
USCA1 Opinion

	




          February 9, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 92-1901                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                             JORGE L. RODRIGUEZ ALVARADO                                Defendant, Appellant.                                   ________________                                     ERRATA SHEET               The opinion of  this Court  issued on February  4, 1993,  is          amended as follows:               Cover sheet:   "District Judge" should  be added after  "and                               ______________          Keeton,*".          February 4, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No. 92-1901        No. 92-1901                              UNITED STATES OF AMERICA,                              UNITED STATES OF AMERICA,                                      Appellee,                                      Appellee,                                          v.                                          v.                             JORGE L. RODRIGUEZ ALVARADO,                             JORGE L. RODRIGUEZ ALVARADO,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                 ____________________                                        Before                                        Before                          Torruella and Cyr, Circuit Judges,                          Torruella and Cyr, Circuit Judges,                                             ______________                              and Keeton,*District Judge                              and Keeton,*District Judge                                          ______________                                 ____________________                                 ____________________             Juanita Trevino for appellant.             Juanita Trevino for appellant.             _______________             Jeanette  Mercado  R os, Assistant  United States  Attorney, with             Jeanette  Mercado  R os, Assistant  United States  Attorney, with             _______________________        whom Daniel F.  Lopez, United States Attorney, was on brief for appel-        whom Daniel F.  Lopez, United States Attorney, was on brief for appel-             ________________        lee.        lee.                                 ____________________                                 ____________________                                 ____________________                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.        *Of the District of Massachusetts, sitting by designation.                    CYR, Circuit  Judge.  Jorge Rodriguez  Alvarado appeals                    CYR, Circuit  Judge.                         ______________          the judgment  of conviction and  sentence entered against  him on          four  felony charges arising out  of a scheme  to counterfeit and          distribute one hundred  dollar bills, in  violation of 18  U.S.C.             371, 471-474 and 2.1  We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    On January 20,  1992, Secret Service agents  executed a          search  warrant at a VCR repair shop  in Ponce, Puerto Rico.  The          warrant  was based  on information  provided by  Carlos Gutierrez          Borrero.   Following his own arrest  for distributing counterfeit          one  hundred dollar bills, Gutierrez  had identified the owner of          the VCR repair shop, Luis Oliveras Quintana, as the source of the          counterfeit obligations.  Counterfeit bills in one hundred dollar          denominations totaling $392,000 were  seized at the shop.   After          Oliveras  was arrested, he  agreed to cooperate  with the govern-                                        ____________________               1Appellant was charged with  conspiracy to violate 18 U.S.C.            471 and with aiding  and abetting violations of   472,  473 and          474.  Section 471  criminalizes the false making,  forging, coun-          terfeiting, or  altering of any  obligation or other  security of          the United States, with  intent to defraud;   472:   the passing,          uttering, publishing, or  selling, with intent to defraud, of any          falsely  made, forged,  counterfeited,  or altered  obligation or          other security of the United States;   473:  the buying, selling,          exchanging, transferring, receiving, or delivering, of any false,          forged, counterfeited, or altered obligation or other security of          the  United  States, with  the intent  that  the same  be passed,          published,  or used as true and genuine;   474:  printing, photo-          graphing, or in any other manner making or executing, any engrav-          ing, photograph, print, or impression in the likeness of any such          obligation  or other  security.   Section  371 criminalizes  con-          spiracies  to defraud  the United  States;   2:   the  aiding and          abetting of an offense against the United States.          ment.  Oliveras advised the agents that appellant was expected to          visit  the shop on January 21  to collect the  cash proceeds from          the sale of  the counterfeit and to pick up  the remainder of the          undistributed counterfeit bills.                    