
USCA1 Opinion

	




          April 25, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1352                                    UNITED STATES,                                      Appellee,                                          v.                                 JAIRO GIRALDO-PARRA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Luis Rafael-Rivera for appellant.            __________________            Jos   A. Quiles-Espinosa,  Senior  Litigation  Counsel, with  whom            ________________________        Guillermo Gil, United States Attorney, was on brief for appellee.        _____________                                 ____________________                                 ____________________                      BOWNES,  Senior  Circuit Judge.   A  jury convicted                      BOWNES,  Senior  Circuit Judge.                               _____________________            defendant-appellant  Jairo  Giraldo  Parra  of  conspiracy to            possess  cocaine and  heroin  with intent  to distribute,  21            U.S.C.     846; and  possession  of cocaine  and  heroin with            intent to distribute,  21 U.S.C.    841(a)(1).   He was  also            convicted  under the  "principals"  statute, 18  U.S.C.    2.            Defendant was sentenced to 151 months of incarceration.                      There  are two issues  on appeal:   (1) whether the            district court erroneously denied defendant's Rule  29 motion            for acquittal and (2)  whether the district court incorrectly            applied the Sentencing Guidelines in  determining defendant's            sentence.                                          I.                                          I.                                     THE EVIDENCE                                     THE EVIDENCE                                     ____________                      We review the relevant evidence and draw reasonable            inferences  therefrom, in  the  light most  favorable to  the            government.  United States v. Mena-Robles, 4  F.3d 1026, 1029                         _____________    ___________            (1st Cir.  1993); United States  v. Hernandez, 995  F.2d 307,                              _____________     _________            311  (1st  Cir. 1993).    Defendant's  arrest and  indictment            followed  a Drug  Enforcement Administration  (DEA) sponsored            undercover operation  spanning the last five  months of 1991.            Five others were also  caught in the undercover net  and were            indicted along  with defendant.   Although defendant  was the            sole defendant at trial, the co-conspirators' names appear in            the  record and  are  essential to  understand the  evidence:                                         -2-                                          2            Oscar Gonzalez Lopez; Daniel Alberto  Atilio Adinolfi; Victor            Rodriguez Alvarez;  John  Doe, a/k/a  Edgardo Rodriguez;  and            Jorge Omar Lopez  Almeida.  As is usual in  a drug undercover            operation,  many of the conversations, telephone and face-to-            face, were recorded.                      Defendant  was the  owner-operator of  a restaurant            called "Mi  Pequena Colombia"  located on Domenech  Avenue in            Hato  Rey.  The  undercover operation  started on  August 21,            1991, when  DEA Agent  Jefferson Moran  and  Pablo Rivera,  a            member  of the Police of Puerto Rico assigned to the DEA, met            with Oscar Gonzalez Lopez (Oscar) at a shopping center in Rio            Piedras,  Puerto Rico.   DEA  Agent Moran  was introduced  to            Oscar by  Agent Rivera as being interested  in buying cocaine            or heroin.   Oscar made a telephone call from  a public phone            booth.   He then  asked  the agents  for $250  to obtain  two            samples of heroin.  After obtaining the money, he accompanied            the  agents to  Domenech Avenue,  where he  left the  car and            headed  in  the  direction  of defendant's  restaurant.    He            returned  shortly and  gave Agent  Moran a  cigarette package            containing two separate samples of heroin.  Between August 23            and 29, Oscar and Agent Moran discussed, mostly by telephone,            the purchase of an ounce of heroin for $7,500.  On August 29,            Oscar and the two agents met and went together to defendant's            restaurant.  At the restaurant they were introduced to Victor            Rodriguez Alvarez (Victor).   Victor asked for the payment of                                         -3-                                          3            $7,500 before turning over  the heroin.  After  receiving the            money,  he  went  into the  restaurant  and  gave  it to  the            bartender, Edgar  Rodriguez Velazquez (Edgar).1   Edgar  then            gave Victor  the heroin,  who  delivered it  to Agent  Moran.            Victor went back  into the restaurant and  asked if defendant            had  called and  Edgar  said "No."   Later,  defendant called            Edgar and was  told that Victor had delivered the merchandise            and he, Edgar, had the $7,500.  Sometime later defendant came            to  the restaurant and  the $7,500 was turned  over to him by            Edgar.                      On September  13, 1991, Agent Rivera  was called by            Victor and it  was agreed  that Victor would  sell Rivera  an            ounce of heroin for  $7,000.  Agent Rivera then  proceeded to            defendant's  restaurant and  asked  Edgar  where Victor  was.            Defendant  was present when the inquiry was made.  Rivera was            told that Victor was at a  nearby pizzeria.  Rivera made  the            "buy"  at the pizzeria.   He paid Victor  $7,000 and received            from him an ounce  of heroin.  