United States v. Padilla-Pena , 129 F.3d 457 ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
___________
No. 97-1297
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Francisco Padilla-Pena, aka Paco, *
*
Defendant - Appellant. *
___________
Appeals from the United States
District Court for the
No. 97-1299
District of Nebraska.
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Ana Rosa Padilla-Pena, aka Ana, *
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Defendant - Appellant. *
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No. 97-1313
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
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Roberto Guzzman, aka Beto, *
*
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Defendant - Appellant. *
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No. 97-1316
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Luis A. Padilla-Pena, aka Ramone *
Pelone, *
*
Defendant - Appellant. *
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No. 97-1320
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Angelica Padilla-Pena, aka Leka, *
*
*
Defendant - Appellant. *
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No. 97-1321
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Michael Padilla-Pena, aka Miguel, *
*
Defendant - Appellant. *
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___________
No. 97-1323
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
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Artemio Esparza, *
*
*
Defendant - Appellant. *
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Submitted: June 11,
1997
Filed: November 6, 1997
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Before MURPHY, HEANEY, and JOHN R. GIBSON, Circuit
Judges.
JOHN R. GIBSON, Circuit Judge.
Luis Padilla-Pena, Francisco Padilla-Pena, Ana Rosa
Padilla-Pena, Angelica Padilla-Pena, Roberto Guzzman,
Michael Padilla-Pena, and Artemio Esparza appeal their
convictions of conspiracy to distribute heroin in
violation of 21 U.S.C. § 846 (1997), varying counts of
possession with intent to distribute heroin in violation
of 21 U.S.C. § 841(a)(1) (1997), and the sentences
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imposed upon them.1 All appeal their
1
Luis Padilla-Pena was found guilty on one count of conspiracy to distribute
and possession with intent to distribute, and five separate counts of possession and
was sentenced to 330 months. Francisco Padilla-Pena was found guilty on one
count of conspiracy and five separate counts of possession and was sentenced to
240 months. Ana Rosa Padilla-Pena was found guilty on one count of conspiracy
and five separate counts of possession and was sentenced to 330 months. Angelica
Padilla-Pena was found guilty on one count of conspiracy and five separate counts
of possession and was sentenced to 156 months. Artemio Esparza was found guilty
on one count of conspiracy and five separate counts of possession and was
sentenced to 151 months. Michael Padilla-Pena was found guilty of one count of
conspiracy and two separate counts of possession and was sentenced to 151
months. Roberto Guzzman was found guilty on one count of conspiracy and three
separate counts of possession and was sentenced to 130 months. All appellants'
sentences were followed by a term of supervised release ranging from five to ten
years.
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convictions, arguing that the district court2 erred in
denying their motions to dismiss or to suppress the
wiretap, and Michael Padilla-Pena and Roberto Guzzman
also argue that there was insufficient evidence to
support their convictions. All appeal from the sentences
imposed, arguing primarily that the district court
findings as to quantity of drugs were insufficient. Ana
Rosa Padilla-Pena also argues that the ruling that she
was a manager or supervisor of the claimed conspiracy was
in error, and Michael Padilla-Pena argues that the
district court erred in not classifying him as either a
minor or minimal participant in the conspiracy. In
addition, Roberto Guzzman appeals from a search and
seizure of property at the time of his arrest, arguing
that it was not done pursuant to valid consent. We
affirm the judgments and convictions.
During the summer and fall of 1994, Officer Mike
Terrell of the Omaha Police Department made several
undercover buys of black heroin. Over the next six
months, Terrell made additional purchases of black heroin
ranging from one gram up to four and one-half grams, for
total purchases of between thirty and thirty-five grams.
Two confidential informants also made purchases. When
one of the informants made purchases, a person identified
as Hector would sometimes be present, and on at least two
occasions Hector was present when the other informant
made purchases. Hector
2
The Honorable Lyle E. Strom, Senior United States District Judge for the
District of Nebraska.
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was Luis Padilla-Pena. It developed that Tracy Jefferson
had come to Omaha on behalf of Luis Padilla-Pena sometime
in October 1993, with the general objective of
establishing a heroin distribution center. Officer
Terrell was ultimately led to a house leased by Francisco
Padilla-Pena, and in September 1994, permission was
obtained to install pen registers on the telephones in
that location. On November 22, 1994, a state judge
signed an order authorizing a wiretap on a telephone at
the house leased to Francisco Padilla-Pena. Between
November 23, 1994, and January 16, 1995, agents
intercepted some 4,000 calls. The wiretap, undercover
buys, and other information led to seventeen defendants
being indicted for involvement in a heroin distribution
conspiracy.
Of those indicted, only the seven appellants now
before us proceeded to a bench trial. The others entered
guilty pleas, including Tracy Jefferson, who testified
for the government. More than sixty witnesses testified,
and 250 exhibits were received during the bench trial
lasting twenty days. All appellants were found guilty of
those counts of the indictment described above, and
substantial sentences were imposed.
