
USCA1 Opinion

	




          November 13, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1434                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                 JOSE VENTURA-RAMOS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Damon M. D'Ambrosio with whom Martin D. Harris was on brief for            ___________________           ________________          appellant.            Margaret E. Curran, Assistant United States Attorney, with whom            __________________          Lincoln  C.  Almond,  United  States Attorney,  and  Lawrence  D.          ___________________                                  ____________          Gaynor,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                 ____________________               Per  Curiam.   This  is  an  appeal  from  a  conviction  of               ___________          conspiracy to distribute and to possess with intent to distribute          cocaine (Count I, 21 U.S.C.   846) and  of either possession with          intent  to  distribute the  drug  or  aiding  and  abetting  such          possession  (Count II, 21  U.S.C.   841(a)(1),  (b)(1)(C), and 18          U.S.C.   2).               Defendant challenges  the admissibility of the audiotape and          transcript of a recorded conversation in which defendant, two co-          defendants, and a government informant took part.  The transcript          was stipulated to  be an accurate representation of the tape.  At          trial, defendant contested the transcript's attribution of voices          to individuals,  but the  informant testified that  he recognized          defendant's voice and confirmed  the attribution of statements to          defendant.  Based on the informant's authentication, the tape was          admitted without objection.  Defendant now advances the arguments          that  the tape  was  too inaudible  to be  helpful  and that  the          prejudicial  impact outweighed its probative value.  We shall not          consider these arguments because they  are raised only on appeal.          Nor do we find any indication of plain error.               The  tape  and resulting  transcript  having been  submitted          properly  to the  jury, we  have no  difficulty in  rejecting the          challenge  to   the  sufficiency  of  evidence   to  support  the          conviction  for Count I.   Defendant baldly asserts  in his brief          that "[t]here is little  or nothing in the  record from which  it          can be  inferred  that [he]  acted in  concert with  the two  co-          defendants  to forward  or  further an  illegal  act."   Yet  the          transcript  is  replete  with defendant's  contributions  to  the          discussion  of a  cocaine sale.   These  contributions include  a          resistance by him and his associate to conducting the transaction          on the street;  they insisted  on doing the  deal in  defendant's          home.   When  the  prospective buyers  expressed apprehension  of          encountering guns  if they entered the house, defendant said that          he  "can't do one bad thing to  anybody."  He further said, "[W]e          are  doing big  business.   They send  it to  me from  New York."          After conversation  relating to quality and  packaging, defendant          took the informant to  reconnoitre defendant's house, showing the          informant through almost  every room.  Further,  an associate was          approaching defendant's  apartment with the cocaine  to close the          deal when arrested, and  defendant immediately attempted to flee.          Defendant's  own  words  and  actions belie  his  claim  of "mere          presence."  This evidence and more were sufficient to support the          conspiracy conviction.                 Defendant's challenge to  Count II was based on  the absence          of any  evidence that he possessed  the cocaine at any  time.  At          trial,  the  district  judge  expressed  his  uncertainty whether          statements and an act of possession of a co-conspirator compelled          a  finding of  possession  by another  co-conspirator.   He ruled          instead  that the  jury had  enough evidence  from which  to find          that,  even  though  an   associate  was  carrying  the  cocaine,          defendant  had  sufficient  power  and  intent  to  exercise  the          dominion necessary for constructive possession.                                          -3-               We prefer to uphold this ruling on the undoubted application          of  Pinkerton v. United States, 328 U.S.  640, 647 (1946), to the              _________    _____________          "acts or  declarations" of  fellow conspirators. We  applied this          doctrine specifically to  a possession case  in United States  v.                                                          _____________          Rengifo, 858 F.2d 800, 807 (1st Cir. 1988), where we said:          _______                    No  evidence  was   presented  that  any   of  the               defendants  arrested  in room  106  ever  possessed the               cocaine. We note as a preliminary matter, however, that               a  coconspirator  is  responsible for  the  substantive               offenses committed  in  furtherance of  the  conspiracy               regardless of  whether he participates in,  or even has               knowledge of, those offenses.          We therefore find sufficient evidence to support conviction under          the substantive count.               Finally, defendant protests receipt of the maximum  sentence          allowable  under the applicable guidelines.  As we held in United                                                                     ______          States v. Panet-Collazo, 960 F.2d 256, 261 (1992),          ______    _____________                    [W]e have  no appellate  jurisdiction to  review a               sentence  within  the applicable  sentencing guidelines               range if that range was correctly determined, as it was               here.                 Affirmed.               ________                                         -4-
