

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No.  97-1139

                  UNITED STATES OF AMERICA,

                     Plaintiff, Appellee,

                              v.

                   LUIS A. ALICEA-CARDOZA,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Salvador E. Casellas, U.S. District Judge]                                                                  

                                         

                            Before

                    Torruella, Chief Judge,                                                      
                   Cyr, Senior Circuit Judge,                                                        
                  and Lynch, Circuit Judge.                                                      
                                         

    Rafael Anglada-Lopez for appellant.                                    

    Miguel A.  Pereira-Castillo, U.S. Department  of Justice,                                           
with whom Guillermo  Gil, United States Attorney, and Jose A.                                                                         
Quiles-Espinosa, Senior Litigation Counsel, were on brief for                           
appellee.

                                         

                      December 19, 1997
                                         

          LYNCH,  Circuit  Judge.    A  cocaine  distribution                      LYNCH,  Circuit  Judge.                                            

conspiracy  out of the Virgilio D vila Public Housing Project

in Bayam n,  Puerto Rico led to the  indictment of thirty-six

defendants.  Twenty-five  pled guilty either before  trial or

shortly after trial started.  Eight defendants were  tried to

verdict, five were acquitted.

          Luis Alicea-Cardoza,  nicknamed "Burbuja",  was one

of the three convicted and  now appeals.  His main contention

is that  the jury, confronted  with a maze of  defendants and

drug  and violence  evidence, convicted  him  when there  was

precious little evidence,  too little, he says,  to support a

conviction.   The little  evidence  there was,  he says,  was

based on beeper  transmissions and this court,  which has not

previously addressed  the question, should find  those beeper

records erroneously  admitted.   Although Alicea-Cardoza  has

ably  argued  these  and  ancillary  points,  we  affirm  his

conviction under  21 U.S.C.    841  and  the drug  conspiracy

statute,  21 U.S.C.     846,  and his  sentence  of 27  years

imprisonment.

                              I                                          I

          Because the  defendant attacks  the sufficiency  of

the  evidence,  we review  the  evidence  in the  light  most

favorable to the  verdict, with a view to  whether a rational

juror could have found guilt  beyond a reasonable doubt.  See                                                                         

United States v. Cruz, 981 F.2d 613, 615 (1st Cir. 1992).                                   

                             -2-                                          2

          Interception  of telephone  messages in  April 1994

confirmed  that Jorge  Solano-Moreta  was  in  charge  of  an

organization selling drugs, principally  cocaine, at numerous

drug  points  in  Bayam n,  including a  drug  point  at  the

Virgilio D vila Housing Project.  Alicea-Cardoza had acted as

a "runner" (meaning that he managed the business operation by

receiving, accounting  for, and safeguarding the  proceeds of

drug sales)  for a  Virgilio D vila  drug  point since  1992.

Approximately  four kilograms of cocaine were sold monthly at

that  drug  point.   Alicea-Cardoza  was  also  a runner  for

another  drug point in  the Virgilio D vila  Housing Project.

There, approximately  one half of a kilogram  of cocaine base

was sold monthly. 

          The  evidence  implicating  Alicea-Cardoza  in  the

conspiracy consisted  principally of  the testimony  of Amiud

Alicea-Mat as and charts of intercepted  beeper messages sent

to Solano-Moreta by Alicea-Cardoza.  Alicea-Mat as  testified

that  he was  part  of  a drug  selling  organization at  the

Virgilio  D vila Housing Project known as the Virgilio D vila

group,  which sold cocaine, crack, and heroin.  Alicea-Mat as

said he ran several drug points and was a trigger man for the

group.  He  testified that the members of  the group included

Luis Rosario-Rodr guez,  Richard Rosario-Rodr guez  and Edwin

Rosario-Rodr guez (three brothers who ran the  group), Felipe

Garc a-Roque, as well  as defendant "Luis Alicea,  [and] some

                             -3-                                          3

people  who are confined in state institutions."  When asked,

" . . .  do you know if  Ruiz [sic] Alicea has a  nickname or

nicknames," Alicea-Mat as responded,  "Burbuja".  When  asked

whether  "Luis Alicea-Cardoza,  also  known as  Burbuja"  was

seated  in the  courtroom,  Alicea-Mat as identified  Alicea-

Cardoza.  And  when asked "How many Burbujas  worked for this

organization or  group,"  Alicea-Mat as responded,  "Just one

Burbuja."   "Burbujas"  means "Bubbles"  and  members of  the

jury,  applying  their  common  experience  of  Puerto  Rican                   

society, could reasonably have regarded it as an unusual male

nickname.  No evidence was  presented to suggest that another

"Burbuja" may have been involved in this organization.