On  January 21,  under  Secret   Service  surveillance,          appellant arrived at the shop and Oliveras handed him a briefcase          containing the undistributed counterfeit bills.  A Secret Service          agent overheard  appellant inquiring about "series  11."2  Appel-          lant removed three bills from the briefcase, put something in his          pocket,  then left  the  shop and  placed  the briefcase  in  his          vehicle,  whereupon  he  was  arrested.   Following  his  arrest,          undistributed  counterfeit bills  were  found in  the  briefcase,          three more were removed  from his pocket, and a  notation bearing          the name "Carlos Gutierrez Borrero" was found in his wallet.                    Oliveras continued  to cooperate by providing  a state-          ment  minimizing his  own responsibility  for the  counterfeiting          scheme.   After failing a polygraph examination, he admitted to a          larger role in  the counterfeiting scheme.   Both statements made          by  Oliveras were disclosed prior to trial, but appellant was not          informed of the polygraph testing or the test results.                    As a consequence of Oliveras' cooperation, the printing          equipment  and paraphernalia  were seized  and appellant  and his                                        ____________________               2The trial testimony explained  that "series 11" referred to          counterfeit bills which were the best quality imitations, bearing          serial numbers ending in "11".                                          4          four codefendantswere indicted.  The otherdefendants pled guilty.                    At appellant's trial, the government presented testimo-          ny that appellant had approached Oliveras with a plan to make and          distribute counterfeit  one hundred dollar bills  and that appel-          lant  had  indicated to  Oliveras that  he  knew people  who were          interested in purchasing the counterfeit.  The evidence indicated          that  appellant  and one  Freddie  Velez provided  the  paper for          printing the  counterfeit bills  and, though not  present at  the          actual printing, that appellant expected  to share in the profits          from the counterfeiting operation.  After a three-day jury trial,          appellant was convicted on all four counts.   He was sentenced to          concurrent forty-five month terms on each count.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          Sufficiency of the Evidence          Sufficiency of the Evidence          ___________________________                    Appellant seems to assert that the jury verdicts on the          three substantive counts  cannot stand, as there  was no evidence          that  he was  present  at the  time  the counterfeit  bills  were          printed; and that  the conspiracy conviction cannot  stand, as it          was based on "mere presence" at the crime scene on January 21.                    Under the  "offense clause" of section  371, a sustain-          able conviction requires proof beyond a reasonable doubt that the          defendant conspired  to commit the substantive  offense which was          the  object of the unlawful  agreement.  United  States v. Lopez,                                                   ______________    _____          944  F.2d 33, 39 (1st  Cir. 1991); United  States v. Sanchez, 917                                             ______________    _______                                          5          F.2d 607,  610 (1st  Cir. 1990), cert.  denied, 111  S. Ct.  1625                                           ____   ______          (1991).   A  conviction  for aiding  and  abetting a  substantive          offense requires proof beyond a reasonable doubt that  the defen-          dant associated  himself with  the commission of  the substantive          offense, participated  in  it as  something  he wished  to  bring          about, and  sought by his  actions to  make it  succeed.   United                                                                     ______          States  v. Ortiz,  966 F.2d 707,  711 n.1 (1st  Cir. 1992), cert.          ______     _____                                            ____          denied,  61 U.S.L.W. 3479 (U.S. 1993); United States v. Lema, 909          ______                                 _____________    ____          F.2d 561,  569 (1st Cir. 1990).   Evidence of "mere presence" can          sustain  neither a  conviction for  conspiracy, United  States v.                                                          ______________          Tejeda,  974  F.2d 210,  213 (1st  Cir.  1992); United  States v.          ______                                          ______________          Ocampo,  964 F.2d  80, 82  (1st  Cir. 1992),  nor for  aiding and          ______          abetting,  United States v. Clotida,  892 F.2d 1098, 1104-05 (1st                     _____________    _______          Cir. 1989); United States  v. Francomano, 554 F.2d 483,  486 (1st                      _____________     __________          Cir. 1977).                    