United States v. Rodriguez Alvarado ( 1993 )

February 9, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1901
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE L. RODRIGUEZ ALVARADO
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on February 4, 1993, is
amended as follows:
Cover sheet: "District Judge" should be added after "and
Keeton,*".
February 4, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1901
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE L. RODRIGUEZ ALVARADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Torruella and Cyr, Circuit Judges,
and Keeton,*District Judge
Juanita Trevino for appellant.
Jeanette Mercado R os, Assistant United States Attorney, with
whom Daniel F. Lopez, United States Attorney, was on brief for appel-
lee.
*Of the District of Massachusetts, sitting by designation.
CYR, Circuit Judge. Jorge Rodriguez Alvarado appeals
CYR, Circuit Judge.
the judgment of conviction and sentence entered against him on
four felony charges arising out of a scheme to counterfeit and
distribute one hundred dollar bills, in violation of 18 U.S.C.
371, 471-474 and 2.1 We affirm.
I
BACKGROUND
On January 20, 1992, Secret Service agents executed a
search warrant at a VCR repair shop in Ponce, Puerto Rico. The
warrant was based on information provided by Carlos Gutierrez
Borrero. Following his own arrest for distributing counterfeit
one hundred dollar bills, Gutierrez had identified the owner of
the VCR repair shop, Luis Oliveras Quintana, as the source of the
counterfeit obligations. Counterfeit bills in one hundred dollar
denominations totaling $392,000 were seized at the shop. After
Oliveras was arrested, he agreed to cooperate with the govern-
1Appellant was charged with conspiracy to violate 18 U.S.C.
471 and with aiding and abetting violations of 472, 473 and
474. Section 471 criminalizes the false making, forging, coun-
terfeiting, or altering of any obligation or other security of
the United States, with intent to defraud; 472: the passing,
uttering, publishing, or selling, with intent to defraud, of any
falsely made, forged, counterfeited, or altered obligation or
other security of the United States; 473: the buying, selling,
exchanging, transferring, receiving, or delivering, of any false,
forged, counterfeited, or altered obligation or other security of
the United States, with the intent that the same be passed,
published, or used as true and genuine; 474: printing, photo-
graphing, or in any other manner making or executing, any engrav-
ing, photograph, print, or impression in the likeness of any such
obligation or other security. Section 371 criminalizes con-
spiracies to defraud the United States; 2: the aiding and
abetting of an offense against the United States.
ment. Oliveras advised the agents that appellant was expected to
visit the shop on January 21 to collect the cash proceeds from
the sale of the counterfeit and to pick up the remainder of the
undistributed counterfeit bills.
On January 21, under Secret Service surveillance,
appellant arrived at the shop and Oliveras handed him a briefcase
containing the undistributed counterfeit bills. A Secret Service
agent overheard appellant inquiring about "series 11."2 Appel-
lant removed three bills from the briefcase, put something in his
pocket, then left the shop and placed the briefcase in his
vehicle, whereupon he was arrested. Following his arrest,
undistributed counterfeit bills were found in the briefcase,
three more were removed from his pocket, and a notation bearing
the name "Carlos Gutierrez Borrero" was found in his wallet.
Oliveras continued to cooperate by providing a state-
ment minimizing his own responsibility for the counterfeiting
scheme. After failing a polygraph examination, he admitted to a
larger role in the counterfeiting scheme. Both statements made
by Oliveras were disclosed prior to trial, but appellant was not
informed of the polygraph testing or the test results.
As a consequence of Oliveras' cooperation, the printing
equipment and paraphernalia were seized and appellant and his
2The trial testimony explained that "series 11" referred to
counterfeit bills which were the best quality imitations, bearing
serial numbers ending in "11".
4
four codefendantswere indicted. The otherdefendants pled guilty.
