
USCA1 Opinion

	




          February 10, 1994     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2316                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                WALTER CARABALLO-CRUZ,                                Defendant, Appellant.                                 ____________________          No. 92-2319                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              JOSE IVAN MONTA EZ-ANAYA,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. H ctor M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                _____________________               Miguel  A.A.   Nogueras-Castro,  Assistant   Federal  Public               ______________________________          Defender,  with  whom   Benicio  S nchez-Rivera,  Federal  Public                                  _______________________          Defender,  was  on  brief  for  appellant  Walter Caraballo-Cruz.          Francisco M. Dolz-S nchez for appellant Jos  Iv n Monta ez-Anaya.          _________________________               Carlos A. P rez-Irizarry,  Assistant United States Attorney,               ________________________          with whom  Charles E.  Fitzwilliam, United  States Attorney,  and                     _______________________          Jos  A. Quiles-Espinosa, Senior Litigation Counsel, were on brief          _______________________          for appellee.                                 ____________________                                 ____________________                                         -2-                    TORRUELLA, Circuit Judge.  Defendants Walter Caraballo-                               _____________          Cruz ("Caraballo") and Jos  Iv n Monta ez-Anaya ("Monta ez") were          convicted by  a jury of conspiracy to  possess with the intent to          distribute cocaine in violation of  21 U.S.C.    841(a)(1),  846,          and  of aiding  and abetting  the possession  with the  intent to          distribute  cocaine in  violation of  18 U.S.C.    2.   Caraballo          challenges  the sufficiency  of  the  evidence  against  him  and          Monta ez  appeals  the  district court's  refusal  to  reduce his          sentence for being a minimal or minor participant.  We affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                    The alleged conspiracy in this case involved a  plan to          smuggle twenty-nine  kilograms  of cocaine  into the  continental          United  States  by  concealing  the drugs  in  luggage  placed on          commercial  flights  departing   from  San  Juan,   Puerto  Rico.          According to the  evidence in the record viewed in the light most          favorable to the government, United States v. Echeverri, 982 F.2d                                       _____________    _________          675, 676 (1st Cir. 1993), the conspiracy proceeded as follows.                    On  May 4,  1992, Caraballo  and  Monta ez, along  with          their two codefendants, Orlando Enrique Monroy-Pedrosa ("Monroy")          and Jules  Delgado-Valencia ("Delgado"),1 and  several unindicted          coconspirators,  delivered a  total of  nine  separate pieces  of          luggage  to  the  American  Airlines  desk  at Luis  Mu oz  Mar n          International Airport in Isla Verde, Puerto Rico.  The defendants          checked in the  luggage under a variety of assumed  names using a          series of  airline tickets  purchased at the  same time  from the                                        ____________________          1  The appeals of Monroy and Delgado have been dismissed.                                         -3-          same travel agency.  In addition, Monta ez purchased two tickets,          also under an assumed name, at the airport.                    The  operation was  first detected  when United  States          Customs  Service  Inspector V ctor  Ramos  observed  Monta ez and          Monroy each  carrying a suitcase with United States Department of          Agriculture ("USDA") inspection stickers on them despite the fact          that neither  had passed  through the USDA  facility where  X-ray          inspections are  conducted.2   Monta ez and  Monroy proceeded  to          the American Airlines counter where Monroy checked the bags  onto          a flight to New York under an assumed name.                    Upon further  surveillance, Inspector  Ramos noticed  a          woman,  Gladys  Eliana Marulanda-Mar n  ("Marulanda"),3  deliver,          and  then  check  with  the  airline,  two  suitcases  that  were          identical  to the  luggage  delivered  by  Monroy  and  Monta ez.          Marulanda also checked in her bags under an assumed name.                    Inspector Ramos alerted other Customs Service officials          to this  suspicious behavior.   