United States v. Caraballo Cruz

Opinion

USCA1 Opinion

February 10, 1994     [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

          No. 92-2316

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                WALTER CARABALLO-CRUZ,

                                Defendant, Appellant.

                                 ____________________

          No. 92-2319

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                              JOSE IVAN MONTA EZ-ANAYA,

                                Defendant, Appellant.

                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

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

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________

                        Torruella and Boudin, Circuit Judges.
                                              ______________

                                _____________________

               Miguel  A.A.   Nogueras-Castro,  Assistant   Federal  Public
               ______________________________
          Defender,  with  whom   Benicio  S nchez-Rivera,  Federal  Public
                                  _______________________
          Defender,  was  on  brief  for  appellant  Walter Caraballo-Cruz.
          Francisco M. Dolz-S nchez for appellant Jos  Iv n Monta ez-Anaya.
          _________________________

Carlos A. P rez-Irizarry,  Assistant United States Attorney,
               ________________________
          with whom  Charles E.  Fitzwilliam, United  States Attorney,  and
                     _______________________
          Jos  A. Quiles-Espinosa, Senior Litigation Counsel, were on brief
          _______________________
          for appellee.

____________________

____________________

-2-

TORRUELLA, Circuit Judge.  Defendants Walter Caraballo-
                               _____________

          Cruz ("Caraballo") and Jos  Iv n Monta ez-Anaya ("Monta ez") were

          convicted by  a jury of conspiracy to  possess with the intent to

          distribute cocaine in violation of  21 U.S.C.    841(a)(1),  846,

          and  of aiding  and abetting  the possession  with the  intent to

          distribute  cocaine in  violation of  18 U.S.C.    2.   Caraballo

          challenges  the sufficiency  of  the  evidence  against  him  and

          Monta ez  appeals  the  district court's  refusal  to  reduce his

          sentence for being a minimal or minor participant.  We affirm.

                                    I.  BACKGROUND
                                    I.  BACKGROUND

                    The alleged conspiracy in this case involved a  plan to

          smuggle twenty-nine  kilograms  of cocaine  into the  continental

          United  States  by  concealing  the drugs  in  luggage  placed on

          commercial  flights  departing   from  San  Juan,   Puerto  Rico.

          According to the  evidence in the record viewed in the light most

          favorable to the government, United States v. Echeverri, 982 F.2d
                                       _____________    _________

          675, 676 (1st Cir. 1993), the conspiracy proceeded as follows.

                    On  May 4,  1992, Caraballo  and  Monta ez, along  with

          their two codefendants, Orlando Enrique Monroy-Pedrosa ("Monroy")

          and Jules  Delgado-Valencia ("Delgado"),1 and  several unindicted

          coconspirators,  delivered a  total of  nine  separate pieces  of

          luggage  to  the  American  Airlines  desk  at Luis  Mu oz  Mar n

          International Airport in Isla Verde, Puerto Rico.  The defendants

          checked in the  luggage under a variety of assumed  names using a

          series of  airline tickets  purchased at the  same time  from the
                              
          ____________________

          1  The appeals of Monroy and Delgado have been dismissed.

                                         -3-

same travel agency.  In addition, Monta ez purchased two tickets,

          also under an assumed name, at the airport.

                    The  operation was  first detected  when United  States

          Customs  Service  Inspector V ctor  Ramos  observed  Monta ez and

          Monroy each  carrying a suitcase with United States Department of

          Agriculture ("USDA") inspection stickers on them despite the fact

          that neither  had passed  through the USDA  facility where  X-ray

          inspections are  conducted.2   Monta ez and  Monroy proceeded  to

          the American Airlines counter where Monroy checked the bags  onto

          a flight to New York under an assumed name.

                    Upon further  surveillance, Inspector  Ramos noticed  a

          woman,  Gladys  Eliana Marulanda-Mar n  ("Marulanda"),3  deliver,

          and  then  check  with  the  airline,  two  suitcases  that  were

          identical  to the  luggage  delivered  by  Monroy  and  Monta ez.

          Marulanda also checked in her bags under an assumed name.

