United States v. Arocho Gonzalez

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]

                            United States Court of Appeals

                                For the First Circuit

                                 ____________________


No. 95-2264



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                JUAN AROCHO GONZALEZ,



                                Defendant, Appellant.



                                 ____________________



        No. 95-1652



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                               ROBERTO AROCHO GONZALEZ,



                                Defendant, Appellant.



                                 ____________________



                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ___________________



                                        Before



                                 Stahl, Circuit Judge,
                                        _____________

         

                           Campbell, Senior Circuit Judge,
                                     ____________________



                              and Lynch, Circuit Judge.
                                         _____________



____________________



            Raymond   Luis  Sanchez  Maceira  for   appellant  Roberto  Arocho
            ________________________________

        Gonzalez.

            Peter Diaz-Santiago for appellant Juan Arocho Gonzalez.
            ___________________

            Jeanette  Mercado-Rios,  Assistant  United States  Attorney,  with
            ______________________

        whom  Jose A.  Quiles-Espinosa, Senior  Litigation  Counsel, Edwin  O.
              ________________________                               _________

        Vazquez, and Nelson Perez-Sosa, Assistant United States Attorneys, and
        _______      _________________

        Guillermo Gil, United States Attorney, were on brief for appellee.
        _____________



                                 ____________________



                                    August 1, 1996

                                 ____________________



LYNCH, Circuit  Judge.   Two brothers,  Roberto and
                      LYNCH, Circuit  Judge.
                             ______________



            Juan  Arocho  Gonzalez,  were accused  by  the  government of



            running  a cocaine  sales ring  out  of an  apartment in  the



            Agustin  Stahl Housing  Project  in Aguadilla,  Puerto  Rico.



            After a jury  trial, they were convicted on all  counts of an



            eleven  count  indictment  charging them  with  conspiring to



            possess  cocaine with  the  intent  to  distribute  it,  with



            distributing cocaine  within 1000  feet of  a public  school,



            with engaging in  a Continuing  Criminal Enterprise  ("CCE"),



            and  with hiring minors to distribute cocaine.  Both brothers



            received  the mandatory  minimum  sentence of  twenty  years.



            They appeal,  admitting that  they sold  small quantities  of



            narcotics, but  contending that the evidence was insufficient



            to  establish the  elements of  a CCE  violation.   They also



            assert that  the trial  court committed  reversible error  in



            denying  their motions to substitute counsel, in declining to



            find Brady  error, and  in calculating  the  amount of  drugs
                 _____



            attributable to them for sentencing purposes.  We affirm.



                                          I.



                      Because  the sufficiency  of  the  evidence  is  at



            issue, we describe  the facts in the light  most favorable to



            the  government, as  the jury  could  have found  them.   See
                                                                      ___



            United States v. Hahn, 17 F.3d 502, 505 (1st Cir. 1994).
            _____________    ____



                      Local police received information that a drug point



            was  being operated  out of  the Housing  Project.   From May


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through   November   of   1994,  federal   Drug   Enforcement



            Administration special agents  and local police observed  and



            videotaped activities conducted from Apartments 165  and 161.



            Roberto and Juan1 lived in Apartment 161, which was leased in



            their mother's  name.  The  two apartments  are about  twenty



            feet from each other and both are less than  eighty feet from



            an elementary school.



                      Visual surveillance established that the drug point



            was in  operation about  eighteen hours a  day, seven  days a



            week.  Sales were made by drug peddlers in front of Apartment



            161.  Cars would pull up in front of the apartment, where the



            drivers   would  exchange   money  for  small   plastic  bags



            containing  cocaine.  The peddlers making the exchanges would



            take the money  into Apartment 161 and bring  out the plastic



            bags containing the cocaine.  



                      Roberto and Juan were observed on various occasions



            handing bags  to the peddlers, receiving money from them, and



            counting that money.   The brothers appeared primarily  to be



            supervising the  sales, although  at times  they made  direct



            sales themselves.  At least ten people were observed peddling



            drugs at this drug  point, some of whom were minors.   In six



            controlled  buys, agents  bought bags  whose contents  tested



            positive for cocaine and heroin. 