The officials  then brought  in a          canine unit to investigate the  suspect luggage.  The canine unit          gave a  positive  alert for  narcotics  as to  each of  the  four          suitcases.  Meanwhile, Customs Inspectors Mar a del Carmen Rabell          and H ctor  Cab n, who  had also  observed Monta ez, Monroy,  and                                        ____________________          2  At  the Luis Mu oz Mar n airport,  all passengers with baggage          to be checked in on flights to the continental United States must          first  pass through  one of  several  USDA inspection  facilities          located at the entrance to the terminal.  After checking each bag          with an X-ray machine, USDA officials affix an inspection sticker          on the  bag to indicate that it has  passed inspection and may be          accepted for check-in by the airlines.          3  The government declined to prosecute Marulanda.                                         -4-          Marulanda  deliver their suitcases, followed Monroy to an airline          gate where they watched him board his plane with Marulanda.  When          informed of  the positive  alert by the  police dogs,  Rabell and          Cab n entered the plane and arrested Monroy and Marulanda.                    Following these arrests, the two Inspectors returned to          the American  Airlines area  where they  observed two  unattended          suitcases  with  USDA  inspection  stickers  on  them.    As  the          Inspectors looked  on, Caraballo  and another individual  grabbed          the suitcases,  exited the terminal building, and  placed them in          the trunk  of a  car which  then left  without Caraballo  and his          companion.                    Soon thereafter, Inspectors  Rabell and Cab n  observed          Monta ez again enter the terminal and carry two more suitcases to          the  American Airlines  counter.   Monta ez  purchased two  plane          tickets  with cash  and checked  in his  luggage.  A  few moments          later,  the  Inspectors  saw Caraballo,  together  with  Delgado,          carrying three suitcases.  According  to Inspector Rabell, two of          the three suitcases  appeared to  be the same  ones that she  had          previously  seen Caraballo  and his  companion  place inside  the          trunk of a  car.  Rabell did  not, however, specify which  of the          three suitcases  Caraballo was  carrying.   After checking  their          luggage, again  under assumed  names, Caraballo  and Delgado  met          with Monta ez who was waiting for  them in front of a gift  shop.          Monta ez  gave  Delgado the  flight jacket  he was  wearing after          which  Caraballo and  Delgado proceeded  to  the airline  gate to          board their flight.                                         -5-                    Inspector  Rabell followed  Caraballo and  Delgado and,          after  receiving  word  that  all  five  suitcases  were given  a          positive alert by the canine  unit, arrested them on the airplane          jetway as they attempted to board their plane.  Government agents          later   found  several  USDA   inspection  stickers  and  sticker          fragments  in  Caraballo's  wallet.    Inspector  Cab n  arrested          Monta ez  and seized passenger  tickets and boarding  passes from          him which corresponded to two  suitcases that were later found to          contain cocaine.                    All  nine of  defendants' suitcases  triggered positive          alerts for narcotics when presented to the canine  unit; however,          only five -- Government's Exhibits 1, 2,  5, 6, and 7 -- actually          contained cocaine.   The first  two suitcases, Exhibits 1  and 2,          were the ones carried to  the American Airlines counter by Monroy          and  Monta ez and  checked  in  by Monroy.    The last  suitcase,          Exhibit  7, was  carried and  checked  in by  Monta ez under  the          assumed name of Diego Rivera.                    The record contains  conflicting evidence, however,  as          to  who  carried and  who  checked  in  the other  two  suitcases          containing cocaine, Exhibits 5 and 6.  Inspector Rabell testified          that  these were  the two  suitcases that  Caraballo  and another          individual  originally placed in the trunk  of a car.  Nothing in          the record  indicates whether, at  that point, the  two suitcases          contained the cocaine  that was later found inside  them.  Rabell          also  testified that these suitcases, along with a third suitcase          that did not  contain cocaine, were later carried  to the airline                                         -6-          counter by either Caraballo or Delgado.  