
USCA1 Opinion

	




        June 6, 1994            [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2476                                    UNITED STATES,                                      Appellee,                                          v.                              KIM DE LOS SANTOS-FERRER,                                Defendant, Appellant,                                 ____________________        No. 92-2477                                    UNITED STATES,                                      Appellee,                                          v.                           JAIRO ANTONIO TORRES-AMEZQUITA,                                Defendant, Appellant,                                 ____________________        No. 93-1060                                    UNITED STATES,                                      Appellee,                                          v.                                 PEDRO AYALA-ROSARIO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                            Cyr and Stahl, Circuit Judges,                                           ______________                         and Pieras,* Senior District Judge.                                      _____________________                                 ____________________            Roxana  C.  Matienzo  Carrion  for appellant  Kim  De  Los  Santos            _____________________________        Ferrer.            Luis Rafael Rivera for appellant Jairo Antonio Torres Amezquita.            __________________            Francisco Serrano Walker for appellant Pedro Ayala-Rosario.            ________________________            Antonio  R. Bazan,  Assistant United  States Attorney,  with  whom            _________________        Guillermo  Gil, United States  Attorney, and Jose  A. Quiles Espinosa,        ______________                               ________________________        Senior Litigation Counsel, were on brief for appellees.                                 ____________________                                 ____________________        _____________________        *Of the District of Puerto Rico, sitting by designation.                      Per Curiam.  In this appeal,  defendants Kim de los                      __________            Santos  Ferrer  (Santos),  Jairo  Antonio   Torres  Amezquita            (Torres) and  Pedro Ayala Rosario  (Ayala) challenge  various            aspects of their drug convictions and sentences.  Finding  no            error, we affirm.                                            I.                                          I.                                          __                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       ________________________________________                      For  purposes  of  defendants'  challenges  to  the            sufficiency of the evidence,  we begin by reciting the  facts            in  a light  most favorable  to the  government.   See United                                                               ___ ______            States v.  Mena-Robles, 4  F.3d 1026, 1029  (1st Cir.  1993),            ______     ___________            cert. denied, 114 S. Ct. 1550 (1994).            _____ ______                      Confidential  informant  Ruben de  los  Santos (the            CI)1  worked on  board the  merchant vessel  Euro-Colombia, a            ship  which  routinely travels  between  Colombia  and Puerto            Rico.   In  December  of  1991,  the  CI  was  approached  in            Cartagena, Colombia, by  a Mr.  Marcial who asked  the CI  to            smuggle four  kilograms of cocaine on  the Euro-Colombia from            Colombia  to Puerto Rico.  Marcial gave the CI the contraband            and a phone number to call when the ship reached Puerto Rico.            The  phone number was later determined to be a cellular phone            number assigned to Ayala.                      In early January,  the ship arrived in  Ponce.  The            CI called the number  and received no answer.   United States                                            ____________________            1.  The CI is no relation to defendant Kim de los Santos.                                         -3-            Customs   agents,   with  whom   the   CI   was  cooperating,            photographed the drugs and  then allowed the CI to  return to            Colombia with the contraband.  In Colombia, Marcial asked the            CI to  try delivering the drugs  again and gave the  CI a new            telephone number to call.                         In  February, the  ship arrived  at Ponce  a second            time.  At 3:30 in the morning, the CI called  the new number.            The resulting conversation was taped by United States Customs            officials.    Santos answered  the phone.    The CI  began by            asking  if Santos knew "Mr.  Estela," and said  that he had a            "present"  for  Santos.   Santos  replied  that  he knew  Mr.            Estela.   The word cocaine was  not mentioned, but a price of            $4000  per kilogram  was agreed upon.   A time  and place for            delivery were set.  Santos said  that he would arrive at 5:00            a.m. in Ponce  and that he  would be driving a  gold Porsche.            He  also mentioned  that  he needed  to  raise cash  for  the            purchase.                      A  second phone call was made to the same number at            about 4:00 a.m., which  was also taped by  customs officials.            This time, the CI spoke  with Torres.  The delivery time  was            moved back to 8:00  a.m.  Torres stated, among  other things,            that he needed the time to raise money.                       At 8:00  a.m., Santos and  Torres showed up  at the            appointed delivery  spot.  They  were riding in  a Mitsubishi            Mirage,  not a Porsche.  Ayala, the third defendant, was also                                         -4-                                          4            with them.  Santos signaled to the CI, who  replied by asking            what  Santos  wanted.   Santos  replied,  "The  4 kilos  from            Colombia."   The CI asked to  be paid.  Ayala  opened the car            door,  Santos told  the CI to  get into  the car,  and the CI            obliged.    All  three   defendants  were  arrested   shortly            thereafter.   In the car, agents discovered a car phone, with            the  very phone  number that  the CI  had called,  along with            $3970 in  cash.  