United States v. Cabrera-Garcia

Opinion

USCA1 Opinion

April 19, 1995
                                [NOT FOR PUBLICATION]

                            United States Court of Appeals
                                For the First Circuit

                                 ____________________

        No. 94-1770

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                FRANCISCO CABRERA-GARCIA AND ALEJANDRO CABRERA-GARCIA,

                               Defendants, Appellants.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                               and Cyr, Circuit Judge. 
                                        _____________

                                 ____________________

            Peter Goldberger with whom Pamela A.  Wilk and Alan Ellis  were on
            ________________           _______________     __________
        brief for appellants.
            Philip  Urofsky  with  whom  Jo  Ann  Harris,  Assistant  Attorney
            _______________              _______________
        General,  and Theresa M.B. Van Vliet, Chief, Narcotic & Dangerous Drug
                      ______________________
        Section, were on brief for appellee.

____________________

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COFFIN,  Senior  Circuit  Judge.   Francisco  and  Alejandro
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          Cabrera-Garcia  were convicted  on  drug  trafficking charges  in

          connection with  an extensive cocaine distribution  scheme.  They

          raise  various trial and sentencing errors, none of which we find

          meritorious.

                                    I. Background
                                       __________

               We shall  begin with a brief recounting of the facts, as the

          jury  could have found them, adding more detail in later sections

          as necessary to explain our conclusions.

               On  the evening  of August  16, 1993,  several members  of a

          major  cocaine importation and  distribution organization  led by

          "Papo"  Rivero met at Rivero's apartment to discuss a delivery of

          about  100 kilograms of cocaine  that was scheduled  for the next

          morning.    One  of  those  present  was  Roberto  Sierra  Rivera

          (Sierra),  a government  informant.   Later that  evening, Sierra

          reported  to the  FBI details  of the  planned delivery:  a Buick

          LeSabre had  been  given earlier  to  two Dominicans,  who  would

          return it the next morning  loaded with the cocaine; the  car was

          to be left in the  parking lot of a shopping center known  as the

          Plaza Carolina.

               One of the others in Rivero's apartment that  night, Ricardo

          Vazquez Gonzalez, testified that he and a Colombian drug supplier

          named Oscar had transferred the LeSabre and its keys to appellant

          Alejandro Cabrera-Garcia,  who is Dominican, on  the afternoon of



the 16th at the Plaza Carolina shopping mall.  Cabrera-Garcia was

          with a family, including children, in a red Ford.1

               The next  morning, August 17th,  Sierra and  two FBI  agents

          were  at  the Plaza  Carolina  mall and  saw  appellant Francisco

          Cabrera-Garcia park the blue LeSabre in the location described by

          Sierra to the FBI the night before.  Francisco then went into the

          shopping center.  About 25 minutes later, Alejandro drove up in a

          red  Ford  Tempo   and  parked  two  spaces  from   the  LeSabre.

          Francisco,  whom  no one  had  seen leave  the  mall, was  in the

          passenger seat.   The brothers got  out of the car  and went into

          the mall.   Vazquez arrived a short time later and was stopped by

          the FBI  agents when he attempted  to leave with the  LeSabre.  A

          search of the  car, conducted with Vazquez's consent, revealed 94

          brick-shaped parcels containing 96 kilograms of cocaine.

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               1  Defendants highlight the  inconsistency between Vazquez's
          testimony that he and Oscar delivered the LeSabre to Alejandro in
          Carolina  and Sierra's report to  the FBI, as  described by Agent
                                                     ______________________
          Fraticelli  at  a  suppression  hearing, that  the  car  had been
          _______________________________________
          delivered to two Dominicans in Rio Grande.  Defendants urge us to
          reject Vazquez's  testimony as  self-serving -- designed  to gain
          favor  with the  FBI --  and to  credit only  Sierra's statement,
          which did not directly implicate the Cabreras.
               For two reasons, however,  the difference in testimony gives
          us  no  pause.    First, Sierra's  information  was  second-hand,
          received from  others during  the meeting at  Rivero's apartment,
          and  may have  rested upon  an incorrect  assumption about  which
          Dominican group  was  involved.   Second,  the reference  to  Rio
          Grande  occurred solely  at the suppression  hearing.   At trial,
          Sierra testified only  that the  car had been  delivered to  "two
          [D]ominicans."  Had they viewed  the discrepancy in his testimony
          as significant, defendants could  have questioned Sierra at trial
          about  where  the  delivery  occurred  and  the  basis   for  his
          knowledge.   They did not  do so,  and may not  on appeal  remedy
          their failure.

