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<pre>       [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] <br> <br>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1750 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                    GIOVANY HERNANDEZ-GARCIA, <br>                     A/K/A VANI, A/K/A BANI, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>         [Hon. Salvador E. Casellas, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>           Campbell and Wallace, Senior Circuit Judges. <br> <br>                      _____________________ <br> <br>    Laura Maldonado-Rodrguez, by appointment of the Court, for <br>appellant. <br>    Miguel A. Pereira, Assistant United States Attorney, with whom <br>Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Chief <br>Criminal Division, Nelson Prez-Sosa and Michelle Morales, <br>Assistant United States Attorneys were on brief, for appellee. <br>                                  <br> <br>                       ____________________ <br>                        February 15, 2000 <br>          <br>                       ____________________

         WALLACE, Senior Circuit Judge.  Giovanni Hernndez-Garca <br>was tried and convicted of conspiracy to distribute more than five <br>kilograms of cocaine in violation of 21 U.S.C.  841, 846.  The <br>district court had jurisdiction pursuant to 18 U.S.C.  3231.  His <br>appeal was timely filed, and we have jurisdiction pursuant to 28 <br>U.S.C.  1291.  We affirm. <br>                                I. <br>         Hernndez-Garca first argues that he received <br>ineffective assistance of counsel at trial because of a conflict of <br>interest with his attorney.  This conflict arose, Hernndez-Garca <br>argues, because his counsel was unprepared, failed to file motions, <br>and previously represented one of the cooperating witnesses who <br>testified against him. <br>         This is not the proper forum to address an ineffective <br>assistance of counsel argument.  Such claims "will not be <br>entertained on direct appeal absent a sufficiently developed <br>evidentiary record.  Instead, a collateral proceeding under 28 <br>U.S.C.  2255 is the appropriate vehicle for such an <br>ineffective-assistance claim."  United States v. Ademaj, 170 F.3d <br>58, 64 (1st Cir.) (citations omitted), cert. denied, 120 S. Ct. 206 <br>(1999).  Hernandez's ineffective assistance of counsel argument is <br>fact-intensive, making it more appropriate in a section 2255 <br>setting.