____________________



            1.  Because the two  defendants share a common  last name, we

            refer to each by his first name.



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                                          4



On December  1, 1994,  a search  of Apartment  161,



            pursuant to a search warrant,  turned up twenty-three bags of



            cocaine  (worth no  more than  $20  each), measuring  scales,



            plastic baggies, leasing  receipts for cars, and  empty money



            wrappers  in denominations  of  $100, $500,  and $1000.   The



            scales, money  wrappers and  leasing receipts  were found  in



            Juan's bedroom. In addition, cellular telephone equipment and



            a  beeper  receipt  were  seized.    Roberto  and  Juan  were



            arrested.    Roberto was  carrying a  beeper.   Although only



            $70.66 was found on Roberto, and $2 on Juan, an agent witness



            estimated  the volume of cocaine transactions over the period



            the apartments  were under  observation  to be  approximately



            eight kilograms, which would have  generated an income in the



            region of $300,000.



                                         II.



            A. Sufficiency of Evidence
            __________________________



                      Defendants'  most  vigorous  challenge  is  to  the



            sufficiency of the evidence supporting their convictions  for



            engaging in  a CCE  in violation  of 21  U.S.C.    848.   "In



            reviewing a sufficiency of the  evidence claim we look at the



            evidence in the light most favorable to the verdict."  United
                                                                   ______



            States v. Cruz-Kuilan, 75 F.3d 59, 61-62 (1st Cir. 1996).  In
            ______    ___________



            order to preserve a sufficiency of the evidence challenge for



            appeal, a defendant must first move for judgment of acquittal



            at  trial.  See  United States v. Concemi,  957 F.2d 942, 950
                        ___  _____________    _______


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(1st Cir. 1992).  Juan did not do so and has therefore waived



            his sufficiency  challenge.   Given waiver,  a defendant  can



            succeed only if  he can demonstrate  that his conviction  was



            "clearly and grossly  unjust."  Id. at  950.  We do  not find
                                            ___



            Juan's conviction to be so.   We focus therefore on Roberto's



            challenge, which was properly preserved.



                      A CCE conviction requires proof that the defendant:



            (i)  committed a  felony  drug  offense; (ii)  as  part of  a



            continuing series of  such violations; (iii) in  concert with



            five  or more  persons in  relation  to whom  he  acted as  a



            supervisor,  organizer,  or  manager;  and  (iv)  from  which



            multiple operations he  realized substantial income  or other



            resources.    21 U.S.C.     848(c);  Hahn,  17 F.3d  at  506.
                                                 ____



            Roberto claims  that the  government established  neither the



            third nor fourth elements of the CCE offense.



                      (a) Supervisor, Organizer or Manager               
                      ____________________________________



                      Roberto argues  that the evidence  was insufficient



            to show that he was a supervisor, organizer or manager at the



            drug point.  He asserts that  there was no direct evidence of



            his  giving orders  or instructions  to anyone.   He  further



            asserts that he was  no more than a drug addict  working as a



            low-level drug peddler in order  to support his habit.  There



            was evidence sufficient for the jury to find to the contrary.



                      The  government need show  only that  the defendant



            occupied some  managerial position  with respect  to five  or


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more  persons,2 and not  that the defendant  was the dominant



            organizer or manager.  See Hahn,  17 F.3d at 506 n.4.   There
                                   ___ ____



            was  an abundance  of  evidence  from  which the  jury  could



            reasonably   have   concluded   that  Roberto   performed   a



            supervisory role  with respect to  the operation of  the drug



            point.  The operation was run out of Roberto's home.  At most



            times Roberto appeared to be  monitoring the peddlers as  the



            peddlers executed  sales with customers.  In an estimated 90%



            of the transactions  observed, the proceeds  of the sales  by



            the peddlers appeared to have  been turned over to Roberto or



            Juan.   Roberto, specifically, was  observed dispensing drugs



            to the peddlers,  receiving the proceeds, and  counting those



            proceeds.   Roberto  points out  that the  evidence at  trial



            showed him  conducting a few  direct sales  himself and  says



            that this shows he  was merely a peddler.  But  the fact that



            Roberto conducted a few sales  himself does not insulate  him



            from  the evidence demonstrating his supervisory role.  There



            was  ample  evidence for  the jury  to reasonably  infer that



            Roberto's role was supervisory.