We assess the sufficiency  of the evidence as  a whole,          including all reasonable inferences,  in the light most favorable          to the verdict,  with a view to whether a  rational trier of fact          could have found the defendant guilty beyond a reasonable  doubt.          See,  e.g., United States v.  Figueroa, 976 F.2d  1446, 1459 (1st          ___   ____  _____________     ________          Cir. 1992);  United States  v. Lopez, 944  F.2d 33, 39  (1st Cir.                       _____________     _____          1991).   The evidence may be entirely circumstantial and need not          exclude every reasonable hypothesis of innocence; in other words,          the  jury may  accept any  reasonable interpretation of  the evi-          dence, United States  v. Batista-Polanco,  927 F.2d  14, 17  (1st                 _____________     _______________          Cir. 1991), and we must do the same.                                          6                    The  evidence  was  sufficient to  establish  beyond  a          reasonable  doubt that  appellant  knowingly  conspired to  make,          possess,  and  deliver counterfeit  obligations,  with  intent to          defraud  the United  States, and  that he  aided and  abetted the          possession, delivery  and  printing of  counterfeit  obligations.          The  evidence revealed  that the five  co-conspirators, appellant          among them,  caused approximately $800,000 in counterfeit obliga-          tions  to be printed.  Appellant not only suggested that Oliveras          print  the counterfeit  obligations but  provided the  paper, ar-          ranged a  distribution network, aided and  abetted the collection          of the illicit proceeds,  and personally recovered the undistrib-          uted counterfeit bills.                    The  contention  that  he  could not  be  convicted  of          conspiracy unless he was at the shop when  the bills were printed          is as  bogus as  the bills  printed in his  absence.   "[U]nder a          basic tenet of traditional  conspiracy theory . . . a conspirator          is  responsible  for acts  his  or  her co-conspirators  executed          during  the  existence and  in  furtherance  of the  conspiracy."          United  States  v. Sabatino,  943 F.2d  94,  96 (1st  Cir. 1991);          ______________     ________          Figueroa, 976  F.2d at 1446.   Similarly, appellant's convictions          ________          for  aiding and  abetting the  printing of  the bogus  bills were          amply supported by  the evidence that  he initiated the  counter-          feiting  scheme, recruited  Oliveras, and  provided the  paper on          which the bills were printed.                                          7          Evidentiary Rulings          Evidentiary Rulings          ___________________                    Appellant challenges two evidentiary rulings,  which we          review for abuse of discretion.  United States  v. Arias-Santana,                                           _____________     _____________          964  F.2d 1262, 1264 (1st Cir. 1992); United States v. Abreu, 952                                                _____________    _____          F.2d 1458, 1467 (1st Cir.), cert. denied, 112 S. Ct. 1695 (1992).                                      ____  ______                    First,  appellant asserts that the district court erred          in admitting evidence  seized from  the shop,  consisting of  the          printing press, lamp,  paper, and ink used in  the counterfeiting          process.   He frivolously contends  that the seized  evidence was          not  relevant to  the  charges against  him  because he  was  not          present  at  the time  the  bills were  printed.   As  a founding          member,  however, appellant  was  criminally responsible  for all          acts  committed in furtherance of  the conspiracy.  See Figueroa,                                                              ___ ________          976 F.2d at 1452 (evidence of recorded statements of coconspirat-          ors admissible against defendant).                    Second, appellant claims that  the district court erred          in excluding, as  hearsay, the allegedly exculpatory  post-arrest          statements of  codefendants Velez  and Santiago, neither  of whom          was called  to testify at trial.   He argues that  the statements          were admissible  as coconspirator statements pursuant  to Fed. R.          Evid.  801(d)(2)(E).   Appellant's argument  misses the  mark, as          Evidence  Rule 801(d)(2)(E)  applies to  coconspirator statements          made  "during the course  and in furtherance  of the conspiracy,"          Fed. R. Evid. 801(d)(2)(E);  see also Ortiz, 966 F.2d  at 714-15,                                       ___ ____ _____          whereas these statements were made neither during nor in further-          ance of the conspiracy.                                          8          Nondisclosure of Polygraph Testing and Results          Nondisclosure of Polygraph Testing and Results          ______________________________________________                    Appellant claims that the  government failed to provide          adequate pretrial discovery  by withholding the information  that          Oliveras took and failed  a polygraph test.  