
USCA1 Opinion

	




          June 12, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1688                                    UNITED STATES,                                      Appellee,                                          v.                                  VICTOR SERNA-VEGA,                                Defendant - Appellant.                                 ____________________          No. 94-1689                                    UNITED STATES,                                      Appellee,                                          v.                                ANGEL RAMOS-SANTIAGO,                                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                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               Carlos   A.   V zquez-Alvarez,   Assistant  Federal   Public               _____________________________          Defender,  with  whom   Benicio  S nchez-Rivera,  Federal  Public                                  _______________________          Defender, was on joint  brief for appellant Angel Ramos-Santiago;          and  Jorge  E. Rivera-Ortiz,  by  Appointment of  the  Court, for               ______________________          appellant V ctor Serna-Vega.               Lisa  A. Kahn,  Attorney, Department  of Justice,  with whom               _____________          Guillermo  Gil,  United  States  Attorney,  and  Warren  V zquez,          ______________                                   _______________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________                                         -4-                    Per  Curiam.   Defendants Victor  Serna-Vega and  Angel                    Per  Curiam                    ___________          Ramos-Santiago were each charged with  one count of conspiracy to          possess  with  intent  to  distribute approximately  one  hundred          kilograms  of cocaine, and one count of possession with intent to          distribute  eleven kilograms  of  cocaine.   Serna-Vega was  also          charged  with two counts of using a telephone in facilitating the          drug  conspiracy.   Following  a  six-day trial,  the  jury found          Serna-Vega guilty on  all counts.  The jury  found Ramos-Santiago          guilty  on the substantive possession count and not guilty on the          conspiracy count.   Serna-Vega  was  sentenced to  235 months  in          prison and Ramos-Santiago was sentenced  to 120 months in prison.          Both defendants appeal their convictions, and Serna-Vega  appeals          his sentence.  For the reasons stated herein, we affirm.                                      BACKGROUND                                      BACKGROUND                                      __________                    The facts  are presented in the light most favorable to          the verdict.  United States v.  Echeverri, 982 F.2d 675, 676 (1st                        _____________     _________          Cir. 1993).  In early March 1993, Drug Enforcement Agency ("DEA")          Special  Agent   Jefferson   Mor n  ("Agent   Mor n")   and   DEA          confidential informant Freddy V lez-Torres ("V lez-Torres") began          negotiations with H ctor Ayala-Rodr guez ("Ayala-Rodr guez"), the          owner of a  car dealership in Gu nica,  Puerto Rico, to  sell him          one hundred kilograms of cocaine.  At  the first meeting in which          the  drug transaction  was discussed,  Ayala-Rodr guez introduced          appellant  Victor Serna-Vega  ("Serna-Vega")  as his  "right-hand          man."  Serna-Vega was present for most of the subsequent meetings                                         -3-          where the  drug transaction was discussed, and  he conducted some          of the early negotiations with the government agents.                    V lez-Torres  and  Agent  Mor n  --  whom  V lez-Torres          introduced as his Colombian partner -- visited the car dealership          on June  14, 1993.  In a conversation recorded by Agent Mor n, he          and  Ayala-Rodr guez discussed  the logistics for  completing the          drug  transaction, including who would pick up the drugs.  Serna-          Vega was present for this discussion.                    V lez-Torres testified that he met with Ayala-Rodr guez          and  Serna-Vega at  the  car dealership  on  June 22,  1993,  and          discussed the final plans for the drug transaction.  He testified          that he asked Ayala-Rodr guez whether they were interested in the          hundred  kilos and  Ayala-Rodr guez responded,  "Yes, yes,  as we          have  been from  the start."   They  agreed that  the transaction          would occur the next day.                    On the morning of  June 23, V lez-Torres met Serna-Vega          and  appellant  Angel  Ramos-Santiago  ("Ramos-Santiago")   at  a          restaurant  in Caguas,  Puerto  Rico.   Serna-Vega called  Ayala-          Rodr guez on a cellular phone and informed him that  V lez-Torres          had  arrived.   Ayala-Rodr guez told  Serna-Vega to  bring V lez-          Torres to  the TMT pier in  Isla Grande where he  was waiting for          two cars from  the United States to  use to transport the  drugs.          Serna-Vega and  Ramos-Santiago drove to the  pier in Serna-Vega's          car and V lez-Torres followed.                    