
USCA1 Opinion

	




          October 31, 1995  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2101                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                HECTOR GUZMAN RIVERA,                                Defendant, Appellant.                                 ____________________          No. 93-2102                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                              RAFAEL VELASQUEZ-MARQUEZ,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  this Court  issued on October  17, 1995,  is          amended as follows:               On page 3, second paragraph,  line 6, change "F.R.Civ.P." to          "F.R.Crim.P."                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2101                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                HECTOR GUZMAN RIVERA,                                Defendant, Appellant.                                _____________________        No. 93-2102                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                              RAFAEL VELASQUEZ-MARQUEZ,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                                 ____________________                                 ____________________            Rachel Brill on brief for appellant Hector Guzman-Rivera.            ____________            Luis A. Amoros on brief for appellant Rafael Velasquez-Marquez.            ______________            Jose  A. Quiles-Espinosa,  Senior Litigation  Counsel, W.  Stephen            ________________________                               ___________        Muldrow, Assistant United States  Attorney, and Guillermo Gill, United        _______                                         ______________  ______        States Attorney, on brief for appellee.        _______________                                 ____________________                                   October 17, 1995                                 ____________________                      ALDRICH,  Senior  Circuit  Judge.    Hector  Guzman                                ______________________            Rivera (Guzman) and Rafael Velasquez Marquez (Velasquez) were            indicted  on December  9, 1992  for, inter  alia, aiding  and            abetting  each  other in  1)  the possession  with  intent to            distribute approximately two-eighths of a kilogram of heroin,            21  U.S.C.     841(a)(1) and  18  U.S.C.    2,  and 2)  using            firearms  in  relation to  a  drug trafficking  offense.   18            U.S.C.     924(c) and 2.   Guzman, found guilty by  a jury on            both counts,  appeals, alleging  various errors at  his trial            and  from the court's imposition  of a fine.   Velasquez, who            pleaded guilty, complains only of his fine.  We affirm.                      So far as the trial is concerned, this is a typical            case where  appellate counsel  is  able to  find nothing  but            matters so apparently proper on their face as to have invoked            no objection  at the time.   In fact there was  no error, let            alone  the  plain error  that  Guzman  must now  demonstrate.            F.R.Crim.P. 52(b).  See  United States v. Young, 470  U.S. 1,                                ___  _____________    _____            15, 105 S.Ct.  1038, 1046,  84 L.Ed.2d 1  (1985) (rule  52(b)            authorizes  courts of  appeal to  correct  only "particularly            egregious   errors"   that  seriously   undermine  "fairness,            integrity  or public  reputation  of judicial  proceedings");            United States v.  Taylor, 54  F.3d 967, 973  (1st Cir.  1995)            _____________     ______            (same).                      On the evening of  December 3, 1992, Guzman arrived            at  the  Carib   Inn  in  San  Juan  driving  a  dark-colored                                         -4-            automobile.  A confidential informant was  in the front seat,            and  Velasquez in the back.  Velasquez proved to possess two-            eighths of a  kilogram of  heroin, which he  was planning  to            exchange with  Moran, an  undercover DEA agent,  for $50,000.            The evidence,  post, warranted  a finding  that Guzman  had a            revolver.  As  expected, the auto was  met by Moran, who  put            his head  in the  window and asked  if they  had the  heroin.            Defendants simultaneously said  yes -- the clearest  evidence            of a  conspiracy relationship.   The court admitted  tapes of            conversations between  Velasquez and Moran  arranging for the            heroin transaction, recorded only hours before it took place.            Guzman now complains of this.                      Hearsay   statements   are  admissible   against  a            defendant  when it  is more  likely than  not that  he was  a            coconspirator of the speaker,  that the conspiracy existed at            the time the statements were made, and that they were made in            furtherance of it.  United  States v. Petrozziello, 548  F.2d                                ______________    ____________            20, 23 (1st Cir.  1977).  See F.R.Evid. 801(d)(2)(E).   There                                      ___            is no  requirement that  the indictment charge  conspiracy to            find such statements admissible.  United States v. Ortiz, 966                                              _____________    _____            F.2d  707, 714 (1st Cir.  1992), cert. denied,  ___ U.S. ___,                                             ____________            113 S.Ct. 1005,  122 L.Ed.2d  154 (1993).   While there  were            some arguable contradictions in  the testimony, the fact that            Velasquez  stated during  the  taped conversations  that  the            heroin belonged to  himself and two partners, that Guzman and                                         -5-            another  in fact showed up to deliver the heroin very shortly            after  Velasquez' final conversation  cementing the deal with            Moran, that he was  driving the vehicle to the  meeting place            Velasquez  negotiated during those conversations, that he was            armed with a loaded weapon and carried additional ammunition,            coupled with  the uncontroverted  evidence that  he responded            positively, in  concert with  Velasquez, when Moran  asked if            they  had  the  "manteca,"1   are  more  than  sufficient  to            convince us no plain error occurred.  We do not take the fact            that Moran  was not  expecting Guzman as  necessarily meaning            that  Velasquez was  so  casual  as  to  seek  a  driver  and            additional protection only at the last minute.                      With respect to Guzman's possession of a firearm, a            police  officer  testified that  as  he  was approaching  the            parked  car  after Moran  had  given  the prearranged  arrest            signal, he saw  Guzman draw  a revolver from  his waist,  and            then lean forward  as if  he were  placing an  object on  the            floor.   While Guzman was placed under arrest, a revolver was            found  on the driver's side, beneath the foot pedals.  