                               II. <br>         Hernndez-Garca next argues that the district court <br>erred in admitting tape recorded evidence against him without <br>proper voice identification as required by Federal Rule of Evidence <br>901.  We review for abuse of discretion.  See United States v. <br>Citro, 938 F.2d 1431, 1438 (1st Cir. 1991). <br>         Before certain voice evidence is admissible, it must be <br>authenticated pursuant to Rule 901(a), (b)(15).  "The rule does not <br>erect a particularly high hurdle."  United States v. Ortiz, 966 <br>F.2d 707, 716 (1st Cir. 1992).  The burden of authentication "does <br>not require the proponent of the evidence to rule out all <br>possibilities inconsistent with authenticity, or to prove beyond <br>any doubt that the evidence is what it purports to be.  Rather, the <br>standard for authentication, and hence for admissibility, is one of <br>reasonable likelihood."  United States v. Holmquist, 36 F.3d 154, <br>168 (1st Cir. 1994). <br>         At a Carbone hearing to determine the admissibility of <br>wiretap evidence obtained during a Title III interception, see <br>United States v. Carbone, 798 F.2d 21, 24-25 (1st Cir. 1986), <br>Special Agent Cintrn identified Hernndez-Garca's voice.  <br>However, shortly thereafter, he stated he was not sure of his <br>identification because the voice may have been that of another <br>defendant.  Regardless, Agent Cintrn testified that he presumed <br>that Hernndez-Garca's voice was on the recording based on <br>circumstantial evidence:  a speaker on the recording identified <br>himself as "Vani," Hernndez-Garca's alias, and there was only one <br>"Vani" investigated and indicted. <br>         Angel Ruiz-Adorno, a cooperating government witness, also <br>positively identified Hernndez-Garca's voice after listening to <br>the recordings.  Hernndez-Garca attempted to impeach Ruiz-Adorno, <br>leaving a credibility finding for the district court.  The district <br>judge ruled that he was satisfied, based on Agent Cintrn's and <br>Ruiz-Adorno's testimony, that Hernndez-Garca's voice was properly <br>identified. <br>         The district court did not abuse its discretion.  <br>Circumstantial evidence, either alone or in conjunction with direct <br>evidence, is admissible for Rule 901 authentication purposes.  See <br>United States v. Carrasco, 887 F.2d 794, 804 (7th Cir. 1989).  <br>Thus, the district court properly relied upon Agent Cintrn's <br>testimony that the audiotapes identify "Vani," i.e., Hernndez- <br>Garca, and that there was only one "Vani" associated to the drug <br>conspiracy in making his Rule 901 ruling. <br>         Hernndez-Garca argues that Ruiz-Adorno could not have <br>met him at the time Ruiz-Adorno testified, but this was a <br>credibility issue to be resolved by the district court.  In <br>addition, at no time did Hernndez-Garca foreclose the possibility <br>that Ruiz-Adorno actually met Hernndez-Garca at some other time <br>prior to his positive voice identification at the Carbone hearing. <br>         For these reasons, the district court did not abuse its <br>discretion in determining that the audiotapes were properly <br>authenticated. <br>                               III. <br>         Hernndez-Garca also argues that the evidence was <br>insufficient to find that he ever joined the conspiracy.  In making <br>this argument, Hernndez-Garca: <br>                      bears a heavy burden: he must show that no <br>           rational jury could have found him guilty <br>           beyond a reasonable doubt.  We review the <br>           sufficiency of the evidence as a whole, in <br>           a light most favorable to the verdict, <br>           taking into consideration all reasonable <br>           inferences.  We resolve all credibility <br>           issues in favor of the verdict.  The <br>           evidence may be entirely circumstantial, <br>           and need not exclude every hypothesis of <br>           innocence; that is, the factfinder may <br>           decide among reasonable interpretations of <br>           the evidence. <br> <br> <br>United States v. Scharon, 187 F.3d 17, 21 (1st Cir. 1999) <br>(citations omitted). <br>         Having reviewed the evidence as outlined above, we hold <br>that it was sufficient to uphold the jury's verdict.  Ruiz-Adorno <br>testified that he saw Hernndez-Garca give a bag full of money to <br>Wes Solano-Moreta, the head of the drug conspiracy.  The jury heard <br>two audiotapes comprising conversations between Hernndez-Garca <br>and Wes Solano-Moreta concerning drug trafficking.  It saw two <br>videotapes showing Hernndez-Garca at known drug distribution <br>points.  It also saw a photograph in which Hernndez-Garca is seen <br>with Wes Solano-Moreta.  FBI Special Agent Vzquez testified that <br>during an authorized wiretap of a beeper Solano-Moreta used, the <br>beeper received 192 messages from "Vani."  The fact that much of <br>the evidence is circumstantial, and that the government did not <br>identify Hernndez-Garca's precise role in the conspiracy, do not <br>diminish the jury's finding of guilt.  See Scharon, 187 F.3d at 21 <br>(stating that jury can rely entirely upon circumstantial evidence); <br>United States v. Laboy-Delgado, 84 F.3d 22, 27 (1st Cir. 1996) <br>(stating "to prove a defendant guilty of a narcotics-related <br>conspiracy the government need not specify and prove with <br>particularity the defendant's exact role in the scheme").  The <br>evidence was sufficient to uphold the jury verdict. <br>                               IV. <br>         Hernndez-Garca next argues that the district court <br>erred in calculating his sentencing range.  He challenges the <br>district court's findings on drug quantities and role in the <br>offense, contending that because the district court's findings are <br>not specific, we cannot properly settle the sentencing issue. <br>         In United States v. Fal-Gonzlez, No. 98-1749, slip op. <br>at __ (collecting cases), a companion case, we held that if a <br>defendant is dissatisfied with the district court's sentencing <br>findings, he must request more specific findings at sentencing in <br>order to challenge the findings on appeal.  Hernndez-Garca did <br>challenge the presentence report recommendation concerning drug- <br>quantity and role in the offense.  However, after the district <br>court heard evidence from both sides and made its findings <br>regarding these issues, Hernndez-Garca offered no further <br>objections, despite the district court's asking three times whether <br>counsel had any further points to make.  Having failed to request <br>more specific findings in the district court, Hernndez-Garca <br>cannot challenge the specificity of those findings here.  See id. <br>                                V. <br>         Finally, Hernndez-Garca argues that the district court <br>should have granted his motion for new trial, brought pursuant to <br>Federal Rule of Criminal Procedure 33, based on newly discovered <br>evidence that one telephone call recorded during a Title III <br>intercept of Solano-Moreta cellular phone, and used against <br>Hernndez-Garca at trial, did not take place during the authorized <br>intercept time.  The basis for Hernndez-Garca's argument is that <br>cellular billing records, obtained after trial, do not indicate a <br>call being made on the Title III target phone at the time the <br>government maintains.  Hernndez-Garca's co-defendant Fal- <br>Gonzlez raised this identical issue.  See Fal-Gonzlez, slip op. <br>at ___.  For the same reasons stated there, we hold that there was <br>no manifest abuse of discretion in denying the motion. <br>         AFFIRMED.</pre>

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