After meeting with Ayala-Rodr guez at the  pier, Serna-          Vega,  Ramos-Santiago,  and  V lez-Torres  went  with  him  to  a                                         -4-          restaurant in Isla Verde.  They discussed how they would complete          the drug  transaction with only  three cars.1   Serna-Vega stated          that  three cars would be sufficient because one could hold fifty          kilos in its trunk and the other two could hold twenty-five kilos          each.    Ramos-Santiago  reminded  Ayala-Rodr guez  that  he  had          promised Ramos-Santiago one kilo of cocaine for his assistance in          the transaction.                    After about an hour,  V lez-Torres drove each member of          the group individually  to a  Holiday Inn where  agent Mor n  and          other DEA agents were waiting.   As each of the four  individuals          arrived at  the Holiday Inn, agent Mor n led them, one by one, to          a  designated room where a transaction  involving eleven kilos of          cocaine was  completed.   The transactions  were recorded by  the          government on both audio and videotape, which were played for the          jury.   The individuals were placed under arrest as they departed          the hotel room.                                      DISCUSSION                                      DISCUSSION                                      __________                    The  defendants raise a host  of issues on  appeal.  We          address their arguments seriatim.                                          I.                                          I.                    Ramos-Santiago   argues   that    the   evidence    was          insufficient to support his conviction for possession with intent          to  distribute approximately  eleven kilograms  of cocaine.   See                                                                        ___          Fed. R. Crim. P. 29.  He bears "the heavy burden of demonstrating                                        ____________________          1   Ayala-Rodr guez had informed  them at the  pier that the  two          cars he was waiting for were not going to be delivered.                                         -5-          that  no reasonable jury could  have found [him]  guilty beyond a          reasonable doubt."   United States  v. Innamorati, 996  F.2d 456,                               _____________     __________          469 (1st Cir.),  cert. denied, 114 S. Ct. 409  (1993).  We review                           ____________          the  evidence  in the  light  most favorable  to  the government,          "drawing all plausible inferences in its favor  and resolving all          credibility determinations in line with the jury's verdict."  Id.                                                                        __                    The evidence adduced at trial was sufficient to sustain          the verdict.   DEA  informant V lez-Torres testified  that Ramos-          Santiago was  present approximately an hour  before the scheduled          pick-up during a discussion concerning the logistics of splitting          up the cocaine among the three cars.  V lez-Torres testified that          Ramos-Santiago reminded Ayala-Rodr guez  during this meeting that          he had  promised  Ramos-Santiago  one kilo  of  cocaine  for  his          assistance in the transaction.   V lez-Torres also testified that          he and Ramos-Santiago drove  together to the Holiday Inn  for the          pick-up,   and   that   Ramos-Santiago  questioned   V lez-Torres          concerning  which car  he was  supposed to  use to  transport the          cocaine.  Finally, the jury viewed an audio and videotape showing          Ramos-Santiago receiving  eleven kilos of cocaine  at the Holiday          Inn.   From  this evidence,  a reasonable  jury could  infer that          Ramos-Santiago knowingly  and intentionally possessed  the eleven          kilograms of cocaine.   See  United States v.  Akinola, 985  F.2d                                  ___  _____________     _______          1105, 1109  (1st Cir. 1993).  The jury could also infer, from the          quantity  of   cocaine  involved,   that  it  was   intended  for          distribution.   See, e.g., United States v. Vargas, 945 F.2d 426,                          ___  ____  _____________    ______          429 (1st Cir.  1991) (possession  of one kilogram  of cocaine  is                                         -6-          sufficient  quantity to  support jury inference  that it  was not          intended  merely for  personal  consumption).   The evidence  was          therefore sufficient for the jury to conclude beyond a reasonable          doubt that Ramos-Santiago  knowingly and intentionally  possessed          eleven kilograms of cocaine with the intent to distribute it.                                         II.                                         II.                    Serna-Vega  argues  that  the district  court  erred in          admitting certain  co-conspirator statements  into evidence.   An          out-of-court statement by a co-conspirator  is not hearsay if the          government established  by a  preponderance of the  evidence that          the defendant and the declarant were members of a conspiracy when          the  statement  was  made and  that  the  statement  was made  in          furtherance of the  conspiracy.  See  United States v.  