Further facts will be recited as is necessary in our
analysis of the issues presented by the appellants.
I.
Before trial, appellants moved the court to dismiss
or, alternatively, suppress all
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evidence obtained from the wiretap.3 The district court
denied these motions,4 and all appellants assert that the
district court erred.
Appellants argue that the government5 failed to
minimize the intercepted conversations as required under
18 U.S.C. § 2518(5) (1997), which requires that the
government conduct electronic surveillance "in such a way
as to minimize the interception of communications not
otherwise subject to interception." When assessing
whether the government properly minimized under 18 U.S.C
§ 2518(5), the court must determine if the government's
actions were objectively reasonable in light of the facts
and circumstances of the case. See Scott v. United
States, 436 U.S. 128, 137-38 (1978); United States v.
Williams, 109 F.3d 502, 507 (8th Cir.), cert. denied,
1997 WL 592459 (Oct. 14, 1997). The reasonableness of
the government's actions is a question of fact, and
therefore we review the district court's denial of the
motion to suppress the wiretap evidence for clear error.
3
Although appellants filed separate motions, all were considered joint
movants on the motion at the suppression hearing. Luis Padilla-Pena and Roberto
Guzzman briefed the issue and made essentially identical arguments. Ana Rosa
Padilla-Pena, Angelica Padilla-Pena, Michael Padilla-Pena, and Artemio Esparza
adopt the arguments as briefed by Luis Padilla-Pena.
4
At the conclusion of a three day suppression hearing, the Honorable Thomas
D. Thalken, United States Magistrate Judge for the District of Nebraska, concluded
the motions should be denied. The district court adopted his conclusion.
5
The investigation of the heroin conspiracy involved the Omaha Police
Department, the Federal Bureau of Investigation, and the Immigration and
Naturalization Service. We have referred to these organizations collectively as "the
government".
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United States v. Fregoso, 60 F.3d 1314, 1321 (8th Cir.
1995); United States v. Garcia, 785 F.2d 214, 224 (8th
Cir. 1986).
After reviewing the record, we conclude the district
court did not clearly err in its findings and therefore
affirm its denial of the motion to suppress the wiretap
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evidence.
Before activating the wiretap, the government
anticipated that most of the intercepted conversations
would be in English. However, once the wiretap was
activated, the majority of the intercepted conversations
were in Spanish. Because the government had not procured
Spanish speaking monitors before activating the wiretap,
it recorded the Spanish conversations for after-the-fact
minimization until an adequate number of Spanish speaking
monitors could be obtained to contemporaneously minimize
the Spanish calls.
Appellants argue that the government should have
known that Spanish conversations would be intercepted and
unreasonably failed to obtain Spanish monitors before
activating the wiretap so as to contemporaneously
minimize the Spanish calls. They argue that because the
government should have contemporaneously minimized the
Spanish calls, after-the-fact minimization was not
appropriate, and therefore evidence obtained from the
recorded conversations should be suppressed.
In support of this argument, appellants point to
evidence that all undercover buys were made from
Hispanics, the government overheard the suspects
conversing with each other in Spanish, the government
knew that some of the suspects were illegal aliens from
Mexico, and the government knew a possible source of the
heroin was Mexico. Appellants argue that, given this
information, the only reasonable conclusion to be drawn
was that many of the intercepted conversations would be
in Spanish.
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The government maintains that, despite this evidence,
it reasonably believed the intercepted calls would be in
English and, therefore, was justified in not obtaining
Spanish monitors before activating the wiretap. It
points out that the pre-wiretap investigation focused on
heroin sales in north Omaha between the suspects and
English speaking whites and African-Americans. In
addition, undercover agents conversed with the suspects
in English, not Spanish, when making undercover buys.
Having
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heard the suspects speak English when making heroin
transactions, the government maintains it reasonably
believed the suspects would use English when conversing
on the phone.
When examining the issue of whether the government
may perform after-the-fact minimization, it should be
noted that contemporaneous minimization is not required
under all circumstances, particularly when a foreign
language is involved. See United States v. David, 940
F.2d 722, 729-30 (1st Cir. 1991). Where intercepted
conversations are in a foreign language and, despite the
exercise of reasonable diligence a translator is not
available for contemporaneous minimization, minimization
may be accomplished as soon as practicable after
interception. Id.; 18 U.S.C. § 2518(5).
After reviewing the record, we are not persuaded that
the district court clearly erred in rejecting appellants'
argument that the government unreasonably failed to
procure Spanish monitors before activating the wiretap.
There was evidence the government believed the pertinent
calls would be in English. For this reason, Spanish
monitors were not "readily available" at the inception of
the wiretap. Therefore, after-the-fact minimization,
which is expressly allowed by 18 U.S.C § 2518(5), was
appropriate.
In addition, appellants argue that after the wiretap
was activated and the government realized that most of
the calls were in Spanish, the government unreasonabl\y
delayed in obtaining Spanish speaking monitors to perform
contemporaneous minimization. Appellants claim that the
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government had many Spanish-speaking individuals on
staff, but unreasonably failed to have them monitor the
conversations. Appellants also claim that even if
Spanish interpreters were not immediately available, the
government should have shut down the wiretap and waited
until such monitors were available.
