
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1534                                    UNITED STATES,                                      Appellee,                                          v.                                NANCY ESPERANZA MATIZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Rosenn,* Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Theodore L.  Craft, by  Appointment  of the  Court, for  appellant            __________________        Nancy Esperanza Matiz.            Geoffrey E.  Hobart, Assistant United  States Attorney,  with whom            ___________________        A.  John  Pappalardo, United  States Attorney,  and Jeffrey  A. Locke,        ____________________                                _________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                   January 4, 1994                                 ____________________        _____________________        *Of the Third Circuit, sitting by designation.                       ROSENN,  Senior Circuit  Judge.   Appellant  Nancy                                ______________________             Esperanza Matiz  was tried  to a jury  and convicted  in the             United   States   District   Court  for   the   District  of             Massachusetts  for  conspiracy  to possess  with  intent  to             distribute five or  more kilograms of cocaine,  in violation             of  21 U.S.C.      841(a)(1)  and 846.    Matiz appeals  her             conviction and  argues that:   (1)  the evidence  introduced             against her was  insufficient to support the  guilty verdict             returned by the jury, (2) her  conviction should be reversed             on the grounds that the Government's conduct was outrageous,             and (3) the  district court erred in  enhancing her sentence             for obstruction of justice pursuant to   3C1.1 of the United             States Sentencing Guidelines.  We affirm.1                                               I.                       This case arose out of a large scale investigation             conducted by  various  government  agencies  in  the  United             States  and  Colombia,  South   America  into  the   cocaine             distribution activities  of a  number of  individuals.   The             United States Government (the Government) had the assistance             of Pedro Alvarez, a defendant in another criminal matter.                                              ____________________             1The district  court possessed  subject matter  jurisdiction             pursuant to 18  U.S.C.   3231.  This  court has jurisdiction             pursuant to 28 U.S.C.   1291 and 18 U.S.C.   3742 (a)(2).                                         -2-                                          2                       Alvarez, at the behest of the Government, posed as             a purchaser and  contacted a number of  cocaine suppliers in             Colombia.      Negotiations  ensued   over   several  months             pertaining to the  purchase of large quantities  of cocaine.             In  the  early  part  of  1991,  the  suppliers in  Colombia             informed  Alvarez  that  they  were  experiencing  temporary             difficulties  in  smuggling  the  cocaine  into  the  United             States.   In light of these difficulties, they asked Alvarez             to  assist them in transporting the shipment.  Additionally,             the  suppliers asked  Alvarez to  store  and distribute  the             cocaine to their associates.                       The Government told Alvarez to request an up-front             payment   of   $30,000  for   his  troubles   and  expenses.             Reluctantly, the suppliers agreed and informed  Alvarez that             the payment  would be made  by one of  their New  York based             associates,  "La  Negra,"  a  code  name  for  Matiz.    The             suppliers gave Alvarez  "La Negra's" beeper number  and code             phrase for communication with her.                       Alvarez and  Matiz ultimately scheduled  a meeting             for May  23, 1991, for  Matiz to hand  over the money  to an             associate of Alvarez, actually Special Agent Dominick Lopez,             at a Burger  King restaurant  in Queens, New  York.  At  the             scheduled hour, Matiz,  along with an associate  named Diaz,                                         -3-                                          3             drove to  the meeting place  in a Nissan Pathfinder.   After             Lopez entered the vehicle, Matiz  instructed Diaz to get the             money.  Diaz retrieved the money  from under the seat of the             automobile and passed it to Matiz who then gave it to Lopez.             The  sum,  however,  amounted  to  only  $20,000  and  Matiz             promised to make  an additional payment  of $5,000 the  next             day, explaining that  she had been told that  the amount due             was $25,000.                       After  this  exchange,  Matiz  remained  in  close             contact with  Alvarez.    She  informed  him  that  she  was             personally  expecting  to  receive a  large  portion  of the             cocaine  shipment  upon  its  arrival.    The  suppliers  in             Colombia  confirmed this  information both  in conversations             with Alvarez and in facsimile messages sent to him.  T  h  e             shipment  consisting of  615  kilograms of  cocaine  finally             arrived in the  United States on June  4, 1991.  