touchstones for
sufficiently proving a conspiracy. The government presented
sufficient evidence to show that Berr os knew that M ndez and his
associates were reselling the heroin and that he intended to aid
these transactions by supplying large amounts of heroin to the
conspiracy. Evidence of Berr os' involvement in the conspiracy
was sufficient for a reasonable jury to convict.
B. Obstruction of justice enhancement
Much like appellant Gonz lez, Berr os challenges that
portion of his sentence resulting from a two-level enhancement
for obstruction of justice. He contends that the false
information he provided to the government was not material and
did not significantly impede investigation or prosecution as
required by the guidelines for an obstruction enhancement. Once
again we reject this argument. Berr os not only presented a
false name to the magistrate judge and district court throughout
trial, but he hid the status of his citizenship by claiming to
come from Puerto Rico. By hiding his true identity Berr os
concealed that he had previously been arrested by the Immigration
and Naturalization Service in 1991 and had fled after posting
bail.
For information to be material it need only have the
potential to affect an issue under determination, including
incarceration period, condition of release, or whether the
wrongful conduct has been mitigated in some way. U.S.S.G.
3C1.1, commentary at n.5; U.S. v. Kelley, 76 F.3d 436, 441 (1st
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Cir. 1996). Giving a false identity and pretending to be a
citizen of this country, as well as concealing facts that made
Berr os a known flight risk, could have affected some issue under
determination by the court, including bail. Although he provided
his real identity to the probation officer prior to the
preparation of the presentencing report and the sentencing
hearing, Berr os had participated in an entire criminal trial
under a false name and status, which amounted to an obstruction
of justice.
C. Sentencing Guidelines and the equal protection clause
Berr os contends that the court enforced "a vague law"
when it refused to treat crack cocaine as equal to powder cocaine
for sentencing purposes. Berr os noted that the U.S. Sentencing
Commission has prepared a report demonstrating the disparity that
exists between the sentencing guidelines for powder cocaine and
crack cocaine. We are bound by the prior decisions of this
circuit which have rejected this argument. See, e.g., U.S. v.
Andrade, 94 F.3d 9, 14-15 (1st Cir. 1996); U.S. v. Singleterry,
29 F.3d 733, 739-41 (1st Cir. 1994). Until the en banc court of
this circuit, the U.S. Supreme Court, or Congress itself accepts
this assertion of disparity and finds it untenable, challenges to
the sentencing guidelines based on the disparity between
sentences for crack cocaine and powder cocaine will continue to
fail. See Irving v. U.S., 49 F.3d 830, 833-4 (1st Cir. 1995);
U.S. v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991).
IV. Segura
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Segura was convicted by a jury of Counts I and II
consisting of various charges relating to possession and
conspiracy to possess heroin and cocaine with the intent to
distribute. He was sentenced to 108 months for each conviction
concurrently. His original sentence was calculated by holding
him responsible for 113.7 grams of crack cocaine and 307 grams of
heroin, resulting in a base offense level of 32. He was then
given a one-level adjustment for transacting drug sales in a
school zone and a two level enhancement for possession of a
firearm during the offense, this resulting in a total offense
level of 35. The court then departed downward four levels based
on the reasoning discussed above concerning the nature of the
conspiracy. After consideration of his criminal history
category, Segura was sentenced to 108.
He challenges his conviction and sentence and we affirm
both.
A. Sufficiency of the evidence
Segura maintains that the evidence presented at trial
was insufficient to establish that he knowingly and intentionally
possessed heroin with the intent to distribute it or conspired to
do so. In considering whether sufficient evidence to convict
exists, we must consider the evidence in the light most favorable
to the verdict and reverse only if no rational trier of fact
could have found him guilty. U.S. v. Santiago, 83 F.3d 20, 23
(1st Cir. 1996). The fact that the entire case against Segura is
based on circumstantial, rather than direct, evidence has no
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bearing on sufficiency; both types of evidence provide an
adequate basis for conviction. See U.S. v. Valerio, 48 F.3d 58,
63 (1st Cir. 1995).
