
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1448                                    UNITED STATES,                                      Appellee,                                          v.                                 EVER MIGUEL LEGARDA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Dominick  J. Porco with whom Martin L. Schmukler  was on brief for            __________________           ___________________        appellant.            Margaret E.  Curran, Assistant United  States Attorney,  with whom            ___________________        Edwin  J.  Gale,  United  States  Attorney,  and Gerard  B.  Sullivan,        _______________                                  ____________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                    March 3, 1994                                 ____________________                      STAHL,  Circuit  Judge.     In  this  drug  appeal,                              ______________            defendant Ever Miguel  Legarda challenges:  1)  trial rulings            made by the  district court which excluded  certain testimony            on  hearsay  grounds;  2)  the  court's  computation  of  the            relevant  amount of cocaine  for sentencing purposes;  and 3)            the court's upward departure from the Guidelines.  Finding no            reversible error, we affirm.                                          I.                                          I.                                          __                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       ________________________________________                      In July of  1992, defendant traveled from  New York            City, where  he resided, to  his native country  of Colombia.            Upon his return to New York, and apparently at the urging  of            someone he had  met in Colombia, defendant  contacted Michael            Teixera, known to defendant as Luis Rodrigues, and arranged a            meeting on a Manhattan street  corner.  In a subsequent phone            call by defendant to Teixera, the two arranged for Teixera to            leave   an  automobile  for  defendant's  use  on  that  same            Manhattan  street corner  where the  two  had initially  met.            Defendant also agreed with Teixera that defendant would drive            the car  to a restaurant in Astoria,  Queens, where he was to            meet a  man named Nunyo,  that he would thereafter  drive the            car to  Providence, Rhode Island,  and that he would  be paid            several thousand dollars for doing so.                      On August 20, 1992, adhering to the plan, defendant            picked up  the car in  Manhattan, drove to the  restaurant in                                         -2-                                          2            Queens, and  met Nunyo, who placed a box  in the trunk of the            car.   The box contained  eleven kilograms of  cocaine, later            found  to be  88%  pure.   Rather  than  proceed directly  to            Providence,  defendant  drove  to  the  home  of  his  former            girlfriend  and his  two  sons where  he obtained  his former            girlfriend's permission to  travel to Providence in  her car,            rather  than  in the  car  he  had  picked up  in  Manhattan.            Defendant  drove to Providence  accompanied by his  two sons,            both under the age of thirteen, and one dog.                      Upon  arriving in  Providence, defendant  again met            Teixera,  who  was  a  government  informant.    Teixera  had            arranged  for a controlled  drug purchase in  which defendant            would  sell  cocaine  to   United  States  Drug   Enforcement            Administration ("DEA")  Task Force  Agent Lawrence  Lepore, a            detective  in the  Providence Police  Department.   Defendant            followed Teixera to an apartment where Lepore was to make the            purchase.   Defendant's two sons entered the apartment, along            with defendant.   After discussing  the price  of the  eleven            kilograms  with Lepore,  as well  as  possible future  sales,            defendant delivered the  eleven kilograms to Lepore.   During            the consummation of the deal, defendant's two sons were  left            in a separate room in the apartment.  DEA agents observed the            purchase and arrested defendant.                      After  his arrest, defendant  stated to Lepore that            he  had brought  his children  along in  order to  lessen the                                         -3-                                          3            likelihood of being  stopped on his drive from  New York City            to Providence.   He  also stated  that he  knew that the  box            contained drugs and that he was aware of larger quantities of            drugs  being  imported  from Colombia.    At  trial, however,            defendant  denied such knowledge.   He was  nonetheless found            guilty of possession  with intent to distribute  a controlled            substance  in  violation  of  21  U.S.C.     841  (a)(1)  and            (b)(1)(A)(ii).                                            II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      As noted  above, defendant offers  three challenges            on appeal.  We address them in turn.            A.  The District Court's Hearsay Rulings            ________________________________________                      At trial, defendant took the stand and attempted to            recount  statements  that  were  allegedly  made  to  him  by            individuals in Colombia, as well as statements made by Nunyo,            his  contact in  Astoria, Queens,  and by  Teixera.   In each            case, the  district court sustained  government objections on            hearsay grounds.   See  Fed. R. Evid.  802.   Defense counsel                               ___            repeatedly explained  that defendant  was not offering  these            statements  in  order  to  prove  the  truth  of  the  matter            asserted.  Rather,  he argued that the  significance of these            alleged statements lay solely in the fact that they were made            and   that  they  therefore  had  an  effect  on  defendant's            behavior.    