                                         -3-



Vazquez was  arrested, and  several agents then  entered the

          mall in search of Alejandro and Francisco Cabrera, who were found

          in a clothing store.   Both were arrested.  During processing,  a

          cellular  phone  seized from  Alejandro's  car rang.    FBI Agent

          Rivera answered the phone, and the  person on the other end asked

          for Alejandro.  After Rivera identified himself as Francisco, the

          caller  asked,  "How  come  Alejandro  is  tak[ing]  so  long  in

          Carolina," and  then the phone went  dead.  A few  minutes later,

          the phone rang  a second  time, the same  person again  requested

          Alejandro, and  he then asked whether everything  was going okay.

          Sierra  testified at  trial that  Oscar, the  Colombian supplier,

          told him later that evening that  he had spoken to an "animal," a

          slang term for an  FBI agent, when he called to  "make sure if []

          everything was good or bad" with the cocaine delivery.

               The   grand  jury   subsequently  returned   an  eight-count

          indictment against  the Cabreras  and fourteen  others, including

          Rivero,  Vazquez and  Oscar.   The  Cabreras  were named  in  two

          counts:  Count 1, charging a conspiracy to possess with intent to

          distribute  more than  1,000 kilograms of  cocaine, and  Count 4,

          charging possession with intent to distribute the 96 kilograms of

          cocaine  seized from the LeSabre.   All co-defendants, except the

          Cabreras  and Oscar,  who  was not  apprehended, eventually  pled

          guilty.

               The jury found both Cabreras guilty on the conspiracy count,

          but found only Francisco guilty on the possession count.

                                    II. Discussion
                                        __________

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Both defendants claim that  the evidence was insufficient to

          support  their  convictions  and that  the  prosecutor  committed

          reversible  error  in  his   closing  argument  by,  inter  alia,
                                                               _____  ____

          referring  repeatedly  to  facts  not  in  evidence.    Alejandro

          separately raises  one additional substantive claim.   He asserts

          that  the district  court wrongly  concluded that his  arrest was

          supported by probable cause and, therefore, improperly denied his

          motion to  suppress papers seized  from him  at the time  of that

          arrest.   Both defendants  also contend  that the  district court

          erred  in   sentencing  them  as  minor,   rather  than  minimal,

          participants in the  charged conspiracy.      We address each  of

          these issues in turn.

               A.  Sufficiency  of  the  evidence.    The  well-established
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          standard for  evaluating sufficiency claims requires an appellate

          court to review the evidence as a whole, including all reasonable

          inferences from that evidence, in the light most favorable to the

          government.  United States  v. Echeverri, 982 F.2d 675,  677 (1st
                       _____________     _________

          Cir. 1993).   If  in doing  so, the court  finds that  a rational

          trier of fact could find guilt beyond a reasonable doubt, it must

          affirm.  Id.  In making this determination, the court must credit
                   ___

          both  direct and  circumstantial evidence,  without  assigning it

          relative weights,  and must resolve all  credibility questions in

          favor of the verdict.   Id.  Applying this standard, we  find the
                                  ___

          evidence sufficient on each of the three counts of conviction.

