United States v. Rodriguez ( 1993 )

March 31, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-2324
UNITED STATES,
Appellee,
v.
LUIS DUQUE-RODRIGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Breyer, Chief Judge,
Cyr and Boudin, Circuit Judges.
William G. Small for appellant.
Jeffrey A. Locke, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, was on brief for appellee.
BREYER, Chief Judge. Luis Duque Rodriguez appeals
from a drug conspiracy conviction, 21 U.S.C. 841(a)(1),
and ten year prison sentence. After reading the record in
the case, we find his arguments unconvincing, and we affirm
the district court.
The record would permit the jury to find the
following facts:
1. In 1990 the FBI caught a major Colombian
cocaine dealer, Pedro Alvarez, who agreed to
help the FBI catch others.
2. Alvarez, on FBI instructions, ordered a
shipment of about half a ton of cocaine from
Colombia. The Colombian dealers sent the
cocaine to Massachusetts. They also sent a
fax to what (in fact) was an FBI office
saying, among other things, that about
fifteen pounds of the cocaine was for
"Victor," whom Alvarez identified as a New
York dealer, Luis Zapata.
3. On June 6, 1991, Alvarez told Zapata about
the shipment.
4. Four days later, Zapata hired Duque to drive
him to Massachusetts in Duque's van. The two
spent the night of June 10 at a Fall River
hotel, where Antonio Dillon, an FBI agent
(masquerading as Alvarez's associate) had
reserved them a room. On June 11, Zapata met
Dillon and told him that he had "brought a
friend with him to help him take the load
back to New York."
5. On the morning of June 12, Dillon, Zapata and
Duque met at the hotel. Dillon spoke about
other shipments and the need for security.
Duque agreed that security was important.
Dillon led Zapata and Duque (in Duque's van)
to a warehouse.
a) A film of the events, supplemented by
testimony of two FBI agents who were
present, shows that Duque's van backed
into the warehouse, Duque got out of the
van, watched two men open a white sack,
looked at bricks of cocaine inside,
waited while Zapata loaded several
cocaine bricks into storage compartments
built into the rear of the van, took two
bricks himself from the bag and put them
in a compartment under the passenger's
seat, and shut the van door.
b) Dillon testified that, during these
events, Duque said, "We've been using
the van; however, I need to . . . pay
for a secret . . . compartment to be put
into the van which will hold
approximately fifty . . . ."
6. The FBI then arrested Duque and Zapata.
Duque makes four arguments on this appeal. First,
he says that there was insufficient evidence for the jury to
conclude that he knew he was dealing with drugs. He points
to his own testimony that Zapata paid him only $1,000 for
the trip and to a legal rule that prohibits conviction on
the basis of an uncorroborated confession with nothing more.
Wong Sun v. United States, 371 U.S. 471, 488-89 (1963). The
jury, however, was free to disbelieve Duque's testimony
about his state of mind. It could easily believe that the
amount of payment, even if low, was not sufficient to offset
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other evidence of Duque's knowing involvement. And the
record contained much corroboration -- a film showing Duque
loading cocaine, for example -- that makes the rule of Wong
Sun inapplicable. Cf. United States v. Guerrero-Guerrero,
776 F.2d 1071, 1075 (1st Cir. 1985) (jury could have
concluded beyond reasonable doubt that members of sailing
vessel's crew knew that vessel contained marijuana, in light
of reasonable inference that smugglers were counting on crew
to unload hundreds of heavy drug-laden sacks on board),
cert. denied, 475 U.S. 1029 (1986).
Second, Duque asks us to set aside his conviction
on the ground that the government behaved "outrageously."
United States v. Russell, 411 U.S. 423 (1973); see also
Hampton v. United States, 425 U.S. 484, 491-95 (1976)
(Powell, J., concurring); id. at 495-500 (Brennan, J.,
dissenting). Duque should have raised this matter before
trial. Fed. R. Crim. P. 12(b)(1), 12(f). But, in any
event, the argument is not substantial. Duque rests his
argument upon his claim that the government here gave its
informer, Pedro Alvarez, more than five hundred pounds of
cocaine. Duque points to an FBI agent's testimony that
275.5 kilograms were earmarked for Alvarez himself "as his
profit for assisting in the operation," or as "a fee for . .
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. arranging the transport, importation of the cocaine into
the United States." In context, however, this testimony
refers to the fact that the Colombian dealers, thinking that
Alvarez was a drug broker, told Alvarez that he could keep
this amount as a broker's commission. Nothing in the record
suggests that the government intended to let Alvarez
actually keep the drugs or that he did so. Thus, Duque's
argument comes down to a claim that the government was wrong
to use the drugs in a "sting" operation. This circuit has
made clear, however, that a drug "sting" does not amount to
"outrageous" government conduct. United States v. Panitz,
907 F.2d 1267, 1273 (1st Cir. 1990); United States v.
Porter, 764 F.2d 1, 8-9 (1st Cir. 1985).
Third, Duque points out that the district court
sentenced him on the basis of nine kilograms of cocaine. He
says that the court should have sentenced him on the basis
of less than five kilograms. The court, however, could have
believed that he intended to transport nine kilograms of
cocaine, for Duque saw nine kilograms being loaded into his
van.
Fourth, Duque argues that the court should have
sentenced him as a "minimal," rather than as a "minor"
participant. See U.S.S.G. 3B1.2. On our view, however,
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the court could have believed that Duque's role as a driver
was more significant than that of a minor "courier" in a
small operation, id. at 3B1.2, comment (nn.1 & 2),
particularly since his van seemed to have special
compartments that he said he intended to modify to carry
larger shipments. We recognize that his comparatively small
compensation ($1,000) argues in favor of a greater downward
adjustment, but the size of the operation argues the other
way. These matters are primarily for the district court,
United States v. Figueroa, 976 F.2d 1446, 1461 (1st Cir.
1992), cert. denied, 61 U.S.L.W. 3584 (U.S. 1993). And, we
can find no legal error in that court's exercise of its
judgment. Id. at 1462 (rejecting claim that district court
should have found defendant to be "minimal" participant,
rather than "minor" one); United States v. Tabares, 951 F.2d
405, 410 (1st Cir. 1991) (district court's determination
that defendant was a "minor" participant rather than
"minimal" one not clearly erroneous, where based on
reasonable inferences drawn from undisputed facts).
We find the appellant's remaining issues without
merit. See, e.g., United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) (issues adverted to in perfunctory manner,
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unaccompanied by effort at developed argumentation, deemed
waived).
The judgment of the district court is
Affirmed.
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