
USCA1 Opinion

	




        October 28, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2298                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JOHN ANTONIO CASILLAS,                                Plaintiff, Appellant.                                _____________________        No. 92-1493                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              JOSE E. BONILLA-MARTINEZ,                                Defendant, Appellant.                                _____________________        No. 92-1494                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                FERNANDO FACIO-LABOY,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                                 ____________________            Manfredo E. Lespier-Garcia for appellant John Antonio Casillas.            __________________________            David  Rive-Rivera,  by Appointment  of the  Court, for  appellant            __________________        Fernando Faccio-Laboy.            Carlos  R.  Noriega, by  Appointment of  the Court,  for appellant            ___________________        Jose E. Bonilla-Martinez.            Rosa  Emilia Rodriguez-Velez,  Assistant U.S. Attorney,  with whom            ____________________________        Charles E. Fitzwilliam,  United States Attorney,  and Jose A.  Quiles-        ______________________                                ________________        Espinosa, Senior Litigation Counsel, were on brief for appellee.        ________                                 ____________________                                 ____________________               COFFIN,  Senior  Circuit  Judge.   These  three  appeals are                        ______________________          brought  by defendants  Jose  Antonio  Casillas (Casillas),  Jose          Enrique  Bonilla  Martinez (Bonilla),  and  Fernando Faccio-Laboy          (Faccio), who were adjudged guilty of conspiracy  to possess with          intent  to  distribute  multi-kilo  quantities  of   cocaine,  in          violation  of 21  U.S.C.    846.   One  defendant, Casillas,  was          convicted of using a telephone in facilitating the conspiracy, in          violation of  21  U.S.C.    843(b).    In addition  to  terms  of          supervised  release   and  special   monetary  assessments,   the          following  terms  of  imprisonment were  imposed:  Casillas,  292          months; Bonilla, 264 months; Faccio, 264 months.               Appellants Casillas and Bonilla challenge the sufficiency of          the  evidence to support  their convictions.   Appellant Casillas          also   challenges  the  district  court's  finding,  pursuant  to          Sentencing Guideline   3B1.1, U.S.S.G.   3B1.1, that his role was          that  of manager/supervisor of the conspiracy, and its consequent          increasing of his  offense level.  Each  appellant challenges the          court's finding  that he was instrumental in  negotiating for the          purchase of  150 kilograms of  cocaine, a finding resulting  in a          base  offense level  of  38.   More particularly,  each appellant          claims that he  had neither the intent nor the  capacity to bring          about the purchase of such a large quantity of cocaine.               After  reviewing the  record of  events and the  evidence of          appellants' intent and capacity, we affirm as to all issues.                                         -3-                      The reverse drug buy undercover operation                      _________________________________________               We  set forth  what  we consider  a sufficient  narration of          events, as the  jury was warranted  in viewing them, to  make our          discussion  of  the   legal  issues  comprehensible.     We  have          necessarily excluded much and selected from not always consistent          testimony.               The conspiracy originated  with the government.  This  was a          "reverse sting"  operation, in which government undercover agents          posed  as sellers  and set  up deals  with would-be  drug buyers.          Drug  Enforcement Administration  (DEA)  special agent  Jefferson          Justice worked with  and often through a  confidential informant,          William  Hoercherl, to  involve  appellant  Casillas  in  a  drug          importing scheme.  Casillas had participated with  Hoercherl in a          prior deal, involving some 102 kilograms, and was thought to be a          suitable target for  DEA activity.  Contacts began  in May, 1990,          and by June had progressed to the  point where Casillas agreed to          be a broker for Hoercherl  and Justice (now posing as Hoercherl's          nephew) in the importation and  sale of 600 kilograms of cocaine.          New  York and  Miami were  to be  the locus for  the sale  of 400          kilograms and Puerto Rico the locus for 200 kilos.  The price for          a kilo was $12,500.  Casillas was to find the customers.               During July there was  continual activity: Casillas  brought          into the venture one Torres,  who was expected to find  buyers in          New York and Miami; a sampling of  cocaine was done at the Caribe          Hilton  Hotel,  but  Casillas  canceled a  scheduled  transaction          because  his  buyers  distrusted  the  location;  and  the  terms                                         -4-          changed, the  amount of  down payment  required by  the "sellers"          having dropped from $1,000,000 for 200 kilos to $400,000.               In early  August, Torres  introduced one  Ortiz, who was  to          come forward  with property  as collateral for  part of  the down          payment.   