               Conspiracy.   Through the  testimony of Sierra  and Vazquez,
               __________

          the government  adduced sufficient  evidence for a  jury to  find

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well  beyond a reasonable doubt  that the delivery  of cocaine at

          the Plaza Carolina mall  was orchestrated by Papo Rivero  as part

          of  the  substantial  drug  trafficking  scheme  charged  in  the

          indictment.  To find the Cabreras guilty of participating in that

          conspiracy, the  jury need not have  found that they knew  all of

          the details or members of the  enterprise, or took part in all of

          its objectives.  See United  States v. Brandon, 17 F.3d  409, 428
                           ___ ______________    _______

          (1st Cir. 1994).  Rather, because the planned transfer of cocaine

          at the shopping mall plainly was part of a larger enterprise, the

          Cabreras'  conspiracy  convictions are  unassailable if  the jury

          could have found beyond a reasonable doubt that they were knowing

          and  voluntary participants in the illicit  events of August 16th

          and 17th.  See Echeverri, 982 F.2d at 679.
                     ___ _________

               The jury could have found  the following facts with  respect

          to Alejandro's involvement.   He received from Vazquez and  Oscar

          the car  in which the cocaine  was found, and he  reappeared with

          his  brother the next morning at  the specified delivery site.  A

          notebook seized  from him at the  time of his  arrest contained a

          mathematical  calculation that  the  jury reasonably  could  have

          believed represented the value  of the cocaine found in  the car;

          the  page showed 94, which was the number of packages, multiplied

          by 12, which in thousands was the average street value  of a kilo

          of  cocaine  (i.e., $12,000).2   In  addition,  the two  calls to

          Alejandro's  cellular  phone, in  which  the  caller specifically
                              
          ____________________

               2 Although  the notebook page contained  other calculations,
          and  94 times 12 was multiplied incorrectly, the salient point is
          that the page did show an attempt to multiply those two numbers.

                                         -6-



asked  for Alejandro  and  asked  about  how things  were  going,

          confirmed  the link  between Alejandro  and the  drug enterprise.

          This  is a far  cry from  "mere presence,"  cf. United  States v.
                                                      ___ ______________

          Mehtala, 578  F.2d 6,  9-10 (1st  Cir.  1978), and  is enough  to
          _______

          support Alejandro's conspiracy conviction.

               The evidence  against Francisco  was  equally suggestive  of

          guilt.   Of  greatest significance  is that  he brought  the car,

          which  witnesses described  as obviously  heavily loaded,  to the

          designated delivery site.   Although he argues in his  brief that

          there  was no  evidence that  he knew  the car  contained illegal

          drugs, the jury  reasonably could  infer in the  context of  this

          carefully monitored  drug trafficking enterprise  that $1 million

          worth  of cocaine  would not have  been left  in the  hands of an

          unknowing person.

               In  addition,  the  complementary  involvement  of  the  two

          brothers3 -- one  receiving the  car, the other  returning it  --

          and  their later joint appearance  at the parking  lot permits an

          inference  that both were privy to the same information about the

          project at  hand.  Alejandro's notebook  calculation therefore is

          probative of Francisco's guilt as  well.  Indeed, Alejandro's use

          of the number  94 in  his calculation, reflecting  the number  of

          bricks in the  car rather than  the actual  number of kilos  (96)

          contained in  the  bricks, suggests  a visual  inspection of  the
                              
          ____________________

               3 Defendants argue that  the prosecutor impermissibly  urged
          the jury to  consider the  fact that the  Cabreras were  brothers
          when  no evidence  of  their relationship  was  offered.   Twice,
          however,  testimony  referring  to   the  pair  as  brothers  was
          introduced without objection.  See Tr. at 174, 189. 
                                         ___

                                         -7-



trunk.  It could reasonably be assumed that, as the driver of the

          loaded car, Francisco was present for that viewing.

               Finally, even if much of this evidence is equally consistent

          with Alejandro's  having involved his brother  unwittingly in the

          scheme,  the  jury  could  have  found  telling the  evidence  of

          substantial  expenditures by  Francisco in the  weeks immediately

          preceding his  arrest, despite  his unemployment.   We previously

          have recognized  the relevance  of unexplained sums  of money  in

          evaluating  a defendant's  involvement in  narcotics trafficking.

          See United States v. Ford, 22 F.3d 374, 383 (1st Cir. 1994).  The
          ___ _____________    ____

          combined  effect of all of  this evidence is  adequate to support

          Francisco's conviction on the conspiracy count.