After the  transaction, Victor            went to defendant's restaurant and met with defendant, Edgar,            and  Daniel Alberto Atilio Adinolfi (Atilio).  The $7,000 was            given to Atilio, who passed it to Edgar, who put it under the            counter.                                            ____________________            1.  Named in indictment as John Doe a/k/a Edgardo Rodriguez.                                         -4-                                          4                      On   September   25,  1991,   Agent   Moran  called            defendant's  restaurant  and  asked  for  Victor.   Defendant            answered  the phone and after  the inquiry, put  Edgar on the            line.   Moran  asked Edgar to  have Victor  call him.   Later            Victor called Agent Rivera and they  set up a meeting at  the            pizzeria near defendant's restaurant.   Before meeting Rivera            at the  pizzeria, Victor  went to defendant's  restaurant and            obtained an ounce of heroin from Atilio.  Defendant and Edgar            were at the restaurant  at the time the heroin  was obtained.            Victor  delivered  the heroin  to  Rivera in  return  for the            payment of $7,000.   Victor returned to the  restaurant, gave            the money to  Atilio and  asked for his  commission.   Atilio            refused to give Victor a commission; instead he referred  him            to defendant.  Defendant told Victor that no commission would            be paid  because Victor owed him  $200.  This was  the end of            Victor's  dealings with the  undercover agents.   Presumably,            defendant  and his cohorts found out that he had been dealing            with a DEA agent.                      In  late   November  or  early  December,  the  DEA            recruited a confidential informant, Eliezer Gallegos, to join            its undercover operation.   On December 5,  Gallegos met with            defendant and Atilio at the restaurant where the purchase  of            one-half of a  kilogram of cocaine for  $5,000 was discussed.            On December  6, another negotiation  meeting was held  at the            restaurant.   At  the end  of the  conversation,  Atilio told                                         -5-                                          5            Gallegos that they would  take a ride and complete  the deal.            Defendant had told Atilio:   "If he is going to buy  the car,            take him  around for a  ride so  he will get  acquainted with            it."  Gallegos understood  this to mean that the  cocaine was            in a car.   Gallegos and Atilio left the restaurant, got into            a car, and drove around the block.  The "buy" was made in the            car; Gallegos paid Atilio $5,000 and received half a kilogram            of  cocaine.   During the  drive around  the block  they were            followed  by  Jorge  Omar Lopez  Almeida,  who  was  riding a            motorcycle.  Presumably, this was to protect the "buy."                      Later that same day, Gallegos called the restaurant            and told Edgar that the half kilo of cocaine was short by six            grams.  On December  11, Gallegos called Atilio and  told him            that the  cocaine he had bought  was six grams less  than the            amount  agreed upon.  Atilio promised  Gallegos that he would            make up  the shortage the next  day and sell him  a sample of            heroin  for $200.  Gallegos  went to the  restaurant the next            day.   Defendant  was at  a table  with two  unknown persons.            Atilio  was  at another  table  with Edgar.    Gallegos asked            Atilio  for the six grams  of cocaine and  the heroin sample.            He was told by Atilio to  wait because defendant was busy.  A            little later Atilio  went over  to defendant who  gave him  a            package.    Atilio  passed  the  package  to  Gallegos.    It            contained six grams of cocaine and a heroin sample.  The next                                         -6-                                          6            day Gallegos went to  the restaurant and paid Edgar  $200 for            the heroin sample.                        It  was stipulated  that  the drugs  bought by  the            undercover agents and  the confidential informant  tested out            as heroin and cocaine.                                         -7-                                          7                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________            A.  The Rule 29 Motion2            A.  The Rule 29 Motion                      Defendant argues that  the district court  erred in            denying  his   Fed.R.Crim.P.  29   motion  for  judgment   of            acquittal.  In reviewing  the denial of a Rule 29  motion, we            consider  all the  evidence, draw  all reasonable  inferences            therefrom, and resolve all issues of credibility in the light            most  favorable  to the  government,  in  order to  determine            whether a jury could have reasonably concluded that defendant            was guilty beyond a reasonable doubt.  Mena-Robles, 4 F.3d at                                                   ___________            1031;  Hernandez, 995 F.2d at 311.                     _________                      The thrust  of defendant's argument is  that he was            simply   an  honest   businessman  and   restauranteur  whose            misadventure  it  was  that  drug  dealers  operated  on  his            premises without his  blessing, knowledge, or  participation.            In support of this position,  defendant points out that  none            of  the myriad  DEA recordings  or photographs  introduced at            trial capture him conducting an illicit drug transaction.  