
USCA1 Opinion

	




                                        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