On  June 5,             1991,  the suppliers  sent Alvarez  written  instructions by             facsimile from  Colombia regarding  the distribution  of the             cocaine.   The  instructions  directed  that, among  others,             Matiz should receive 51 1/2 kilograms of the cocaine.                          Alvarez telephoned Matiz on  numerous occasions to             discuss  the details  of the  pickup of  her portion  of the             cocaine.   During  these conversations, Matiz  expressed her                                         -4-                                          4             desire  to obtain  her portion  of  the cocaine  as soon  as             possible.    Initially,  she  also  voiced  an  interest  in             purchasing some of the cocaine that Alvarez had received  as             his  fee for transporting the cocaine.  Ultimately, however,             she decided against it because of financial constraints.                       Finally, Alvarez informed Matiz that  she would be             able to pick up her portion of the cocaine on June 12, 1991.             He   reserved  a  hotel   room  for  Matiz   in  Middleboro,             Massachusetts near the site for the transfer of the cocaine.             Matiz  and Diaz  arrived at  the  hotel on  June 10.    In a             continued effort  to conceal their identities,  they checked             into the hotel using fictitious names and addresses.                         The following  evening, Alvarez and  Special Agent             Dillon   met  Matiz  at  the  hotel   to  review  the  final             arrangements  for  the   pickup.      A  number  of  Matiz's             assistants, who  had arrived at the hotel on the same day as             Matiz, were designated to collect the cocaine.  Also, during             this  meeting, Agent Dillon  gave Matiz a  facsimile message             from the suppliers that they sent to Alvarez instructing her             to deposit  the purchase  price for  the cocaine  in various             accounts  in branches  of the Chase  Manhattan Bank  and the             Central Bank in Miami.                                           -5-                                          5                       At   the  time  of  the  pickup,  one  of  Matiz's             assistants followed  an undercover  agent  to the  warehouse             where the  car was loaded.  Matiz,  however, remained behind             at  the  hotel with  another  undercover  agent who  was  to             accompany her to a meeting  with Alvarez.  On the  way, they             decided  to purchase a bottle  of champagne to celebrate the             deal.    Upon arriving at the  liquor store, an agent placed             Matiz under arrest.                                        II.                             A.  Sufficiency of the Evidence                       Matiz  first  disingenuously   contends  that  the             evidence produced at trial does not show that she knew of or             participated in the conspiracy.  Rather, she claims that she             "recklessly made  a loan  to her friend."   In  evaluating a             claim  of  insufficiency  of the  evidence,  we  "review the             evidence as  a whole,  including  all reasonable  inferences             from  that evidence,  in  the light  most  favorable to  the             government."   United States  v. Argencourt, 996  F.2d 1300,                            ____________________________             1303  (1st  Cir.  1993).    In  addition,  both  direct  and             circumstantial  evidence must be credited on appeal.  United                                                                   ______             States v.  Echeverri, 982  F.2d  675, 677  (1st Cir.  1993).             ____________________             Thus, as long as a jury could rationally find guilt beyond a                                         -6-                                          6             reasonable doubt, we  must affirm.  Argencourt, 996  F.2d at                                                 __________             1303.                          Matiz  is unable to overcome the very heavy burden             that a claim  of insufficiency of evidence  places upon her.             There  is  an  abundance of  evidence  that  Matiz knowingly             participated  in  the  conspiracy   to  distribute  cocaine.             Granted, Matiz's role initially was to supply Alvarez with a             payment  of money.  That payment, however, was intrinsically             linked to the drug conspiracy to  smuggle illicit drugs into             the United States.  The advance payment would facilitate the             transportation  of the cocaine.  In addition, the Government             presented evidence at trial that Matiz spoke to Alvarez over             thirty times, in  code, with respect to the  shipment of the             cocaine.    Moreover, the  facsimile from  the suppliers  in             Colombia  noted that Matiz was  an intended recipient of the             cocaine.                       Finally, Matiz  organized and directed  the pickup             operation in Massachusetts.  Although she herself did not go             down to load the cocaine, she  sent an assistant of hers  to             do  the task.    The  jury simply  did  not believe  Matiz's             incredible story concerning  her lack of involvement  in the             conspiracy.  Because of the abundance of evidence supporting             the jury's verdict, this challenge is rejected.                                         -7-                                          7                            B.  Outrageous Government Misconduct                       Matiz  next contends that her conviction should be             overturned because the  Government's conduct throughout  the             course   of   the   investigation   constituted   outrageous             misconduct  in violation  of  her Due  Process rights.   Her             claim essentially rests  on the  Government's initiation  of             the transaction, the arranged transportation of  the cocaine             into  the country, and  its delivery to  various individuals             including herself.                         Law  enforcement  conduct  runs afoul  of  the Due             Process  Clause  of  the Fifth  Amendment  when  it violates             "fundamental fairness,  shocking to  the universal  sense of             justice."   United  States  v. Russell,  411  U.S. 423,  432                         __________________________             (1973) (quoting Kinsella v. United States ex rel. Singleton,                             ___________________________________________             361  U.S. 234,  246 (1960)).    See also  Hampton v.  United                                             ___ ____  __________________             States,   425   U.S.  484,   491-95   (1976)  (Powell,   J.,             ______             concurring);  id.  at  495-500  (Brennan,  J.,  dissenting);                           __             United States v. Twigg, 588 F.2d 373, 381 (3d Cir. 1978).             ______________________                        This court  has reviewed  many claims  similar to             the  one advanced here  and has consistently  rejected them.             See, e.g., United  States v. Santana,       F.3d     1993 WL             ___  ____  _________________________   ___       __             345746 (1st Cir.  1993); United States v.  Barnett, 989 F.2d                                      _________________________             546,  560 (1st  Cir.),  cert. denied,  114 S.Ct  148 (1993);                                     ____________                                         -8-                                          8             United States v. Marino, 936 F.2d 23, 26-27 (1st Cir. 1991);             _______________________             United States  v. Panitz, 907  F.2d 1267, 1272-73  (1st Cir.             ________________________             1990).  We  have recognized that in these  modern times with             advanced  technology and  transportation facilities  readily             available to criminals, drug  conspiracies, especially of an             international   character,   are  extremely   difficult   to             penetrate  and  therefore   enforcement  ingenuity  must  be             encouraged and greater government involvement allowed.   See                                                                      ___             Barnett, 989 F.2d  at 560;  Panitz,  907 F.2d at 1273.   The             _______                     ______             extent  of  government   involvement  here,  initiating  the             transaction and transporting and  delivering the cocaine, is             no more  excessive than  government actions  that have  been             upheld  in other  cases.    See Panitz,  907  F.2d at  1273;                                         ___ ______             Marino, 936 F.2d at 27.             ______                       Law   enforcement   conduct   does   not   violate             fundamental fairness when government officials do not foment             crime,  cf.  Twigg,  588  F.2d  at  381,  but  resourcefully                     ___  _____             penetrate  an existing  drug  ring  and  engage  in  limited             participation   in   their   unlawful  practices.      "Such             infiltration  is  a  recognized  and  permissible  means  of             investigation; if that  be so, then the supply  of some item             of  value that  the drug  ring requires  must, as  a general             rule, also be permissible."  Russell, 411 U.S.  at 432.  The                                          _______                                         -9-                                          9             record demonstrates that Matiz was an important figure in an             organized  conspiracy  to smuggle  illicit  drugs into  this             country and distribute  them.  When the  Colombian suppliers             needed  money  to  facilitate  the  transportation  in  this             country, they turned to her.  The suppliers' instructions to             their associates in this country also filtered through her.                       The  Government did not  entice Matiz  to purchase             and  distribute  cocaine.    She  already  had  an  existing             arrangement with  her  suppliers  in  Colombia  and  eagerly             sought a substantial  share of the smuggled drug  load after             it reached this country.  Government agents never sought her             out; the Colombian  suppliers arranged to have  Alvarez meet             her.   The  Government,  at the  request  of the  suppliers,             merely facilitated the transportation of the drugs into this             country  and Matiz freely joined  in the arrangements and in             acquiring   a  share  of  the  contraband.    Moreover,  the             Government  did not take  part in processing,  packaging, or             labelling any of the 615 kilograms of cocaine.  