On August  8, Ortiz attended  a meeting  with Justice,          Casillas,  and others, and gave Justice documents concerning four          pieces  of real estate:  a four-unit apartment  building, Ortiz's          residence, an  urban  lot in  Dorado Del  Mar, and  a rural  lot.          Casillas  had received  from Ortiz documents  of title  to eleven          automobiles; these he gave to Justice.   Then Ortiz signed a note          giving Justice all  of the collateral "if the  money for services          [i.e., drugs delivered] is not paid in full."  Ortiz also claimed          to have  nineteen other  vehicles on his  lot and  thirty-four en          route via  barge.  This satisfied the  first half of the required          down payment of  $400,000.  Casillas, however, failed  to come up          with the second half of the down payment in cash on that day.               Two  days later, on August 10, Casillas introduced appellant          Faccio to Hoercherl as the person who would provide the money for          the additional down payment.  The amount of drugs to be delivered          had dropped from 200 kilos to 150 kilos.  Hoercherl discussed the          transaction, which would  require a down payment of $400,000 (one          half  of which was the Ortiz  collateral), and would buy 50 kilos          of cocaine, 25 of which would be delivered at once, the remainder          to be delivered  on consignment.  Presumably this  meant that the          seller  would retain title  until payment was  accomplished.  The          remaining 100 kilos were to be  delivered later in the day.   Not                                         -5-          part  of Hoercherl's  discussion but  elsewhere  revealed in  the          testimony  was the understanding  that Casillas would  be charged          with ensuring that the sales proceeds would be collected and paid          to the sellers.   In other words,  delivery of the 100  kilos was          not conditioned on a down payment.               A meeting  took place  on August 13,  which was  attended by          Hoercherl,  Justice, Faccio, and  Casillas.  While  the August 10          meeting  was  not recorded  on  tape,  this  one was.    Although          Hoercherl  testified that  on August 13  there was  discussion of          arrangements  to deliver  the 150  kilos on  August 15,  the tape          contains no  reference to this  total amount.  Faccio,  who spoke          only Spanish and to whom the remarks of Justice and Hoercherl had          to be translated by Casillas, was recorded as mentioning "the 25"          and being told  by Casillas that  "those 25 are  gonna leave  you          with 25 more" and that "It will pay off for you."   It was agreed          that the transaction  not take place until August  15 in Faccio's          Feria Court Apartments  building.  Faccio preferred  that date to          the 14th "Because  that way you give  me all day  today to get  a          hold of  Quique."  Quique  was elsewhere identified  as appellant          Bonilla.  However, on August  15, Casillas spoke with Justice and          Hoercherl  and postponed the meeting  until the following day, as          he needed more time to secure the money for the deal.                 On  August  16,  Justice  and  Hoercherl  came  to  Faccio's          apartment building.   At 4:30, Bonilla  drove up in a  white Ford          Bronco,  talked with Casillas, and entered the building.  Bonilla          came back to the Bronco at 4:45, reentered the building, came out                                         -6-          again at  4:55, went  to the  Bronco, took  out a  white box  and          reentered the  building.  Faccio  and Bonilla talked in  front of          the  building, then  Bonilla made  a  third trip  to the  Bronco,          bringing back a blue money pouch.  He was then seen shortly after          at a fifth story window.  He and another person (an acquitted co-          defendant) were seen  talking together at apartment  203; Bonilla          was  nervous  about  this  location,  because  of  some  adjacent          occupant.  He  then talked to Faccio, who told him that the money          would  be in  apartment 305.   Faccio went  to the  elevator, and          pushed  the button;  the door  opened, revealing  Bonilla and  an          associate with both the white box and the blue  pouch.  Hoercherl          subsequently saw  the white box  and the blue pouch  in apartment          305, both  with money  in them.   When he  asked Casillas  if the          $200,000 were all  there, Casillas replied that it  was "a little          short."  Casillas  then said that Bonilla and  his associate must          inspect the delivered drug cargo, for it was "their money."               Casillas  exited the building,  carrying the white  box, and          went to his Volvo, outside the gate to the apartment complex.  At          this juncture,  Justice, who was  waiting outside the  gate, gave          Hoercherl the keys  to the car which supposedly  was carrying the          cocaine.   Hoercherl walked  toward it,  meanwhile telling  other          government agents what to expect inside the gate.   He then drove          to the  gate, followed by federal  agents in a  van, entered, and          the  arrest  of  the  appellants  followed.   The  white  box  in          Casillas's Volvo contained  $97,950.  Bonilla threw away  the key          to the pouch,  which was now empty.   Keys to apartment  305 were                                         -7-          found  on him.   