                      (b) Substantial Income or Resources
                      ___________________________________



                      Roberto makes two attacks on the sufficiency of the



            government's evidence as to  substantial income or resources.



            First, he says that there was not sufficient evidence for the


____________________



            2.  It is undisputed  that, in addition to  Roberto and Juan,

            the drug point employed at least ten other people.



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                                          7



jury to have concluded that a substantial volume of drugs was



            sold  at the  drug point.   Second,  he asserts  that  in the



            absence of evidence in the nature of bank accounts,  material



            possessions or  an expensive  lifestyle, the  jury could  not



            have  reasonably concluded that  the drug point  provided him



            with substantial income.  Both arguments fail.



                      First, there  was adequate evidence from  which the



            jury could have reasonably  inferred that the volume of  drug



            transactions at the drug  point was large enough  to generate



            substantial income.  Specifically, there was:



                      (i)  testimony  from   government  agents

                      that, based on  their surveillance over a

                      period  of seven  months, they  estimated

                      the drug point to operate eighteen  hours
                                                _______________

                      a day, seven days a week;
                      ________________________

                      (ii)    videotaped    surveillance    for

                      approximately a  six hour  period between

                      12:30  p.m. and  6:25  p.m. on  a  Friday

                      afternoon   that   showed    twenty-three

                      separate sales to have been made; and

                      (iii) testimony from government agents as

                      to six controlled buys that they had made

                      from the drug point on two Fridays, where

                      the  average  weight   of  the  purchased

                      amounts of cocaine was .54 grams.



            At trial, extrapolating from the  number of sales for the six



            hour period,  the average  weight of  the individual  amounts



            purchased,  and the  evidence that  the  drug point  operated



            eighteen  hours a  day,  seven days  a  week, the  government



            estimated  monthly sales  to be  in  the order  of one  and a



            quarter  kilograms.    Roberto  attacked  this estimation  at



            trial, as he does now,  asserting that the government  should


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                                          8



have  discounted for  the fact  that the  volume of  sales on



            Fridays was probably  higher than that on the  weekdays.  But



            even  if  the  jury  had  been  instructed  to  discount  the



            government's  Friday-based estimation,  it  could still  have



            readily  determined that  the drug  point  transacted a  high



            volume of drugs. 



                      Roberto further argues that the government produced



            no direct  evidence of his having accumulated wealth from the



            drug  operation.   But the  substantial  income or  resources



            element   can  be  met  by  circumstantial  evidence  of  the



            defendant's  role  in the  operation  and  the scope  of  the



            operation.  See Hahn, 17 F.3d at 507; United States v. Roman,
                        ___ ____                  _____________    _____



            870  F.2d 65,  75  (2d  Cir.), cert.  denied,  490 U.S.  1109
                                           _____  ______



            (1989).   Proof that  a large quantity of  drugs was sold, in



            addition   to   proof   of  defendant's   position   in   the



            organization,  is  adequate  to  produce the  inference  that



            substantial  revenue must  have been  derived.  See  Hahn, 17
                                                            ___  ____



            F.3d at 507.  Here  there was evidence of a  high-volume drug



            operation, from which the jury could reasonably have inferred



            that substantial income resulted  for Roberto, a  supervisor.



            A government witness estimated the income from the operation,



            for the  approximately seven  months it  was observed,  to be



            almost $300,000.



                      Roberto also points  out that he lived in a housing



            project where the rent was only $3 per month.  However, given


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                                          9



the  evidence of a high-volume drug operation, the jury could



            have  reasonably  discounted  the  lack  of  evidence  as  to



            accumulated  wealth.   Cf. Hahn,  17 F.3d  at 507  n.6 (where
                                   ___ ____



            government   presented  evidence   of   a  high-volume   drug



            operation,  jury could  have  reasonably discounted  evidence



            from defendant's  father that  defendant lived  in a  trailer



            park and was constantly short of money).