Furthermore,             they delivered  the cocaine to individuals  predetermined by             the suppliers.   We do not believe  that the conduct of  the             agents employing guile, deception, and clever  stratagems in             infiltrating the Colombian drug ring and communicating  with             Matiz at the direction of  the suppliers to obtain funds for                                         -10-                                          10             the  transportation of the drugs to this country constituted             outrageous  and impermissible conduct.  See Panitz, 907 F.2d                                                     ___ ______             at 1273.                       As an  alternative to vacating  Matiz's conviction             based  on  the  Government's violation  of  her  Due Process             rights, Matiz requests  that this court use  its supervisory             power to reverse  her conviction.  Guided  by considerations             of justice, federal courts  may exercise on a limited  basis             their supervisory power  to "formulate procedural  rules not             specifically required  by the Constitution or the Congress."             United States  v. Hasting,  461 U.S. 499,  505 (1983).   The             _________________________             Supreme Court has recognized  only three legitimate purposes             for  the  exercise  of  a  court's  supervisory  power:  "To             implement  a remedy for  violation of recognized  rights, to             preserve judicial integrity, . .  . and finally, as a remedy             designed  to deter future  illegal conduct.   Id. (citations                                                           ___             omitted).      Neither of  these three bases  are applicable             to  the  case  sub judice.    As  discussed previously,  the                            __________             Government's  conduct was not outrageous, and Matiz fails to             show any specific violation of a statutory or constitutional             right.   Moreover preserving  judicial integrity  is only  a             basis for a court to  use its supervisory power to supervise             its  own  affairs,  not  the  affairs  of  other  government                                         -11-                                          11             branches.  The court's supervisory power does not "justify a             chancellor's foot veto  over activities of  coequal branches             of government."  Id. at 1089 (citations omitted).  Since the                              ___             conduct alleged by  Matiz to be outrageous  occurred outside             the  courtroom,  judicial  integrity  is  not  at  risk  and             therefore cannot  be used as a  basis for a court  to invoke             its supervisory  power.  See id.    Finally, since there was                                      ___ ___             no past illegal  conduct on the part of  the Government with             respect to Matiz, we could  not use our supervisory power to             deter  it from  engaging in  future,  illegal conduct.   See                                          ______                      ___             United  States v.  Simpson, 927  F.2d 1088,  1091 (9th  Cir.             __________________________             1991).   Thus,  the  use  of our  supervisory  power is  not             warranted under the present facts.                       C.  Enhancement for Obstruction of Justice                       Finally,  Matiz  presents  two  challenges to  the             district court's enhancement of her sentence for obstruction             of  justice  pursuant  to  U.S.S.G.     3C1.1.    Her  first             challenge is that the district court failed to make specific             findings necessary to establish perjury.                        Section  3C1.1  requires  a  sentencing  court  to             enhance a defendant's sentence level by two points "[i]f the             defendant willfully  obstructed or impeded,  or attempted to             obstruct or impede, the administration of justice during the                                         -12-                                          12             . .  . prosecution  . .  .   of the  instant offense."   The             commentary to   3C1.1 provides that committing perjury is an             example  of the  type of conduct  to which  this enhancement             applies. U.S.S.G.    3C1.1, comment (n. 3(b)).   The Supreme             Court  has stated  that  a  witness  testifying  under  oath             commits perjury if  "she gives false testimony  concerning a             material matter  with the  willful intent  to provide  false             testimony, rather than as a result of confusion, mistake, or             faulty memory."  United States v. Dunnigan, 113 S. Ct. 1111,                              _________________________             1116 (1993).   An enhancement for  obstruction of justice is             sufficiently  supported where  a  sentencing  court makes  a             finding  "that encompasses all of the factual predicates for             a  finding of perjury".  Id. at 1117.  At Matiz's sentencing                                      __             the court made the following finding:                         I  don't need  to  address the  issue of                       Ramirez.2  I  do not wish to  imply that                       a defendant  does not  have  a right  to                       testify.      