According  to appel-          lant,  knowledge of the  failed polygraph  would have  helped the          defense establish that  Oliveras lied.   We must  reverse if  the          totality of  the circumstances  indicates that the  nondisclosure          "'might  have affected the outcome of the trial.'"  United States                                                              _____________          v. Devin, 918 F.2d 280, 289 (1st Cir. 1990), citing United States             _____                                            _____________          v. Agurs, 427 U.S. 97, 104 (1976); Sanchez, 917 F.2d  at 618; see             _____                           _______                    ___          also  Barrett v.  United States,  965 F.2d  1184, 1189  (1st Cir.          ____  _______     _____________          1992).                    Under  all  the circumstances,  we  are satisfied  that          nondisclosure  of  the  polygraph  could not  have  affected  the          outcome of the trial.  During pretrial discovery, the defense was          provided with  the two inconsistent statements  made by Oliveras.          Appellant  therefore was well  aware that at  least one statement          was false, at least in part, which plainly enabled the defense to          challenge Oliveras' credibility on  that ground.3  Thus, evidence          of  Oliveras' failure to pass the polygraph was cumulative to the          inconsistent  statements previously  introduced in  evidence, see                                                                        ___          Sanchez, 917  F.2d at  618 (nondisclosure of  cumulative evidence          _______          not material to conviction) (citing cases), especially in view of                                        ____________________               3Oliveras' initial statement falsely asserted that appellant          was  almost totally  responsible for  the counterfeiting  scheme.          The  second statement  conceded that  Oliveras had  a significant          role in the conspiracy.                                          9          the  vigorous  impeachment to  which  Oliveras  was subjected  on          cross-examination, see  United States v. Shelton,  588 F.2d 1242,                             ___  _____________    _______          1248 (9th Cir.  1978), cert.  denied, 442 U.S.  909 (1979)  ("Im-                                 ____   ______          peachment evidence,  even that  which tends to  further undermine          the credibility  of the key Government  witness whose credibility          has already been shaken  due to extensive cross-examination, does          not create a reasonable  doubt that did not otherwise  exist when          that evidence is cumulative or collateral.") (citations omitted).          Finally,  after  the  testimony of  Oliveras,  during  government          counsel's  direct  examination  of  the  agent  who  interrogated          Oliveras,  the jury was made  aware that Oliveras  had failed the          polygraph test.  The defense in turn inquired about the polygraph          on cross-examination of the government agent, but made no request          to recall Oliveras.                    We therefore  conclude that the  government's imprudent          decision to withhold pretrial disclosure of the polygraph testing          and results could not have altered these jury verdicts.          Variance          Variance          ________                    Although appellant alleges that there was an "impermis-          sible variance between the offense as presented to the Grand Jury          . . .  and the case presented  in Court," he  identifies no vari-          ance.  See,  e.g., United States v. Zannino, 895  F.2d 1, 17 (1st                 ___   ____  _____________    _______          Cir.), cert. denied, 494 U.S. 1082 (1990) (arguments adverted  to                 ____  ______          with no  attempt at  developed argumentation are  deemed waived).          Even  if the variance claim  were not deemed  waived, however, we          would reject it,  as the indictment clearly apprised appellant of                                          10          the charges against him  and the evidence presented at  trial was          "relevant  to and within the scope of  the crimes" charged in the          indictment.  United  States v.  Sutton, 970 F.2d  1001, 1007  n.8                       ______________     ______          (1st  Cir. 1992)  (no  variance where  indictment fully  apprised          defendant  of  crimes with  which he  was  charged).   See United                                                                 ___ ______          States v. Medina, 761 F.2d 12, 16 (1st Cir. 1985) (same).          ______    ______          U.S.S.G.   3B1.1(b)          U.S.S.G.   3B1.1(b)          ___________________                    Finally, appellant challenges the  three-level enhance-          ment imposed pursuant to U.S.S.G.   3B1.1(b).  The district court          found that  appellant was a  "manager or supervisor"  of criminal          activity involving five or more participants.  We review role-in-          offense rulings for clear  error.  United States v.  