          Alicea-Mat as  testified that  the Virgilio  D vila

group and  Solano-Moreta "established  a solid  relationship"

during 1992 and 1993 to  help each other fight "wars" against

competing  groups  for  control  of  the  local  drug  trade.

Solano-Moreta and  the Virgilio  D vila group  would meet  to

discuss drug points and plan attacks  against enemies of both

groups,  pooling their  resources "in  order  to be  strong."

They also did  business with each other:   Solano-Moreta sold

kilos of  drugs to the  Virgilio D vila group, which  in turn

sold  the  drugs  throughout   the  Virgilio  D vila  Housing

Project.   In addition,  the Virgilio D vila  group collected

money for Solano-Moreta at drug  points owned by him and took

the money to  him.  They even committed  murders with Solano-

                             -4-                                          4

Moreta to enforce their control over the drug trade.  The two

groups developed a "frequent and close friendship" and "[met]

on many occasions."  When asked who attended these  meetings,

Alicea-Mat as responded:

          Richard Rosario-Rodr guez, Edwin Rosario-
          Rodr guez, I, Willy Nariz, [Jorge] Solano
          Moreta, Perla.   When [Jorge] would  come
          down  to  the   Virgilio  D vila  Housing
          Project,   Luis   Rosario-Rodr guez   was
          there.    Luis  Rosario-Rodr guez  [sic],                                                               
          alias Burbuja,  and several  other people                                   
          who are jailed at the state institution.1

(emphasis added).

          In addition to  this testimony, Alicea-Cardoza  was

implicated  by  charts  the  government  prepared  of  beeper

messages.  These charts recorded the content of approximately

four  thousand messages received  between April 26,  1995 and

June 5, 1995  by Solano-Moreta on his beepers.   The messages

were  intercepted  by   federal  agents  pursuant   to  court

authorization.   Special Agent Gilberto Vazquez, who directed

the investigation, testified that the charts transcribing the

messages  sent  to  Solano-Moreta  were  produced  by  a  pen

register,  which  intercepted the  messages  sent  to Solano-

Moreta's beeper and printed them out.  Vazquez also testified

that  he  tested  the pen  register  system  for  accuracy by

                                                    

1.  Alicea-Mat as seemed to have mistakenly repeated the name
Luis Rosario-Rodr guez.   The jury could have  concluded this
was  an  inadvertent  mistake,  rather  than  evidence  of  a
different "Burbuja", especially  in light of  Alicea-Mat as's
direct   identification  of   Alicea-Cardoza   as  the   real
"Burbuja".

                             -5-                                          5

checking its results against the messages received by a clone

beeper, an  exact replica of  Solano's beeper.   He testified

that the  pen register and clone beeper  received exactly the

same messages received by Solano-Moreta.

          Several hundred  of the  messages to  Solano-Moreta

recorded  in the beeper charts  were from "Burbuja".  Typical

were messages  asking Solano-Moreta  to call  "Burbuja" at  a

certain  phone  number  or messages  leaving  a  phone number

accompanied by "Burbuja, Urgente."  Some messages referred to

obtaining  "work".      Vazquez  testified   that,   in   his

considerable experience  investigating drug gangs,  these and

other  messages received  by Solano-Moreta involved  the drug

trade.

          Of  the five members  of the Virgilio  D vila group

who  originally  went  to   trial,  only  Alicea-Cardoza  was

convicted.

                              II                                          II

          Alicea-Cardoza claims  the district  court admitted

the beeper charts without proper authentication under Fed. R.

Evid. 901, that the evidence  was insufficient to support his

conviction,  and  that  he  was  subject  to  a  constructive

amendment to the indictment.