McCarthy,                                           ___  _____________     ________          961  F.2d 972,  977  (1st Cir.  1992)  (citing United  States  v.                                                         ______________          Petrozziello, 548 F.2d  20, 23  (1st Cir. 1977));  Fed. R.  Evid.          ____________          801(d)(2)(E).    We need  not  determine  whether the  challenged          statements  in  this   case  are  admissible  as   co-conspirator          statements, however,  because we conclude  that they are,  in any          case,  admissible as  admissions by a  party.   See Fed. R. Evid.                                                          ___          801(d)(2)(A)  (an  admission  offered  against  a  party  is  not          hearsay).                    We  generally review  a  district  court's decision  to          admit or exclude evidence under an abuse  of discretion standard.          United States v. Tuesta-Toro,  29 F.3d 771, 775 (1st  Cir. 1994),          _____________    ___________                                         -7-          cert. denied,  115 S.  Ct.  947 (1995).2   We  find  no abuse  of          ____________          discretion in this case.  Serna-Vega specifically challenges only          two statements.   First, he  challenges the  testimony of  V lez-          Torres  that  Serna-Vega  said:  "Look,  Ayala,  if  he  has  the          capacity, ask for a hundred, because fifty, I can distribute that          in two  or three days."   Second, he challenges  the testimony of          V lez-Torres  that Serna-Vega said that "the white car is so big,          has such  a big trunk, that  they could get fifty  kilos into it,          twenty-five in the Chevrolet  and twenty-five in the one  the old          man  has, and  there's  your  hundred."   These  statements  were          contrary to  Serna-Vega's  position during  trial.   Accordingly,          they were  admissible through V lez-Torres  as admissions against          interest under Federal Rule of Evidence 801(d)(2)(A).  See United                                                                 ___ ______          States v. Palow, 777 F.2d 52, 56 (1st Cir. 1985).3          ______    _____                                         III.                                         III.                    Serna-Vega argues that the  district court erred in not          providing a multiple conspiracy jury instruction.  Serna-Vega did                                        ____________________          2   We review a  district court's  decision whether to  admit co-          conspirator  statements  pursuant  to Federal  Rule  of  Evidence          801(d)(2)(E), however, under a clearly erroneous standard because          the decision is  predicated on  the court's findings  of fact  in          applying  the Petrozziello test (supra).   See McCarthy, 961 F.2d                        ____________       _____     ___ ________          at 977; United  States v. Patterson, 644 F.2d 890,  894 (1st Cir.                  ______________    _________          1981).          3    Serna-Vega  alludes   generally  to  other  alleged  hearsay          statements, but  does not  specifically  identify any  challenged          statements.  We cannot  conduct effective appellate review of  an          evidentiary  ruling  admitting  co-conspirator statements  absent          reference to the challenged statement.   United States v. Isabel,                                                   _____________    ______          945  F.2d 1193,  1199 (1st  Cir. 1991).   Accordingly,  we reject          appellant's  general arguments  with  respect to  alleged hearsay          statements.                                         -8-          not request such a jury charge, nor did he object  to the court's          instructions.     Consequently,  he   has  the  high   burden  of          establishing that  the trial court's  failure to give  a multiple          conspiracy  charge amounted to "plain  error."  See United States                                                          ___ _____________          v. Griffin, 818  F.2d 97, 100 (1st Cir.), cert.  denied, 484 U.S.             _______                                _____________          844 (1987); Fed.  R. Crim. P. 52(b).  Plain  errors are "those so          shocking that they seriously  affect the fundamental fairness and          basic  integrity of the proceedings."  United States v. Alvarado,                                                 _____________    ________          982 F.2d 659,  663 (1st Cir. 1992).  It  follows that such errors          will be  noticed only  in  "exceptional cases  or under  peculiar          circumstances  to  prevent  a  clear  miscarriage   of  justice."          Griffin, 818 F.2d at  100 (quoting Nimrod v. Sylvester,  369 F.2d          _______                            ______    _________          870, 873 (1st  Cir. 1966)); United  States v. Ocasio-Rivera,  991                                      ______________    _____________          F.2d 1,  3 (1st Cir. 1993).   The test  for plain error,  in this          context, is whether there  is a prejudicial variance between  the          conspiracy charged in the indictment and  the evidence adduced at          trial.   See United States v.  Thomas, 895 F.2d 51,  55 (1st Cir.                   ___ _____________     ______          1990).   