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Appellants' argument that the government was required
to shut down the wiretap until Spanish monitors could be
obtained is without merit. If interpreters are not
available, shutting down the wiretap is not required.
After-the-fact minimization is expressly allowed in such
circumstances. 18 U.S.C. § 2518(5). The government does
not need to show that contemporaneous minimization was
impossible. David, 940 F.2d at 730. Rather, the
government must show that, despite reasonable efforts,
Spanish monitors were not available. Id.; 18 U.S.C §
2518(5). This has been shown.
Once the need for Spanish monitors was ascertained,
the government attempted to immediately obtain Spanish
speaking monitors from various local and nationwide
agencies and departments. However, because those that
could speak Spanish had other assignments and duties,
Spanish speaking monitors were not immediately available.
Despite the shortage of Spanish speakers available, the
government was able to obtain a few Spanish monitors two
to three weeks after activating the wiretap, and
eventually obtained sufficient Spanish speakers to
monitor the wire full-time. Considering the government's
reasonable efforts to obtain Spanish speaking monitors,
we conclude that the district court did not clearly err
in finding that the government's after-the-fact
minimization of Spanish conversations was appropriate.
Finally, appellants argue that the government did not
conduct the after-the-fact minimization in a reasonable
manner. Appellants argue that Spanish monitors often
listened to entire taped conversations. Additionally,
appellants argue that the government should have erased
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from the tapes all non-pertinent conversations.
Unquestionably, after-the-fact minimization must be
performed reasonably. See Scott, 436 U.S. at 139-42.
For after-the-fact minimization to be reasonable, the
government must utilize a process that protects the
suspect's privacy interest to approximately the same
extent as properly conducted contemporaneous
minimization. David, 940 F.2d at 730.
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The government's procedures in this case have
accomplished this. If Spanish monitors were not
available to contemporaneously minimize Spanish calls,
the government would record the Spanish calls for later
translation and transcription. Spanish interpreters were
instructed to stop listening and transcribing the
conversation once they determined the conversation was
beyond the scope of the investigation. If the
conversation did not appear to be related to narcotics,
the translators would fast- forward through the tape to
the next conversation.
Occasionally, monitors would listen to and transcribe
conversations not related to narcotics. However, the
fact that the monitors occasionally intercepted non-
pertinent conversations does not warrant suppression of
the evidence derived from the wiretap. Section 2518(5)
does not forbid the interception of all nonpertinent
conversations, but rather instructs agents to conduct
surveillance in such a manner as to "minimize" the
interception of such conversations. See Scott, 436 U.S.
at 140. Whether the agents have properly conducted the
wiretap in such a manner depends on the facts and
circumstances of each case. Id.
In Scott, the Supreme Court concluded that
suppression was not required even though government
agents intercepted virtually all conversations, including
non-narcotics related conversations. Id. at 141. Scott
stated, "In a case such as this, involving a wide-ranging
conspiracy with a large number of participants, even a
seasoned listener would have been hard pressed to
determine with any precision the relevancy of many of the
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calls before they were completed." Id. at 142.
As in Scott, the investigation in this case involved
a widespread conspiracy requiring extensive surveillance
to determine the precise scope of the enterprise. Also
as in Scott, many of the calls not related to narcotics
that appellants argue were improperly minimized were
either short or ambiguous in nature. In a case such as
this, it is not uncommon for a conversation to end before
a monitor can determine if the call is narcotics related.
In this case, the recorded calls were treated similarly
to the
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contemporaneously minimized calls. Whether minimization
was performed contemporaneously or after-the-fact, agents
would stop listening once they determined the call was
not narcotics related. Considering the facts and
circumstances of the case, we conclude the district court
did not err in finding that the agents did not act
unreasonably in listening to entire recorded
conversations of many non-narcotics related calls.
We also conclude that there is no merit to
appellants' contention that all conversations not
related to narcotics should have been erased. To the
contrary, recorded conversations should not be erased.
See 18 U.S.C. § 2518(8)(a); United States v. Maldonado-
Rivera, 922 F.2d 934, 954 (2d Cir. 1990). The
government's policy of fast-forwarding through non-
narcotics related conversations was appropriate.
Appellants also contend that the government's wiretap
minimization procedures violated Neb. Rev. Stat. § 86-
705(6) (Reissue 1994). Having determined that the
government agents acted reasonably in their efforts to
comply with the minimization requirements of 18 U.S.C. §
2158(5), we need not consider this argument. We have
consistently held that evidence obtained in violation of
a state law is admissible in a federal criminal trial if
the evidence was obtained without violating the
Constitution or federal law. See United States v.
Olderbak, 961 F.2d 756, 760 (8th Cir.1992).
II.
A.
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Both Roberto Guzzman and Michael Padilla-Pena contend
that there is insufficient evidence to support their
convictions.