Torres was  carrying over $500 in  cash.  In            addition,  Santos' key  chain  had a  Porsche  emblem on  it.            Ayala also had a beeper on his person.                       All three defendants were held for several hours by            customs officials  without being read their Miranda warnings.            During  those  hours, all  were  questioned.   United  States            Customs  Service Agent  Radames  Sanchez, who  had taped  the            conversations  earlier that  morning,2 then  listened briefly            to the questions  being asked defendants in order to identify            their voices.  He determined that Santos' voice was the voice            he heard  on  the tape  of  the first  phone  call, and  that            Torres' voice was the one he heard on the tape  of the second            call.                        Santos  and  Torres  were   charged  with  using  a            "communication facility" in  carrying out a drug  transaction                                            ____________________            2.  Santos argues in  his brief  that Agent  Sanchez was  not            present  when  the  conversations  were  recorded.    Sanchez            testified that he actually  taped the two phone conversations            at issue.                                         -5-                                          5            in  violation  of  21 U.S.C.     843(b)  (Counts  I and  II).            Santos, Torres  and Ayala were all  charged with importation,            including aiding and abetting (Count III) and possession with            intent to distribute (Count IV) all in violation of 21 U.S.C.               952(a) and 841 (a)(1) and 18 U.S.C.   2.   All pleaded not            guilty.  At trial,  there was a hearing outside  the presence            of the jury to determine the admissibility of the transcripts            of  the  phone conversations.   More  specifically defendants            argued that  the transcripts  should not be  admitted because            each transcript identified defendants by their initials ("KS"            for Santos and "JM" for Torres).  The district court admitted            the  transcripts  with the  initials.    All defendants  were            convicted  on all  counts, except  that the  third defendant,            Ayala,  was  acquitted  of  the  importation  charge.    Each            defendant raises separate issues.  We address them in turn.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Santos            __________                 1.  The Appearance of Santos' Initials on the Transcript                 ________________________________________________________                      Santos argues that the  absence of Miranda warnings            at his  post-arrest detention renders  unconstitutional Agent            Sanchez's identification  of his voice as  the voice speaking            on the  tape.  Santos goes on to argue that the appearance of            his initials on the phone transcript, which was  submitted to                                         -6-                                          6            the jury, should therefore have been  ruled inadmissible.  We            disagree.                      As the  Supreme Court has recently  noted, the case            of  Miranda  v.  Arizona,  384  U.S.  436  (1966),  does  not                _______      _______            establish  "an absolute  right  against  being  compelled  to            speak."    Doe v.  United  States, 487  U.S. 201,  214  n. 12                       ___     ______________            (1988).    Rather,  "that  understanding is  refuted  by  the            Court's  decision in United  States v.  Dionisio, 410  U.S. 1                                 ______________     ________            (1973), in which the Court held that a suspect may not invoke            the privilege in refusing to speak  for purposes of providing            a voice exemplar."  Id.                                   ___                      In  short,  these cases  teach  that  the right  to            remain silent does not  include the right to refuse  giving a            voice  exemplar.   Thus,  even if  Santos  had been  read his            Miranda rights, he had no constitutionally protected interest            in keeping law enforcement  officials from hearing his voice.            Without a cognizable constitutional interest,  Santos' effort            to suppress the transcript fails.                      Santos'   non-constitutional   challenges  to   the            admission  of the transcripts are equally fruitless.  We have            frequently noted that  "the use of transcripts  to assist the            jury  is committed  to  the  sound  discretion of  the  trial            judge."   United States v. Font-Ramirez, 944 F.2d 42, 48 (1st                      _____________    ____________            Cir. 1991),  cert. denied, 112 S.  Ct. 954 (1992).   See also                         _____ ______                            ___ ____            United States v. Panzardi-Lespier,  918 F.2d 313, 318-19 (1st            _____________    ________________                                         -7-                                          7            Cir. 1990); United States v. Carbone, 798 F.2d 21, 26-27 (1st                        _____________    _______            Cir.  1986); United States v. Rengifo, 789 F.2d 975, 980 (1st                         _____________    _______            Cir. 1986).  In this case, the district court listened to the            tapes, interviewed Sanchez, and heard extensive argument from            counsel, all outside the presence  of the jury, before ruling            on the use of  the transcript.  The district  court satisfied            itself as  to Agent  Sanchez's qualifications and  ability to            make  a voice identification in this case,  as well as to the            authenticity and  proper chain  of custody  of  the tape  and            transcripts.  In addition,  the district court properly noted            that  Santos was  free to  argue to  the jury  that Sanchez's            identification of the voice on the tape as that of Santos was            unreliable.   Defendant points to no evidence,  in the record            or  otherwise, to  suggest that  any of  these determinations            constituted an abuse of discretion.  Accordingly, we  find no            abuse  in the district court's  decision to allow  use of the            transcripts.            