Faccio possessed  a box containing  many keys to          apartments, including number 305.                         A Preliminary Inquiry - Entrapment?                         ___________________________________               Appellant Casillas  has devoted  a substantial  part of  his          brief  to  asserting  that  this  prosecution  was  the  kind  of          situation described in Sorrells  v. United States, 287  U.S. 435,                                 ________     _____________          442  (1932),  "when  the  criminal  design  originates  with  the          officials of the Government, and  they implant in the mind of  an          innocent person the disposition to commit the alleged offense and          induce   its  commission  in  order  that  they  may  prosecute."          Appellant cites as support the governmental origin of the scheme,          the use and instruction of  an informant, the uninvited visits to          Casillas, the initiation of telephone  calls by the informant  or          the undercover agent, and the absence of cocaine.                But entrapment (a word  which does not appear  in Casillas's          brief) is not  an issue in this  case.  Appellant requested,  and          the  district  court  refused,   an  instruction  on  entrapment.          Appellant  has not identified this ruling as  error or made it an          issue.   He cannot now slide it into the case.  Nor can appellant          gain  any comfort from the safety valve of "plain error" -- which          in any event he has not  invoked.  The evidence of predisposition          was manifest.  See generally United States  v. Panet-Collazo, 960                         ___ _________ _____________     _____________          F.2d 256, 259-60 (1st Cir. 1992).  And this is not that rare case          where  we   might  characterize   the  government's   conduct  as          outrageous.  As we have noted in United States v.  Rafael Santana                                           _____________     ______________          and Francis Fuentes, No. 90-1393, slip  op. at 6 (1st Cir.  Sept.          ___________________                                         -8-          16, 1993), "The  banner of outrageous misconduct  is often raised          but seldom saluted."                                      Sufficiency                                     ___________               Both Casillas and  Bonilla challenge the sufficiency  of the          evidence  to support  their  convictions  for  conspiracy.    Our          standard  of  review  is  limited.   We  indulge  all  reasonable          inferences  favoring the  prosecution.   Our  query is  whether a          rational jury could  have found guilt beyond  a reasonable doubt.          United States  v. Benevides, 985  F.2d 629, 633 (1st  Cir. 1993).          _____________     _________          So long as  the government has shown by  direct or circumstantial          evidence  that  a  defendant  intended  to  agree  and to  commit          whatever substantive criminal offense may have been the target of          the conspirators' agreement, it has met its  obligations.  United                                                                     ______          States  v. Cruz, 981 F.2d 613, 616  (1st Cir. 1992).  It does not          ______     ____          need to show  that a defendant  took part in  all aspects of  the          conspiracy.  Id.,  at 617; Benevides, 985  F.2d at 633 (proof  of                       ___           _________          the essential nature of the plan, and defendant's connection with          it is enough) (quoting Blumenthal  v. United States, 332 U.S. 539                                 __________     _____________          (1947)).               The  record, insofar as it concerns Casillas, is voluminous.          He  participated in all the meetings, conducted negotiations, and          sought  buyers, recruiting  Torres  who  brought  in  Ortiz,  and          Faccio, who brought in Bonilla.  He inspected samples, called off          or delayed meetings,  and decided when  a transaction was  ready.          He was the  spokesman of the buyer  group and was the  person who          placed the  money in  his car  for exchange  on  delivery of  the                                         -9-          cocaine.    The  evidence  of his  participation  was  more  than          sufficient.               Bonilla's main argument  is that he had not  appeared at any          of the many  meetings at which the  drug deal was  discussed, and          that his presence on August 16 at the Feria Court Apartments (the          scene of the  drug transaction) was innocent, as  he was there to          negotiate the purchase of  an apartment, not drugs.  But that day          was  crucial to the  conspiracy, and Bonilla proved  to be a most          active  and visible  actor.   In the  first place,  a defendant's          "mere  presence" claim  is  more difficult  to  sustain when  his          "presence"  was at  the scene  of  the transaction.   See  United                                                                ___  ______          States v. Ortiz, 966 F.2d  707, 712 (1st Cir. 1992)  ("Jurors can          ______    _____          be assumed to know that criminals rarely welcome innocent persons          as witnesses  to serious  crimes and  rarely  seek to  perpetrate          felonies  before  larger-than-necessary  audiences.").    In  the          second place,  Faccio's expressed satisfaction  that postponement          of the transaction would give him a day to "get a hold of Quique"          (identified as  Bonilla) could be  taken by the jury  to indicate          the essentiality of his role.  