In reviewing the sufficiency of the evidence to
support a guilty verdict, we view the evidence in the
light most favorable to the verdict and accept as
established all reasonable inferences supporting the
verdict. We then uphold the conviction only if
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it is supported by substantial evidence. United States v.
Black Cloud, 101 F.3d 1258, 1263 (8th Cir. 1996); see
also Glasser v. United States, 315 U.S. 60, 80 (1942).
Neither Guzzman nor Michael Padilla-Pena disputes the
existence of a conspiracy to distribute heroin involving
at least some of the defendants in this case. Thus, we
need only determine whether they participated in the
conspiracy. Once the government proves the existence of
a drug conspiracy, "only slight evidence linking the
defendant to the conspiracy is required to prove the
defendant's involvement and support a conviction."
United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.
1996) (quotation omitted).
B.
In this case, the evidence is sufficient for a
reasonable fact finder to conclude that Roberto Guzzman
was involved in the conspiracy to distribute heroin. The
district court found Guzzman to have been a party to one
or more wiretapped conversations in which aspects of the
heroin business were discussed. The content of the
conversations strongly indicates the speakers' knowledge
and involvement in a common drug distribution scheme.
For example, in one conversation, the topics of
discussion include the interdiction of a co-conspirator,
the weighing of heroin, and the distribution of "the Snow
White kind," presumably heroin. Guzzman's primary
contention regarding these conversations is that, because
no witness was able to identify his voice on the wiretap,
he was never properly shown to be a party to any of the
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intercepted conversations. Voice identification,
however, was unnecessary in determining that Guzzman was
one of the speakers. In the intercepted conversations
themselves, Guzzman is addressed by the other parties
both by his legal name and by his nickname, "Beto."
The evidence against Guzzman is further strengthened
by the discovery of heroin, balloons, a digital pager,
and a large amount of cash in the apartment where
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Guzzman was arrested. Guzzman was the only person in the
apartment at the time of the arrest. On its own,
Guzzman's presence in the apartment with the heroin and
the related items is highly suggestive of his role in the
heroin business. When this evidence is combined with the
information from the intercepted conversations, the
evidence is more than enough to support the conviction
for conspiracy to distribute heroin.
The evidence also supports the conviction of Guzzman
for possession of heroin with intent to distribute.
Guzzman correctly asserts that "mere presence" is
insufficient to support a conviction for possession. See
United States. v. Dunlap, 28 F.3d 823, 826 (8th Cir.
1994). In this case, however, there is more than
Guzzman's "mere presence" in the apartment. The evidence
establishes a number of different factors from which a
reasonable inference of possession could be drawn.
Guzzman appears to have been the only one staying at the
apartment at the time of the arrest and so had control
over the premises. Additionally, law enforcement
officers discovered heroin under a crumpled sleeping bag
in one bedroom, while the other bedroom did not appear to
be in use.
The evidence also indicates Guzzman's close
association with the actual renters of the apartment was
directly related to the distribution of heroin. As
discussed, the content of the intercepted conversations
provides strong evidence that Guzzman is a member of the
same conspiracy as the named tenants. Further, a close
relationship can be inferred from the very fact that the
tenants allowed Guzzman to stay alone in the apartment
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with the easily discoverable drugs and cash. We conclude
the evidence outlined above is enough to support the
conviction for possession.
C.
Michael Padilla-Pena also argues that there is
insufficient evidence to convict him.
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First, Michael Padilla-Pena argues that co-defendant
Tracy Jefferson, the only witness to implicate him in any
criminal activity, is so unreliable that due process
requires that her testimony not be relied upon. In
support of this contention, Michael points to Jefferson's
self-admitted history of drug use, prostitution,
dishonesty, and mental health problems. He further
points to Jefferson's plea agreement with the government
which provides that she will receive a portion of any
funds seized as the result of information she provides.
While Jefferson's personal history and potential bias may
invite some skepticism towards her testimony, the
district judge was in a much better position to consider
these factors and to weigh her overall credibility as a
witness. She was found to be a credible witness, and we
conclude there is no clear error in this determination.
Michael Padilla-Pena also argues that, even
considering Jefferson's testimony, there is
insufficient evidence to convict him. Jefferson
testified that in early 1993 she was sent by Luis
Padilla-Pena from Denver, Colorado, to meet Michael in
Seattle, Washington, to start a heroin distribution
business. Michael met Jefferson at the airport and then
drove her to downtown Seattle, where she and Michael
attempted to sell heroin to local drug addicts. For five
days, Michael and Jefferson distributed heroin in the
downtown area. Jefferson then returned to Denver. No
further witness testimony was presented by the
prosecution tying Michael to the conspiracy.
Although Jefferson's testimony concerned events in
early 1993, the third superseding indictment alleged that
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the conspiracy began on or about August 19, 1994.
Because the Seattle incident occurred well before August
19, 1994, Michael argues that Jefferson's testimony is
too remote to be sufficient proof of guilt.