               Possession.  Francisco's sufficiency argument respecting the
               __________

          possession  count is  answered essentially  by the  same evidence

          that undermines his claim  on the conspiracy count.   It is again

          of great significance that he, alone, brought the car loaded with

          cocaine  to the  designated pick-up  spot  at the  shopping mall.

          Although there  is no direct evidence that he looked in the trunk

          or knew  its contents,  the  relationship with  his brother,  the

          unexplained spending  in the  weeks preceding this  delivery, and

          the  commonsense inference  that the  leaders of  a sophisticated

          drug operation would not  entrust a valuable load to  a bystander

          all support the jury's finding.   Whether other conclusions  also

          could  be drawn from these facts is  not our inquiry; "we require

          only  that  a  jury's verdict  be  supportable,  not  that it  be

          inevitable," Echeverri, 982 F.2d at 678.
                       _________

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B.  Probable Cause.   Alejandro  argues that  the district
                     ______________

          court erred in finding that, at the time he was arrested, the FBI

          agents had probable cause to believe that he  was involved in the

          cocaine delivery.  He asserts that the court therefore improperly

          denied  his  motion  to  suppress  the  notebook  containing  the

          calculation that  appeared to represent the value of the cocaine.

          The district court held an evidentiary hearing and concluded that

          the totality of the circumstances supported the agents' action.

               We  affirm  the district  court's  decision  on this  point.

          Establishing probable cause  requires only "`a reasonable  ground

          for  belief  of  guilt,'"  not  "`evidence  which  would  justify

          condemnation or  conviction,'" United  States v. Diallo,  29 F.3d
                                         ______________    ______

          23,  25 (1st Cir. 1994)  (quoting Brinegar v.  United States, 338
                                            ________     _____________

          U.S. 160, 175 (1949)).  That confined standard was met here.

               The agents conducting the  surveillance at Plaza Carolina on

          the morning of August  17th had been given precise  details about

          the  planned delivery  of  a large  quantity  of cocaine  from  a

          reliable  informant.   The  minutiae  of  the informant's  report

          quickly were  confirmed as  a  blue LeSabre  with the  forecasted

          license plate number  arrived at the  lot and was  parked in  the

          predicted  location.  The car  reportedly had been  given the day

          before  to  two Dominicans,  and it  was  driven to  the shopping

          center  by an individual,  Francisco, who  appeared to  meet that

          ethnic description.   A  short time  later,  a second  apparently

          Dominican  man,  Alejandro,  arrived  at  the  parking  lot  with

          Francisco and parked near the LeSabre.  Vazquez also appeared and

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attempted to pick up the car, as the informant had reported would

          happen.  Finally, the car  did, in fact, contain a large  load of

          cocaine.

               Confronted  with the actual unfolding  of events as they had

          been  told  to  expect  them, the  agents  reasonably  could have

          suspected that the Cabreras  were the two Dominicans to  whom the
                                                ___

          LeSabre had been entrusted  the night before.4  In  addition, the

          agents  knew  from  Sierra  that  some  factions  of  the  Rivero

          organization  monitored  others'  actions.     It  therefore  was

          plausible for the  agents to believe that the two men returned to

          the  parking lot and parked virtually beside the LeSabre -- which

          visibly contained a heavy load -- as part of that oversight.5

               In  sum, we believe that "the cumulative effect of the facts

          in the totality of circumstances," United States  v. Wiseman, 814
                                             _____________     _______

          F.2d  826,   828  (1st  Cir.  1987)  (quoting  United  States  v.
                                                         ______________

          Baldacchino,  762  F.2d 170,  175 (1st  Cir. 1985)),  warranted a
          ___________

          reasonable  suspicion  on the  part of  the  FBI agents  at Plaza

          Carolina  that   Alejandro  was  a  participant   in  the  Rivero

          conspiracy.   We therefore affirm the district  court's denial of

          his motion to suppress.
                              
          ____________________

               4  According to Vazquez, of course, only Alejandro picked up
          the  car the night before.   The officers,  however, knew neither
          that he was the one who  received the vehicle nor that the pickup
          was accomplished by only one Dominican. 