We            have  reviewed the record carefully and, while we concur with            defendant's contention  that the  government did  not produce                                            ____________________            2.  Fed.R.Crim.P. 29 states, in relevant part:  "The court on            motion  of defendant  or on  its own  motion shall  order the            entry  of  judgment  of acquittal  of  one  or more  offenses            charged  in the indictment  or  information after evidence on            either  side is  closed if  the  evidence is  insufficient to            sustain a conviction of such offense or offenses."                                         -8-                                          8            any direct evidence  of his complicity,  we must reject  both            his premise and  his conclusion, because neither has  a legal            basis.  To  the contrary, it is  a well-established principle            that,                      [t]he  evidence  [introduced against  the                      defendant  at  trial]  may   be  entirely                      circumstantial,  and   need  not  exclude                      every reasonable hypothesis of innocence,                      that  is, the factfinder may decide among                      reasonable    interpretations   of    the                      evidence.            United States v. Batista-Polanco,  927 F.2d 14, 17 (1st  Cir.            _____________    _______________            1991)(citations omitted).                         Defendant  has attempted to rely on "mere presence"            as a  defense to the  charges of conspiracy,  possession, and            distribution.    Of  course,  in  establishing  a  conspiracy            charge, the prosecution must prove intent to agree and commit            the  substantive  offense beyond  a  reasonable  doubt, Mena-                                                                    _____            Robles,  4  F.3d  at 1031.    The  evidence  for such  proof,            ______            however, may be either express or inferred  from conduct, and            if  circumstantial  evidence  raises   reasonable  inferences            sufficient to refute the claim of mere presence, it is enough            to sustain the verdict. Id.; Batista-Polanco, 927 F.2d at 18.                                    ___  _______________            Further informing  this analysis  is the  oft-repeated truism            that participants  in a  criminal conspiracy are  unlikely to            permit or tolerate the  presence of extraneous observers, and            a  jury is  presumed  capable of  drawing such  an inference.            United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992).             _____________    _____                                         -9-                                          9                      In the case at bar, the evidence shows that all the            drug transactions which form the basis of the indictment took            place  in  and  around  "Mi  Pequena  Columbia,"  defendant's            restaurant.    There is  ample  evidence  that defendant  was            present either before,  after, or during each  of the "buys."            The jury  could reasonably  infer that the  drug transactions            were  authorized and controlled by  defendant and that he was            the  source of  supply.   Accordingly, we  reject defendant's            contention that the evidence of his guilt was insufficient.            B.  Sentencing Claims            B.  Sentencing Claims                      The  court enhanced defendant's  base offense level            by  four levels  for  his role  as an  organizer in  the drug            trafficking conspiracy,  U.S.S.G.   3B1.1, and  by two levels            for  obstruction of justice, U.S.S.G.    3C1.1.   At the same            time, the  court denied defendant's  request for a  two level            downward   adjustment   for  acceptance   of  responsibility.            Defendant  argues  that  the  court erred  in  each  of these            determinations.                      We will  disturb supported findings of a sentencing            court only when our review of the record "convinces us that a            grave  mistake was made."  United States v. Bradley, 917 F.2d                                       _____________    _______            601, 605 (1st Cir. 1990).                        1.  Role in the Offense                      1.  Role in the Offense                      Based on  the number of  individuals involved,  the            nature  of  the enterprise,  and  the defendant's  leadership                                         -10-                                          10            role,  the  district  court   imposed  a  four  level  upward            adjustment to defendant's base offense level under U.S.S.G.              3B1.1(a).3    Because role  in  the  offense adjustments  are            necessarily fact  specific, the  findings  of the  sentencing            court are  reviewed under a deferential  standard. See United                                                               ___ ______            States v. Morillo, 8  F.3d 864, 873 (1st Cir. 1993);   United            ______    _______                                      ______            States v. Akitoye, 923  F.2d 221, 227  (1st Cir. 1991).   The            ______    _______            "standard  of  review  for  the   sentencing  court's  upward            adjustment for  defendant's leading  role in the  offense ...            [is] clear error."   United States v. Reyes, 927  F.2d 48, 50                                 _____________    _____            (1st Cir. 1991).                      The  evidence established  that  the drug  activity            took  place  almost  exclusively in  and  around  defendant's            restaurant.  