
USCA1 Opinion

	




        December 1, 1995        [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1968                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                             WILFREDO JIMENEZ-RODRIGUEZ,                                Defendant, Appellant.                                 ____________________        No. 94-2072                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              FRANCISCO REYES-VEJERANO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Rafael F. Castro Lang for appellant Francisco Reyes-Vejerano.            _____________________            Rachel  Brill with whom  Carlos V.  Garcia Gutierrez  was on brief            _____________            ___________________________        for appellant Wilfredo Jimenez-Rodriguez.            Sidney M.  Glazer,  Senior Appellate  Counsel, Criminal  Division,            _________________        Department  of  Justice,  with   whom  Guillermo  Gil,  United  States                                               ______________        Attorney, was on brief for the United States.                                 ____________________                                 ____________________                 BOUDIN, Circuit Judge.  In January 1994, a federal grand                         _____________            jury indicted three men  on drug-related offenses:  Francisco            Reyes Vejerano,  Wilfredo Jimenez Rodriguez  and Jaime Ocampo            Ochoa.   Ocampo pleaded guilty to one count, and his sentence            was subsequently affirmed  by this court in  United States v.                                                         _____________            Ocampo, No. 94-1897, 1st Cir. May 8, 1995.  Reyes and Jimenez            ______            pled not guilty and were tried together in April 1994.   Both            were convicted, and they now appeal.                 Reyes  and Jimenez  were each  convicted on  two related            conspiracy charges,  one to  distribute heroin, 21  U.S.C.               841,  846, and  the  other to  make  false statements  in  an            application for a  passport, 18  U.S.C.   1542,  in order  to            secure a false travel document for a drug courier.  Reyes was            also convicted of  three counts of possession  with intent to            distribute  heroin,  21  U.S.C.     841,  for  specific  drug            transactions related to the  conspiracy.  Reyes was sentenced            to 188 months' imprisonment and  a $50,000 fine, and  Jimenez            to a 33-month term of imprisonment.                 On this appeal,  Reyes and Jimenez  have filed over  100            pages  of briefs,  together  making several  dozen claims  of            error.  Most  of these claims involve  matters largely within            the  scope of the trial court's discretion or claims where no            proper objection was taken.  We direct most of our discussion            to those  few issues that seem to us fair ground for argument            under  the applicable  standards of  review and,  in closing,                                         -3-                                         -3-            illustrate  why  the  balance  of  the claims  do  not  merit            detailed discussion.                 1.   Although the government  offered ten witnesses, the            brunt  of its case rested  on the testimony  of Carmen Toledo            Gonzalez who, by her own  admission, had participated in both            of the  conspiracies  and  engaged  in several  of  the  drug            transactions and the attempted  passport fraud.  Her evidence            was bolstered by that of her boyfriend (Jeffrey Martinez) who            also participated in certain of the events.  Their testimony,            with some gaps  filled in by  other witnesses, permitted  the            jury to conclude  that Reyes and Ocampo were  responsible for            several efforts to import heroin into Puerto Rico.                 As  to Reyes, the details need not be recounted since he            does not deny that  the evidence against him was  adequate to            convict.    Crediting  the  government  witnesses,  the  case            against  Reyes was  a strong  one.   Toledo herself  made two            trips,  one in  October  1992 to  Colombia  and one  in  1993            (apparently in June)   to Panama; and she helped  recruit two            other  individuals for  separate trips,  both to  Colombia in            1993.   These trips took place after consultation with Reyes,            or so  the  jury  was entitled  to  find.   Some  drugs  were            successfully  imported,  one effort  resulted  in  an airport            arrest,  and one  fell  through because  the  drugs were  not            delivered to the courier.                                         -4-                                         -4-                 By contrast, Jimenez--whose role was  far more limited--            argues that the government failed to prove the existence of a            single  conspiracy  to  possess  heroin  as  charged  in  the            indictment  and  that in  any event  it  failed to  show that            Jimenez  joined such  a conspiracy.   The  evidence certainly            permitted the jury to find that Reyes, Ocampo and Toledo were            members of one  drug trafficking conspiracy.  The finding was            supported  by  similarities  in  the  participants,  methods,            geographic  locations, and  the like.   See United  States v.                                                    ___ ______________            Morrow, 39 F.3d 1228, 1233-34 (1st  Cir. 1994); United States            ______                                          _____________            v. Cloutier, 966 F.2d 24, 28 (1st Cir. 1992).               ________                 The  more  difficult  question is  whether  Jimenez, who            participated  in only one of the trips, could fairly be found            to have joined the charged conspiracy, or any drug conspiracy            at all.  The  two issues are significantly different,  and we            address the latter  one first.   Taking the  evidence in  the            light  most   favorable  to  the  verdict,   the  jury  could            reasonably have found that the following occurred:                 After  Toledo's  passport was  seized  by  police in  an            unrelated   incident,   Reyes   and   Ocampo    gave   Toledo            identification papers to help her obtain a new passport under            the name  of Sarah  Luz  Velazquez Santiago.   When  Martinez            declined   to  accompany  Toledo   on  another  trip,  Toledo            persuaded  Jimenez to act as her escort, telling him that she            was going to  bring in narcotics and that she  was asking him                                         -5-                                         -5-            to  help.  Before departing, Toledo applied for a passport in            the name of  Sarah Luz Velazquez; Jimenez accompanied  her to            the  passport   office;  and  he  there   signed  a  document            identifying Toledo  as Sarah Luz Velazquez.   No passport was            obtained, and Toledo changed the destination from Colombia to            Panama.                 Jimenez then accompanied  Toledo to Panama.  He had been            selected because he was  a book importer, and it  was thought            that his legitimate business  travels would provide cover for            the scheme.  There  was some evidence that Jimenez  sought to            distance  himself  from the  importation  efforts, but  other            evidence that he requested  (unsuccessfully) a third of "what            was coming" and  that, for  the return trip  to Puerto  Rico,            Jimenez  made arrangements  to make  it "look  like it  was a            [trip]  having to do with books."  Toledo alone collected the            drugs in Panama and carried them  back to Puerto Rico in  the            company of Jimenez.                 Jimenez'  assistance was  certainly limited, and  it was            open  to him  to argue  that his  role was  too  equivocal to            justify conviction.  But  the jury was entitled to  find that            the  facts were  as  Toledo represented  them.   Further,  an            illegal  agreement need  not be  explicit, Ianelli  v. United                                                       _______     ______            States, 420 U.S. 770, 777 n.10 (1975); United States v. Ruiz,            ______                                 _____________    ____            905 F.2d  499, 506 (1st Cir. 1990), and a rational jury could            conclude that Jimenez'  participation was sufficient  to make                                         -6-                                         -6-            out an  agreement.  Jimenez  was not helped by  the fact that            the   evidence  clearly  showed   his  participation  in  the            ancillaryconspiracy tosecurea passportbasedon falsedocuments.                 Assuming that  the evidence allowed the  jury to convict            Jimenez  of  the  heroin  conspiracy,  the  question  remains            whether he joined the  overarching conspiracy to import drugs            as charged in  the indictment or  only a smaller  encompassed            conspiracy  related to  the specific  Panama transaction.   A            conspirator  can  be  part  of a  larger  conspiracy  without            knowledge of all its  details and dimensions.   Blumenthal v.                                                            __________            United States,  332 U.S.  539, 557 (1947);  United States  v.            _____________                               _____________            Cruz,  981 F.2d  613,  617 (1st  Cir. 1992).   Still,  on the            ____            present facts  there is a reasonable argument  (which we need            not  resolve)  that  Jimenez,  in addition  to  the  passport            conspiracy,  was at worst knowingly engaged  only in a single            narrow conspiracy to import drugs on one occasion.                 Nevertheless,  the  evidence  (as  already   noted)  was            sufficient to  find that Jimenez conspired  to possess heroin            with  intent  to distribute  in  connection  with the  Panama            episode;  and the prosecution made clear at trial that he had            not yet joined the  conspiracy at the time of  the prior acts            of  importation.  Jimenez was sentenced based only on the 250            grams of  heroin imported with  his assistance; in  fact, the            trial court  generously based Jimenez'  sentence on one-third            of that amount, in view of the testimony that he had asked to                                         -7-                                         -7-            be given one-third of the drugs Toledo was to procure.  Thus,            Jimenez has  not demonstrated  prejudice as a  result of  the            possible  variance  between the  scope  of  the broader  drug            conspiracy  charged  and narrower  drug  conspiracy that  was            adequately proved.  