
USCA1 Opinion

	




          March 31, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2324                                    UNITED STATES,                                      Appellee,                                          v.                                LUIS DUQUE-RODRIGUEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                 ____________________            William G. Small for appellant.            ________________            Jeffrey  A. Locke, Assistant  United States Attorney, with whom A.            _________________                                               __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                 ____________________                       BREYER, Chief Judge.  Luis Duque Rodriguez appeals                               ___________             from a  drug conspiracy  conviction, 21 U.S.C.    841(a)(1),             and ten year prison  sentence.  After reading the  record in             the case, we find his arguments unconvincing, and we  affirm             the district court.                       The  record  would permit  the  jury  to find  the             following facts:                       1.   In  1990  the FBI  caught  a major  Colombian                            cocaine  dealer, Pedro Alvarez, who agreed to                            help the FBI catch others.                       2.   Alvarez,  on  FBI  instructions,   ordered  a                            shipment of about half  a ton of cocaine from                            Colombia.   The  Colombian dealers  sent  the                            cocaine to Massachusetts.   They also  sent a                            fax  to  what (in  fact)  was  an FBI  office                            saying,  among  other   things,  that   about                            fifteen  pounds  of   the  cocaine  was   for                            "Victor,"  whom Alvarez  identified as  a New                            York dealer, Luis Zapata.                       3.   On  June 6,  1991, Alvarez told  Zapata about                            the shipment.                         4.   Four days later, Zapata hired Duque  to drive                            him to Massachusetts in Duque's van.  The two                            spent the night  of June 10  at a Fall  River                            hotel,  where Antonio  Dillon,  an FBI  agent                            (masquerading  as  Alvarez's  associate)  had                            reserved them a room.  On June 11, Zapata met                            Dillon and  told him  that he had  "brought a                            friend  with him  to help  him take  the load                            back to New York."                         5.   On the morning of June 12, Dillon, Zapata and                            Duque met  at the hotel.   Dillon spoke about                            other  shipments and  the need  for security.                            Duque  agreed  that  security was  important.                            Dillon  led Zapata and Duque (in Duque's van)                            to a warehouse.                              a)   A  film of  the events,  supplemented by                                 testimony  of two  FBI  agents who  were                                 present, shows that  Duque's van  backed                                 into the warehouse, Duque got out of the                                 van,  watched two men open a white sack,                                 looked  at  bricks  of  cocaine  inside,                                 waited   while  Zapata   loaded  several                                 cocaine bricks into storage compartments                                 built into the rear of the van, took two                                 bricks himself from the bag and put them                                 in a compartment  under the  passenger's                                 seat, and shut the van door.                             b)   Dillon  testified   that,  during  these                                 events,  Duque  said, "We've  been using                                 the van; however,  I need to  . . .  pay                                 for a secret . . . compartment to be put                                 into   the   van    which   will    hold                                 approximately fifty . . . ."                       6.   The FBI then arrested Duque and Zapata.                       Duque makes four arguments on this appeal.  First,             he says that there was insufficient evidence for the jury to             conclude that he knew he was dealing with drugs.  He  points             to  his own testimony that  Zapata paid him  only $1,000 for             the  trip and to a  legal rule that  prohibits conviction on             the basis of an uncorroborated confession with nothing more.             Wong Sun v. United States, 371 U.S. 471, 488-89 (1963).  The             ________    _____________             jury,  however, was  free  to disbelieve  Duque's  testimony             about his state of mind.   It could easily believe  that the             amount of payment, even if low, was not sufficient to offset                                         -3-                                          3             other  evidence of  Duque's  knowing involvement.   And  the             record contained much corroboration  -- a film showing Duque             loading  cocaine, for example -- that makes the rule of Wong                                                                     ____             Sun inapplicable.   