2.  Sufficiency of Evidence            ___________________________                      Santos argues that  there is insufficient  evidence            to  support his  conviction on  Count  III, importation  of a            controlled substance.   As  noted above,  for the  purpose of            challenges to the sufficiency of the evidence, we review  the            evidence in a light most favorable to the government, drawing            all inferences in  favor of  the verdict.   See, e.g.,  Mena-                                                        ___  ____   _____            Robles,  4 F.3d  at  1031.   Moreover,  the evidence  may  be            ______                                         -8-                                          8            entirely circumstantial and need not exclude every reasonable            hypothesis of  innocence; that is, the  factfinder may decide            among reasonable interpretations of the evidence.  See United                                                               ___ ______            States v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994).            ______    ________________                      When so  viewed, the evidence in  this case clearly            supports Santos' conviction for  importation.  To begin with,            Marcial gave Santos' number  to the CI in Colombia.   Santos,            without more, picked up a phone call late at night, responded            to  code words  about  a  delivery  from  "Mr.  Estela,"  and            appeared at the  scene of  delivery requesting  "the 4  kilos            from  Colombia."    Thus,  the  evidence  shows  an  intimate            knowledge  of the  importation  scheme and  a willingness  to            participate  therein.     In  sum,  we   find  this  evidence            sufficient to support a conviction for importation.            3.  Sentencing            ______________                      Santos claims that he  should be sentenced based on            one kilogram of cocaine, rather than four, because $3970, the            amount  found in  the car,  could not  buy four  kilograms at            current market rates.   (In fact, $3970 will not even buy one            kilogram,  which the district court found to cost $15,000 and            which may, in fact, cost considerably more).                        We begin  by noting that the  facts supporting drug            quantity  determinations  for  sentencing  purposes  must  be            proven by the government by a preponderance of  the evidence.            United States v. Legarda,  17 F.3d 496, 499 (1st  Cir. 1994).            _____________    _______                                         -9-                                          9            A  district  court's factual  findings on  such an  issue are            reviewed for clear error only.  Id.   We find no error in the                                            ___            district  court's  determination   that  Santos  intended  to            purchase four  kilograms.   Marcial, the seller  in Colombia,            gave  the  CI four  kilograms and  promised  that a  buyer in            Puerto  Rico would  purchase  that amount.   Santos  met that            expectation, specifically mentioning four kilograms to the CI            just prior to his arrest, and the CI was ushered into Santos'            car carrying the four kilograms.  As to the low sum of money,            the record does not  rule out the possibility that  the $3970            was merely payment to the CI for his role in the importation,            and  that more  money would  be owing  to the  seller through            alternate means.   In  sum, we  find no basis  in the  record            before us  for concluding that the  district court's quantity            determination was clear error.3                                              ____________________            3.  Santos  also argues that, because  the cash on hand could            not purchase four  kilograms of cocaine at  current rates, he            should have  been charged with the  "lesser included offense"            of  attempting to  import just  one kilogram  of cocaine.   A            lesser included  offense is one  which is "composed  of some,            but not all elements of a greater offense and which  does not            have  any element  not  included in  [the] greater  offense."            Black's Law Dictionary, 902  (6th ed. 1990).  For  example, a            ______________________            lesser   included  offense  of   possession  with  intent  to            distribute  would be simple possession.   A mere lower amount            of  drugs, however,  does not  amount to  a "lesser  included            offense."                        In  this  case,  the  district  court,  upon  being            requested  to instruct  on a  lesser included  offense, asked            Santos  if  he  was   requesting  an  instruction  on  simple            possession.  Santos replied in the negative.  Accordingly, we            deem this issue  waived.  Moreover,  we see no  error in  the            district  court's refusal  to instruct  on a  lesser included            offense based solely on a lower amount of drugs.                                         -10-                                          10            B.  Torres            __________                 1.  Sufficiency                 _______________                      Torres  also  challenges  the  sufficiency  of  the            evidence supporting his convictions.   Our standard of review            is set out, supra.   Like Santos' challenge, we  find Torres'                        _____            sufficiency challenge unavailing.                      Torres  answered   the  second  phone  call.     He            displayed intimate  knowledge  of the  plan to  meet the  CI,            which  had been  discussed  in the  earlier  call to  Santos.            Torres' own participation included  an attempt to raise cash.            Finally, Torres  appeared at the purchase  carrying more than            $500 in cash.  Based on these facts, a  reasonable jury could            conclude beyond a reasonable doubt that Torres was guilty  of            both  aiding  and abetting  the  importation  of cocaine  and            possession with intent to distribute.                   2.  