A.  Beeper Charts                             

          Under Fed.  R.  Evid. 901(a),  "The requirement  of

authentication or identification as a condition precedent  to

                             -6-                                          6

admissibility is satisfied by  evidence sufficient to support

a finding that  the matter in question is  what its proponent

claims."   Fed. R. Evid. 901(a).   To establish authenticity,

the   proponent  need   not   rule  out   "all  possibilities

inconsistent with  authenticity, or .  . .  prove beyond  any

doubt  that the evidence is what  it purports to be.  Rather,

the standard for authentication, and hence for admissibility,

is  one  of   reasonable  likelihood."    United   States  v.                                                                     

Holmquist, 36 F.3d  154, 168 (1st Cir. 1994).   Generally, if                     

the   district  court  is  satisfied  that  the  evidence  is

sufficient  to allow  a  reasonable  person  to  believe  the

evidence is what it purports  to be, Rule 901(a) is satisfied

and  the  jury  may  decide  what weight  it  will  give  the

evidence.   See id. at  167.  Because  authentication rulings                               

are  necessarily fact specific,  we review such  rulings only

for mistake of law or abuse of discretion.  See id.                                                                 

          The  district court did not abuse its discretion in

admitting the beeper charts as  a record of the messages sent

to  Solano-Moreta's beeper.  Vazquez adequately explained the

means by which the pen  register intercepted and recorded the

beeper  messages,  and  how the  clone  beeper  confirmed the

accuracy of  that system.   Asked by the prosecution  how the

beeper charts had been produced, Vazquez responded, "It  is a

machine known as a pen register.  As the message comes in the

pen register just annotates or writes exactly  what comes out

                             -7-                                          7

on the beeper."   Vazquez explained clone beepers.   "A clone

is an exact replica  of a beeper.   If I was going to  have a

clone to my beeper and you had it,  you would receive exactly

the  same message  that I  get."   Vazquez testified  that he

carried a  clone of Solano-Moreta's  beeper for about  a week

during the intercept period.  Asked whether Vazquez found any

difference between the  written messages produced by  the pen

register  and those  received by  the  clone beeper,  Vazquez

responded,  "No  difference."     This   testimony  was   not

contradicted or challenged by the defense. 

          Alicea-Cardoza's  argument is  that  the charts  of

these phone  calls were  not  properly authenticated  because

there was  no evidence  that Alicea-Cardoza  was in  fact the

person who  left  the  messages.   Defendant  relies  on  the

general rule that  self-identification by a speaker  alone is

not  sufficient authentication.  See United States v. Puerta-                                                                         

Restrepo, 814  F.2d 1236, 1239 (7th Cir. 1987); United States                                                                         

v.  Pool, 660 F.2d 547, 560 (5th Cir.  Unit B Nov. 1981).  We                    

agree that, under Puerta-Restrepo and Pool, the beeper charts                                                      

could not  be authenticated  under Rule  901 were  they being

offered for the sole purpose of identifying Alicea-Cardoza as

the "Burbuja" who sent the messages.  

          Here,  however,  the   government's  evidence  only

showed the  beeper  messages that  Solano-Moreta himself  had

received, not who specifically had sent them.   This is not a

                             -8-                                          8

case of  the jury being asked to take  on faith that a caller

was who the witness  said the caller was.  Rather, the charts

were introduced  for the  different purpose  of proving  that

Solano-Moreta  received these messages on his beeper, and the

beeper  charts plainly constitute  an accurate record  of the

messages that  Solano-Moreta received.  As Vazquez testified,

a beeper decodes  a digital message which it  displays on its

screen,  e.g., "Call Burbuja."   The pen  register intercepts

that message and records  it, over time producing  a complete

record  of all  messages sent  to  that beeper.   That  these

beeper charts  produced by the  pen register are  an accurate

record of  the messages  sent to  Solano-Moreta's beeper  was

established by the  testimony of Vazquez, who  explained that

the beeper  charts were checked  against a  clone beeper  and

that there was no difference between the two.  This testimony

was sufficient to  authenticate the beeper charts  as records

of the messages sent to Solano-Moreta's beeper.  