The district judge, however, did not conclude that
Michael was a member of the conspiracy based on
Jefferson's testimony. Rather, the judge relied on a
December 11, 1994 intercepted telephone conversation
between Michael and Angelica Padilla-Pena in determining
that Michael was a member of the conspiracy. In that
telephone
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conversation, Michael discussed with Angelica finances
and debts of the heroin business. In addition, Michael
discussed his debts to a man named Memo, who, according
to Jefferson, controlled the money and drugs coming in
and out of Denver. The judge found that this telephone
call "compel(s) the court to find that it establishes
through his own words, his own conversation, that he knew
the purpose and intent of this conspiracy and that at
least by that date, which is December 11, 1994, he had
become a member."
We conclude this evidence, viewed in a light most
favorable to the government, is sufficient for a
reasonable fact finder to believe that Michael was a
member of the conspiracy. We decline to disturb the
district court's finding.
III.
Roberto Guzzman argues, contrary to the findings of
the magistrate judge as adopted by the district court,
that the search of the apartment at 3201 Thirtieth
Street, Des Moines, Iowa, was without voluntary consent,
and that the fruits of the search should be suppressed.
We review a finding of voluntariness under a clearly
erroneous standard. See United States v. Payne, No. 95-
4136, 1997 WL 377988, at *6 (8th Cir. July 10, 1997).
The question of whether a consent to a search was
voluntary is "question of fact to be determined from the
totality of all the circumstances." Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973).
Guzzman argues that a number of circumstances
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surrounding the search prevented his consent from being
voluntary. Some of the facts behind these circumstances
are undisputed. On January 17, 1995, five law enforcement
officers in plain clothes arrived at the Des Moines
apartment with a purpose of conducting a consent search.
When the officers arrived, Guzzman was not fully dressed.
At some point during this visit, Guzzman was arrested for
being an illegal alien. At no point did the officers
inquire into Guzzman's educational background or previous
experience with
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law enforcement. Based on Guzzman's alleged consent, the
law enforcement officers searched the apartment. As a
result of the search, law enforcement officers found
heroin and approximately $2,640 in cash inside the
apartment. Guzzman signed neither a consent form nor any
form indicating that he understood his Miranda rights.
Guzzman argues that the number of police officers, his
state of partial dress, his lack of familiarity with
police procedures, his limited ability to speak English,
and the lack of a signed consent or Miranda form all
indicate the absence of voluntary consent. Considering the
record as a whole, however, we do not believe that these
circumstances justify a conclusion that the district court
clearly erred in finding Guzzman's consent to be
voluntary.
Indeed, upon closer study of the record, many of these
circumstances were much less dramatic than they may first
appear. As the government points out in its brief, though
five officers arrived at the Des Moines apartment, at
least two appear to have remained out of Guzzman's sight
until after the search had already begun. Guzzman was
partially dressed when the officers arrived, but they
allowed him to finish dressing when he asked to do so. At
the suppression hearing, INS Agent Martin Biesemeyer and
two other officers testified that Biesemeyer at first
spoke to Guzzman in Spanish, but that Guzzman would often
choose to answer Biesemeyer's questions in English.
Therefore, Guzzman's limited ability to speak English does
not appear to have diminished his ability to give informed
consent.
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Guzzman also argues two circumstances which the
government directly disputes. First, Guzzman appears to
challenge whether Miranda warnings were delivered by
describing the testimony on this issue as "contradictory."
The most relevant testimony on the issue is Agent
Biesemeyer's testimony at the suppression hearing.
Biesemeyer testified that he read Guzzman his Miranda
rights in Spanish. As a result, the other officers, who
did not speak Spanish, could neither confirm nor deny
Biesemeyer's account of the conversation.
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Guzzman argues that Biesemeyer's testimony concerning
the Miranda warnings was internally contradictory.
Guzzman appears to be referring to two particular portions
of Biesemeyer's testimony. In the first portion,
Biesemeyer testified that he "advised [Guzzman] that he
was under arrest." When asked what happened next,
Biesemeyer testified that he and Guzzman began talking
about who owned the apartment. In the second portion of
testimony, Biesmeyer stated that he advised Guzzman of his
Miranda rights immediately after the arrest. These
portions are not so contradictory as to require us to
conclude that the district court clearly erred in
assessing Biesemeyer's credibility.
Second, Guzzman argues that Agent Biesemeyer knew
Guzzman was a resident alien and that the arrest for being
an illegal alien was both unreasonable and a mere pretext
for the real purpose of searching the apartment.
Specifically, Guzzman refers to Biesemeyer's testimony at
the suppression hearing that Biesemeyer had reviewed
Guzzman's INS file before going to the Des Moines
apartment. Biesemeyer testified, however, that Roberto
Guzzman was a common name in the INS index system, and so
he could not be sure if Guzzman was the same person as in
the file. In addition, Biesemeyer stated that Guzzman
identified himself as an illegal alien.