In the third place, the  events of          August  16 reveal  his  omnipresence: his  several  trips to  the          Bronco;  his nervousness at  having the transaction  in apartment          203 and his apparent influence  in changing to apartment 305; his          appearance in  the elevator with the white box and the blue money          pouch; Casillas's statement that Bonilla and his associate should          inspect the drugs being delivered,  for it was "their money;" his                                         -10-          attempt to throw away the key to the pouch; and his possession of          the key to apartment 305, the money room.               The   jury,  of  course,  was  entitled  to  disbelieve  his          proffered alibi that he was there to inspect an apartment that he          and  his  wife might  decide  to  buy.   Moreover,  the  jury was          entitled to draw the inference that Bonilla would not likely have          brought almost a  hundred thousand dollars to the  transaction if          he  had not  known of  the  total down  payment requirement,  the          extent   of  Ortiz's   contribution   of   collateral,  and   the          understanding  as  to the  remaining  delivery.   In  short,  the          evidence was sufficient to support the verdict.                                  Sentencing Issues                                  _________________               Manager/Supervisor.      Appellant  Casillas   devotes   two               __________________          sentences in his brief to the claim that the district court erred          in increasing his offense level because of his role as manager or          supervisor of  the  conspiracy.    He  argues  that  Justice  and          Hoercherl occupied that role.               We review this finding only  for clear error.  United States                                                              _____________          v. Wright, 873 F.2d 437, 442-44 (1st Cir. 1989); United States v.             ______                                        _____________          Vega-Encarnacion,  914 F.2d 20, 24 (1st Cir. 1990).  From what we          ________________          have  already said about Casillas's participation, it is manifest          that there  was no error.  His acceptance  of the role of broker,          his  recruiting efforts,  and his  central  role in  negotiating,          planning  and delaying meetings  support the finding.   Moreover,          Agent   Justice  testified  that  Casillas  was  to  be  given  a          percentage of the sale proceeds  plus fifty kilograms of cocaine.                                         -11-          This record  satisfies most,  if not indeed  all, of  the factors          characterizing  a   leadership  role  specified  in   U.S.S.G.             3B1.1(c).  See id., comment. (note 3).                     ___ ___               Intent to  Accomplish  Sale of  150  Kilograms.   All  three               ______________________________________________          appellants  claim that  the negotiated  amount  of 150  kilograms          should not be used in calculating their offense levels.  Casillas          argues that the amount  of drugs, "if any,"  should be either  50          kilograms (the total  he claims that he intended  to purchase) or          "around 7 kilograms."  Bonilla  argues that, since the sum seized          could have  purchased only 7.7  kilograms (at $12,500  per kilo),          this figure should have been  used, resulting in an offense level          of 30,  not 38.   Faccio  argues that  the only  evidence of  his          involvement  in  the  enterprise was  his  tape  recorded remarks          concerning his interest in purchasing, at most, 25 kilograms.                 In  addressing these  contentions, we  are  directed by  two          guidelines.     U.S.S.G.      1B1.3(a)(1)(B)   provides  that   a          conspirator is responsible  for all criminal acts  in furtherance          of the  conspiracy and  they  are includible  in the  defendant's          offense level to the extent that they are either within the scope          of the criminal activity embraced by the defendant's agreement or          "reasonably  foreseeable in connection with the criminal activity          the defendant agreed  to jointly undertake."    See id., comment.                                                          ___ ___          (note  2).    In addition,  in  connection  with  then applicable          U.S.S.G.   2D1.4,  comment. (note 1) (1991), the  amount of drugs          sought or under negotiation in a conspiracy should be used if the          amount seized is  less and defendant intended to  produce and was                                         -12-          "reasonably  capable" of  producing  the  larger  amount.    This          instruction applies  to buyers as  well as  sellers and  includes          those who  negotiate purchases  from undercover  agents.   United                                                                     ______          States v. Frazier, 985 F.2d 1001, 1002-3 (9th Cir. 1993).          ______    _______               There  can  be  no  question  that  appellant  Casillas  was          properly charged with  the intent to bring about  the purchase of          150 kilograms.   He was  in the center  of developments from  the          very  beginning, when  the  total  amount  contemplated  was  600          kilograms, and privy to every subsequent change of plans.               