According to the airline          records, however, Exhibits 5 and 6 were actually checked in under          the name Mario Arzuaga, one of the aliases used by  Monta ez when          Monta ez  purchased  his  airline  tickets  and  checked  in  his          luggage.  The confusion is compounded by  the fact that the claim          tickets for these two suitcases, Exhibits 5 and 6, were found  on          Delgado when he was arrested,  even though Delgado had checked in          only one bag under a completely different alias.                    The government  tried to  suggest that  Monta ez really          checked  in Exhibits  5 and  6 and  then gave  Delgado the  claim          checks  for these  suitcases  when he  handed Delgado  his flight          jacket.  The government never explained, however, the discrepancy          between this version  of events and Inspector  Rabell's testimony          that either Delgado or Caraballo carried Exhibits 5 and 6  to the          airline  counter  after  Monta ez  had  already  checked  in  two          separate pieces of luggage.                    At the very least, however, the evidence indicates that          Monta ez carried a  total of at least two  suitcases with cocaine          to  the airline counter  (Exhibits 1 or  2 and 7),  checked in at          least one  suitcase with cocaine  (Exhibit 7), and  purchased and          possessed an airline  ticket that corresponded to  two additional          suitcases that were found to  contain cocaine (Exhibits 5 and 6).          As  for  Caraballo,  the suitcase  checked  in  under  his alias,          Exhibit 10, did not contain cocaine.  Nevertheless, Caraballo was          seen  carrying suitcases  (Exhibits  5  and  6)  which  contained          cocaine  at some  point, although  not necessarily  while he  was                                         -7-          carrying them, either out of or back into the airport.                    Drug  Enforcement Agency  officials  found  a total  of          twenty-nine kilograms of  cocaine in the  five suitcases with  an          estimated street  value  of $493,000  to $841,000.   The  cocaine          found in each suitcase  was packaged in the same manner  and each          package was elaborately wrapped to avoid detection.                           II.  SUFFICIENCY OF THE EVIDENCE                           II.  SUFFICIENCY OF THE EVIDENCE                                    A.  Conspiracy                    Caraballo challenges  the sufficiency  of the  evidence          supporting  his conspiracy  and aiding  and abetting  convictions          under 21 U.S.C.    841(a)(1), 846 and 18 U.S.C.   2.  Upon review          of the jury verdict, we  examine the evidence in its  entirety in          the light most favorable to the government to determine whether a          rational trier of fact could have found the essential elements of          the crime  beyond a  reasonable doubt.   The government  gets the          benefit  of all legitimate and favorable inferences and can prove          its case  by circumstantial  evidence without  having to  exclude          every reasonable hypothesis of innocence.  Echeverri, 982 F.2d at                                                     _________          677;  United States  v. Akinola,  985 F.2d  1105, 1109  (1st Cir.                _____________     _______          1993); United  States v.  McLaughlin, 957 F.2d  12, 18  (1st Cir.                 ______________     __________          1992).                    In order to prove a  defendant is guilty of  conspiracy          under  21  U.S.C.    846,  the  government  must show,  beyond  a          reasonable doubt,  that the  defendant knowingly  and voluntarily          participated  in an  agreement to  violate the  law and  that the          defendant  did  so  with  the intent  to  commit  the  underlying                                         -8-          substantive  offense.  United  States v. Sep lveda,  No. 92-1362,                                 ______________    _________          slip  op. at  7 (1st Cir.  Dec. 20,  1993); Akinola, 985  F.2d at                                                      _______          1110; United States  v. Clifford, 979 F.2d 896,  897-98 (1st Cir.                _____________     ________          1992);  United States  v. Tejeda,  974  F.2d 210,  212 (1st  Cir.                  _____________     ______          1992).  In this case,  the underlying offense was possession with          the intent to distribute  cocaine.  21  U.S.C.   841(a)(1).   The          government is  not  required to  prove  that the  defendant  knew          about,  or took part  in, all aspects of  the conspiracy; it need          only  establish  the  essential  nature  of  the  plan  and   the          defendant's connection  to it.   United States v.  