The district court, upon the magistrate judge's
recommendation, found that Biesemeyer had probable cause
to arrest Guzzman after Guzzman stated he was an illegal
alien. If true, Guzzman's claim of illegal status
combined with Biesemeyer's uncertainty about Guzzman's
specific identity would be a sufficient basis for such a
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finding. Thus, Guzzman's challenge to the propriety of
his arrest for being an illegal alien is really a
challenge to the district court's assessment of
Biesemeyer's credibility. We are particularly hesitant to
find clear error in the district court's findings of fact
where those findings are based on determinations of
witness credibility. See Anderson v. Bessemer City, 470
U.S. 564, 575 (1985). As Biesemeyer's testimony supports
the arrest, and we do not conclude such testimony to be
clearly erroneous, we reject Guzzman's argument.
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IV.
Luis, Ana Rosa, Angelica, Francisco, and Michael
Padilla-Pena all argue the evidence was insufficient to
establish the quantity of the drugs involved in the
sentencing determinations. The government acknowledges
that it bears the burden of establishing the drug
quantities by a preponderance of the evidence. See United
States v. Buford, 108 F.3d 151, 155 (8th Cir. 1997). The
district court's specific findings in support of its
sentencing determinations, however, must be reviewed only
for clear error. See United States v. Flores, 73 F.3d
826, 833 (8th Cir.), cert. denied, 116 S. Ct. 2586. In
determining base offense levels, the district court may
rely on evidence including drug prices and organizational
capabilities to approximate total drug quantities beyond
the amount of drugs actually seized. See U.S. Sentencing
Guidelines Manual § 2D1.1, application note 12 (1995).
Further, a sentencing judge who presides over a trial is
entitled to base his findings of fact on the trial record.
See United States v. Wiggins, 104 F.3d 175, 178 (8th Cir.
1997).
Luis and Ana Rosa Padilla-Pena were both held
accountable for substantially all of the drug quantity
attributed to the conspiracy. For sentencing purposes, a
criminal defendant convicted as a co-conspirator is held
responsible for all reasonably foreseeable acts undertaken
in furtherance of the conspiracy. See U.S.S.G. §
1B1.3(a)(1)(B) (1995). The district court found both Luis
and Ana Rosa to be central figures in the conspiracy, a
finding which is firmly grounded in the evidence. Thus,
both could be reasonably expected to foresee the bulk of
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the conspirators' activities. As a result, the sentencing
court assigned both Luis and Ana Rosa a base offense level
reflecting a drug quantity of ten to thirty kilograms of
heroin and methamphetamine.
In determining this quantity, the district judge
relied heavily upon the trial testimony of Tracy
Jefferson. Jefferson testified that, through Luis, she
arranged to purchase methamphetamine from two unidentified
men in California. Jefferson stated
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that she purchased the methamphetamine in amounts of one
kilogram but could not recall the total number of
purchases she made from the men. As a result, the judge
estimated these purchases to total only two kilograms.
Jefferson testified that she also purchased
methamphetamine from Ana Rosa on more than one occasion.
The judge estimated these purchases to total two kilograms
as well.
Jefferson also testified that, while living in the
cities of Denver, Colorado and Omaha, Nebraska, she helped
cut and package approximately twenty-five grams of heroin
a day. By extrapolation, the judge determined that at
least twenty-five grams a day of heroin was processed over
the two years from Jefferson's arrival in Denver in
January 1993 until the arrest of the defendants in January
1995. Such a rate of production would result in a total
quantity of heroin which by itself would be well within
the ten to thirty kilogram range. This estimate is based
upon the processing of heroin which Jefferson witnessed in
individual cities, while the overall drug conspiracy
actually encompassed several cities at a given time.
Therefore, we conclude that the judge's method of
determining the quantity of heroin was reasonable.
The district judge, however, did not rely solely on
this one method to estimate the quantity of heroin.
Instead, the judge corroborated his findings by analyzing
additional evidence. This evidence included the amounts
of money seized from the conspirators as well as
Jefferson's testimony concerning both the amounts of
heroin she had transported from California to Omaha and
the daily volume of sales required to maintain a heroin
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market in a given city.
Luis, along with several of the other appellants,
challenges the reliance of the district court on
Jefferson's testimony as to drug quantities. As we have
previously discussed, Jefferson's credibility was a matter
best determined by the district judge. Here, the judge
found Jefferson to be credible on the issue of drug
quantity, based in part on the availability of evidence
which substantiated much of her testimony. We find no
clear error in this determination.
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Angelica Padilla-Pena was assigned a base offense
level reflecting a drug quantity of three to ten kilograms
of heroin. Angelica contends that the evidence ties her
only to money involved in the conspiracy and not to the
drugs themselves. As a result, she claims that she could
not have reasonably foreseen that the conspiracy involved
three to ten kilograms of heroin. The government responds
that Angelica was a knowing and willing member of the
conspiracy and was well aware of the conspiracy's
involvement in the heroin business.