Cf. United States  v. Guerrero-Guerrero,             ___                 ___ _____________     _________________             776  F.2d  1071,  1075  (1st Cir.  1985)  (jury  could  have             concluded  beyond reasonable doubt  that members  of sailing             vessel's crew knew that vessel contained marijuana, in light             of reasonable inference that smugglers were counting on crew             to  unload hundreds  of  heavy drug-laden  sacks on  board),             cert. denied, 475 U.S. 1029 (1986).             ____________                       Second, Duque asks us  to set aside his conviction             on the ground  that the  government behaved  "outrageously."             United States  v. Russell,  411  U.S. 423  (1973); see  also             _____________     _______                          _________             Hampton  v.  United  States,  425 U.S.  484,  491-95  (1976)             _______      ______________             (Powell, J.,  concurring);  id.  at  495-500  (Brennan,  J.,                                         ___             dissenting).   Duque should  have raised this  matter before             trial.   Fed.  R. Crim.  P. 12(b)(1),  12(f).   But,  in any             event,  the argument  is not  substantial.  Duque  rests his             argument upon his  claim that the  government here gave  its             informer, Pedro  Alvarez, more  than five hundred  pounds of             cocaine.   Duque  points to  an FBI  agent's testimony  that             275.5 kilograms  were earmarked for Alvarez  himself "as his             profit for assisting in the operation," or as "a fee for . .                                         -4-                                          4             . arranging  the transport, importation of  the cocaine into             the  United States."    In context,  however, this testimony             refers to the fact that the Colombian dealers, thinking that             Alvarez was a drug  broker, told Alvarez that he  could keep             this amount as a broker's commission.  Nothing in the record             suggests  that  the  government  intended  to   let  Alvarez             actually  keep the drugs  or that he did  so.  Thus, Duque's             argument comes down to a claim that the government was wrong             to use the  drugs in a "sting" operation.   This circuit has             made  clear, however, that a drug "sting" does not amount to             "outrageous" government  conduct.  United States  v. Panitz,                                                _____________     ______             907  F.2d  1267, 1273  (1st  Cir.  1990); United  States  v.                                                       ______________             Porter, 764 F.2d 1, 8-9 (1st Cir. 1985).               ______                       Third, Duque  points out that  the district  court             sentenced him on the basis of nine kilograms of cocaine.  He             says that the court  should have sentenced him on  the basis             of less than five kilograms.  The court, however, could have             believed  that he  intended to  transport nine  kilograms of             cocaine, for Duque saw nine kilograms  being loaded into his             van.                         Fourth, Duque  argues that the  court should  have             sentenced  him  as a  "minimal,"  rather than  as  a "minor"             participant.   See U.S.S.G.  3B1.2.   On our  view, however,                            ___                                         -5-                                          5             the  court could have believed that Duque's role as a driver             was more significant  than that  of a minor  "courier" in  a             small  operation,  id.  at    3B1.2,  comment  (nn.1  &  2),                                ___             particularly   since  his   van  seemed   to  have   special             compartments that  he said  he intended  to modify  to carry             larger shipments.  We recognize that his comparatively small             compensation ($1,000) argues in  favor of a greater downward             adjustment, but the size of  the operation argues the  other             way.   These matters are  primarily for the  district court,             United States v.  Figueroa, 976  F.2d 1446,  1461 (1st  Cir.             _____________     ________             1992),  cert. denied, 61 U.S.L.W. 3584 (U.S. 1993).  And, we                     ____________             can  find no  legal error  in that  court's exercise  of its             judgment.  Id. at 1462 (rejecting claim that district  court                        ___             should  have found  defendant  to be  "minimal" participant,             rather than "minor" one); United States v. Tabares, 951 F.2d                                       _____________    _______             405,  410 (1st  Cir. 1991)  (district  court's determination             that  defendant  was  a   "minor"  participant  rather  than             "minimal"  one   not  clearly  erroneous,  where   based  on             reasonable inferences drawn from undisputed facts).                       We  find the appellant's  remaining issues without             merit.  See, e.g., United States v. Zannino, 895  F.2d 1, 17                     _________  _____________    _______             (1st Cir.  1990) (issues adverted to  in perfunctory manner,                                         -6-                                          6             unaccompanied by effort  at developed argumentation,  deemed             waived).                       The judgment of the district court is                       Affirmed.                       ________                                         -7-                                          7