At appellant's trial, the government presented testimo-
ny that appellant had approached Oliveras with a plan to make and
distribute counterfeit one hundred dollar bills and that appel-
lant had indicated to Oliveras that he knew people who were
interested in purchasing the counterfeit. The evidence indicated
that appellant and one Freddie Velez provided the paper for
printing the counterfeit bills and, though not present at the
actual printing, that appellant expected to share in the profits
from the counterfeiting operation. After a three-day jury trial,
appellant was convicted on all four counts. He was sentenced to
concurrent forty-five month terms on each count.
II
DISCUSSION
Sufficiency of the Evidence
Appellant seems to assert that the jury verdicts on the
three substantive counts cannot stand, as there was no evidence
that he was present at the time the counterfeit bills were
printed; and that the conspiracy conviction cannot stand, as it
was based on "mere presence" at the crime scene on January 21.
Under the "offense clause" of section 371, a sustain-
able conviction requires proof beyond a reasonable doubt that the
defendant conspired to commit the substantive offense which was
the object of the unlawful agreement. United States v. Lopez,
944 F.2d 33, 39 (1st Cir. 1991); United States v. Sanchez, 917

5
F.2d 607, 610 (1st Cir. 1990), cert. denied, 111 S. Ct. 1625(1991). A conviction for aiding and abetting a substantive
offense requires proof beyond a reasonable doubt that the defen-
dant associated himself with the commission of the substantive
offense, participated in it as something he wished to bring
about, and sought by his actions to make it succeed. United
States v. Ortiz, 966 F.2d 707, 711 n.1 (1st Cir. 1992), cert.
denied, 61 U.S.L.W. 3479 (U.S. 1993); United States v. Lema, 909
F.2d 561, 569 (1st Cir. 1990). Evidence of "mere presence" can
sustain neither a conviction for conspiracy, United States v.
Tejeda, 974 F.2d 210, 213 (1st Cir. 1992); United States v.
Ocampo, 964 F.2d 80, 82 (1st Cir. 1992), nor for aiding and
abetting, United States v. Clotida, 892 F.2d 1098, 1104-05 (1st
Cir. 1989); United States v. Francomano, 554 F.2d 483, 486 (1st
Cir. 1977).
We assess the sufficiency of the evidence as a whole,
including all reasonable inferences, in the light most favorable
to the verdict, with a view to whether a rational trier of fact
could have found the defendant guilty beyond a reasonable doubt.
See, e.g., United States v. Figueroa, 976 F.2d 1446, 1459 (1st
Cir. 1992); United States v. Lopez, 944 F.2d 33, 39 (1st Cir.
1991). The evidence may be entirely circumstantial and need not
exclude every reasonable hypothesis of innocence; in other words,
the jury may accept any reasonable interpretation of the evi-
dence, United States v. Batista-Polanco, 927 F.2d 14, 17 (1st
Cir. 1991), and we must do the same.
6
The evidence was sufficient to establish beyond a
reasonable doubt that appellant knowingly conspired to make,
possess, and deliver counterfeit obligations, with intent to
defraud the United States, and that he aided and abetted the
possession, delivery and printing of counterfeit obligations.
The evidence revealed that the five co-conspirators, appellant
among them, caused approximately $800,000 in counterfeit obliga-
tions to be printed. Appellant not only suggested that Oliveras
print the counterfeit obligations but provided the paper, ar-
ranged a distribution network, aided and abetted the collection
of the illicit proceeds, and personally recovered the undistrib-
uted counterfeit bills.
The contention that he could not be convicted of
conspiracy unless he was at the shop when the bills were printed
is as bogus as the bills printed in his absence. "[U]nder a
basic tenet of traditional conspiracy theory . . . a conspirator
is responsible for acts his or her co-conspirators executed
during the existence and in furtherance of the conspiracy."
United States v. Sabatino, 943 F.2d 94, 96 (1st Cir. 1991);
Figueroa, 976 F.2d at 1446. Similarly, appellant's convictions
for aiding and abetting the printing of the bogus bills were
amply supported by the evidence that he initiated the counter-
feiting scheme, recruited Oliveras, and provided the paper on
which the bills were printed.