Although Angelica was never personally found in
possession of drugs, her ability to foresee a drug
quantity of at least three kilograms of heroin is well
established by the evidence. Angelica was in Omaha from
June 1994, until January 1995. The district court
estimated that during that time period the conspiracy had
processed from four to six kilograms of heroin in that
city. During an interdiction stop in Las Vegas, law
enforcement officers seized approximately $27,000 in cash
from Angelica who was traveling from Omaha to Ana Rosa's
home in Southern California. In a subsequent phone call,
Angelica told her brother Francisco that, of the money
seized, $10,500 was for "the food." Francisco responded
that he was not upset and would only be upset if she was
caught with the "food." At trial, the law enforcement
agent who transcribed the call testified that, based on
his experience in translating wiretapped conversations, he
believed that Angelica and Francisco were referring to
narcotics. Angelica was also identified as a party to
additional intercepted phone conversations in which money
and the heroin business were discussed. From this
evidence, the district court could conclude that Angelica
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was aware of both the nature and scope of the conspiracy
to distribute heroin. Therefore, we conclude the district
court did not clearly err in determining Angelica's base
offense level.
Like Angelica, Michael Padilla-Pena was assigned a
base offense level reflecting a quantity of three to ten
kilograms of heroin. Because the court could not
establish that Michael was a member of the conspiracy
prior to December 11, 1994, Michael
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argues that the only amount of heroin that can reasonably
be attributed to him is 1.5 kilograms.
We reject this argument. The district court found
that Michael could reasonably have foreseen three
kilograms. The court found that Michael was in close
contact with Ana Rosa in California, whom the district
court considered to be one of the two "cornerstones" of
the operation. In addition, based on Michael's telephone
conversation with Angelica in which he discussed the
heroin business, the court found that Michael was aware of
the heroin activities in Omaha, Nebraska in December 1994,
which alone involved heroin in excess of three kilograms.
Three to ten kilograms is established by the evidence, and
there is no error in the base offense level determination.
Francisco Padilla-Pena was sentenced to the mandatory
minimum term of twenty years for possession with intent to
distribute, pursuant to 21 U.S.C. § 841(b)(1)(A) (1997).
A defendant convicted under § 841 must serve a minimum
term of twenty years if the underlying violation involved
at least one kilogram of a substance containing a
detectable amount of heroin and the defendant has a prior
conviction for a felony drug offense. In this case, the
existence of a prior conviction is uncontested. For
reasons including Francisco's involvement in the Omaha
operations and his close contact with co-conspirators, the
district court found that Francisco could have reasonably
foreseen at least one kilogram of heroin. There is no
clear error in that determination.
V.
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Ana Rosa Padilla-Pena argues that the district court
incorrectly applied United States Sentencing Guideline §
3B1.1(b), as her role could not be fairly characterized as
a manager or supervisor. The essence of her argument is
that she did no more than perform errands when directed by
her brothers, and she denies that there were large
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sums of money or quantities at her house. She argues that
she was little more than a "gofer."
Section 3B1.1.(b)provides, "If the defendant was a
manager or supervisor . . . and the criminal activity
involved five or more participants or was otherwise
extensive, increase by three levels." The application
notes following § 3B1.1 additionally specify, "To qualify
for an adjustment under this section, the defendant must
have been the . . . manager, or supervisor of one or more
other participants." U.S.S.G. § 3B1.1, application note 3
(1995).
Because Ana Rosa admits that the alleged conspiracy
involved more than five participants, the only issue
before us is whether she could properly be characterized
as having managed or supervised one or more other
participants. The district court's determination of a
participant's role in the offense is a factual finding
which we review for clear error. Flores, 73 F.3d at 835.
We have no difficulty affirming the district court's
determination that Ana Rosa was a central member of the
conspiracy and not a mere "gofer." The district judge,
who presided at trial, found that Ana Rosa "was indeed the
bank, as it were, for both the money and the heroin." The
judge also found Ana Rosa to be the principal supplier of
the methamphetamine which Tracy Jefferson transported from
California to Omaha.
These findings by the district court are amply
supported by the evidence. Tracy Jefferson testified
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that, as part of the conspiracy, she made at least eight
trips to California to obtain heroin. She stated that on
each trip she would meet Ana Rosa and give Ana Rosa money
in exchange for the heroin. Jefferson also testified to
purchasing one kilogram quantities of methamphetamine from
Ana Rosa. Wiretapped telephone conversations reveal that,
when Angelica Padilla-Pena was arrested with over $27,000
on her person, Angelica was on her way to meet with Ana
Rosa. In other intercepted conversations, Ana Rosa
discussed both money and co-conspirators with her brother
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Francisco. In light of this evidence, it is clear to us
that Ana Rosa was central to the conspiracy and had
significant control over major aspects of the heroin
business.
The closer question is whether Ana Rosa managed or
supervised other participants in the conspiracy as opposed
to managing only property or activities. If the evidence
does not support the finding that Ana Rosa managed or
supervised other participants, then her offense level
could only be increased by means of a departure and not by
means of an adjustment. See U.S.S.G. § 3B1.1, application
note 3 (1995). As this court stated in United States v.