            B. Motion to Substitute Counsel
            _______________________________



                      Both brothers assert error in  the district court's



            denial  of their last-minute  motions to  substitute counsel.



            They argue that  the district court failed  its obligation to



            make an  inquiry into an alleged failure  of communication in



            the attorney-client relationship.  The trial transcript shows



            the argument to be without merit.



                      Denials of motions for  substitution of counsel are



            reviewed for an abuse of  discretion.  United States v. Diaz-
                                                   _____________    _____



            Martinez, 71 F.3d 946, 950 (1st Cir. 1995).   Within that, we
            ________



            consider  the  circumstances  of  the  denial,  such  as  the



            timeliness of  the motions  and  whether the  attorney-client



            conflict was  so great as  to preclude an adequate  defense. 



            United States  v. Allen,  789 F.2d 90,  92 (1st  Cir.), cert.
            _____________     _____                                 _____



            denied, 479 U.S. 846 (1986).
            ______



                      As  to timeliness, the  motions were raised  on the



            first  day  of trial,  after  the  jury  was  impaneled,  and



            allowance  of  the  motion  would  have  delayed  the  trial.


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                                          10



Questioning  by  the  district court  revealed  that  neither



            brother  had substitute  counsel ready  to  step into  place.



            "[W]hen, as  here, the  granting of  the defendant's  request



            would almost certainly necessitate a last-minute continuance,



            the trial  judge's  actions  are  entitled  to  extraordinary



            deference."  United  States v. Pierce, 60 F.3d  886, 890 (1st
                         ______________    ______



            Cir. 1995),  cert. denied, __ S. Ct. __, No. 95-6474 (July 1,
                         _____ ______



            1996); see  also Diaz-Martinez, 71 F.3d at 950; United States
                   ___  ____ _____________                  _____________



            v.  Betancourt-Arretuche,  933   F.2d  89,   94  (1st   Cir.)
                ____________________



            ("eleventh-hour"  requests may  interfere with  orderly court



            procedure and  are disfavored),  cert. denied,  502 U.S.  959
                                             _____ ______



            (1991);  United  States v.  Torres,  793 F.2d  436,  440 (1st
                     ______________     ______



            Cir.), cert. denied, 479 U.S. 889 (1986).
                   _____ ______



                      Defendants argue  that there  was a  total lack  of



            communication between  themselves and their attorneys.   This



            showed  itself, they say,  in counsel advising  them to plead



            when they wanted to go to trial.  What defendants point to is



            a disagreement,  not a  lack of  communication precluding  an
              ____________



            adequate  defense.   Indeed,  it  is  an  attorney's role  to



            provide  a  client  with  his  or  her  independent  informed



            judgment  as  to  the  client's  options.    That  the client



            disagrees with  the attorney's  weighing of  options is  not,



            alone,  an adequate  basis  from  which to  infer  a lack  of



            communication.   See Allen,  789 F.2d at  93 (attorney-client
                             ___ _____



            disagreement  over  whether  client's  better  option  was to


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accept plea  or go  to trial was  not, by  itself, enough  to



            create good cause for substitution of counsel).



                      The  district court made  a detailed inquiry  as to



            each brother's reasons for wanting a substitution of counsel.



            The  questioning revealed that counsel for each defendant met



            with his client on a number of occasions to discuss the case.



            It further revealed that at  least in Roberto's case the real



            cause of  his dissatisfaction was  that counsel had  not been



            able to  obtain for him as favorable  a plea bargain offer as



            some  of  his   former  co-defendants  had  obtained.     But



            defendant's  counsel   does  not  control   either  what  the



            prosecution  charges or  is willing to  offer.   The district



            court was well  within its discretion in  denying the motions



            for substitution of counsel.