                    Inspector Ramos alerted other Customs Service officials

          to this  suspicious behavior.   The officials  then brought  in a

          canine unit to investigate the  suspect luggage.  The canine unit

          gave a  positive  alert for  narcotics  as to  each of  the  four

          suitcases.  Meanwhile, Customs Inspectors Mar a del Carmen Rabell

          and H ctor  Cab n, who  had also  observed Monta ez, Monroy,  and
                              
          ____________________

          2  At  the Luis Mu oz Mar n airport,  all passengers with baggage
          to be checked in on flights to the continental United States must
          first  pass through  one of  several  USDA inspection  facilities
          located at the entrance to the terminal.  After checking each bag
          with an X-ray machine, USDA officials affix an inspection sticker
          on the  bag to indicate that it has  passed inspection and may be
          accepted for check-in by the airlines.

          3  The government declined to prosecute Marulanda.

                                         -4-

Marulanda  deliver their suitcases, followed Monroy to an airline

          gate where they watched him board his plane with Marulanda.  When

          informed of  the positive  alert by the  police dogs,  Rabell and

          Cab n entered the plane and arrested Monroy and Marulanda.

                    Following these arrests, the two Inspectors returned to

          the American  Airlines area  where they  observed two  unattended

          suitcases  with  USDA  inspection  stickers  on  them.    As  the

          Inspectors looked  on, Caraballo  and another individual  grabbed

          the suitcases,  exited the terminal building, and  placed them in

          the trunk  of a  car which  then left  without Caraballo  and his

          companion.

                    Soon thereafter, Inspectors  Rabell and Cab n  observed

          Monta ez again enter the terminal and carry two more suitcases to

          the  American Airlines  counter.   Monta ez  purchased two  plane

          tickets  with cash  and checked  in his  luggage.  A  few moments

          later,  the  Inspectors  saw Caraballo,  together  with  Delgado,

          carrying three suitcases.  According  to Inspector Rabell, two of

          the three suitcases  appeared to  be the same  ones that she  had

          previously  seen Caraballo  and his  companion  place inside  the

          trunk of a  car.  Rabell did  not, however, specify which  of the

          three suitcases  Caraballo was  carrying.   After checking  their

          luggage, again  under assumed  names, Caraballo  and Delgado  met

          with Monta ez who was waiting for  them in front of a gift  shop.

          Monta ez  gave  Delgado the  flight jacket  he was  wearing after

          which  Caraballo and  Delgado proceeded  to  the airline  gate to

          board their flight.

-5-

Inspector  Rabell followed  Caraballo and  Delgado and,

          after  receiving  word  that  all  five  suitcases  were given  a

          positive alert by the canine  unit, arrested them on the airplane

          jetway as they attempted to board their plane.  Government agents

          later   found  several  USDA   inspection  stickers  and  sticker

          fragments  in  Caraballo's  wallet.    Inspector  Cab n  arrested

          Monta ez  and seized passenger  tickets and boarding  passes from

          him which corresponded to two  suitcases that were later found to

          contain cocaine.

                    All  nine of  defendants' suitcases  triggered positive

          alerts for narcotics when presented to the canine  unit; however,

          only five -- Government's Exhibits 1, 2,  5, 6, and 7 -- actually

          contained cocaine.   The first  two suitcases, Exhibits 1  and 2,

          were the ones carried to  the American Airlines counter by Monroy

          and  Monta ez and  checked  in  by Monroy.    The last  suitcase,

          Exhibit  7, was  carried and  checked  in by  Monta ez under  the

          assumed name of Diego Rivera.