Benevides, 985                                           _____________     _________          F.2d 629, 633 (1st Cir. 1993); United States  v. Rivera-Santiago,                                         _____________     _______________          872  F.2d 1073,  1079  (1st  Cir.), cert.  denied,  492 U.S.  910                                              ____   ______          (1989).                    Caraballo argues that  the record contains  no evidence          that he knew about or willfully agreed to participate in the plan          to transport  cocaine.   We disagree.   Caraballo was  travelling          under an assumed  name with a plane ticket  that was purchased at          the exact  same  time  and  place  as the  tickets  used  by  his          codefendants who were  found to be transporting  cocaine.  During          the  execution  of  the  smuggling  operation  on  May  4,  1992,          Caraballo  was continuously in the company of other conspirators.          He carried suitcases and boarded a plane with one conspirator who          possessed claim  checks for  suitcases containing  cocaine.   One          customs inspector  testified that  Caraballo and  the conspirator          carried two suitcases  that were later found to  contain cocaine.          Caraballo also met  with another conspirator who  had carried and                                         -9-          checked in at least one suitcase with cocaine.                    One crucial  aspect of the conspiracy  involved placing          USDA inspection stickers  on suitcases with  cocaine in order  to          bypass the agricultural inspection facility.   Customs inspectors          saw Caraballo carry at least  one suitcase with a USDA inspection          sticker from inside  the terminal  back outside  the airport  and          place it into the trunk of a car.  That suitcase was  later found          to contain cocaine.   More significantly, Caraballo  was carrying          USDA inspection stickers and sticker fragments in his wallet.                    From this evidence, the  jury could reasonably conclude          that   Caraballo  agreed  to   help  smuggle  cocaine   into  the          continental  United States by  carrying several of  the suitcases          used in the operation, by assisting in bypassing the agricultural          inspection facility, and  by flying to the  cocaine's destination          with  his  coconspirators  to assist  in  the  completion of  the          delivery.     In  particular,  Caraballo's  possession   of  USDA          inspection  stickers  and  his act  of  removing  luggage already          marked  with  such  stickers  from  the  terminal  to  a  waiting          automobile  indicate that Caraballo  knowingly executed an agreed          upon plan to avoid detection of the cocaine in the suitcases.                    Caraballo attempts to characterize the evidence against          him as  sufficient only to  establish his "mere presence"  at the          scene of the crime.   He emphasizes that the suitcase  he checked          in did not  contain any drugs,  the government never  established          that he carried cocaine at  any time, and the inspection stickers          in his wallet  were a different color  than the ones used  on the                                         -10-          suitcases.   Because of  this evidence,  Caraballo contends,  his          behavior can only be interpreted as a series of "innocent acts".                    Although a defendant's  mere presence at the scene of a          crime  is not  alone  sufficient  to prove  his  membership in  a          conspiracy, United  States v. Ocampo,  964 F.2d 80, 82  (1st Cir.                      ______________    ______          1992); United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992),                 _____________    _____          cert. denied, 113 S. Ct. 1005 (1993), the circumstantial evidence          ____  ______          or simply the attendant circumstances can be enough to convince a          rational jury that "the 'mere'  is lacking."  Echeverri, 982 F.2d                                                        _________          at 678; Tejeda, 974 F.2d at 213; Ortiz, 966 at 711-12.                  ______                   _____                    In Caraballo's  case,  there  are  both  circumstantial          evidence  and  attendant  circumstances  to  support  the  jury's          conclusion that Caraballo was participating in the conspiracy and          not merely present  in the airport for the  purpose of travelling          to the States.   Caraballo's actions on May  4, 1993, demonstrate          an  effort to evade  inspection of certain  suitcases which later          were  found  to contain  cocaine.    