I  make   an   independent                       determination here that I simply did not                       credit Ms. Matiz' testimony when she did                       testify.  It's  my determination that  I                       do  not believe her.  I believe that she                       knowingly  told   a  false   story  and,                       accordingly,    will    overrule     the                                              ____________________             2The  court's  reference  to   "Ramirez"  concerns  evidence             presented at  trial that Matiz used an alias, Maria Ramirez.             On  cross-examination, Matiz  denied  using the  alias, even             though a social security card and an apartment lease bearing             that name  were  found  in  her diary.    Additionally,  her             landlord identified her as the woman he knew as Ramirez.                                         -13-                                          13                       objection.  It's  appropriate to have an                       upward  adjustment  for  obstruction  of                       justice in this case.             The  court  also stated  that  it "finds  the  defendant did             commit perjury."                       The findings encompass all the elements of perjury             --  falsity,  materiality, and willfulness.  The only matter             about which the court was  not explicit was whether  Matiz's             testimony was material.  A sentencing court, however, is not             required to address  each element of  perjury in a  separate             and clear finding.  See id.  In fact, the Court  in Dunnigan                                 ______                          ________             affirmed a  district court's  finding that  did not  use the             term willful.3  Id. at 1113.  Dunnigan  only requires that a                             ___           ________             sentencing  court's  findings encompass  all of  the factual             predicates for a finding of perjury.                                                ____________________             33The finding at issue in Dunnigan stated:                                        ________                       The court finds  that the defendant  was                       untruthful  at  trial  with  respect  to                       material  matters in  this  case.   [B]y                       virtue of her  failure to give  truthful                       testimony on material  matters that were                       designed  to  substantially  affect  the                       outcome of the case, the court concludes                       that  the   false  testimony   at  trial                       warrants  an  upward adjustment  by  two                       levels.             Dunnigan, 113 S.Ct. at 1117.             ________                                         -14-                                          14                          Moreover, the record  demonstrates that Matiz's             false  testimony denying  knowledge of and  participation in             the conspiracy was  material.  If  believed, the jury  would             have acquitted her.  Thus,  we can make the determination of             materiality on  our own  without remanding  to the  district             court.   See  United States  v.  Arias-Villanueva, 998  F.2d                      ___  ___________________________________             1491, 1513 (9th Cir.), cert.  denied, 114 S. Ct. 359 (1993).                                    _____________             Therefore,  the challenge to the district court's failure to             make specific findings is rejected.                         Matiz  also  contends   that  the  district  court             erroneously found that she committed perjury inasmuch as the             record  contains no  evidence  of  material  untruths.    In             reviewing a court's application of the sentencing guidelines             to facts of  a case, we use a  "clearly erroneous" standard.             See United States  v. Wright, 873 F.2d 437  (1st Cir. 1989).             ___ ________________________             We perceive  no  clear error;  on the  contrary, the  record             overwhelmingly supports the district court's finding.                         Throughout her  testimony, Matiz  argued that  she             merely loaned money  to a friend and that  she was otherwise             unconnected  to  the  drug  conspiracy.     The  Government,             however,  rebutted  her  explanation  and  proved  at  trial             through  the use of recordings and testimony from Government             agents that  she  was  intimately   connected  to  the  drug                                         -15-                                          15             conspiracy.   Thus, we  cannot say that  the district  court             committed error in finding that Matiz perjured herself.                                         III.                       In  sum, we  conclude  that:    (1)  the  evidence             introduced  against  Matiz  was sufficient  to  support  the             guilty verdict  returned by  the jury,  (2) the  Goverment's             conduct was not outrageous, and  (3) the district court  did             not  err  in  enhancing  her  sentence  for  obstruction  of             justice.                       The judgment of the district court is                        Affirmed.                       _________                                         -16-                                          16