Moreover, there was testimony to the effect that            transactions  took  place only  when defendant  was entering,            leaving, or physically  present at the restaurant.  From this            alone  the   judge  could  have   reasonably  concluded  that            defendant was the  organizer and  leader of a  group of  drug            dealers.   Added to this we have  the testimony of one of the            co-conspirators, Victor  Rodriguez,  that defendant  ran  the            operation, and  that he alone could  determine whether Victor            was to be paid a commission on the sales he made.                                            ____________________            3.  Section 3B1.1(a)  provides that "If the  defendant was an            organizer or leader of a criminal activity that involved five            or more participants or  was otherwise extensive, increase by            4 levels."                                         -11-                                          11                      We  reject defendant's  claim  of error  as to  the            four-levelenhancement for hisrole in theoffense as meritless.                      2.  Obstruction of Justice                      2.  Obstruction of Justice                      At trial, Victor Rodriguez testified that defendant            had  approached  him  during  their  pretrial  detention  and            requested  that  Victor write  a  letter to  the  trial judge            explaining that  defendant had  no involvement in  the counts            charged  in the indictment.   This letter was  solicited as a            quid pro quo, in exchange for which defendant would see to it            ____ ___ ___            that Victor's family was adequately provided for while Victor            was incarcerated.  Victor also testified, and the presentence            report  states,  that co-conspirator  Atilio  threatened that            Victor  would be harmed if  he were to  provide assistance to            the government.  This was clearly an attempted obstruction of            justice.    Section 3C1.14  of  the guidelines  calls  for an            enhancement  of  two  levels  for  such  conduct.    Such  an            enhancement, like  that for a leadership role in the offense,            is fact-based and therefore reviewed for clear error.  United                                                                   ______            States v.  Gonzales,  12  F.3d  298,  299  (1st  Cir.  1993);            ______     ________            Akitoye, 923  F.2d at  229.   There  was no  error, clear  or            _______                                            ____________________            4.  Section  3C1.1  states:    "If  the  defendant  willfully            obstructed or  impeded, or  attempted to obstruct  or impede,            the  administration  of  justice  during  the  investigation,            prosecution, or  sentencing of the  instant offense, increase            the offense level by 2 levels."                                         -12-                                          12            otherwise,  by  the  court  in applying  the  obstruction  of            justice guideline.                        3.  Acceptance of Responsibility                      3.  Acceptance of Responsibility                      Defendant  has a threshold problem in attacking the            lower court's  determination that  he did  not qualify  for a            downward  adjustment for  acceptance of  responsibility.   In            Gonzales, we held that  "[o]nly 'extraordinary cases' qualify            ________            for  an  acceptance  of  responsibility credit  following  an            enhancement for obstruction of justice." Gonzales, 12 F.3d at                                                     ________            300,  (quoting  U.S.S.G.    3E1.1, comment  (n.4)).   In this            case,  there was  testimony at  trial  and at  the sentencing            hearing   showing  that,   even  after   being  incarcerated,            defendant actively sought to mislead the trial court in order            to escape responsibility for the  charges against him.  These            are  the  same  charges for  which  he  now  alleges to  have            accepted responsibility.                      Only  at  his  presentence  interview  and  in  his            allocution at  the sentencing  hearing  did defendant  accept            responsibility  for  his actions,  and he  did  so only  in a            limited manner.  The district judge found that "the defendant            had not"   accepted responsibility within the  meaning of the            guidelines, and  that the  acceptance made was  not authentic            and was devoid of remorse.  Findings as to these factors will            not be reversed absent clear error.  United States v. Ocasio-                                                 _____________    _______            Rivera, 991 F.2d  1, 4-5  (1st Cir. 1993);  United States  v.            ______                                      _____________                                         -13-                                          13            Royer,  895  F.2d  28,  29  (1st  Cir.  1990)  ("Because  the            _____            sentencing judge has the  unique opportunity of observing the            defendant, hearing his  allocution, and evaluating acceptance            of responsibility . . . against the backdrop of the case as a            whole,hisdetermination isentitled toagreat dealof respect.").                      Accordingly,  we reject  defendant's claim  that he            was  entitled  to a  two  level reduction  for  acceptance of            responsibility.                       The judgment of the district court is                       Affirmed.                          Affirmed.                      ________                                         -14-                                          14