               5 To be  sure, if  their responsibility was  to observe  the
          next  stage  of  the  delivery,   the  Cabreras  were  less  than
          conscientious,  since  they  went into  the  mall  to shop  after
          parking their  car.  The  agents, however, reasonably  could have
          believed that the two  men were simply remaining in  the vicinity
          until the car had been picked up.

                                         -10-



C.  Closing Argument.   Defendants  identify five  allegedly
                   ________________

          improper  statements in  the  prosecutor's  closing and  rebuttal

          arguments that either relied improperly on facts not  in evidence

          or unfairly disparaged  defense counsel.  We have considered each

          of  the assertedly  offending utterances  and are  satisfied that

          none  requires reversal of the convictions.  See United States v.
                                                       ___ _____________

          Ovalle-Marquez, 36 F.3d  212, 220  (1st Cir.  1994) ("To  warrant
          ______________

          reversal of  a  conviction  on  the  grounds  of  a  prosecutor's

          improper jury argument,  a court must find  that the prosecutor's

          remarks were both inappropriate and harmful.").  Indeed, three of

          them drew no objection at trial, and can support reversal only if

          "a  `miscarriage  of  justice  would  otherwise  result,'" United
                                                                     ______

          States  v.  Neal, 36  F.3d 1190,  1208  (1st Cir.  1994) (quoting
          ______      ____

          United States v. Morales-Cartagena, 987  F.2d 849, 854 (1st  Cir.
          _____________    _________________

          1993)).

               Only  one  statement  warrants   specific  attention.    The

          prosecutor in  rebuttal accused defense counsel  of attempting to

          confuse the jury  by shifting the focus of the  case to the FBI's

          conduct.

                [T]his is a technique []  that the defense always uses
               to  try  to confuse  you as  you make  your decision[.]
               [Y]ou see they want to shift the blame, the blame is on
               this  table[;] they want to move it towards this table,
               so that now  you think that  we are  the bad guys,  and
               that's  why  I  get   a  second  chance[,]  ladies  and
               gentlemen,  that's why I get  a second chance  so I can
               help  you see  through th[ese] defense  techniques that
               they try to confuse you with . . . .

          We previously have  noted a prosecutor's  obligation to focus  on

          "the  merits  of  the  defendants' arguments  rather  than  their

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source," United States v.  Whiting, 28 F.3d 1296, 1302  (1st Cir.
                   _____________     _______

          1994),  and again  wish  to emphasize  that comments  attributing

          deceptive  motives  to  defense  counsel  are  inappropriate  and

          unnecessary.   In our view,  however, they would  not have had  a

          significant impact on the jury in this case, and therefore do not

          amount to  plain error.   See id.  at 1302-03;  United States  v.
                                    ___ ___               _____________

          Linn, 31 F.3d 987, 993 (10th Cir. 1994).
          ____

               D. Sentencing.  The defendants argue that the district court
                  __________

          should have granted four-level reductions in their offense levels

          in recognition of their "minimal" roles in the conspiracy, rather

          than adopt  the  two-level reductions  for "minor"  participation

          recommended in their pre-sentence reports.  The court  rested its

          determination primarily on  the amount and  purity of the  drugs,

          and the likelihood that  that quantity of cocaine would  not have

          been entrusted  by the  Rivero organization  to  someone who  was

          otherwise unaffiliated with the conspiracy.

               As defendants recognize, the  line between minor and minimal

          participation is thin, see United States v. Vega-Encarnacion, 914
                                 ___ _____________    ________________

          F.2d 20, 25 (1st Cir. 1990), and the district court's factfinding

          on sentencing is reviewed only for clear error, see United States
                                                          ___ _____________

          v. DeMasi, 40 F.3d 1306, 1322 (1st Cir. 1994).   In light of that
             ______

          deferential  standard, we find no basis upon which to disturb the

          court's judgment.

               Accordingly, the judgments  of conviction and the  sentences
               ____________________________________________________________

          imposed are affirmed.
          ____________________

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