                    The record contains  conflicting evidence, however,  as

          to  who  carried and  who  checked  in  the other  two  suitcases

          containing cocaine, Exhibits 5 and 6.  Inspector Rabell testified

          that  these were  the two  suitcases that  Caraballo  and another

          individual  originally placed in the trunk  of a car.  Nothing in

          the record  indicates whether, at  that point, the  two suitcases

          contained the cocaine  that was later found inside  them.  Rabell

          also  testified that these suitcases, along with a third suitcase

          that did not  contain cocaine, were later carried  to the airline

-6-

counter by either Caraballo or Delgado.  According to the airline

          records, however, Exhibits 5 and 6 were actually checked in under

          the name Mario Arzuaga, one of the aliases used by  Monta ez when

          Monta ez  purchased  his  airline  tickets  and  checked  in  his

          luggage.  The confusion is compounded by  the fact that the claim

          tickets for these two suitcases, Exhibits 5 and 6, were found  on

          Delgado when he was arrested,  even though Delgado had checked in

          only one bag under a completely different alias.

                    The government  tried to  suggest that  Monta ez really

          checked  in Exhibits  5 and  6 and  then gave  Delgado the  claim

          checks  for these  suitcases  when he  handed Delgado  his flight

          jacket.  The government never explained, however, the discrepancy

          between this version  of events and Inspector  Rabell's testimony

          that either Delgado or Caraballo carried Exhibits 5 and 6  to the

          airline  counter  after  Monta ez  had  already  checked  in  two

          separate pieces of luggage.

                    At the very least, however, the evidence indicates that

          Monta ez carried a  total of at least two  suitcases with cocaine

          to  the airline counter  (Exhibits 1 or  2 and 7),  checked in at

          least one  suitcase with cocaine  (Exhibit 7), and  purchased and

          possessed an airline  ticket that corresponded to  two additional

          suitcases that were found to  contain cocaine (Exhibits 5 and 6).

          As  for  Caraballo,  the suitcase  checked  in  under  his alias,

          Exhibit 10, did not contain cocaine.  Nevertheless, Caraballo was

          seen  carrying suitcases  (Exhibits  5  and  6)  which  contained

          cocaine  at some  point, although  not necessarily  while he  was

-7-

carrying them, either out of or back into the airport.

                    Drug  Enforcement Agency  officials  found  a total  of

          twenty-nine kilograms of  cocaine in the  five suitcases with  an

          estimated street  value  of $493,000  to $841,000.   The  cocaine

          found in each suitcase  was packaged in the same manner  and each

          package was elaborately wrapped to avoid detection.

                           II.  SUFFICIENCY OF THE EVIDENCE
                           II.  SUFFICIENCY OF THE EVIDENCE

                                    A.  Conspiracy

                    Caraballo challenges  the sufficiency  of the  evidence

          supporting  his conspiracy  and aiding  and abetting  convictions

          under 21 U.S.C.    841(a)(1), 846 and 18 U.S.C.   2.  Upon review

          of the jury verdict, we  examine the evidence in its  entirety in

          the light most favorable to the government to determine whether a

          rational trier of fact could have found the essential elements of

          the crime  beyond a  reasonable doubt.   The government  gets the

          benefit  of all legitimate and favorable inferences and can prove

          its case  by circumstantial  evidence without  having to  exclude

          every reasonable hypothesis of innocence.  Echeverri, 982 F.2d at
                                                     _________

          677;  United States  v. Akinola,  985 F.2d  1105, 1109  (1st Cir.
                _____________     _______

          1993); United  States v.  McLaughlin, 957 F.2d  12, 18  (1st Cir.
                 ______________     __________

          1992).

                    In order to prove a  defendant is guilty of  conspiracy

          under  21  U.S.C.    846,  the  government  must show,  beyond  a

          reasonable doubt,  that the  defendant knowingly  and voluntarily

          participated  in an  agreement to  violate the  law and  that the

          defendant  did  so  with  the intent  to  commit  the  underlying

-8-

substantive  offense.  United  States v. Sep lveda,  No. 92-1362,
                                 ______________    _________

          slip  op. at  7 (1st Cir.  Dec. 20,  1993); Akinola, 985  F.2d at
                                                      _______

          1110; United States  v. Clifford, 979 F.2d 896,  897-98 (1st Cir.
                _____________     ________

          1992);  United States  v. Tejeda,  974  F.2d 210,  212 (1st  Cir.
                  _____________     ______

          1992).  In this case,  the underlying offense was possession with

          the intent to distribute  cocaine.  21  U.S.C.   841(a)(1).   The

          government is  not  required to  prove  that the  defendant  knew

          about,  or took part  in, all aspects of  the conspiracy; it need

          only  establish  the  essential  nature  of  the  plan  and   the

          defendant's connection  to it.   United States v.  Benevides, 985
                                           _____________     _________

          F.2d 629, 633 (1st Cir. 1993); United States  v. Rivera-Santiago,
                                         _____________     _______________

          872  F.2d 1073,  1079  (1st  Cir.), cert.  denied,  492 U.S.  910
                                              ____   ______

          (1989).