Schultz, 970                                             _____________     _______          F.2d  960, 963-64 (1st Cir. 1992), cert. denied, 61 U.S.L.W. 3479                                             ____  ______          (1993); United States  v. Panet-Collazo, 960  F.2d 256, 261  (1st                  _____________     _____________          Cir.), cert. denied, 113 S. Ct. 220 (1992).                 ____  ______                    Section 3B1.1  of the Sentencing  Guidelines prescribes          offense level  enhancements based  "upon the  size of a  criminal          organization (i.e.,  the number  of participants in  the offense)                        ____          and the degree to which the defendant was responsible for commit-          ting  the  offense."    U.S.S.G.     3B1.1,  comment.  (backg'd).          Section 3B1.1(b) directs  an increase in the offense  level "[i]f          the defendant was a  manager or supervisor (but not  an organizer          or leader) and the  criminal activity involved five or  more par-          ticipants  or  was  otherwise  extensive."   Although  the  terms          "manager" and "supervisor" are not defined in the Guidelines, the          application  notes  to  section  3B1.1  list  seven  nonexclusive                                          11          factors for use in distinguishing a "leadership and organization-          al role [for  which section 3B1.1 provides  a four-level increase          if the criminal activity involved five or more participants] from          one of mere management or supervision."  Id. comment. (n.3).4                                                   ___                    The presentence  report  recommended a  four-level  in-          crease due  to appellant's  aggravated role  as  an organizer  or          leader of a  criminal activity involving  five participants.   In          response to defense objections  at sentencing, the court declined          to adopt the recommendation in the presentence report.  The court          nevertheless found that  three of the seven factors to be used in          distinguishing a "leader or organizer"  from a "manager or super-          visor" were  satisfied  in  the  present case:    recruitment  of          accomplices, a  substantial role  in planning and  organizing the          offense,  and  the  extensive  nature and  scope  of  the illegal          activity.   The  court  found in  particular  that appellant  had          "seduced" Oliveras into joining  the conspiracy and that Oliveras          in turn  had  brought in  others,  including those  who  actually          printed the  counterfeit; that appellant, under  an assumed name,          purchased  the paper  on which  the counterfeit  obligations were          printed;  and  that the  illegal  activity  was extensive  as  it          involved approximately $800,000 in counterfeit obligations.                                        ____________________               4The factors listed in   3B1.1, comment. n.1 are:               the exercise of  decision making authority,  the nature               of participation in the  commission of the offense, the               recruitment  of  accomplices,  the claimed  right  to a               larger  share of the fruits of the crime, the degree of               participation  in planning  or organizing  the offense,               the nature and  scope of the illegal activity,  and the               degree of control and authority exercised over others.                                          12                    There was  no clear error in the  enhancement of appel-          lant's sentence  as a  "manager or  supervisor."   The sentencing          court explicitly found that appellant played an important role in          planning and organizing the  offense, which entailed an increased          degree of responsibility for  the commission of the offense.   As          this court  has noted, the  section 3B1.1 enhancement  applies if          the  defendant  "exercised some  degree  of  control over  others          involved in the commission  of the crime or he  [was] responsible                                                   __ __   ___  ___________          for organizing others for the purpose of carrying out the crime."          ___ __________ ______ ___ ___ _______ __ ________ ___ ___ _____          United  States v.  Fuller, 897  F.2d 1217,  1220 (1st  Cir. 1990)          ______________     ______          (emphasis added); see also United States v. Brown, 944 F.2d 1377,                            ___ ____ _____________    _____          1381 (7th Cir. 1991)  (same).  Finally,  we find no clear  error,          particularly in light of  appellant's critical role in recruiting          a reluctant  Oliveras, a  well-known figure in  criminal circles,          who  was indispensable to the conspiracy in that he alone appears          to  have  been able  to recruit  others  capable of  printing the          counterfeit obligations.   See United States v. Pierce,  907 F.2d                                     ___ _____________    ______          56,  57 (8th  Cir.  1990) (recruitment  finding "provides  strong          support for  the conclusion that [defendant]  played a managerial          or supervisory role under   3B1.1(b)").                    Affirmed.                    ________                                          13
