
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1261                                    UNITED STATES,                                      Appellee,                                          v.                               PILAR BELARDO-QUI ONES,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Lynch, Circuit Judge,                                       _____________                                 and Watson,* Judge.                                              _____                                _____________________               Rafael F. Castro-Lang for appellant.               _____________________               Jos   A.  Quiles-Espinosa, Senior  Litigation  Counsel, with               _________________________          whom  Guillermo Gil,  Acting United  States Attorney,  and Nelson                _____________                                        ______          P rez-Sosa, Assistant  United States Attorney, were  on brief for          __________          appellee.                                 ____________________                                  December 13, 1995                                 ____________________                                        ____________________          *  Of the United States  Court of International Trade, sitting by          designation.                    WATSON,  Senior Judge.   Appellant  has challenged  his                    WATSON   Senior Judge                             ____________          conviction for conspiracy to import  marijuana in violation of 21          USC     592 and 963.  Appellant claims  that it was error for the          trial court to deny a motion for a bill of particulars, to deny a          mistrial after prejudicial testimony, to allow hearsay  testimony          linking a  telephone number used in the conspiracy to appellant's          fish  market, to  deny  his Rule  29  motion for  acquittal,  and          finally,  to increase his sentencing Guideline level for having a          managerial  role  in  the  crime.   For  the  following  reasons,          Appellant's claims are found to be without merit.          Denial of the Bill of Particulars          Denial of the Bill of Particulars                    Appellant  was named  in Count  One of  the Indictment.          That  count described a conspiracy that began on or about October          26, 1991 with the object of importing marijuana from Colombia and          ended  on November 6, 1991  when the conspirators  found out that          the  boat for  which they had  been searching had  been seized by          Venezuelan authorities.   Appellant was described  as joining the          conspiracy on November  2, 1991, when,  in a meeting at  his fish          store, he agreed  to supply the boat and crew  needed to meet the          Colombian  boat at a point ten to  fifteen miles off the coast of          St. Croix, U.S.  Virgin Islands.  Count I  of the indictment ends          with an allegation that  one of the conspirators made  some calls          on November 6, 1991, after which he announced  to the others that          the  boat had  been seized  by Venezuelan  authorities.   He then                                         -2-          called St. Croix to have the others return to Puerto Rico.                    Appellant  claims that  it was  error for  the District          Court  to deny his  bill of  particulars asking  for the  date on          which   the  Colombian   boat  was   seized  by   the  Venezuelan          authorities.  According to  Appellant that information would have          allowed him  to present a  defense that,  for him,  the crime  of          conspiracy to  import marijuana had become  impossible to achieve          because the boat was seized prior  to November 2, 1991, before he          was alleged to have met with the other conspirators.                     According to Appellant,  the anticipated delivery  date          of November 4th means that the boat had to leave Colombia four to          five days  earlier,  in  which  case its  seizure  by  Venezuelan          authorities had  to take  place before appellant's  first contact          with the other conspirators at 5:00 P.M. on November 2d.                    The government has defended  the denial of the bill  of          particulars  on   the  grounds   that  the   indictment  provided          sufficient  information, that  the  government did  not have  the          seizure  information,  that it  provided  full  discovery in  any          event, and  that if the  seizure did  indeed take place  prior to          November 2d,  the conspirators would  most likely have  found out          about  it quickly and would  not have continued  their efforts to          meet the Colombian boat. The government suggests that the seizure          took place  after  the rendezvous  failed.   The government  also          asserts that the defendant  was not prejudiced by the lack of the          information.                     To begin with, the  denial of a bill of  particulars is                                         -3-          reversible error only  if it is a clear  abuse of discretion that          causes  actual prejudice  to  a  defendant's substantial  rights.          United States v. Hallock, 941 F.2d  36, 40 (1st Cir. 1991).  This          _____________    _______          indictment  contained  more  than  enough  information  to  allow          defendant to prepare his defense.  In fact, it is prolix compared          to the indictment under discussion in United States v. Paiva, 892                                                _____________    _____          F.2d 148  (1st Cir. 1989), which did not contain any precise time          period for  the conspiracy and did  not even specify the  date on          which the defendant joined it.  Nevertheless this Court held that          the temporal  specifications of  "early  1983" and  "the fall  of          1983"  were sufficient  to  allow the  preparation  of a  defense          without a bill of  particulars.  A fortiori the  temporal details                                           __________          in  this indictment  were sufficient  to allow  the  defendant to          present  a defense that the  conspiracy had ended  before he came          into  the picture.   It  is noteworthy that  the record  shows no          attempt  by defendant  to pursue  alternative means  of obtaining          information about the date of the boat seizure.                     Even  if we  go  past the  correctness  of denying  the          elaboration  of   an  adequate  indictment,   there  is   another          insurmountable obstacle to the  request for information about the          date of seizure.                    