          Whether  the "Burbuja"  who  sent the  messages was

Alicea-Cardoza  is a separate question not within the purview

of Rule 901.  The  jury had to decide on its own, taking into

account other evidence, some  direct and some circumstantial,

whether Alicea-Cardoza  was "Burbuja".  Given  that evidence,

the jury reasonably  established that "Burbuja" was  a member

of the  drug ring  and that "Burbuja"  was, in  fact, Alicea-

Cardoza.

                             -9-                                          9

          It is true that someone who was not "Burbuja" could

have  been leaving  the messages  or that  some other  person

named  "Burbuja" left the  messages.  Alicea-Cardoza  did not

make  such a  contention  at trial,  but  if he  had,  such a

contention  does not  go  to whether  the  beeper charts  are

properly authenticated.   The jury could still  have assessed

the weight  of the evidence  in light of that  contention and

made a judgment accordingly.   In sum, whether the  "Burbuja"

who sent the messages  is in fact Alicea-Cardoza,  or perhaps

some other  "Burbuja", is a  separate matter for the  jury to

decide.  

          As for the  whether the charts  were authenticated,

the standard of  reasonable likelihood was satisfied  in this

case.

B.  Sufficiency                           

          Thus,  we turn to the question whether the evidence

in  this  case  is  sufficient  to  support  Alicea-Cardoza's

conviction.  In assessing a sufficiency challenge, we "review

the record to  determine whether the evidence  and reasonable

inferences therefrom, taken as a  whole and in the light most

favorable to the prosecution, would allow a rational jury  to

determine  beyond a reasonable  doubt that the  defendant was

guilty as charged."  United  States v. Fulmer, 108 F.3d 1486,                                                         

1490  (1st Cir. 1997)  (citations, internal  quotation marks,

and alterations omitted).  

                             -10-                                          10

          Taking  the   beeper  charts   and  Alicea-Mat as's

testimony together, we conclude the  evidence was sufficient.

Alicea-Mat as's  testimony  identifies  Alicea-Cardoza  as  a

member  of the  Virgilio  D vila group  and  links the  drug-

related  enterprises of that group to those of Solano-Moreta.

The testimony establishes that  Alicea-Cardoza was "Burbuja".

The  beeper charts  demonstrate that  "Burbuja" had  frequent

contact with Solano-Moreta.   And the jury could easily  find

that  these  communications involved  matters related  to the

manufacture and sale of drugs.  While it is possible that the

"Burbuja"  who   sent  those  messages   was  indeed  another

"Burbuja",  or that Alicea-Cardoza and Solano-Moreta had only

a non-criminal  relationship, the  jury was  not required  to

accept either  of these conclusions.   To  the contrary,  the

evidence  clearly  suggests that  Alicea-Cardoza  was closely

involved with Solano-Moreta in the drug trade, and is plainly

sufficient to sustain the conviction.  

          That the jury did not also convict other members of

the Virgilio  D vila group  based  solely on  Alicea-Mat as's

testimony does  not undercut this  conclusion.  The  jury may

well have regarded Alicea-Mat as's  testimony as insufficient

to  prove  the  guilt  of those  other  defendants  beyond  a

reasonable doubt, but  this does not mean,  as Alicea-Cardoza

argues,  that  we   must  therefore  accord   Alicea-Mat as's

testimony no  weight in considering  this sufficiency  claim.

                             -11-                                          11

The jury could reasonably have  found, as indeed it did, that

Alicea-Mat as's testimony  in  conjunction  with  the  beeper

charts  proved  Alicea-Cardoza's  guilt  beyond a  reasonable

doubt.

C.  Constructive Variance                                     

          Alicea-Cardoza claims  that his  conviction amounts

to a constructive variance of  the indictment in that (1) the

indictment charges  him with being  a triggerman, but  he was

tried for  being a  runner, and (2)  the evidence  showed the

existence of multiple  conspiracies, while Alicea-Cardoza did

not participate in the conspiracy for which he was convicted.

Variances  between the indictment and the evidence ultimately

proved  against a  single defendant  may be  common when  the

government prosecutes large criminal  enterprises in a single

trial.   See United States  v. Glenn, 828  F.2d 855, 858 (1st                                                

Cir. 1987).  When constructive variance is  alleged on appeal

in a conspiracy case, under Glenn the following questions are                                             

asked: 

          (1) Is the  evidence sufficient to permit
          a  jury  to find  the (express  or tacit)
          agreement  that  the  indictment charges?
          (2)  If not, is it sufficient to permit a
          jury, under a proper set of instructions,
          to convict  the defendant  of a  related,
          similar conspiracy?  (3)  If so, does the
          variance    affect    the     defendant's
          substantial rights or does the difference
          between  the charged  conspiracy and  the
          conspiracy  proved  amount  to  "harmless
          error?