With reference to  Bonilla the district court  found that he          was "fully aware of the total amount negotiated and he produced a          substantial  amount  of money  towards  the purchase  of  the 150          kilograms of  cocaine.  [He]  played an instrumental role  in the          conspiracy   as   a   financier,  an   essential   part   of  the          conspiratorial scheme."               With reference to Faccio, the court found that he "was aware          of the total  amount negotiated and he negotiated  to produce the          monies for the purchase  of 150 kilograms of cocaine.   As one of          the  financier[s] his role in the conspiracy was instr[u]mental."          The  court filed supplemental findings, after reviewing its notes          and the arguments of the parties, that Faccio had "negotiated the          amount  of 150  kilograms of  cocaine, that  the amount  of money          corresponding  to  quantity  and  the  condition  [sic]  for  the          delivery were also a part of the discussions."               We review  a trial  court's determination of  the amount  of          drugs included in  the offense for sentencing  purposes under the                                         -13-          strict "clearly  erroneous" standard.   United  States v.  Panet-                                                  ______________     ______          Collazo,  960 F.2d at 261.  Can we say that the court was clearly          _______          wrong in  finding that Bonilla  and Faccio, called in  to provide          the  second half of  the required down  payment, could reasonably          foresee the wider reaches  of the scheme?  Whether or  not Faccio          was   to  receive  substantial   amounts  of  cocaine   as  extra          compensation, as some testimony indicated, we cannot believe that          it was  irrational to find  that Bonilla, who  contributed nearly          $100,000, and Faccio,  who, according to the taped  record of the          August 13  meeting, was willing to  give a deed to  his property,          knew of  the extent of  the underlying agreement.   Specifically,          the court  cannot  be  faulted for  concluding  that  Faccio  and          Bonilla knew that the cash contribution Bonilla  would make would          complete the $400,000 down payment required to transfer the title          to 25 kilograms,  obtain the delivery of another  25 kilograms on          consignment,   and  pave  the   way,  if  the   money  count  was          satisfactory, to the  delivery later in the day  of 100 kilograms          which could be sold before payment was made to the sellers.               In short, even though Faccio and Bonilla came in at the last          chapter,  it was  a  chapter  that reflected  all  that had  gone          before.   The roles of  both men  were far more  significant than          that of  a guard  for a "money  man" where,  in United  States v.                                                          ______________          Alfonso Mena-Robles and Miguel Torres-Rivera, Nos. 92-1233, 1299,          ____________________________________________          slip op. at 21  (1st Cir. Sept. 28, 1993), we  held, "his general          knowledge  of the  size of the  cocaine deal  is inferable."   We                                         -14-          therefore  hold  that  the court's  findings  of  the appellants'          knowledge and intent were not clearly erroneous.               Capacity to Finance  the 150 Kilogram  Purchase.  Faccio  is               _______________________________________________          the only appellant who clearly raises a challenge to the district          court's  150-kilogram  finding  by  arguing  that the  government          failed to carry its burden of showing, by a preponderance of  the          evidence,  that he  was reasonably  capable  of buying  that much          cocaine from the government agents.   He relies on our statements          in United States  v. Estrada-Molina, 931 F.2d 964,  966 (1st Cir.             _____________     ______________          1991) and  United States  v. Bradley, 917  F.2d 601,  604-05 (1st                     _____________     _______          Cir.  1990), where we said that  the government had the burden of          proving  capability as  well as  intent to  produce  the quantity          proposed to be used for determining the offense level.               Neither  the  government   below  nor  the   district  court          responded   to  this argument.   In  reviewing the record  we can          understand why.   The thrust  of Faccio's objections to  his pre-          sentence report was  that, not understanding English,  he did not          know the  extent of the  planning, and his own  intended purchase          was  limited to  25  kilograms.   He  invoked  U.S.S.G.    2D1.4,          comment. (note 1) (now consolidated  as part of U.S.S.G.   2D1.1,          comment.  (note  12)),   recognizing  the  inappropriateness   of          considering the total amount negotiated when the  court finds the          defendant  "did not  intend  to produce  and  was not  reasonably          capable  of  producing the  negotiated  amount."   He  also cited          Estrada-Molina.          ______________                                         -15-               But even  these passing references to capability disappeared          at  the subsequent  hearing  on  objections  to  the  presentence          report.  Faccio  repeatedly stated his position that the evidence          did not support a finding that he knew or had anything to do with          facilitating  the  purchase of  more  than  25,  or at  most  50,          kilograms.    