The  jury could  infer  that          Caraballo removed suitcases from the terminal after they had been          inspected precisely because  he knew those suitcases  would later          be  used  to transport  cocaine.    In  addition, the  fact  that          Caraballo's  tickets  were  purchased  together  with  the  other          conspirators, and the fact that Caraballo checked in his bags and          boarded  his   flight  with  another  conspirator   indicates  he          willfully associated himself with the venture.                    That  the  inspection  stickers  found  in  Caraballo's          wallet  were  a  different  color  than the  ones  found  on  the                                         -11-          suitcases  does  not  compel  the  jury  to  believe  Caraballo's          explanation that  the stickers  were merely  "souvenirs" that  he          collected.   Instead,  the jury  could infer  that  Caraballo had          prepared several alternative methods to evade the USDA inspection          before choosing  the one  he actually  implemented.   Caraballo's          reliance on the  lack of proof that he  ever possessed cocaine or          carried a suitcase with cocaine is of little help to him  in this          case.   No such  proof is required if  the evidence can otherwise          show that  he participated in  the conspiracy with the  intent to          accomplish its unlawful  objective.  See, e.g.,  United States v.                                               ___  ____   _____________          De La Cruz, 996 F.2d 1307, 1311-12 (1st Cir.),  cert. denied, 114          __________                                      ____  ______          S. Ct.  356 (1993); Akinola, 985  F.2d at 1110;  United States v.                              _______                      _____________          Clifford, 979 F.2d 896, 898 (1st  Cir. 1992); Tejeda, 974 F.2d at          ________                                      ______          213.                               B.  Aiding and Abetting                    Caraballo also challenges his conviction for aiding and          abetting under 18  U.S.C.   2.  "For the conviction to stand, the          government  must prove that defendant associated himself with the          underlying venture, participated in it  as something he wished to          bring  about, and  sought by  his  actions to  make it  succeed."          Clifford, 979 F.2d at 899 (citing  Nye & Nissen v. United States,          ________                           ____________    _____________          336 U.S.  613, 619  (1949)); Ortiz,  966 F.2d  at 711  n.1.   The                                       _____          evidence that  Caraballo, using an  assumed name, checked  onto a          flight  using  a   ticket  purchased  together  with   the  other          conspirators,  carried suitcases and  remained in the  company of          other  conspirators,  and  took actions  designed  to  avoid USDA                                         -12-          inspection  of suitcases  containing cocaine  amply  supports the          jury's conclusion  that Caraballo knowingly and  willfully agreed          to associate  himself with the  plan to smuggle cocaine  into the          continental United States and sought to bring about its success.                                         -13-                                   III.  SENTENCING                                   III.  SENTENCING                    At his  sentencing, Monta ez  requested a  reduction in          his offense level  by two to  four points pursuant to  U.S.S.G.            3B1.2(a)  or  (b)  for  minimal  or  minor participation  in  the          conspiracy.  He  argued that  his only  role in  the offense  was          carrying three suitcases  and handing claim  tags to Delgado  and          thus,  as  a courier,  he  was  the  least culpable  participant.          Monta ez further pointed out  that the presentence  investigation          report,   although  asserting  that  Monta ez  was  not  a  minor          participant, identified  Delgado as the "leader/organizer  of the          overall criminal activity," identified Monroy as the "second most          culpable defendant," and concluded that the "remaining defendants          are  viewed  as  less  culpable."    The  district  court  denied          Monta ez'  request because  it  found him  to  be a  "substantial          player" in the  conspiracy.  The court sentenced  Monta ez to 172          months in prison and Monta ez appealed.                    A  reduction in a defendant's offense level for minimal          participation under    3B1.2(a) "is intended to  cover defendants          who  are plainly  among the  least culpable  of those  involved."          U.S.S.G.    3B1.2(a)  comment  note  1.   A  reduction for  minor          participation under   3B1.2(b) applies to "any participant who is          less culpable than most other participants."  