McFarlane, 64 F.3d 1235, 1239 (8th Cir. 1995), "[t]he
difference between these two devices is not
inconsequential." While an adjustment is mandatory, a
departure is, to a certain degree, discretionary. Id.
Thus, we would need to remand to allow the district court
to exercise that discretion.
After careful review of the record, however, we hold
there is enough evidence to find that Ana Rosa managed and
supervised at least one other in the conspiracy. First,
we note that although Ana Rosa's management of assets and
activities does not equate with the control of
participants, we can consider it as evidence of power
within the criminal organization. The intercepted calls
and Jefferson's testimony make clear that Ana Rosa
maintained immediate possession of much of the criminal
organization's money and drugs. There is no evidence that
Ana Rosa reported to anyone else in California. As the
district court stated, "She is the one who was the leader
. . . insofar as California is concerned." From this
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combination of autonomy and control over assets, the
district court could reasonably infer that Ana Rosa had
the leverage and discretion necessary to direct other
participants in the conspiracy.
In addition, there is evidence that Ana Rosa actually
exercised that discretion. When Jefferson came to
California to purchase heroin, it appears Ana Rosa was the
one who determined where the transactions would take
place. In an intercepted phone conversation, Ana Rosa and
Angelica discussed the ownership of money in Angelica's
possession. Ana Rosa told Angelica that $10,000 belonged
to Luis and that another
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conspirator should receive only $2,500 despite having
asked for $5,000. In an aside, Angelica repeated these
instructions to someone else who was in the room with her.
In short, when a question arose as to the ownership of
money, Ana Rosa decided the issue in instructions to
Angelica, who accepted Ana Rosa's authority.
The evidence supports a finding that Ana Rosa had
decision-making authority within the conspiracy and
exercised that authority by directing both Tracy Jefferson
and Angelica Padilla-Pena. Accordingly, we cannot
conclude the district court clearly erred in applying §
3B1.1(b).
VI.
Michael Padilla-Pena argues that the district court
erred in declining to classify him as either a minimal or
minor participant pursuant to § 3B1.2 of the Sentencing
Guidelines. He argues that there is no evidence he
actively participated in the conspiracy and, at most, he
was merely aware of the conspiracy. He argues this, along
with the fact that there is little evidence against him in
comparison to the other defendants, supports his
contention that he was a minimal or minor participant in
the conspiracy.
A district court's determination as to whether a
defendant is a minimal or minor participant is a question
of fact that may be reversed only if clearly erroneous.
United States v. Field, 110 F.3d 587, 590 (8th Cir. 1997).
Section 3B1.2 provides for a reduction in the offense
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level of minimal and minor participants in criminal
endeavors. A minimal participant must be "plainly among
the least culpable of those involved in the conduct of a
group." U.S.S.G § 3B1.2, application note 1. A
"defendant's lack of knowledge or understanding of the
scope and structure of the enterprise and of the
activities of others is indicative of a role as minimal
participant." Id. The downward adjustment for a minimal
participant should
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be "used infrequently" and is "appropriate, for example,
for someone who played no other role in a very large drug
smuggling operation than to off load part of a single
marihuana shipment, or in a case where an individual was
recruited as a courier for a single smuggling transaction
involving a small amount of drugs." Id., application note
2.
A minor participant is "any participant who is less
culpable than most other participants, but whose role
could not be described as minimal." Id., application note
3. The mere fact that a defendant is less culpable than
his codefendants does not entitle defendant to "minor
participant" status. United States v. West, 942 F.2d 528,
531 (8th Cir. 1991). Whether a downward adjustment is
warranted is determined not only by comparing the acts of
each participant in relation to the relevant conduct for
which the participant is held accountable, but also by
measuring each participant's individual acts and relative
culpability against the elements of the offense. United
States v. Goebel, 898 F.2d 675, 677 (8th Cir. 1990).
Although the amount of evidence against Michael
Padilla-Pena is small as compared to the other defendants,
we are not convinced that he is "plainly among the least
culpable of those involved" or clearly "less culpable than
most other participants." The amount of evidence against
a defendant does not necessarily correspond to the
defendant's level of culpability.
Evidence was presented which demonstrated that
Michael Padilla-Pena not only had knowledge of the
conspiracy, but actively participated in heroin
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distribution. Tracy Jefferson testified that she was sent
to Seattle to start a heroin distribution center, and
while there she and Michael attempted to distribute
heroin. Although not charged with this conduct, the
distribution of heroin in Seattle is relevant conduct for
purposes of determining his sentence. In addition to
distributing heroin, evidence was presented that Michael
discussed with Angelica Padilla-Pena his debts in the
family heroin business. The district court considered
this evidence and determined that Michael was
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neither a minimal nor minor participant in the conspiracy.
We conclude this determination was not clearly erroneous.
VII.
For the foregoing reasons, the judgment of the
District Court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH
CIRCUIT.
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