Denial of this bill  of particulars as to the  time and          location  of  the  seizure could  not  possibly  be  an abuse  of          discretion  because it could not be the  basis of a legal defense          to the  charge of  conspiracy.   It  has been  held  that "...  a          culpable  conspiracy  may  exist  even  though,  because  of  the                                         -4-          misapprehension  of the  conspirators  as to  certain facts,  the          substantive  crime which is the  object of the  conspiracy may be          impossible  to commit." United States v. Waldron, 590 F.2d 33, 34                                  _____________    _______          (1st Cir. 1979).  In that case the conspirators thought that they          were  working to import and  sell valuable stolen  paintings.  In          reality, the only painting they delivered to Boston was a forgery          worth  less than  the $5000  minimum of  the provision  making it          unlawful to knowingly sell stolen goods.                    Appellant's   argument  resembles   the  one   made  by          appellants in United States v. Giry, 818 F.2d 120 (1st Cir. 1987)                        _____________    ____          that  because the  persons who  were to  import the  cocaine were          agents of the Drug Enforcement Agency [DEA] the importation could          never  actually  occur.   The  court  rejected  "...  the  faulty          assumption that  an expressed conspiratorial objective is negated          by  its factual impossibility."  818 F.2d at 126.  Here appellant          joined  in  a  conspiracy  and  performed an  essential  role  in          obtaining  a boat and crew needed  to accomplish the crime.  Even          if intervening events had made the accomplishment of the criminal          purpose impossible all the elements of a criminal conspiracy were          present.   There  is no  basis for  making a  distinction between          those  who  start  a  conspiracy  that  is  impossible  from  the          beginning  and  one who  joins in  a  conspiracy that  has become          impossible due to intervening events unknown to the conspirators.                    Appellant  has  cited three  cases for  the proposition          that  a  conspiracy ends  when  its purpose  is  thwarted, United                                                                     ______          States v.  Roshko, 969 F.2d 1, 8 (2d Cir. 1992); United States v.          ______     ______                                _____________                                         -5-          Serrano, 870 F.2d 1, 8 (1st Cir. 1989); and Krulewitch v.  United          _______                                     __________     ______          States, 336 U.S. 440,  443-44 (1949).  This proposition  can only          ______          be true if the conduct of the conspirators  is no longer directed          towards accomplishment of the  goal of the conspiracy, impossible          or not.   In the cases cited  by appellant it  was held that  the          conspiracy  had ended either because its goal had been reached or          because the conspirators had given up.  There was no continuation          of acts designed to further the conspiracy.                    In United States  v. Roshko,   969 F.2d 1,  8 (2d  Cir.                       _____________     ______          1992), appellant's conspiracy was held to have ended successfully          when he obtained a  green card by means of  a sham marriage to  a          first  "wife."  The government, seeking  to justify indicting him          after the five year statute of limitations had run on that crime,          had argued that the conspiracy continued through the later points          in  time when  he divorced  that first  wife and  married another          woman.  The court held that it was the obtaining of  a green card          that  was  the  object  of  the  conspiracy  and  the  conspiracy          terminated when that was accomplished.                    In  United States v. Serrano,  870 F.2d 1,  8 (1st Cir.                        _____________    _______          1989)  and Krulewitch  v.  United States,  336  U.S. 440,  443-44                     __________      _____________          (1949) the  issue of  the duration of  a conspiracy arose  in the          context  of whether  statements  should have  been admitted  into          evidence against defendants under  the coconspirator exception to          the  hearsay   rule.    The  statements  in  question  were  held          inadmissible because they  were made long  after the collapse  of          the conspiracy  in the case of  Serrano and after the  end of the                                          _______                                         -6-          conspiracy, successful or not, in Krulewitch.                                             __________                    It  is  apparent that  these  cases  do not  support  a          proposition that conspiracies  end because of impossibility  when          the conspirators  are continuing to actively  pursue the original          criminal goal.          Denial of the Rule 29 Motion for Acquittal          Denial of the Rule 29 Motion for Acquittal                    At trial the defendant's argument  in favor of his Rule          29  motion  was  that the  evidence,  viewed  in  the light  most          favorable  to the  government, showed  only that  he was  doing a          favor for friends and  lacked criminal intent.  The  record makes          it plain that there  was more than enough  evidence from which  a          rational trier of fact could have found beyond a reasonable doubt          that  the  Appellant  was  engaged  in  a  conspiracy  to  import          marijuana and had the active role  of supplying the boat and crew          needed to import the marijuana.  Having asserted specific grounds          for that motion, other grounds such as the impossibility argument          discussed above cannot be raised on appeal.  See United States v.                                                       ___ _____________          Dandy, 998 F.2d 1344, 1357 (6th Cir. 1993), cert. denied,  115 S.          _____                                       _____ ______          Ct. 1188 (1994).  In any event, that line of argument would be to          no avail in light of the conclusion reached above that an unknown          impossibility does not end a conspiracy.           