                    Caraballo argues that  the record contains  no evidence

          that he knew about or willfully agreed to participate in the plan

          to transport  cocaine.   We disagree.   Caraballo was  travelling

          under an assumed  name with a plane ticket  that was purchased at

          the exact  same  time  and  place  as the  tickets  used  by  his

          codefendants who were  found to be transporting  cocaine.  During

          the  execution  of  the  smuggling  operation  on  May  4,  1992,

          Caraballo  was continuously in the company of other conspirators.

          He carried suitcases and boarded a plane with one conspirator who

          possessed claim  checks for  suitcases containing  cocaine.   One

          customs inspector  testified that  Caraballo and  the conspirator

          carried two suitcases  that were later found to  contain cocaine.

          Caraballo also met  with another conspirator who  had carried and

-9-

checked in at least one suitcase with cocaine.

                    One crucial  aspect of the conspiracy  involved placing

          USDA inspection stickers  on suitcases with  cocaine in order  to

          bypass the agricultural inspection facility.   Customs inspectors

          saw Caraballo carry at least  one suitcase with a USDA inspection

          sticker from inside  the terminal  back outside  the airport  and

          place it into the trunk of a car.  That suitcase was  later found

          to contain cocaine.   More significantly, Caraballo  was carrying

          USDA inspection stickers and sticker fragments in his wallet.

                    From this evidence, the  jury could reasonably conclude

          that   Caraballo  agreed  to   help  smuggle  cocaine   into  the

          continental  United States by  carrying several of  the suitcases

          used in the operation, by assisting in bypassing the agricultural

          inspection facility, and  by flying to the  cocaine's destination

          with  his  coconspirators  to assist  in  the  completion of  the

          delivery.     In  particular,  Caraballo's  possession   of  USDA

          inspection  stickers  and  his act  of  removing  luggage already

          marked  with  such  stickers  from  the  terminal  to  a  waiting

          automobile  indicate that Caraballo  knowingly executed an agreed

          upon plan to avoid detection of the cocaine in the suitcases.

                    Caraballo attempts to characterize the evidence against

          him as  sufficient only to  establish his "mere presence"  at the

          scene of the crime.   He emphasizes that the suitcase  he checked

          in did not  contain any drugs,  the government never  established

          that he carried cocaine at  any time, and the inspection stickers

          in his wallet  were a different color  than the ones used  on the

-10-

suitcases.   Because of  this evidence,  Caraballo contends,  his

          behavior can only be interpreted as a series of "innocent acts".

                    Although a defendant's  mere presence at the scene of a

          crime  is not  alone  sufficient  to prove  his  membership in  a

          conspiracy, United  States v. Ocampo,  964 F.2d 80, 82  (1st Cir.
                      ______________    ______

          1992); United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992),
                 _____________    _____

          cert. denied, 113 S. Ct. 1005 (1993), the circumstantial evidence
          ____  ______

          or simply the attendant circumstances can be enough to convince a

          rational jury that "the 'mere'  is lacking."  Echeverri, 982 F.2d
                                                        _________

          at 678; Tejeda, 974 F.2d at 213; Ortiz, 966 at 711-12.
                  ______                   _____

                    In Caraballo's  case,  there  are  both  circumstantial

          evidence  and  attendant  circumstances  to  support  the  jury's

          conclusion that Caraballo was participating in the conspiracy and

          not merely present  in the airport for the  purpose of travelling

          to the States.   Caraballo's actions on May  4, 1993, demonstrate

          an  effort to evade  inspection of certain  suitcases which later

          were  found  to contain  cocaine.    The  jury could  infer  that

          Caraballo removed suitcases from the terminal after they had been

          inspected precisely because  he knew those suitcases  would later

          be  used  to transport  cocaine.    In  addition, the  fact  that

          Caraballo's  tickets  were  purchased  together  with  the  other

          conspirators, and the fact that Caraballo checked in his bags and

          boarded  his   flight  with  another  conspirator   indicates  he

          willfully associated himself with the venture.