The   issue  of  Faccio's  capability   to  produce          sufficient funds was never presented to the district court.               Since,  however,   the  leveraging  effect   of  considering          negotiated but undelivered amounts is so enormous, we look at the          record.   Our conclusion is  that, though harsh, it  supports the          higher offense level  of 38.  We first point out that the planned          purchase of  150 kilograms  (about which Faccio  was told  at the          August 10,  untaped meeting,  notwithstanding the  fact that  the          August 13 meeting  made no mention of this amount), was not to be          made wholly  in cash.   The requirements  had been narrowed  to a          down payment  of  $400,000.   This  would trigger  the  immediate          delivery  of complete  title  to 25  kilograms  and delivery,  on          consignment, of another 25 kilograms, followed by a delivery  for          sale and later repayment of 100 kilograms.  The first half of the          down payment had been supplied by the Ortiz collateral.  And what          was  actually delivered by Bonilla  was approximately half of the          remaining $200,000.   So  the focus must  be: would  the district          court have  been clearly  in error in  finding Faccio  capable of          providing the remaining $100,000?               What we  find in  the record are  unrebutted intimations  of          Faccio's capacity to  do so.  On  August 13, Faccio  was recorded                                         -16-          saying that  he could give a  deed to his  property and that   "I          have there over  $83,000 that are mine."   This is followed  by a          statement  by Casillas that  Faccio had property  worth $800,000,          and by Hoercherl's comment that the  amount was a million.   Then          there is the evidence that Bonilla and  his wife were prepared to          pay $103,000 for one of Faccio's apartments.   We do not know the          size of  the apartment  building, but the  record discloses  that          there were five floors, that perhaps half had been sold (occupied          by  professional people), with half yet to be sold.  Perhaps most          compelling  is the  statement  in  Faccio's pre-sentence  report,          unobjected  to,  that the  government had  confiscated properties          valued  at  over  two  million dollars.    All  this  may not  be          conclusive, for mortgage indebtedness is  not revealed.  But  the          district  court  was  surely entitled  to  accept  these figures,          absent any  indication that they  were misleading.  All  of these          indicia meet  if not  exceed those we  found sufficient  to prove          capacity  in United  States v.  Bradley, 917  F.2d 601  (1st Cir.                       ______________     _______          1990).               In objecting  to  his pre-sentence  report,  Bonilla  merely          stated that  he had  been able  to come  up with  only the  money          seized  (nearly $98,000), not $200,000.   He did not specifically          argue  incapacity  in  either  his  appellate  brief or  at  oral          argument.   Even were  we to  consider such an  argument now,  we          should have to  treat Bonilla as  accountable for the  reasonable          capacity of  his co-conspirators.   As the Sixth Circuit  held in          United States v. Snelling, 961 F.2d 93, 96 (1991),           _____________    ________                                         -17-               Since the  negotiated amount in  this reverse buy  was three               kilograms  and the co-defendants had sufficient funds at the               time  of arrest to purchase three  kilograms of cocaine, the               district court was correct in utilizing a base level of 28.          As  we said  of a  defendant making a  similar argument  in Mena-                                                                      _____          Robles, appellant's  "personal financial ability is inapposite to          ______                ________          the  matter at hand."   Nos. 92-1233,  1299, slip op.  at 19 (1st          Cir. Sept. 28, 1993) (emphasis in original).               Casillas advanced an  incapacity argument only  conclusorily          and obliquely.  But, again, spurred by the dramatic impact of the          total amount  negotiated on his prison sentence, we have reviewed          the record.   Here, unlike with  Faccio and  Bonilla, we are  not          concerned with Casillas's  own ability to finance  the purchases.          Casillas's role was that of finder, facilitator, recruiter.  That          he  performed this role with considerable effectiveness was shown          by  his track record  in this case.   Being a  middleman, his own          inability to  pay is not  controlling.  United States  v. Fowler,                                                  _____________     ______          990  F.2d  1005,  1006-08  (7th  Cir. 1993).    He  supplied  the          financiers with most of the  down payment; it is likely  that any          shortfall could have been remedied; he  would be free to sell the          cocaine delivered on consignment and have the remaining 100 kilos          delivered without down payment.               We therefore reject the arguments asserting lack of proof of          the  defendants'  ability to  finance  the down  payment  for the          planned 150 kilogram transaction.               AFFIRMED.                                          -18-