A variance will be deemed prejudicial only if it affects          the substantial rights of the accused.  Id.                                                  __                    The indictment charged a single conspiracy involving an          agreement  to  purchase  approximately one  hundred  kilograms of          cocaine.  The  government introduced evidence from which the jury          could infer that the negotiations for the purchase of the cocaine          took place over a period of several weeks, and that the object of          the  conspiracy was, at all  times, the eventual  transfer of one          hundred kilograms  of  cocaine.   There  was evidence  which,  if                                         -9-          credited by the  jury, established that  the conspiracy began  in          early  March 1993  when informant  V lez-Torres made  his initial          visit  to  Ayala-Rodr guez'  car  dealership.    The  jury  heard          testimony  that  Ayala-Rodr guez originally  offered  to purchase          fifty kilograms of cocaine, but that Serna-Vega encouraged him to          buy one  hundred kilograms.  Negotiations  between the appellants          and  the  government  agent continued  over  the  next few  days.          During  a taped  telephone conversation,  Serna-Vega told  V lez-          Torres that  Ayala-Rodr guez was  still interested  in purchasing          the cocaine they  discussed at  the initial meeting.   He  stated          further that  he wanted to buy  two kilos first as  a sample, and          that he  would  then  bring  together money  for  fifteen  kilos.          V lez-Torres testified that it was common in drug transactions of          this size  for the buyer to purchase a sample of the drugs before          making the final purchase.   He testified that the  conversations          regarding the two and fifteen kilos  were part of the larger deal          for one hundred kilos.                    The continuing negotiations  between the defendants and          the  government  agents  support  the  single  conspiracy charge.          V lez-Torres testified that Ayala-Rodr guez  showed him a deed to          his dealership property, a deed of sale for a house he owned, and          automobile  registration titles to establish that Ayala-Rodr guez          had  the necessary collateral  to complete  the large  scale drug          transaction.   Finally,  appellants took  three cars to  make the          scheduled  pick-up,  and  the  evidence  indicated   that  Ayala-          Rodr guez intended to have  a fourth car delivered to  help carry                                         -10-          the cocaine.   Serna-Vega assured  him that three  cars would  be          enough because one car  could carry fifty kilos and the other two          could carry twenty-five each.                    The  totality  of  the  evidence  indicates   a  single          conspiracy to purchase one hundred kilograms of cocaine.  We find          no prejudicial  variance between the indictment  and the evidence          adduced  at trial.  Accordingly, the court's failure to provide a          multiple conspiracy charge was not error, much less plain error.                                         IV.                                         IV.                    Serna-Vega  challenges two  findings  by  the  district          court with respect  to his  sentence.  First,  he challenges  the          district court's finding that  he was a manager or  supervisor of          the  possession offense  under    3B1.1(c) of  the  United States          Sentencing Guidelines.  We  review only for clear error.   United                                                                     ______          States v. Jadusingh, 12 F.3d 1162, 1169 (1st Cir. 1994).          ______    _________                    Under     3B1.1,  a  sentencing court  may  increase  a          defendant's  base offense  level by  two  points if  the evidence          establishes  that the crime involved  two or more  people and the          defendant "was  an organizer, leader, manager,  or supervisor" of          the  criminal activity.   An  enhancement is  appropriate if  the          evidence demonstrates that the  defendant "exercised some  degree          of  control over others involved in the commission of the crime."          Id.  (quoting United States  v. De La  Cruz, 996 F.2d  1307, 1315          __            _____________     ___________          (1st Cir.),  cert. denied,  __ U.S.  __, 114  S. Ct. 356  (1993))                       ____________          (other citation omitted).                                         -11-                    There was  ample evidence  presented in this  case from          which  the  sentencing  court   could  conclude  that  Serna-Vega          exercised  some supervisory  control  of others  involved in  the          criminal  activity.   Special Agent  Mor n testified  that Ayala-          Rodr guez   introduced  Serna-Vega   as  his   "right-hand  man."          Informant  V lez-Torres testified  that Ayala-Rodr guez  told him          that he wanted to buy fifty kilograms of cocaine, and that Serna-          Vega  suggested that  Ayala-Rodr guez ask  for one  hundred kilos          because Serna-Vega could  distribute fifty in two  or three days.          It was  Serna-Vega who conducted the initial  negotiations -- via          two recorded telephone conversations -- with V lez-Torres for the          purchase of the cocaine.  