7
Evidentiary Rulings
Appellant challenges two evidentiary rulings, which we
review for abuse of discretion. United States v. Arias-Santana,
964 F.2d 1262, 1264 (1st Cir. 1992); United States v. Abreu, 952
F.2d 1458, 1467 (1st Cir.), cert. denied, 112 S. Ct. 1695 (1992).
First, appellant asserts that the district court erred
in admitting evidence seized from the shop, consisting of the
printing press, lamp, paper, and ink used in the counterfeiting
process. He frivolously contends that the seized evidence was
not relevant to the charges against him because he was not
present at the time the bills were printed. As a founding
member, however, appellant was criminally responsible for all
acts committed in furtherance of the conspiracy. See Figueroa,
976 F.2d at 1452 (evidence of recorded statements of coconspirat-
ors admissible against defendant).
Second, appellant claims that the district court erred
in excluding, as hearsay, the allegedly exculpatory post-arrest
statements of codefendants Velez and Santiago, neither of whom
was called to testify at trial. He argues that the statements
were admissible as coconspirator statements pursuant to Fed. R.
Evid. 801(d)(2)(E). Appellant's argument misses the mark, as
Evidence Rule 801(d)(2)(E) applies to coconspirator statements
made "during the course and in furtherance of the conspiracy,"
Fed. R. Evid. 801(d)(2)(E); see also Ortiz, 966 F.2d at 714-15,
whereas these statements were made neither during nor in further-
ance of the conspiracy.
8
Nondisclosure of Polygraph Testing and Results
Appellant claims that the government failed to provide
adequate pretrial discovery by withholding the information that
Oliveras took and failed a polygraph test. According to appel-
lant, knowledge of the failed polygraph would have helped the
defense establish that Oliveras lied. We must reverse if the
totality of the circumstances indicates that the nondisclosure
"'might have affected the outcome of the trial.'" United States
v. Devin, 918 F.2d 280, 289 (1st Cir. 1990), citing United States
v. Agurs, 427 U.S. 97, 104 (1976); Sanchez, 917 F.2d at 618; see
also Barrett v. United States, 965 F.2d 1184, 1189 (1st Cir.
1992).
Under all the circumstances, we are satisfied that
nondisclosure of the polygraph could not have affected the
outcome of the trial. During pretrial discovery, the defense was
provided with the two inconsistent statements made by Oliveras.
Appellant therefore was well aware that at least one statement
was false, at least in part, which plainly enabled the defense to
challenge Oliveras' credibility on that ground.3 Thus, evidence
of Oliveras' failure to pass the polygraph was cumulative to the
inconsistent statements previously introduced in evidence, see
Sanchez, 917 F.2d at 618 (nondisclosure of cumulative evidence
not material to conviction) (citing cases), especially in view of
3Oliveras' initial statement falsely asserted that appellant
was almost totally responsible for the counterfeiting scheme.
The second statement conceded that Oliveras had a significant
role in the conspiracy.
9
the vigorous impeachment to which Oliveras was subjected on
cross-examination, see United States v. Shelton, 588 F.2d 1242,
1248 (9th Cir. 1978), cert. denied, 442 U.S. 909 (1979) ("Im-
peachment evidence, even that which tends to further undermine
the credibility of the key Government witness whose credibility
has already been shaken due to extensive cross-examination, does
not create a reasonable doubt that did not otherwise exist when
that evidence is cumulative or collateral.") (citations omitted).
Finally, after the testimony of Oliveras, during government
counsel's direct examination of the agent who interrogated
Oliveras, the jury was made aware that Oliveras had failed the
polygraph test. The defense in turn inquired about the polygraph
on cross-examination of the government agent, but made no request
to recall Oliveras.
We therefore conclude that the government's imprudent
decision to withhold pretrial disclosure of the polygraph testing
and results could not have altered these jury verdicts.
Variance
Although appellant alleges that there was an "impermis-
sible variance between the offense as presented to the Grand Jury
. . . and the case presented in Court," he identifies no vari-
ance. See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st
Cir.), cert. denied, 494 U.S. 1082 (1990) (arguments adverted to
with no attempt at developed argumentation are deemed waived).