Id.                 

                             -12-                                          12

          As to the  first test, the evidence permits  a jury

to find that  Alicea-Cardoza did conspire with  Solano-Moreta

to distribute drugs and that  he was an active participant in

that enterprise.  Indeed, the beeper charts show that Alicea-

Cardoza  and Solano-Moreta  were  in frequent  communication.

Accordingly,  that Alicea-Cardoza  was indicted  for  being a

conspirator/triggerman   but  the   evidence  proved   him  a

conspirator/runner   does   not    constitute   impermissible

variance.  "So  long as the  statutory violation remains  the

same,  the jury  can  convict  even if  the  facts found  are

somewhat  different than  those  charged --  so  long as  the

difference does not cause unfair prejudice.  United States v.                                                                      

Twitty, 72  F.3d 228,  231 (citing Glenn,  828 F.3d  at 858).                                                    

There is  no unfair prejudice  in this case.   Alicea-Cardoza

had notice that he was under indictment for being involved in

the Solano-Moreta  drug organization,  and he  knew that  his

central defense  needed to be  that he was  not part  of that

organization  --  as a  triggerman, runner,  or in  any other

capacity.  The error in the indictment was not so grave as to

cause  Alicea-Cardoza to defend himself on the wrong grounds,

especially  when the evidence adduced at trial showed Alicea-

Cardoza   to  be   deeply  involved   in  the   Solano-Moreta

organization. 

                             III                                         III

          The sentencing appeal  is also without merit.   The

                             -13-                                          13

court assigned Alicea-Cardoza a base offense level of thirty-

eight under  U.S.S.G.    2D1.1 for  conviction of  an offense

involving at least 1.5 kilograms  of cocaine base.  The court

increased  the offense  level by  two points  to forty  under

U.S.S.G.      2D1(b)(1),  adopting   the   findings  of   the

presentence report that weapons  were used by  Alicea-Cardoza

in furtherance  of  the conspiracy.   The  court declined  to

adopt the recommendation  of the presentence report  to raise

Alicea-Cardoza's offense level by an additional three points,

rejecting the  report's  finding that  Alicea-Cardoza  had  a

managerial  role  in the  conspiracy.    The court  found  an

imprisonment  range of  324  to  405  months,  and  sentenced

Alicea-Cardoza to 324 months in prison, including a statutory

minimum of ten years in jail under 21 U.S.C.   841(b)(1)(A).

          The  government  has  the burden  of  proving  drug

quantity by a fair preponderance of the  evidence, see United                                                                         

States v. Morillo, 8 F.3d 864, 871, and amply  met its burden                             

here.  The evidence shows that the Solano-Moreta organization

was  a major  drug distribution  network  buying and  selling

hundreds of  kilograms of  cocaine and  cocaine base  through

various drug points,  including those at the  Virgilio D vila

Housing  Project.  The evidence shows that Alicea-Cardoza was

a runner for those drug points at Virgilio D vila.  According

to  the presentence report, Alicea-Cardoza "ran" a drug point

at  which approximately four  kilograms of cocaine  were sold

                             -14-                                          14

monthly, he "ran"  another drug point at  which approximately

one half  kilogram of cocaine  base was sold monthly.   Given

this  evidence, the  district court did  not commit  error in

assigning Alicea-Cardoza a base offense level of thirty-eight

for  committing an offense involving 1.5 kilograms of cocaine

base. This  evidence at  trial is  sufficient to sustain  the

offense level.    As to  Alicea-Cardoza's attack  on the  two

point increase in his offense level  for use of a weapon, the

evidence at trial shows that Alicea-Cardoza was armed when he

served as a  watchman for drug points in  the Virgilio D vila

Housing Project.  This is sufficient to sustain the increase.

          The judgment of the district court is affirmed.

                             -15-                                          15