Finally, Serna-Vega was present for the          meeting in  which Ayala-Rodr guez  and Agent Mor n  discussed who          would pick up the  cocaine, and Serna-Vega objected to  a certain          person being included in the drug pick-up.                    The  evidence  thus   indicates  that   Ayala-Rodr guez          delegated a  certain amount  of responsibility to  Serna-Vega and          that he acted,  indeed, as Ayala-Rodr guez' right-hand  man.  The          evidence  also  indicates  that,  in  this  relatively   powerful          position,  he exercised supervisory  control over Ramos-Santiago.          The court could infer  from the evidence presented at  trial that          Ramos-Santiago   was  Serna-Vega's  friend  and  that  Serna-Vega          recruited  his assistance in the drug transaction.  It was Serna-          Vega who brought  Ramos-Santiago to  San Juan on  the day of  the          scheduled pick-up.                                         -12-                    Based on  the foregoing, we conclude  that the district          court's finding  that Serna-Vega was  a manager or  supervisor of          the offense conduct was not clearly erroneous.                    Serna-Vega also contends that  the trial court erred in          considering  the full hundred  kilos of cocaine  in computing his          base offense  level under the sentencing  guidelines.  Serna-Vega          argues  that  the  court  should  have  found  that  he  was  not          reasonably capable of  producing the purchase money for  the full          amount of drugs  and, therefore,  that only the  eleven kilos  he          actually purchased should  have been  considered for  sentencing.          See U.S.S.G.   2D1.1  n.12.  For sentencing, the  government need          ___          prove relevant facts only by a preponderance of the evidence, and          we  review the sentencing court's  findings only for clear error.          United  States v. Cetina-G mez,  951 F.2d  432, 434-35  (1st Cir.          ______________    ____________          1991).                    The jury found Serna-Vega  guilty of participating in a          conspiracy  to  possess with  intent  to  distribute one  hundred          kilograms of cocaine.  In addition, there was ample evidence from          which  the  court  could  determine  that  the  members  of   the          conspiracy, principally Ayala-Rodr guez, could raise the money to          complete  the transaction.   The  evidence indicated  that Ayala-          Rodr guez intended to  put up his  car dealership, including  the          cars to which he owned title, and some real property he owned, as          collateral for  the transaction.   Under these  circumstances, we          conclude that the court's  finding with respect to  drug quantity          was not clearly erroneous.                                         -13-                                          V.                                          V.                    Appellants raise one final argument which requires only          brief  discussion.    On  the  first  day  of  trial,  the  court          instructed the  jury that Serna-Vega and  Ramos-Santiago had pled          not guilty and, therefore, that issues of fact had to be tried by          the jury.   Appellants contend that this instruction implied that          other co-defendants named in  the indictment had pled  guilty and          that appellants were prejudiced  by this implication.  Appellants          maintain  that   the  court   should  have  given   a  cautionary          instruction with  respect to the missing  co-defendants.  Neither          appellant requested such an instruction and, therefore, we review          only for plain error.  Alvarado, 982 F.2d at 663.                                 ________                    We have approved the use of a cautionary instruction in          cases where co-defendants plead guilty after trial has commenced.          See, e.g., United  States v.  Chapdelaine, 989 F.2d  28, 32  (1st          ___  ____  ______________     ___________          Cir.  1987)  (approving  court's  admonishment  that  jurors  not          speculate  as to the reason for the co-defendants' absence).  The          same concerns are  not implicated  in this case  because the  co-          defendants pled guilty  prior to the  commencement of the  trial.          Therefore, the jurors never saw  the co-defendants and would have          no reason  to  speculate  about  their sudden  absence  from  the          courtroom.  Moreover, there was no suggestion  at trial as to how          the charges  against the  other co-defendants had  been disposed.          Under  these circumstances,  we  discern no  plain  error in  the          court's failure to provide,  sua sponte, a cautionary instruction                                       __________          with respect to the missing co-defendants.                                         -14-                                      CONCLUSION                                      CONCLUSION                                      __________                    For the foregoing reasons, appellants'  convictions and          sentences are affirmed.                        affirmed                        ________                                         -15-