See,   e.g.,  Fed.  R.  Evid.   801(c)  advisory                         ___    ____                                         -4-                                          4            committee's  note   ("If  the  significance  of   an  offered            statement lies solely in  the fact that it was made, no issue            is  raised as  to the  truth  of anything  asserted, and  the            statement is not hearsay."); United States v. Hicks, 848 F.2d                                         _____________    _____            1, 3 (1st Cir. 1988) (quoting same).                      On  appeal,  the  government  concedes  that  these            hearsay rulings were erroneous, and we agree  that the record            clearly demonstrates  error on the  part of the  trial court.            Nonetheless, not all improper exclusions  of evidence require            reversal.   Rather,  an appellant  must  show that  an  error            "results  in actual prejudice because it `had substantial and            injurious effect  or  influence  in  determining  the  jury's            verdict.'"  United  States v. Lane, 474 U.S.  438, 449 (1985)                        ______________    ____            (quoting  Kotteakos v.  United  States,  328  U.S.  750,  776                      _________     ______________            (1946)).  See also  28 U.S.C.   2111 ("On the  hearing of any                      ___ ____            appeal . . . in any case, the court shall give judgment after            an examination  of the  record without  regard  to errors  or            defects which do  not affect  the substantial  rights of  the            parties.");  Fed.  R.  Crim. P.  52(a)  ("Any  error, defect,            irregularity or  variance which  does not affect  substantial            rights shall be disregarded.").  Defendant fails to establish            such harm.                       Judging from the  contexts of the district  court's            multiple erroneous hearsay rulings, it appears that defendant            in   each  instance   was   prepared  to   offer  exculpatory                                         -5-                                          5            information about each of  the conversations, i.e., innocuous            reasons offered  to him  by each  speaker which  would prompt            defendant  to perform  the acts which  eventually led  to his            arrest.    Later  in his  testimony,  however,  defendant was            allowed  to  offer this  exculpatory  explanation of  events.            Defendant testified that in  his conversations with  Teixera,            Nunyo and  others, he  was led to  believe that  the delivery            concerned either  "spare parts" or  cash.  Thus,  despite the            erroneous  rulings,  defendant  was   eventually  allowed  to            recount  the essential elements of his own version of events.            Notwithstanding   his  general   complaints  of   unfairness,            defendant does not  argue, nor could he on  the record before            us, that these errors had  a substantial and injurious effect            or influence on the jury's decision to convict him.                          In sum, defendant "was allowed to put on a defense,            even  if  not  quite  so  complete  a  defense  as  he  might            reasonably have  desired."  United States v. Hanson, 994 F.2d                                        _____________    ______            403,  407 (7th  Cir. 1993).   The  substance of  the excluded            portions   of  his  testimony  was  eventually  allowed  into            evidence.  Given these errors and no more, we cannot say that            reversal is warranted.            B.  Sentencing            ______________                 1.  The Amount of  Cocaine and the District Court's Base                 ________________________________________________________                 Offense Level Determination                 ___________________________                      The  sentencing court  determined defendant's  base            offense  level  on  the  basis  of  twenty-one  kilograms  of                                         -6-                                          6            cocaine; eleven  kilograms that were actually  delivered, and            ten more that  defendant purportedly promised to  deliver the            following  week.  Defendant  challenges the  district court's            inclusion of the latter amount.                      We  begin  by   noting  that  facts   supporting  a            sentence,  such as  drug  quantity  determinations,  must  be            proven by the government by a preponderance  of the evidence.            See United States v. Marino, 936 F.2d 23, 27 (1st Cir. 1991).            ___ _____________    ______            Factual findings on such  issues are reviewed only  for clear            error.  Id.         Commentary  Note 12  to section  2D1.1 of                    ___            the United States Sentencing Guidelines provides in  relevant            part:                           In an offense  involving negotiation                      to traffic in a controlled substance, the                      weight    under    negotiation    in   an                      uncompleted distribution shall be used to                      calculate    the    applicable    amount.                      However, where  the court finds  that the                      defendant did  not intend to  produce and                      was not  reasonably capable  of producing                      the  negotiated amount,  the court  shall                      exclude  from  the  guideline calculation                      the amount  that it  finds the  defendant                      did  not intend  to produce  and was  not                      reasonably capable of producing.              Our case  law has  followed the  language of  this Commentary            Note  in a  rather faithful fashion,  requiring a  showing of            both  intent and  ability to  deliver in  order to  allow the            inclusion  of negotiated amounts to be  delivered at a future            time.  