Sentencing                 ______________                      Torres  argues  that  he  is  entitled  to downward            departures based on his  acceptance of responsibility and his            minimal  participation.   "Whether a  defendant  has accepted            personal responsibility is a `fact-dominated issue.'"  United                                                                   ______            States  v.  Donovan, 996  F.2d  1343,  1346 (1st  Cir.  1993)            ______      _______            (quoting  United States v. Royer,  895 F.2d 28,  29 (1st Cir.                      _____________    _____            1990)).   A downward adjustment for  minimal participation is            similarly  fact-dominated and  is  reviewed for  clear  error                                         -11-                                          11            only.   See United States  v. Rosado-Sierra, 938  F.2d 1, 1-2                    ___ _____________     _____________            (1st Cir. 1991).                      Torres'  presentence report  concluded that  he did            not   demonstrate  a   genuine  recognition   or  affirmative            acceptance  of  responsibility.    This  characterization  is            buttressed  by  the fact  that Torres  went  to trial  on the            merits of his case.  See, e.g., U.S.S.G.   3E1.1, Application                                 ___  ____            Note  1(h)  (stating that  sentencing courts  should consider            "the timeliness  of  defendant's conduct  in manifesting  the            acceptance  of  responsibility.");  and  Application  Note  2                                                ___            ("This adjustment is not intended to apply to a defendant who            puts  the government  to  its burden  of  proof at  trial  by            denying  the   essential  factual   elements  of   guilt,  is            convicted,  and   only  then   admits  guilt   and  expresses            remorse.").4   In this case, we find  no error in the court's            factual determination that Torres did not sufficiently accept            responsibility  to  warrant  a  downward  departure  in   his            sentence.                      Nor  do we  find  error in  the determination  that            Torres was not  a minimal  participant.  In  the taped  phone            conversation, Torres  revealed an  intimate knowledge  of and            interest  in the  purchase.    Moreover,  he arrived  at  the            purchase  with over $500  in cash.    Thus, we  find no clear                                            ____________________            4.  Even  now,  Torres  argues  that  there  is  insufficient            evidence  to support  his convictions,  while he  also claims            that he has accepted responsibility.                                         -12-                                          12            error in the  sentencing court's  determination that  Torres'            participation was not minimal.            C.  Ayala            _________                      In essence, Ayala challenges the sufficiency of the            evidence against  him by arguing  that the evidence  shows no            more  than "mere presence" at  the pick-up point  and that he            was  no  more  than an  observer  at this  drug  crime.   The            relevant standard of review  is set out, supra.   We conclude                                                     _____            that  Ayala's challenge  to the  sufficiency of  the evidence            meets the same fate as those of his codefendants.                       As we  have noted  elsewhere,  "the factfinder  may            fairly  infer . . . that  it runs counter to human experience            to suppose that criminal  conspirators would welcome innocent            nonparticipants as witnesses to their crimes."  United States                                                            _____________            v.  Batista-Polanco,  927  F.2d   14,  18  (1st  Cir.  1991).                _______________            Moreover,  "the culpability of  a defendant's presence hinges            upon whether  the  circumstances fairly  imply  participatory            involvement.   In other words, a  defendant's `mere presence'            argument  will  fail  in   situations  where  the  `mere'  is            lacking."  United States v. Echeverri, 982 F.2d 675, 678 (1st                       _____________    _________            Cir. 1993).   Viewed through  this lens, the  record in  this            case clearly supports Ayala's conviction.                      To begin with, Ayala's phone number was first given            to the CI in January.   Though he was never  directly reached            by phone  on that  trip, Ayala  did show  up at  the February                                         -13-                                          13            purchase.    These facts  allow an  inference that  Ayala was            involved with this drug scheme from the beginning.  Moreover,            Ayala, like his  codefendants, lives in the  Carolina area of            Puerto  Rico,  which is  over an  hour  from Ponce,  where he            appeared early on the morning of the purchase.                      In  addition, Ayala  had a  beeper, a  typical drug            trade  item, on  his  person when  he  was arrested.    Phone            records  show that a call was placed  from Santos' phone to a            beeper service at 4:30 a.m. on the morning  of the drug deal.            Though there is apparently no record  evidence that Ayala was            paged  that night, Ayala  conceded at oral  argument that the            call  from Santos' phone went to the very beeper service that            Ayala used.  Finally, once at the scene, Ayala opened the car            door to  allow the CI to enter the car with four kilograms of            cocaine.    Based  on all  of  this  evidence,  a jury  could            conclude  beyond a reasonable doubt  that Ayala was guilty of            aiding  and abetting  possession  with intent  to  distribute            cocaine.                       We have carefully considered  all other aspects  of            defendants' arguments and find them to be without merit.                                          III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the  foregoing  reasons,  the  convictions and            sentences of all defendants are                      Affirmed.                      ________                                         -14-                                          14