The government presented two pieces of evidence that
tended to link Segura to the conspiracy. First was the testimony
of Agent Scott Pelletier of the Maine Drug Enforcement Agency,
who identified Segura as the person engaged in counter-
surveillance during at least one of the drug transactions.
Pelletier was the undercover agent who participated in these
transactions, and his testimony about the possibility of counter-
surveillance was corroborated by a videotape that showed a car
suspiciously circling the area where the drug transaction took
place.
Second was testimony of officers on the scene when
Segura and others were arrested at 173 University Avenue.
Officers testified that they saw Segura running from the bathroom
and heard the toilet flushing and Inspector Robert Reyes
testified that when he ran into the bathroom he saw plastic bags
containing a white powdery substance go down the toilet. After
Segura and others were arrested the police found drugs, numerous
items of distribution paraphernalia and a loaded .357 Magnum at
the scene.
Taken together, Pelletier's identification of Segura
as the counter-surveillance man and Reyes' testimony about the
toilet were sufficient to convict. Construing this evidence in
favor of the government, Segura's presence at two of the drug
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transactions, his presence at what appears to be the drug
conspiracy's center of operations, and his attempt to dispose of
evidence of the conspiracy, taken together show that he had
knowledge of the conspiracy and that he intended to participate
in it. See U.S. v. Santiago, 83 F.3d 20, 23 (1st cir. 1996)
(knowledge and intent are touchstones of conspiracy conviction).
We cannot say that no reasonable jury could have found him
guilty.
B. Segura's sentence
I. A codefendant's possession of a firearm
Segura, like M ndez, contends that he should not have
received a two-level enhancement for possession of a firearm
during the drug offense because he never actually possessed or
used a gun. He was arrested at the residence where the gun was
found, and evidence existed that this residence was the center of
operations for the drug conspiracy. These facts are sufficient.
The sentencing guidelines require only that a gun be present
during some portion of an ongoing crime. See U.S.S.G.
2D1.1(b)(1), commentary at n.3. Because the defendants were
convicted of a continuing conspiracy, the firearm was present
during the crime.
Once the presence of a weapon is established
enhancement is proper unless the defendant demonstrates special
circumstances that show a clear improbability that the weapon was
connected to the drug offense. U.S. v. Lagasse, 87 F.3d 18, 22
(1st Cir. 1996). Segura did not offer any special circumstances
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that would make the connection between the gun and the crime
improbable. The enhancement was proper.
ii. Transaction of a drug sale in a school zone
Segura argues that the government did not offer any
reliable proof that any of the drug sales took place within a
protected zone. He acknowledges that the government offered the
affidavit of Special Agent Bruce Tavers as proof of the proximity
of a junior high school; however, he says that this proof is
insufficient because it lacked an evidentiary foundation.
In this circuit a sentencing court may consider
evidence that would be inadmissable at trial under the rules of
evidence so long as the sentencing court determines that the
evidence has a "sufficient indicia of reliability to support its
probable accuracy." U.S. v. Tardiff, 969 F.2d 1283, 1287 (1st
Cir. 1992). The affidavit of a law enforcement officer who is
familiar with the locale of the drug transaction and the
surrounding area is sufficiently reliable that a court can accept
it as evidence for sentencing purposes. Segura's enhancement for
transacting drug sales within a school zone was sufficiently
supported and proper.
iii. Segura's sentence was partially based on
acquitted conduct
Segura also challenges the fact that his sentence was,
in part, based on acquitted conduct, i.e., his sentence
calculation should not have included the amount of crack cocaine
found at the arrest scene because he was acquitted of all charges
involving possession or distribution of crack cocaine. "A jury's
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verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as
that conduct has been proved by a preponderance of the evidence."
U.S. v. Watts, 117 S. Ct. 633, 638 (1997).
CONCLUSION
CONCLUSION
We AFFIRM the convictions and sentences of all
AFFIRM
appellants.
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