See, e.g.,  United States v. Rotolo,  950 F.2d 70,  72                   ___  ____   _____________    ______            (1st Cir. 1991); United States v. Moreno, 947  F.2d 7, 9 (1st                             _____________    ______                                         -7-                                          7            Cir.  1991), United States  v. Estrada-Molina, 931  F.2d 964,                         _____________     ______________            966 (1st Cir. 1991); United  States v. Bradley, 917 F.2d 601,                                 ______________    _______            604 (1st Cir. 1991).   In this case, defendant challenges the            district court's findings that he had both the intent and the            ability to  produce  ten  additional  kilograms  of  cocaine.            Though the case is close, we affirm.                      At  trial, a tape recording of the drug transaction            in Lepore's  apartment was  placed in  evidence.   The  taped            conversation  spans the period of time during which defendant            purportedly   negotiated  to   deliver  the   additional  ten            kilograms.    Audible  portions  of  the  tape  reveal  vague            comments,   made  exclusively   by  Lepore  rather   than  by            defendant, about the possibility of  future deals.  Thus, the            tape itself does not reveal  the existence of an agreement to            provide additional drugs.1                                            ____________________            1.  Compare,  e.g., United  States v. Cedano-Rojas,  999 F.2d                _______   ____  ______________    ____________            1175,  1179 (7th  Cir.  1993)  (finding  that  defendant  had            negotiated purchase of nine  additional kilograms of  cocaine            where  he stated,  "`Save them,  save  them,' and  instructed            [government  informant who was selling the drugs] `Don't give            them away.'"); United States v. Williams, 994 F.2d 1287, 1293                           _____________    ________            (8th  Cir.  1993)  (finding  that  defendant  had  negotiated            additional sale where,  "[o]nce the [government]  agent asked            about  the price of a quarter-pound [of cocaine], [defendant]            did offer to try to obtain and sell him this amount"); United                                                                   ______            States v. Mahoney, 972 F.2d 139, 143 (7th Cir. 1992) (finding            ______    _______            that defendant had negotiated additional sale where defendant            discussed options for  delivery and payment, and  stated that            he  was  "positive"  that  his  supplier  could  deliver  the            additional amount); United States v. Cea, 963 F.2d 1027, 1031                                _____________    ___            (7th Cir.) (finding that defendant  had negotiated additional            purchase  where evidence of "very specific negotiations as to            price and  amount" showed  that defendant  was "dead  serious            about  buying and  distributing ten  kilograms of  cocaine"),                                         -8-                                          8                      In addition to the  tape, however, Lepore testified            at trial that during that  same meeting at which the delivery            took place, defendant had agreed to provide ten kilograms  on            a weekly basis.  Moreover, the inaudible portions of the tape            do not altogether rule out the possibility that  the specific            agreement  described by Lepore  was made sometime  during the            transaction.  The  district court apparently chose  to credit            Lepore's testimony,  and we have no basis for concluding that            it was clearly  erroneous in doing so.   Accordingly, we find            no  error in the  district court's conclusion  that defendant                                            ____________________            cert.  denied,  113  S.  Ct. 281  (1992);  United  States  v.            _____  ______                              ______________            Burrell, 963 F.2d 976, 995 (7th Cir.) (finding that defendant            _______            had  negotiated additional purchase  where "the terms  of the            sale were  negotiated and agreed upon"), cert. denied, 113 S.                                                     _____ ______            Ct.  357  (1992);  Rotolo,  950  F.2d  at  72  (finding  that                               ______            defendant had  negotiated additional purchase where he, inter                                                                    _____            alia,  "spoke  specifically  about  taking  delivery   of  an            ____            additional  half ton")  (emphasis in  original); Moreno,  947            __________                                       ______            F.2d at 9  (finding that defendant had  negotiated additional            sale where  he told  government agents  that he  could supply            five  to ten  kilograms at  fifteen-day  intervals and  where                                                               ___            defendant "agreed  to supply  these amounts,  with the  first                       ______            delivery to  be made within  a week") (emphasis  in original)            with United States  v. Reyes, 979 F.2d 1406,  1410 (10th Cir.            ____ _____________     _____            1992) (finding  that defendant had not  negotiated additional                                               ___            sale  because,  "[w]hile  Defendant  did  not  rule  out  the            possibility  [of  future  drug  transactions],  the  lack  of            specific   details  concerning   an  additional   transaction            indicates  that,  at best,  Defendant  intended  to negotiate            later"); United  States  v. Ruiz,  932 F.2d  1174, 1184  (7th                     ______________     ____            Cir.)  (finding that defendant  had not negotiated additional                                                ___            sale  where  defendant,  having promised  two  kilograms  and            delivered only one, commented, "It  doesn't matter.  I'll get            you the  other kilo.   And if you  want, even ten  more I can            get."), cert. denied, 112 S. Ct. 151 (1991); United States v.                    _____ ______                         _____________            Foley,  906 F.2d  1261, 1264  (8th  Cir. 1990)  (finding that            _____            defendant had not negotiated additional sale where government                          ___            agent  had "simply  inquired about  the  cost" of  additional            quantities of drugs).                                         -9-                                          9            fully  intended to  produce the  first  weekly instalment  of            cocaine under the agreement which Lepore described.2                      As  to  defendant's  ability  to  produce  the  ten                                           _______            additional kilograms, we find entirely plausible the district            court's conclusion  that defendant,  having delivered  eleven            kilograms of cocaine  one week, was capable of delivering ten            kilograms the following week.  Accordingly, we  find no clear            error in the district court's drug quantity calculation.                 2.  The Upward Departure                 ________________________                      Finally,  defendant  appeals   a  two-level  upward            departure to his sentence.  We review the departure along the            lines set out in United States v. Rivera, 994 F.2d 942,  950-                             _____________    ______            52 (1st Cir.  1993).  Plenary review is  applied to determine            whether the  allegedly special  circumstances underlying  the            departure  are of  the kind  that the  Guidelines  permit the            sentencing court to consider.  Id. at 951.  Plenary review is                                           ___            also applied to  interpretations of Guideline language.   Id.                                                                      ___            However,  we review the district court's determination that a            case is  unusual, and  therefore worthy  of departure,  "with                                            ____________________            2.  Unlike  defendant, we are  not troubled by  the fact that            the district  court might  have sentenced  defendant on  more                                                                     ____            than ten additional kilograms  based on the weekly nature  of            the  purported  deal,  and  we  express  no  opinion  on  the            propriety  of  a  hypothetical  maximum  base  offense  level            quantity determination based on these facts.  Rather,  on the            basis of  the  evidence before  it,  the district  court  was            entitled to  find, and  it did in  fact find,  that defendant            agreed to  deliver only  the first  weekly instalment  of ten            kilograms.                                         -10-                                          10            full awareness of, and respect for, the trier's superior feel            for the case."  Id.  at 952 (citations and internal quotation                            ___            marks omitted).   Similarly deferential is our  review of the            sentencing court's findings of fact, as well as the direction            and degree of the departure.  Id.                                          ___                      In  this  case,  the  district  court  offered  two            reasons for its  upward departure:  1)  defendant's prominent            role  in cocaine  dealing as  evidenced both by  the quantity            involved   and  its  purity;   and  2)  the   involvement  of            defendant's  minor children.  These grounds for departure are            both  permissible under the  Guidelines and warranted  on the            record before us.                      a.    Defendant's  Prominent Role  as  Evidenced by                      ___________________________________________________                      Purity and Amount                         _________________                      Defendant  argues that  the sentencing  court erred            when, in deciding to depart upward, it relied upon the purity            and amount of  the cocaine involved.   Consideration of  both            factors was allowable in this case.                      Commentary  Note  9  of  U.S.S.G.     2D1.1  states            specifically  that "[t]rafficking  in controlled  substances,            compounds, or mixtures  of unusually high purity  may warrant            an upward  departure."  Note 9  goes on to state  that purity            "may  be  relevant in  the sentencing  process because  it is            probative of the defendant's role or position in the chain of                                         ____ __ ________ __ ___ _____ __            distribution."    Id.  (emphasis  supplied).    Thus,  upward            ____________      ___            departures which  are based on a defendant's  position in the                                         -11-                                          11            chain  of drug distribution  and which are  evidenced by drug            purity  are   clearly  contemplated   under  the   sentencing            guidelines.  Cf. United States v. Iguaran-Palmar, 926 F.2d 7,                         ___ _____________    ______________            9 (1st  Cir. 1991)  (stating that  "the sentencing  court may            consider the drug's purity in making an upward departure from                                                 __ ______ _________            the applicable guideline range") (emphasis in original).                      As  defendant points out, Note 9 also provides, "As            large quantities are normally  associated with high purities,            this factor is particularly relevant where smaller quantities                           ____________ ________            are  involved." (emphasis  supplied).    We  agree  with  the            Seventh Circuit, however, that "although the note states that            purity   is  especially  relevant  in  the  case  of  smaller                         __________            quantities  of  controlled  substances, it  does  not thereby            render  purity   irrelevant  where   larger  quantities   are            involved.   