United States v. Merced-Morales ( 2000 )

[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1116
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN R. MERCED-MORALES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Peter Díaz-Santiago, by appointment of the court, for
appellant.
Jacabed Rodriguez-Coss, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jorge E.
Vega-Pacheco, Assistant United States Attorney, were on brief,
for appellee.
October 19, 2000
SELYA, Circuit Judge. On April 10, 1997, a federal
grand jury sitting in the District of Puerto Rico returned a
three-count indictment against a number of individuals. In
Count 2 of the indictment, the grand jury charged several
persons, including Juan R. Merced-Morales, with conspiring to
distribute controlled substances in violation of 21 U.S.C. §
846. Following a five-week trial, a petit jury found Merced-
Morales guilty as charged. The district court thereafter
sentenced him to serve 292 months in prison. Merced-Morales
appeals.1 Having carefully reviewed the record, we affirm.
The appellant's basic argument entails a challenge to
the sufficiency of the evidence. This challenge invokes a
familiar standard of review: when evaluating the sufficiency of
the evidence presented against a defendant in a criminal case,
an appellate court must "canvass the evidence (direct and
circumstantial) in the light most agreeable to the prosecution
and decide whether that evidence, including all plausible
inferences extractable therefrom, enables a rational factfinder
to conclude beyond a reasonable doubt that the defendant
1
Merced-Morales stood trial with eight other alleged
coconspirators (all of whom were found guilty), and we
consolidated the nine ensuing appeals. Seven of them, including
this one, were argued together on September 14, 2000. The other
two were submitted on the briefs to the same panel. Because
this appeal raises at least one issue peculiar to Merced-
Morales, we have chosen to decide it in a separate opinion.
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committed the charged crime." United States v. Noah, 130 F.3d
490, 494 (1st Cir. 1997).
The statute of conviction here is 21 U.S.C. § 846. To
convict a defendant of violating that statute, the government
must "show beyond a reasonable doubt that a conspiracy existed
and that a particular defendant agreed to participate in it,
intending to commit the underlying substantive offense." United
States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). Proof
of the illicit agreement requires "no particular formalities."
Id. Thus, a defendant may join in a drug-trafficking conspiracy
without knowing the full extent of the enterprise or the
identities of all the coconspirators. See United States v.
Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989). By like
token, the government may satisfy its burden through either
direct or circumstantial evidence, or through any combination of
the two. See United States v. Marrero-Ortiz, 160 F.3d 768, 772
(1st Cir. 1998); United States v. Hernandez, 146 F.3d 30, 33
(1st Cir. 1998). In short, both the conspiracy's existence and
a particular defendant's membership in it may be inferred from
the participants' "words and actions and the interdependence of
activities and persons involved." United States v. Boylan, 898
F.2d 230, 241-42 (1st Cir. 1990).
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Against this backdrop, we turn to the appellant's
principal assignment of error. Merced-Morales concedes, as he
must, that the government proved the existence of a large, long-
lasting conspiracy to peddle various controlled substances. The
question, then, is whether the government also proved that he
was part and parcel of it. The record dictates that this
question must be answered affirmatively.
At trial, the government adduced competent evidence
that Merced-Morales sold contraband at a drug point operated by
the conspiracy in the Ramos Antonini housing project, and that,
on occasion, he carried a firearm to protect that drug point.
This evidence suffices to undergird his conviction. See, e.g.,
Rivera-Santiago, 872 F.2d at 1079 (holding that "[t]he fact that
[the defendant] participated in one retail link of the
distribution chain, knowing that it extended beyond his
individual role, [is] sufficient" to demonstrate his culpability
as a member of a drug-trafficking conspiracy).
The appellant seeks to deflect the force of this proof
by assailing the credibility of the government's several
witnesses. But that line of attack avails him naught. In
passing upon challenges to the sufficiency of the evidence, we
are bound to refrain from making independent judgments as to
witness credibility. See Noah, 130 F.3d at 494; United States
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v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). We recently
summed up this principle in United States v. Alicea, 205 F.3d
480 (1st Cir. 2000), in which we wrote that "[e]xcept in the
most unusual circumstances . . . credibility determinations are
for the jury, not for an appellate court." Id. at 483. The
circumstances here are not extraordinary, so this case comes
within the sweep of the general rule, rather than the long-odds
exception to it.
The appellant puts a twist on his credibility theme,
attempting to invoke the specter of a witness-bribery statute
that provides in pertinent part:
Whoever . . . directly or indirectly, gives,
offers or promises anything of value to any
person, for or because of the testimony
under oath or affirmation given or to be
given by such person as a witness upon a
trial, hearing, or other proceeding, before
any court . . . authorized by the laws of
the United States to hear evidence or take
testimony . . . shall be fined under this
title or imprisoned for not more than two
years, or both.