Guzman            complains that  the  court denied  him  early access  to  the            revolver, which might have shown absence of his fingerprints,            thereby  contradicting  his  possession.    The  government's            response  is twofold:   where  standard procedures  (which we            have no occasion to question here) require arresting officers                                            ____________________            1.    The street name for heroin.                                         -6-            to seize the firearm  for their own protection, and  later to            have  the weapon tested to determine whether it was operable,            no print  examination was performed,  and by the  time Guzman            first  sought  examination it  had  been  cleaned and  thinly            coated with a preservative for  storage.  Guzman's own expert            conceded that  after such treatment no  previous fingerprints            could have remained.  In any event, ultimately granted access            to the gun, Guzman had it checked for prints, established the            lack  of his, and  introduced this  result at  trial.   It is            clear that these results would have been exactly the same had            the court  granted  Guzman's  first  request,  rendering  the            court's  initial refusal,  at most,  harmless error.   United                                                                   ______            States v.  Sepulveda, 15  F.3d  1161, 1182  (1st Cir.  1993),            ______     _________            cert. denied, ___ U.S.  ___, 114 S.Ct. 2714, 129  L.Ed.2d 840            ____________            (1994).                      The positive evidence  attributing the revolver  to            Guzman  is confirmed by the  fact that a  "speed loader" that            fitted  it  was  found on  his  person.    We understand  the            seriousness of this offense but are surprised that this claim            is made.                      Next,  the  court's  charge  defining  "use"  of  a            firearm2  under section  924(c) was  so clearly  correct, and                                            ____________________            2.  Guzman's contention that the court's reference throughout            its instructions to the jury to "firearm," or "weapon" in the            singular, as opposed to the indictment's use of "firearms" in            the  plural, impermissibly  altered the  indictment requiring            reversal, is specious.                                         -7-            the  evidence so fitting, that we take little time to expound            the law, or repeat  the facts.  Guzman's contention  that the            jury could have convicted him for mere possession, not "use,"            as the  statute requires, is groundless, given  that the jury            specifically  asked  whether  the  firearms   count  required            "possession" or "use," and the court then properly instructed            it on the statutory meaning.  "Use" means to obtain a benefit            from the arm's presence in relation to  the drug transaction,            and  does not  require discharge  or threat  with same.   See                                                                      ___            United States v. Castro-Lara, 970 F.2d  976, 983-84 (1st Cir.            _____________    ___________            1992), cert. denied, ___ U.S. ___, 113 S.Ct 2935, 124 L.Ed.2d                   ____________            684  (1993).   The  sole  issue  is  whether  a  firearm  was            "available for  use" to  Guzman during the  drug transaction,            United States v. Hadfield, 918 F.2d 987, 998 (1st Cir. 1990),            _____________    ________            cert. denied, 500 U.S. 936 (1991), a conclusion  the evidence            ____________            abundantly supports.   It is scarcely  helpful to cite  cases            from  the D.C. Circuit that have been overruled, or a dissent            from  an early decision in our Circuit long ignored.  Counsel            has  a  duty not  to make  such  frivolous contentions.   See                                                                      ___            A.B.A. Model Rules of Professional Conduct, Rules 3.1 and 3.3            (1994 ed.).                        Next,  Guzman  now  claims  error  in  the  court's            admitting  Moran's testimony  that the  heroin, agreed  to be            worth $50,000,  might have  brought $500,000 at  retail after            being cut.  There is little dispute that such information may                                         -8-            aid  in  proving  intent to  distribute.    United States  v.                                                        _____________            Miller,  589 F.2d 1117,  1136 (1st Cir.  1978), cert. denied,            ______                                          ____________            440 U.S. 958 (1979);  United States v. Pigrum, 922  F.2d 249,                                  _____________    ______            254  (5th Cir. 1991); United States v. Amaechi, 991 F.2d 374,                                  _____________    _______            377 (7th Cir.), cert.  denied, ___ U.S. ___, 113  S.Ct. 2980,                            _____________            125 L.Ed.2d 677 (1993).  DEA agents are especially qualified,            and need not be certified as experts, to testify about street            value, and  counsel can argue reasonable  inferences from it.            United States v. Ogbuehi,  18 F.3d 807, 812 (9th  Cir. 1994);            _____________    _______            see  also, United  States v.  Agyen, 842  F.2d 203,  205 (8th            _________  ______________     _____            Cir.), cert. denied, 486 U.S. 1035 (1988).                     ____________                      Finally, although the  Sentencing Guidelines  state            that  the court  "shall impose  a fine  in all  cases, except            where  the appellant establishes that he is unable to pay and            is not likely  to become able  to pay any  fine," U.S.S.G.               5E1.2(a),  and the  minimum  statutory fine  was $10,000  for            Velasquez  and  $12,500  for  Guzman,  U.S.S.G.     5E1.2(c),            neither defendant  is thankful that the court reduced each to            $5,000.  Rather, both  claim they should go scot-free.  It is            true  that  the  presentence   reports  for  both  defendants            indicated no apparent  source of  funds, but it  is not  true            that the  reports recommended  no fine, as  defendants claim.            Both  are healthy individuals  with no apparent disabilities.            Neither  objected to  his  fine at  the  time of  sentencing,            although given an  opportunity to  do so, and  even now  they                                         -9-            make no attempt to show incapacity to earn.   Surely it would            be a dangerous precedent to take the argument they were given            counsel, and allowed to appeal  in forma pauperis, as meeting            their burden, under   5E1.2(a), to show they could never earn            this relatively modest sum.                      Affirmed.                      _________                                         -10-