Rather, the correct  reading of the note  is that            purity   is  relevant  without  regard  to  the  quantity  of            controlled substances, but is particularly relevant where the                                          ____________ ________            quantities involved are small."  United States v. Connor, 992                                             _____________    ______            F.2d 1459, 1463 (7th Cir. 1993) (emphasis supplied).  In sum,            the district  court did  not err in  taking into  account the            purity  of the  drugs  at  issue in  its  decision to  depart            upward.                      Equally futile  is defendant's insistence  that the            sentencing court erred  in considering the amount  of cocaine            at  issue in enhancing  defendant's guideline  range.   It is                                         -12-                                          12            true, as  defendant argues,  that an  upward departure  based            upon amount alone may unfairly duplicate a base offense level                        _____            determination.  See, e.g., United States v. Fuller, 897  F.2d                            ___  ____  _____________    ______            1217, 1221-22 (1st Cir. 1990).   Here, however, the departure            was not  based  solely  upon  the amount  involved.    Rather            defendant's role in the drug distribution chain served as the            partial basis  for the  departure, and  the amount  involved,            much like the purity of the cocaine, was merely indicative of            defendant's  role.   Thus, we  find no  error in  the court's            finding  that  the amount  and  purity  of  the cocaine  were            significant indicators  of defendant's prominent  role in the            drug distribution chain.                      As to the factual findings of high purity and large            amounts of  cocaine, as well  as the  "unusualness" of  these            factors, see, e.g., Rivera, 994 F.2d at 952, we find no error                     ___  ____  ______            in the district  court's determination that eleven  kilograms            of 88%  pure cocaine serves,  in part, as  a valid  basis for            departure.                       b.  Involvement of Children                      ___________________________                      Defendant also argues that the district court erred            in  basing its  upward departure  in part  on the use  of his            children in the offense.  Defendant essentially concedes that            the involvement of  children in drug trafficking  activity is            an accepted ground  for upward departure and  challenges only            the  existence of  factual circumstances  in  this case  that                                         -13-                                          13            warrant  a departure  on  that  basis.   He  argues that  the            involvement of his own children is significantly less serious            than the  involvement of  children  in other  cases in  which            departures were found warranted.  See, e.g., United States v.                                              ___  ____  _____________            Rodriguez-Cardona,  924 F.2d 1148, 1155 (1st Cir.) (affirming            _________________            upward departure  where defendant  had, inter  alia, "used  a                                                    _____  ____            minor, a nine or ten year old boy, as a messenger in his drug            business"), cert. denied, 112 S. Ct. 54 (1991); United States                        _____ ______                        _____________            v.  Diaz-Villafane, 874  F.2d 43,  50  (1st Cir.)  (affirming                ______________            upward  departure  where  defendant  had,  inter  alia,  used                                                       _____  ____            children  to deliver  drugs),  cert.  denied,  493  U.S.  862                                           _____  ______            (1989).                        In essence, we are asked  to make a judgment "about            whether  the given circumstances,  as seen from  the district            court's  unique vantage point, are usual or unusual, ordinary            or not  ordinary, and to what  extent."  Rivera, 994  F.2d at                                                     ______            951.  Given the  deferential standard of review dictated  for            such determinations by  Rivera, id. at  951-52, and given  1)                                    ______  ___            the  well-known  relation  between  drugs  and  violence;  2)            defendant's own  statement that  he brought  his children  to            avoid being stopped by the police;  and 3) the fact that  the            children were  present in  the apartment at  the time  of the            drug  deal,  we  find  no  error  in  the   district  court's            determination that the  presence of children was  relevant to            its decision to depart upward.                                             -14-                                          14                      c.  The Reasonableness of the Departure                      _______________________________________                      As  we have noted previously in examinations of the            reasonableness of departures,  "`the district court's  leeway            is  substantial.'"    Rodriguez-Cardona,  924  F.2d  at  1156                                  _________________            (quoting United  States v.  Aguilar-Pena, 887  F.2d 347,  350                     ______________     ____________            (1st Cir.  1990)).  In  this case, given the  various factors            supporting upward departure, we find no error in the district            court's two-level enhancement.                                         -15-                                          15                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the  foregoing reasons,  defendant's conviction            and his sentence are both                      Affirmed.                      ________                                         -16-                                          16