18 U.S.C. § 201(c)(2). In 1998, a Tenth Circuit panel held that
this statute forbade testimony given in exchange for promised
leniency, and applied an exclusionary rule to remedy perceived
violations. See United States v. Singleton, 144 F.3d 1343 (10th
Cir. 1998) (Singleton I). The appellant acknowledges that
Singleton I has been withdrawn and that the Tenth Circuit,
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sitting en banc, has repudiated it. See United States v.
Singleton, 165 F.3d 1297, 1298 (10th Cir. 1999) (en banc)
(Singleton II), cert. denied, 527 U.S. 1024 (1999). The
appellant also acknowledges that this court has disavowed its
reasoning. See United States v. Lara, 181 F.3d 183, 198 (1st
Cir. 1999). He nonetheless argues that the spirit of Singleton
I persists, and that the rationale behind the decision — namely,
that testimony from government witnesses who have received
inducements to testify is inherently unreliable — justifies the
reversal of the jury verdict in this case.
We reject this specious argument. While the testimony
of cooperating witnesses must always be scrutinized with care,
see, e.g., United States v. LiCausi, 167 F.3d 36, 47 (1st Cir.
1999), the witnesses here were subjected to withering cross-
examination by several sets of defense counsel, and the jury was
properly instructed to weigh their testimony in light of the
promises made and inducements tendered. The jury apparently
found the witnesses credible. We know of no authority that
would permit us, in the circumstances of this case, to second-
guess the jury's assessment. We therefore decline to accept the
appellant's reading of either the letter or the spirit of
section 201(c)(2). See Lara, 181 F.3d at 198; Singleton II, 165
F.3d at 1298; see also United States v. Lowery, 166 F.3d 1119,
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1122-24 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980,
987 (D.C. Cir. 1999); United States v. Ware, 161 F.3d 414, 418-
25 (6th Cir. 1998), cert. denied, 526 U.S. 1045 (1999); United
States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998), cert.
denied, 526 U.S. 1138 (1999).
The appellant's second assignment of error addresses
his sentence. He complains that the district court should have
lowered his offense level because he was, at most, a "minor" or
"minimal" participant in the offense of conviction. This
complaint lacks force.
USSG §3B1.2 permits a sentencing court to shrink a
defendant's offense level by four levels for "minimal"
participation or two levels for "minor" participation. To earn
either adjustment, however, a defendant must prove an
entitlement to it. See United States v. Ocasio, 914 F.2d 330,
332-33 (1st Cir. 1990). Moreover, if the sentencing court
refuses to grant such an adjustment, the defendant has the
burden of demonstrating to the court of appeals that the
sentencing court's role-in-the-offense determination was clearly
erroneous. See id. This is a heavy burden, and the appellant
cannot carry it in the instant case. Cf. United States v.
Graciani, 61 F.3d 70, 75 (1st Cir. 1995) (warning that battles
over a defendant's precise role in the offense almost always
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will be won or lost before the sentencing court). We explain
briefly.
Merced-Morales tries to portray himself as merely a bit
player in the sprawling narcotics extravaganza orchestrated by
José Vega-Figueroa and Carlos Hernández-Vega, suggesting that
others played much more prominent supporting parts. But role-
in-the-offense adjustments do not hinge exclusively on the
comparative conduct of persons within a criminal enterprise. To
the contrary, the availability vel non of a role-in-the-offense
adjustment also depends "on comparing each offender's actions
and relative culpability with the elements of the offense."
Ocasio, 914 F.2d at 333. In other words, a defendant seeking
such an adjustment must show that he was "substantially less
culpable than the average participant." Id.Measured by these benchmarks, the appellant's
initiative fails. The indictment in this case charged Merced-
Morales with conspiring to distribute narcotics — and the proof,
taken in the light most flattering to the verdict, showed that
he did exactly that. Moreover, he was not merely an occasional
participant, but functioned as a dealer on a regular and
sustained basis. After hearing arguments on the question, the
lower court determined unequivocally that Merced-Morales was
neither a "minimal" nor "minor" participant in the conspiracy,
but, rather, a full-fledged member.
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Tarrying would serve no useful purpose. "[T]he
determination of a defendant's role in an offense is necessarily
fact-specific." Graciani, 61 F.3d at 75. Given the elements of
the offense of which Merced-Morales was convicted, the evidence
amassed by the government, the allocation of the burden of proof
vis-à-vis downward role-in-the-offense adjustments, and the
standard of appellate review, we see no hint of clear error in
the sentencing court's decision to deny a downward adjustment in
this instance.
We need go no further. We conclude, without serious
question, that the evidence introduced at trial, taken in the
light most congenial to the government's theory of the case,
amply supported the appellant's conviction. We also conclude
that the lower court did not clearly err in refusing to treat
the appellant as a "minor" or "minimal" participant with respect
to the offense of conviction. Accordingly, the judgment below
must be
Affirmed.
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