
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________            No. 95-2283                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JUANA ORTEGA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                           Stahl and Lynch, Circuit Judges,                                            ______________                            and O'Toole,* District Judge.                                          ______________                                 ____________________                 Richard K. Corley for appellant.                 _________________                 Zechariah Chafee, Assistant United States Attorney, with                 ________________            whom  Sheldon  Whitehouse,  United  States  Attorney, was  on                  ___________________            brief, for appellee.                                 ____________________                                     May 20, 1997                                 ____________________            *Of the District of Massachusetts, sitting by designation.                      Per  Curiam.     Juana  Ortega  appeals  both   her                      Per  Curiam.                           ___________            conviction for conspiracy to distribute cocaine base ("crack"            cocaine) and her  sentence.   She claims that  her trial  was            flawed  in that the court  gave an improper  Allen charge and                                                         _____            that  there   was  insufficient   evidence  to  support   her            conviction.   She  also  argues error  in  the trial  court's            denial of her motion for a new trial.  Finally, she  disputes            the court's determination of her sentence.  We affirm.                                          I.                      Ortega  was charged with distributing crack cocaine            in violation  of 21 U.S.C.   841(a)(1) and 18 U.S.C.   2, and            conspiracy  to distribute  crack cocaine  in violation  of 21            U.S.C.     841(a)(1),  846.    Her  arrest resulted  from  an            ongoing   undercover   operation   conducted   by   the  Drug            Enforcement Agency ("DEA").                      Between  December  18  and  19,  1994,  Hector  San            Martin, a DEA informant,  made arrangements to purchase crack            from Julio Valdez at a Providence, Rhode Island, Burger King.            Although Valdez himself had made a  previous drug delivery to            San  Martin several days  earlier, Valdez told  San Martin by            phone  that this  time the  crack would  be delivered  in the            Burger King  parking lot on  December 19  by a boy,  girl, or            woman.  The Burger King was located about a quarter mile from            the  apartment  Valdez  was  using  at  37  Labin  Street  in            Providence.                                             -2-                                          2                      On the day of  the deal, Valdez told San  Martin by            phone that  a lady  in white  would deliver the  drugs.   The            "lady in white" turned out to be Ortega.                      That afternoon, DEA agents  conducting surveillance            observed  Valdez  and Ortega  emerge  from  the Labin  Street            apartment and walk together to the Burger King.  After Valdez            pointed  to San Martin's car, Ortega got into the front seat.            Valdez remained nearby to keep a lookout.                       According  to San  Martin's testimony,  when Ortega            entered  the car, he asked Ortega if she had "the stuff," and            she replied "yes."   She then pulled out a  clear plastic bag            containing cocaine base from her inside jacket pocket.  After            San  Martin explained  that he wanted  to check  the quality,            Ortega answered "okay" and handed the bag to him.                        Leaving  the crack bag on the floor of the car, San            Martin told Ortega  that the money was  in the trunk  and got            out.  At the sight of the raised trunk door -- the signal for            arrest  -- DEA agents moved  in to arrest  Valdez and Ortega.            After  a  few seconds,  Ortega got  out  of the  car  and ran            screaming;  she was caught and arrested by one of the agents.            Valdez, who had also tried to run, was caught and arrested as            well.                       In  her statement to  police, Ortega  complained of            severe neck pain due to a thyroid condition and said that she            had been at 37 Labin Street, her girlfriend's apartment, only                                         -3-                                          3            to rest.   She explained her  walk to the  Burger King as  an            attempt to ease the pain.  As for the drug delivery, she said            only that  at some point  she was asked  to do a  "favor" and            that  because  of her  physical  pain, she  was  not thinking            clearly.                      On the second day of jury deliberations at Ortega's            trial,  the jury  informed the  court that  it had  reached a            verdict  on all counts  but was deadlocked  on the conspiracy            count.     The  court  then  issued   a  supplemental  charge            instructing the jury to  go back and try to  reach a verdict.            Thirty minutes later,  the jury returned a guilty  verdict on            the conspiracy charge.                      At sentencing,  the court  found that Ortega  had a            base offense level  of 32 based on the quantity  of crack she            was delivering  (84.3 grams) and a  criminal history category            of  I.  The court then granted a two-level reduction pursuant            to U.S.S.G.   5C1.2 and  a four-level reduction for  Ortega's            minimal role in  the offense.   Thus, the  offense level  was            reduced  from 32  to 26,  and defendant  was sentenced  to 63            months in prison and 5 years of supervised release.                                         II.                      Ortega's   motion   for  acquittal   based   on  an            insufficient evidence  argument  was denied  by the  district            court.  Viewing the record in the light most favorable to the            government,  a rational jury could  have found guilt beyond a                                         -4-                                          4            reasonable doubt.   See United  States v.  Dockray, 943  F.2d                                ___ ______________     _______            152, 157 (1st Cir.  1991).  We therefore affirm  the district            court's  denial of Ortega's Rule  29(c) motion.   See Fed. R.                                                              ___            Crim. P. 29(c).                      To prove  conspiracy, the government must show that            the  defendant had the intent to agree and that the defendant            had  an  intent  to  distribute cocaine  --  the  substantive            offense.  See  United States  v. DeLutis, 722  F.2d 902,  905                      ___  _____________     _______            (1st Cir. 1983).  Viewing the evidence and drawing inferences            therefrom, a rational jury  member could certainly have found            guilt  beyond  a reasonable  doubt.    See  United States  v.                                                   ___  _____________            Montas, 41 F.3d 775,  778 (1st Cir. 1994), cert.  denied, 115            ______                                     _____  ______            S.  