United States v. Morrow, 39 F.3d at 1235.                                _____________    ______                 In a different variance  argument, Jimenez protests that            the indictment charged that  the conspiracies were alleged to            have  continued to April  1993 (as to  the heroin conspiracy)            and until "on or about April  1993" [sic] (in the case of the            passport conspiracy).  In reality, the second application for            the passport occurred in  June 1993, and the Jimenez  trip to            Panama occurred shortly thereafter.   But the indictment also            identified as  an overt act Jimenez'  false identification of            Toledo  and said correctly that it occurred "on or about June            7, 1993."  There is no indication that Jimenez was  misled by            the  mistaken reference to his  trip as one  that occurred in            April.  Again there was no showing of prejudice.                   2.   Reyes  argues that  his sentence  was substantially            enhanced from  a base level of  32 to one of  36, because the            district court proposed a  four-level increase under U.S.S.G.               3B1.1(a).    This   section  provides  that  a  four-level            increase, for  an aggravating  role, should be  imposed "[i]f            the  defendant  was an  organizer  or  leader of  a  criminal            activity  that  involved five  or  more  participants or  was            otherwise  extensive  . .  .  ."    The  pre-sentence  report                                         -8-                                         -8-            recommended that  Reyes be  deemed a leader-organizer  on the            ground that in  addition to  Reyes there were  at least  five            other participants in the criminal activities, namely,  Jaime            Ocampo,  Carmen Toledo,  Jeffrey Martinez,  Lourival Quinones            and Wilfredo Jimenez.                 At the  sentencing hearing,  Reyes' counsel  argued that            Reyes and Ocampo had passed polygraph tests showing that they            were not involved in drug trafficking and that other evidence            showed  that  Toledo  had  lied  at  various  points  in  her            testimony.  The district  court, although it referred  to the            jury verdict,  made  clear  that  the  court  was  making  an            independent judgment  as to  whether the facts  supported the            four-level increase.   The court then  imposed the four-level            increase  but  on  slightly   different  grounds  than  those            suggested in the pre-sentence report.                 The district judge said although he might treat Martinez            and Jimenez as participants,  he was declining to do  so; but            that   there  were  still  the  necessary  five  participants            comprised  of   Reyes,  Ocampo,   Toledo,  Quinones  and   an            individual referred  to at trial as  "Negro."  Alternatively,            the court concluded that the criminal activity was "otherwise            extensive";  under  the explicit  language  of  the guideline            which uses the  word "or," criminal enterprise  of fewer than            five  would still  be  the basis  for a  four-level increase.            U.S.S.G.   3B1.1.(a)                                         -9-                                         -9-                 On appeal,  Reyes continues to argue  that the polygraph            tests,  and  other  information  inconsistent  with  Toledo's            version of  events, undermines the  district court's finding.            The difficulty is that the district court, like the jury, was            entitled  to accept  Toledo's  version.   While  some of  the            information relied on by Reyes to impeach the verdict was not            before  the  jury (e.g.,  the  polygraph test),  most  of the                               ____            evidence was considered by the jury and  much is self-serving            statements  by other  participants  or impeachment  material.            The  district  court's decision  to  believe  Toledo was  not            clearly erroneous.                 A slightly  more troubling  problem is presented  by the            district court's decision to exclude Martinez and Jimenez and            to substitute Negro.  While Reyes' appeals brief says nothing            about  Quinones, it says that  Negro "had nothing  to do with            the present  indictment" and therefore could  not be included            as  a participant.  The  government in response  points us to            statements in the sentencing hearing that suggest that Toledo            had met Negro  through Reyes;  but it is  not clear that  the            transaction  in which Negro  played a role  involved Reyes at            all.                 In  any  event, the  district  court--faced  with Reyes'            objection  to  describing  Negro  as  a participant--did  not                                                                      ___            reaffirm that designation.  Instead, the court said:   "Well,            Counsel,  still  you  have--you  have  the  other--other--the                                         -10-                                         -10-            `otherwise  extensive.'"   