Denial of a mistrial for prejudicial testimony          Denial of a mistrial for prejudicial testimony                                         -7-                    During  cross  examination  about  his  past  crimes  a          prosecution witness,  Sergio Monteagudo, was asked  where a prior          drug  crime had  occurred.   He replied  "Your client  can recall          because  I gave him 1,000 dollars at that time."  Defendant moved          for a  mistrial.  The court denied the motion and gave a curative          instruction to the jury.                     This  was  certainly an  inappropriate  and potentially          prejudicial answer.  However, within the context of the events at          the trial  it was not likely to  affect the outcome and interfere          with the jury's ability to make an impartial determination of the          facts.  The factors leading to this  conclusion are those set out          in United States v.  Manning, 23 F.3d  570, 574 (1st Cir.  1994),             _____________     _______          the severity of  the cause, the  surrounding context, the  likely          effect  of  a  curative  instruction,  and  the strength  of  the          evidence against the defendant.   In this case all  these factors          militated  against  a  mistrial.   Although  the  summary of  the          offensive  testimony above gives it a certain clarity, it was not          as clear in the actual  sequence of testimony.  There  it appears          that counsel for defendant  was probing about a drug  crime prior          to the one  on trial and could not  elicit an exact date  for it.          Then  he  asked  "where  did  this  happen?"  and   the  response          implicating his client  was given.   Although the implication  is          that the payment to  defendant was connected to that  prior crime          it  is   not  a  clear  or  graphic  description  of  defendant's          involvement.                     In any event, the trial judge immediately gave the jury                                         -8-          a thorough and forceful curative instruction.  There is no reason          to believe that  this episode interfered with  the jury's ability          to  reach an impartial verdict.  When this is considered together          with the strong evidence of appellant's guilt developed elsewhere          at  trial it  is plain  that the  trial judge  did not  abuse her          discretion in denying the motion for mistrial.          Admission  of hearsay  testimony as  to  location of  a telephone          Admission  of hearsay  testimony as  to  location of  a telephone          number          number                    The  government wanted to  connect Appellant, the owner          of  El  Relincho  fish  market,  to  telephone  calls  made  from          telephone  number 863-3318 in Fajardo,  Puerto Rico, to the hotel          in  St. Croix that  was being used  by the  conspirators who were          searching for the Colombian  boat.  To that end  Jos  A. Morales,          the  DEA case  agent  for  this case  was  asked  whether he  had          determined the  number of El  Relincho fish market.   He gave the          number 863-3318.  Later, on cross examination, it was brought out          that  in the telephone company records that number is listed only          as being  invoiced to a Julia Amparo  G mez at a General Delivery          address in Puerto Rural, Puerto Rico.  On redirect examination no          connection was made between  that person and the Appellant  or El          Relincho fish  market.   Over  a hearsay  objection, Morales  was          allowed to testify that on two occasions he had called the number          in question and had been told by  a person on the other end  that          he had reached El Relincho fish market.                                          -9-                    The  linking of  the telephone  number in  question and          Appellant's fish market was  first made in testimony to  which no          objection  was made.   The  admission of  that testimony  was not          plain  error.  The later  testimony, based on  what the agent was          told  when he dialed  that number,  was inadmissible  hearsay and          should not have been allowed in evidence.  The  admission of that          testimony  was  harmless  error.   In  neither  instance was  the          evidence concerning  the telephone  number important in  light of          the abundance  of other  evidence linking  the Appellant  and his          fishmarket to  the activity  of the conspiracy.   This is  not an          instance where the  error would cause a  "miscarriage of justice"          or  cause the  "fundamental  fairness or  basic integrity  of the          proceedings" to be skewed  in a major respect.  See United States                                                          ___ _____________          v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995).             ______          Imposition of an increase in Sentencing Guideline level          Imposition of an increase in Sentencing Guideline level                    Appellant argues that he came  into the conspiracy at a          late stage and did not have a true managerial role.  Accordingly,          he asserts  that it was error for the sentencing Judge to make an          upward  adjustment of 3 points in his guideline level.  Appellant          argues that he should have received a  2 point decrease for being          a minor participant in the conspiracy.                    This  contention has no merit.  There is no clear error          in  the   sentencing  judge's  imposition  of   an  increase  for          managerial   participation.    The   recruiting,  supplying,  and                                         -10-          instructing of those who  are to perform an essential  mission of          picking up marijuana at sea  plainly indicates a managerial role.          It  has been held that "'[e]fforts  to marshall other individuals          for the purpose of executing the crime' are enough to demonstrate          sufficient control  over  a participant  for  the purposes  of             3B1.1."   United  States  v. Sax,  39 F.3d  1380 (7th  Cir. 1994)                    ______________     ___          (quoting  United  States v.  Carson, 9  F.3d  576, 585  (7th Cir.                    ______________     ______          1993).   Accordingly,  it was  not  erroneous for  the sentencing          judge to make  an upward adjustment of 3 points  under   3B1.1 of          the Sentencing  Guidelines. See United States v.  Vargas, 16 F.3d                                          _____________     ______          155, 160 (7th Cir. 1994).                    Affirmed.                    ________                                         -11-