Ct.  1986  (1995).     Such  evidence  included  Valdez's            statement  to San  Martin that  a woman  wearing white  would            deliver the  drugs, Ortega's walk  with Valdez to  the Burger            King, Ortega's entrance into a stranger's car, and her prompt            delivery of a bag containing  crack previously hidden on  her            body, when asked for "the stuff."                         This  case is  unlike  those Ortega  cites for  the            proposition that  a single  drug transaction  is insufficient            evidence of conspiracy.  See, e.g., Delutis, 722 F.2d at 906;                                     ___  ____  _______            United States v. Izzi,  613 F.2d 1205, 1210 (1st  Cir. 1980).            _____________    ____            There is no such per se rule in any event; we look at all the            facts in  the case.  DeLutis merely held that the single sale                                 _______            there  was insufficient  to tie  the defendant  buyer  to the                                         -5-                                          5            sellers' drug distribution  conspiracies.   See DeLutis,  722                                                        ___ _______            F.2d at  905-06;  see also United States v. Acevedo, 842 F.2d                              ___ ____ _____________    _______            502,  505-06 (1st  Cir.  1988) (rejecting  the argument  that            evidence of conspiracy  between sellers must  be insufficient            because it involved only a single  sale).  A single sale  can            establish  a common  purpose on  the part  of the  sellers --            here, Ortega  and Valdez.   See Acevedo,  842 F.2d  at 506.                                          ___ _______            Moreover, in  DeLutis, there was no  direct or circumstantial                          _______            evidence that defendant intended  to agree to become involved            in a larger supplier/distributor relationship, and there  was            no basis  to infer based on  the single act in  question.  In            Izzi,  there  was  no   evidence  of  agreement  linking  the            ____            defendant to the broader  conspiracy during the dates charged            in the indictment.  Here, there  were only two members of the            conspiracy, and  it is not  difficult to infer  knowledge and            agreement.                         Other  cases  Ortega  cites  for  support  are also            distinguishable.   See,  e.g., United  States v.  Ocampo, 964                               ___   ____  ______________     ______            F.2d 80 (1st Cir. 1992); United States v. Mehtala, 578 F.2d 6                                     _____________    _______            (1st Cir. 1978).  The evidence here shows that Ortega's level            of  involvement  was  greater  than  mere  knowledge  of  the            substantive  crime and  thus suffices  to support  the jury's            finding that  there was an  intent to agree and  an intent to            distribute.   See United States v. Brandon, 17 F.3d 409, 439-                          ___ _____________    _______            40  (1st Cir. 1994) (explaining  that Ocampo and Mehtala held                                                  ______     _______                                         -6-                                          6            only that defendant's mere presence at scene of crime or mere            association  with  criminals  was  insufficient   to  support            conspiracy conviction).                       Ortega  also challenges the supplemental charge the            judge  gave to  the  jury  when  it  announced  that  it  was            deadlocked  on  the  conspiracy   count.    The  trial  court            committed  no error.  In fact, the judge recited verbatim the            Allen-type charge recommended by  this court in United States            _____                                           _____________            v. Angiulo,  485 F.2d 37, 40  n.3 (1st Cir. 1973).   That the               _______            jury  returned  a verdict  thirty  minutes later  is  not, as            Ortega asserts, evidence of "coercion."                       Ortega's appeal of the  trial court's denial of her            motion  for new  trial fares no  better.  We  review only for            abuse of  discretion or  misapplication of  law.   See United                                                               ___ ______            States v. Rodriguez,  738 F.2d 13,  17 (1st Cir. 1984).   The            ______    _________            district court need only  order a new trial if  a miscarriage            of justice  would  otherwise result.   See  United States  v.                                                   ___  _____________            Indelicato,  611  F.2d  376, 387  (1st  Cir.  1979).   Ortega            __________            presents  no  claim  that  even  suggests  a  miscarriage  of            justice.  Moreover, she does not recount any prejudicial acts            that  resulted in an unfair trial, see Payton v. Abbott Labs,                                               ___ ______    ___________            780  F.2d 147, 152-53 (1st  Cir. 1985), nor  does she contend            that the verdict was seriously  erroneous, see Borras v. Sea-                                                       ___ ______    ____            Land Serv., Inc., 586 F.2d 881,  887 (1st Cir. 1978).  It was            ________________            well within the court's discretion to deny the motion.                                          -7-                                          7                      Lastly,  Ortega  challenges  her  sentence  on  two            equally  unsuccessful grounds, arguing  first that  the judge            should have  used the base  offense level for  powder cocaine            instead of  crack cocaine and, second, that  the court should            have  allowed a  downward departure  for  diminished capacity            under U.S.S.G.   5K2.13.   There is absolutely no support for            Ortega's first  claim: the court, pursuant  to the Sentencing            Guidelines, calculated  the base  offense level based  on the            drug  involved in  the  crime.    See  U.S.S.G.     2D1.1(c).                                              ___            Evidence at trial showed that the drug was crack cocaine.                       As  for  Ortega's  second  claim,  we  are  without            jurisdiction  to review  a discretionary  refusal  to depart.            See United States  v. Morrison,  46 F.3d 127,  130 (1st  Cir.            ___ _____________     ________            1995);  see also United States v. Saldana, 109 F.3d 100, 102-                    ___ ____ _____________    _______            03  (1st  Cir.  1997).   While  the  district  court did  not            explicitly  address  Ortega's   request  for  departure   for            diminished capacity, it is clear from the total circumstances            of  the case  as well  as the  court's remarks  at sentencing            that, rather  than believing  it lacked authority  to depart,            the court simply declined to do so.  See Morrison, 46 F.3d at                                                 ___ ________            130.  Ortega has  advanced no colorable claim of  legal error            that would lead us to exercise jurisdiction here.                      Affirmed.                      ________                                                                           -8-                                          8