After  further colloquy  the court            continued:                        [E]ven if  you take Negro  away from  the                      picture, take it off the  picture--out of                      the  picture  still there  are `otherwise                      extensive,'  and  this  was a  conspiracy                      that   went  through   Panama,  Colombia,                      Puerto Rico and  sometimes the  Dominican                      Republic .  . . .   So that's  my ruling.                      Let's move on.                 We  conclude  that  the  four-level  adjustment  can  be            affirmed  without difficulty  on  the  "otherwise  extensive"            branch  of section 3B1.1.  The district court was entitled to            find that  as to Reyes  there were  multiple participants,  a            number  of trips,  broad geographic  scope and  a substantial            amount of heroin.  Under the precedents,  this is sufficient.            See United States v.  Dietz, 950 F.2d 50, 53 (1st Cir. 1991);            ___ _____________     _____            United  States  v. Morphew,  909  F.2d 1143,  1145  (8th Cir.            ______________     _______            1990).   Reyes challenges  other aspects of  the sentencing--            including the determination that  he played a leadership role            and could properly be sentenced to a fine of $50,000--but the            remaining arguments are not substantial.                 3.  As we noted at  the outset, there are a large number            of additional claims  of error.   Reyes, for example,  argues            that a continuance sought only  six days before trial  should            have  been granted, a matter that is largely within the trial            court's  discretion  absent  extraordinary circumstances  not            present here.  United States v. Soldevila-Lopez, 17 F.3d 480,                           _____________    _______________            487  (1st Cir. 1994).  Reyes also asserts that his conviction                                         -11-                                         -11-            was  based upon  perjured testimony  but the  record reflects            only  the  kinds  of  conflicts  or  discrepancies  that  are            commonly left to juries.                 Both Reyes  and  Jimenez  complain  that  testimony  was            admitted concerning extraneous criminal acts, including other            drug transactions  involving Toledo,  and that  the testimony            was  inadmissible  (as  irrelevant  or  as  hearsay),  highly            prejudicial, or both.  On examination, it appears that almost            all  of the  evidence in  question related to  incidents that            were relevant (e.g.,  to explain  how Toledo came  to need  a                           ____            false  passport) or not made the subject of a contemporaneous            objection  or both.    None of  these  claims needs  separate            discussion.                  Reyes objects now to  three alleged misstatements by the            prosecutor in closing arguments.  The only one objected to at            trial  was a reasonable inference  by the prosecutor; and the            only actual misstatement (that  the passport sought by Toledo            was actually used) was  the kind of  slip of the tongue  that            could  easily have been corrected at the time if an objection            had been  made;  and the  evidence  plainly showed  that  the            passport had been sought based  on false statements but never            issued.  The jury instructions challenged on appeal were  not            objected to at the time and are not remotely plain error.                 Both Reyes and Jimenez  argue that the government failed            to disclose to the defense material that might have been used                                         -12-                                         -12-            to impeach Toledo  and Martinez.   The  government stated  in            Reyes'  sentencing hearing and again in its brief that it did            not have  the information  that appellants argue  should have            been  disclosed, and  appellants  bring to  our attention  no            substantial  evidence  that  the  prosecution  did  have  the            information.   The government  has no obligation  to disclose            information it does not  possess, United States v. Sepulveda,                                              _____________    _________            15 F.3d  1161, 1179  (1st Cir.  1993); the  rule of Brady  v.                                                                _____            Maryland,  373  U.S.  83   (1963),  imposes  no  general  due            ________            diligence requirement.  United States v.  Moore, 25 F.3d 563,                                    _____________     _____            569 (7th Cir. 1994).                 Finally,  Reyes   says  that  he  was  denied  effective            assistance of  counsel based on a parade  of alleged failures            by counsel to investigate  or object and also the  failure to            have Reyes  testify at trial.   These  are fact-based  claims            that must be  presented to  the district court  in the  first            instance and we therefore  do not reach them.   United States                                                            _____________            v.  Natanel, 938 F.2d 302, 309 (1st Cir. 1991), cert. denied,                _______                                     ____________            112 S. Ct. 986 (1992).                 Affirmed.                  ________                                         -13-                                         -13-