                    That  the  inspection  stickers  found  in  Caraballo's

          wallet  were  a  different  color  than the  ones  found  on  the

-11-

suitcases  does  not  compel  the  jury  to  believe  Caraballo's

          explanation that  the stickers  were merely  "souvenirs" that  he

          collected.   Instead,  the jury  could infer  that  Caraballo had

          prepared several alternative methods to evade the USDA inspection

          before choosing  the one  he actually  implemented.   Caraballo's

          reliance on the  lack of proof that he  ever possessed cocaine or

          carried a suitcase with cocaine is of little help to him  in this

          case.   No such  proof is required if  the evidence can otherwise

          show that  he participated in  the conspiracy with the  intent to

          accomplish its unlawful  objective.  See, e.g.,  United States v.
                                               ___  ____   _____________

          De La Cruz, 996 F.2d 1307, 1311-12 (1st Cir.),  cert. denied, 114
          __________                                      ____  ______

          S. Ct.  356 (1993); Akinola, 985  F.2d at 1110;  United States v.
                              _______                      _____________

          Clifford, 979 F.2d 896, 898 (1st  Cir. 1992); Tejeda, 974 F.2d at
          ________                                      ______

          213.

                               B.  Aiding and Abetting

                    Caraballo also challenges his conviction for aiding and

          abetting under 18  U.S.C.   2.  "For the conviction to stand, the

          government  must prove that defendant associated himself with the

          underlying venture, participated in it  as something he wished to

          bring  about, and  sought by  his  actions to  make it  succeed."

          Clifford, 979 F.2d at 899 (citing  Nye & Nissen v. United States,
          ________                           ____________    _____________

          336 U.S.  613, 619  (1949)); Ortiz,  966 F.2d  at 711  n.1.   The
                                       _____

          evidence that  Caraballo, using an  assumed name, checked  onto a

          flight  using  a   ticket  purchased  together  with   the  other

          conspirators,  carried suitcases and  remained in the  company of

          other  conspirators,  and  took actions  designed  to  avoid USDA

-12-

inspection  of suitcases  containing cocaine  amply  supports the

          jury's conclusion  that Caraballo knowingly and  willfully agreed

          to associate  himself with the  plan to smuggle cocaine  into the

          continental United States and sought to bring about its success.

-13-

III.  SENTENCING
                                   III.  SENTENCING

                    At his  sentencing, Monta ez  requested a  reduction in

          his offense level  by two to  four points pursuant to  U.S.S.G.  

          3B1.2(a)  or  (b)  for  minimal  or  minor participation  in  the

          conspiracy.  He  argued that  his only  role in  the offense  was

          carrying three suitcases  and handing claim  tags to Delgado  and

          thus,  as  a courier,  he  was  the  least culpable  participant.

          Monta ez further pointed out  that the presentence  investigation

          report,   although  asserting  that  Monta ez  was  not  a  minor

          participant, identified  Delgado as the "leader/organizer  of the

          overall criminal activity," identified Monroy as the "second most

          culpable defendant," and concluded that the "remaining defendants

          are  viewed  as  less  culpable."    The  district  court  denied

          Monta ez'  request because  it  found him  to  be a  "substantial

          player" in the  conspiracy.  The court sentenced  Monta ez to 172

          months in prison and Monta ez appealed.

                    A  reduction in a defendant's offense level for minimal

          participation under    3B1.2(a) "is intended to  cover defendants

          who  are plainly  among the  least culpable  of those  involved."