            C. Brady Violation
            ___     __________



                      Defendants argue  that there was  prejudicial error



            in the  prosecution's failure  to turn  over  to the  defense



            certain computer records in violation of the rule established



            in  Brady v.  Maryland, 373  U.S.  83 (1963).   The  computer
                _____     ________



            reports contained the  identities of the owners  of four cars



            that government  witnesses testified  were under  the control



            and in the  possession of the defendants.   Defendants assert



            that the information as to the owners' identities  would have



            brought  into  question  the  credibility  of the  government



            witnesses on the question of  the scope of the drug operation


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                                          12



and the allegedly substantial income that it generated.  They



            hypothesize  that if the  owners' identities had  been known,



            they could have been called  to testify that the vehicles had



            not been under  the control of the defendants.   The district



            court  found no  Brady violation,  reasoning  that since  the
                             _____



            government  witnesses  testified  only as  to  the defendants



            having control and possession of the vehicles, not ownership,



            the computer reports were not exculpatory.  We agree.



                      "To show a Brady violation, the defendant must show
                                 _____



            (among  other  factors)  that  the  withheld   `evidence  was



            exculpatory, as measured by its materiality.'"  United States
                                                            _____________



            v. Watson, 76 F.3d 4, 7 (1st Cir.) (quoting United States  v.
               ______                                   _____________



            Hemmer, 729  F.2d 10,  14 (1st Cir.),  cert denied,  467 U.S.
            ______                                 ____ ______



            1218  (1984)),  cert.   denied,  116  S.  Ct.   1889  (1996).
                            _____   ______



            "Evidence  is material if  there is a  reasonable probability



            that the outcome of the proceeding would  have been different



            had  the evidence  been disclosed."   See id.  (citing United
                                                  ___ ___          ______



            States v. Bagley, 473 U.S. 667, 682 (1985)).
            ______    ______



                      In  the   face  of   this,   defendants  have   not



            demonstrated why the information as  to ownership of the cars



            was  material.   Further, defendants did  know who  owned the



            cars they  used, as counsel  admitted at oral argument.   Had



            the  evidence had any  exculpatory value, defendants  had the



            ability to present it.



                                         III.


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                                          13



Defendants  appear to  challenge their  convictions



            under  21 U.S.C.    841(a)(1) & 846  on the ground that there



            was  insufficient evidence  to support  a  finding that  they



            distributed  in excess  of five  kilograms of  cocaine.   The



            challenge is unavailing.



                      The  government  was  not  required  to  prove  any



            particular quantity of drugs before the jury in order to gain



            convictions  under 21  U.S.C.     841 and  846.   See  United
                                                              ___  ______



            States v. Barnes, 890 F.2d 545, 551-52 & n.6 (1st Cir. 1989),
            ______    ______



            cert. denied, 494 U.S. 1019 (1990).  The evidence relating to
            _____ ______



            drug quantity in  excess of five kilograms  was relevant only



            at the  sentencing phase,  and specifically,  to whether  the



            defendants  were subject to the mandatory minimum sentence of



            ten years imposed by section 841.3  However, any challenge by
            ___



            the defendants  on  this  sentencing point  would  be  of  no



            practical  significance,  because  their  ten-year  sentences



            under  Section 841 were  imposed concurrently to  the twenty-
                                             ____________         ______



            year mandatory sentences required for their CCE convictions.4



            Therefore, we  need not address  it.  See Vanetzian  v. Hall,
                                                  ___ _________     ____



            562  F.2d 88,  90  (1st Cir.  1977)  (declining to  entertain


____________________



            3.  A mandatory minimum sentence of ten years is triggered if

            the  offense involves  five kilograms  or more  of a  mixture

            containing a detectable  amount of  cocaine.   See 21  U.S.C.
                                                           ___

              841(b)(1)(A)(ii)(II); see also  United States v.  Muniz, 49
                                    ___ ____  _____________     _____

            F.3d 36, 38 (1st Cir. 1995).



            4.  The five-kilogram determination does not directly  affect

            the defendants' CCE sentences.



                                         -14-
                                          14



challenge to  sentence where  validity of  longer, concurrent



            sentence was not in question).


Affirmed.                                          
                      ________


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