U.S.S.G.   3B1.2(b)          comment note  3.   It is  well established that  no defendant  is          automatically  entitled  to a  reduction  as a  minimal  or minor          participant,  even if the  defendant happens to  be less culpable          than  his or  her codefendants  and even  if the court  found the                                         -14-          defendant was  only a courier.   United States v.  L pez-Gil, 965                                           _____________     _________          F.2d 1124,  1131 (1st  Cir.), cert. dismissed,  112 S.  Ct. 2959,                                        ____  _________          cert. denied, 113 S. Ct. 484 (1992);  United States  v. Valencia-          ____  ______                          _____________     _________          Lucena, 925 F.2d 506, 514 (1st  Cir. 1991); United States v.  Paz          ______                                      _____________     ___          Uribe, 891 F.2d 396, 399 (1st Cir.  1989), cert. denied, 495 U.S.          _____                                      ____  ______          951  (1990).    The  sentencing  court has  broad  discretion  in          determining whether this  downward adjustment is  appropriate and          we  will reverse only if the evidence overwhelmingly demonstrates          that  the defendant  played a part  that makes  him substantially          less  culpable  than  the average  participant  in  the convicted          offense such  that the  court's decision  was clearly  erroneous.          L pez-Gil, 965 F.2d at 1131;  United States v. Gregorio, 956 F.2d          _________                     _____________    ________          341, 344 (1st Cir. 1992); United  States v. Ocasio, 914 F.2d 330,                                    ______________    ______          333 (1st Cir. 1990).                    The  district court was  well within its  discretion in          finding  that, even though less culpable than Delgado and Monroy,          Monta ez was  still a "substantial  player" and not a  minor, let          alone  minimal, participant.    Monta ez  carried  at  least  two          suitcases containing cocaine  to the airline counter  and checked          in at  least one such  suitcase with the  airline.  In  addition,          Monta ez  purchased, in  cash, two  tickets  under assumed  names          which corresponded to three pieces  of luggage that were found to          contain cocaine.   Monta ez also accompanied Monroy  while Monroy          was carrying still another suitcase with cocaine and while Monroy          checked  in  two suitcases  that  contained  cocaine.   In  fact,          Monta ez was  connected in some  way with every piece  of luggage                                         -15-          used to transport cocaine.                    Furthermore, Monta ez  met with  coconspirators Delgado          and  Caraballo immediately after checking  in his luggage and the          evidence supports the inference that he handed  Delgado the claim          checks for two of the suitcases which were later found to contain          cocaine.  These activities demonstrate significant involvement in          a  large smuggling operation  that depended for  its success upon          the  coordinated   actions  of  several   individuals,  including          Monta ez.4                    Even if Monta ez was the  least culpable of the charged          defendants, it  does not mean  he performed a  minor role  in the          offense.   United States v. Daniel,  962 F.2d 100,  103 (1st Cir.                     _____________    ______          1992).   In our view,  Monta ez' role in the  smuggling operation          can best be described as  average.  He carried several suitcases,          purchased two plane tickets, and passed  along some claim checks.          If the  sentencing judge,  who is better  situated to  assess the          facts of  the case, found  Monta ez' actions more than  minor, we          cannot,   on   these   facts,    convincingly   find   otherwise.          Consequently,  we uphold the  district court's refusal  to adjust          Monta ez'  offense for  playing a  minimal or  minor role  in the          conspiracy.                    Affirmed.                    ________                                        ____________________          4    The  considerably large  amount  of  cocaine transported  by          Monta ez, who carried or controlled  at one point a large portion          of  the  twenty-nine   kilograms  of  cocaine  involved   in  the          conspiracy,  also   militates  strongly   against  any   downward          adjustment.  See United States v. Rodr guez Cort s, 949 F.2d 532,                       ___ _____________    ________________          547 (1st Cir. 1991).                                         -16-