Even if the variance claim were not deemed waived, however, we
would reject it, as the indictment clearly apprised appellant of
10
the charges against him and the evidence presented at trial was
"relevant to and within the scope of the crimes" charged in the
indictment. United States v. Sutton, 970 F.2d 1001, 1007 n.8
(1st Cir. 1992) (no variance where indictment fully apprised
defendant of crimes with which he was charged). See United
States v. Medina, 761 F.2d 12, 16 (1st Cir. 1985) (same).
U.S.S.G. 3B1.1(b)
Finally, appellant challenges the three-level enhance-
ment imposed pursuant to U.S.S.G. 3B1.1(b). The district court
found that appellant was a "manager or supervisor" of criminal
activity involving five or more participants. We review role-in-
offense rulings for clear error. United States v. Schultz, 970
F.2d 960, 963-64 (1st Cir. 1992), cert. denied, 61 U.S.L.W. 3479(1993); United States v. Panet-Collazo, 960 F.2d 256, 261 (1st
Cir.), cert. denied, 113 S. Ct. 220 (1992).
Section 3B1.1 of the Sentencing Guidelines prescribes
offense level enhancements based "upon the size of a criminal
organization (i.e., the number of participants in the offense)
and the degree to which the defendant was responsible for commit-
ting the offense." U.S.S.G. 3B1.1, comment. (backg'd).
Section 3B1.1(b) directs an increase in the offense level "[i]f
the defendant was a manager or supervisor (but not an organizer
or leader) and the criminal activity involved five or more par-
ticipants or was otherwise extensive." Although the terms
"manager" and "supervisor" are not defined in the Guidelines, the
application notes to section 3B1.1 list seven nonexclusive
11
factors for use in distinguishing a "leadership and organization-
al role [for which section 3B1.1 provides a four-level increase
if the criminal activity involved five or more participants] from
one of mere management or supervision." Id. comment. (n.3).4
The presentence report recommended a four-level in-
crease due to appellant's aggravated role as an organizer or
leader of a criminal activity involving five participants. In
response to defense objections at sentencing, the court declined
to adopt the recommendation in the presentence report. The court
nevertheless found that three of the seven factors to be used in
distinguishing a "leader or organizer" from a "manager or super-
visor" were satisfied in the present case: recruitment of
accomplices, a substantial role in planning and organizing the
offense, and the extensive nature and scope of the illegal
activity. The court found in particular that appellant had
"seduced" Oliveras into joining the conspiracy and that Oliveras
in turn had brought in others, including those who actually
printed the counterfeit; that appellant, under an assumed name,
purchased the paper on which the counterfeit obligations were
printed; and that the illegal activity was extensive as it
involved approximately $800,000 in counterfeit obligations.
4The factors listed in 3B1.1, comment. n.1 are:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
12
There was no clear error in the enhancement of appel-
lant's sentence as a "manager or supervisor." The sentencing
court explicitly found that appellant played an important role in
planning and organizing the offense, which entailed an increased
degree of responsibility for the commission of the offense. As
this court has noted, the section 3B1.1 enhancement applies if
the defendant "exercised some degree of control over others
involved in the commission of the crime or he [was] responsible
for organizing others for the purpose of carrying out the crime."
United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)
(emphasis added); see also United States v. Brown, 944 F.2d 1377,
1381 (7th Cir. 1991) (same). Finally, we find no clear error,
particularly in light of appellant's critical role in recruiting
a reluctant Oliveras, a well-known figure in criminal circles,
who was indispensable to the conspiracy in that he alone appears
to have been able to recruit others capable of printing the
counterfeit obligations. See United States v. Pierce, 907 F.2d
56, 57 (8th Cir. 1990) (recruitment finding "provides strong
support for the conclusion that [defendant] played a managerial
or supervisory role under 3B1.1(b)").
Affirmed.
13