          U.S.S.G.    3B1.2(a)  comment  note  1.   A  reduction for  minor

          participation under   3B1.2(b) applies to "any participant who is

          less culpable than most other participants."  U.S.S.G.   3B1.2(b)

          comment note  3.   It is  well established that  no defendant  is

          automatically  entitled  to a  reduction  as a  minimal  or minor

          participant,  even if the  defendant happens to  be less culpable

          than  his or  her codefendants  and even  if the court  found the

-14-

defendant was  only a courier.   United States v.  L pez-Gil, 965
                                           _____________     _________

          F.2d 1124,  1131 (1st  Cir.), cert. dismissed,  112 S.  Ct. 2959,
                                        ____  _________

          cert. denied, 113 S. Ct. 484 (1992);  United States  v. Valencia-
          ____  ______                          _____________     _________

          Lucena, 925 F.2d 506, 514 (1st  Cir. 1991); United States v.  Paz
          ______                                      _____________     ___

          Uribe, 891 F.2d 396, 399 (1st Cir.  1989), cert. denied, 495 U.S.
          _____                                      ____  ______

          951  (1990).    The  sentencing  court has  broad  discretion  in

          determining whether this  downward adjustment is  appropriate and

          we  will reverse only if the evidence overwhelmingly demonstrates

          that  the defendant  played a part  that makes  him substantially

          less  culpable  than  the average  participant  in  the convicted

          offense such  that the  court's decision  was clearly  erroneous.

          L pez-Gil, 965 F.2d at 1131;  United States v. Gregorio, 956 F.2d
          _________                     _____________    ________

          341, 344 (1st Cir. 1992); United  States v. Ocasio, 914 F.2d 330,
                                    ______________    ______

          333 (1st Cir. 1990).

                    The  district court was  well within its  discretion in

          finding  that, even though less culpable than Delgado and Monroy,

          Monta ez was  still a "substantial  player" and not a  minor, let

          alone  minimal, participant.    Monta ez  carried  at  least  two

          suitcases containing cocaine  to the airline counter  and checked

          in at  least one such  suitcase with the  airline.  In  addition,

          Monta ez  purchased, in  cash, two  tickets  under assumed  names

          which corresponded to three pieces  of luggage that were found to

          contain cocaine.   Monta ez also accompanied Monroy  while Monroy

          was carrying still another suitcase with cocaine and while Monroy

          checked  in  two suitcases  that  contained  cocaine.   In  fact,

          Monta ez was  connected in some  way with every piece  of luggage

-15-

used to transport cocaine.

                    Furthermore, Monta ez  met with  coconspirators Delgado

          and  Caraballo immediately after checking  in his luggage and the

          evidence supports the inference that he handed  Delgado the claim

          checks for two of the suitcases which were later found to contain

          cocaine.  These activities demonstrate significant involvement in

          a  large smuggling operation  that depended for  its success upon

          the  coordinated   actions  of  several   individuals,  including

          Monta ez.4

                    Even if Monta ez was the  least culpable of the charged

          defendants, it  does not mean  he performed a  minor role  in the

          offense.   United States v. Daniel,  962 F.2d 100,  103 (1st Cir.
                     _____________    ______

          1992).   In our view,  Monta ez' role in the  smuggling operation

          can best be described as  average.  He carried several suitcases,

          purchased two plane tickets, and passed  along some claim checks.

          If the  sentencing judge,  who is better  situated to  assess the

          facts of  the case, found  Monta ez' actions more than  minor, we

          cannot,   on   these   facts,    convincingly   find   otherwise.

          Consequently,  we uphold the  district court's refusal  to adjust

          Monta ez'  offense for  playing a  minimal or  minor role  in the

          conspiracy.

                    Affirmed.
                    ________

____________________

          4    The  considerably large  amount  of  cocaine transported  by
          Monta ez, who carried or controlled  at one point a large portion
          of  the  twenty-nine   kilograms  of  cocaine  involved   in  the
          conspiracy,  also   militates  strongly   against  any   downward
          adjustment.  See United States v. Rodr guez Cort s, 949 F.2d 532,
                       ___ _____________    ________________
          547 (1st Cir. 1991).

                                         -16-