UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1279
UNITED STATES,
Appellee,
v.
EFRAIN DE LA CRUZ,
Defendant, Appellant.
No. 92-1347
LUIS TORRES,
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Breyer, Chief Judge,
Cyr and Boudin, Circuit Judges.
James E. Carroll with whom Peabody & Arnold was on brief for
appellant Efrain De La Cruz. William H. Kettlewell with whom Dwyer, Collora & Gertner was on
brief for appellant Luis Torres. Geoffrey E. Hobart, Assistant United States Attorney, with whom
A. John Pappalardo, United States Attorney, and Jeffrey A. Locke,
Assistant United States Attorney, were on brief for appellee.
June 24, 1993
BOUDIN, Circuit Judge. Efrain De La Cruz, Luis Torres
and others were charged in a one-count indictment with
conspiracy to possess cocaine with intent to distribute. 18
U.S.C. 841, 846. Torres pleaded guilty; De La Cruz was
convicted following a jury trial. In this appeal, De La Cruz
challenges his conviction on a number of grounds, and both he
and Torres contest the district court's calculation of their
sentences. We affirm.
The events in this case are part of a larger story
revolving around a so-called sting operation conducted by the
FBI and other law enforcement agencies. In the course of
this operation, Colombian drug dealers delivered 615
kilograms of cocaine to a man named Pedro Alvarez who was
secretly cooperating with the authorities. The cocaine was
transported into the United States and the FBI lodged it in
Massachusetts while awaiting directions from the Colombian
drug dealers. In describing the ensuing events, we confine
the story to facts pertinent to this case.
The cocaine arrived in the United States on or about
June 4, 1991, and on June 5, the Colombian suppliers directed
that a portion--240 kilograms--be turned over to the "Lucho"
group. Alvarez made contact with a man purporting to be
Lucho and it was agreed that Lucho's associates would take
delivery at 5 p.m. on June 12, in the parking lot of a
Holiday Inn in Taunton, Massachusetts. Two undercover
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officers--FBI Agent Dillon and Providence Police Officer
Colon--appeared at the arranged time and place and saw a gold
Cadillac with three occupants driving slowly through the
parking lot. De La Cruz was the driver of the Cadillac and
Torres was a passenger; the other passenger was Jose LaPaix.
The agents flashed their lights and Torres left the car,
approached the agents, and discussed the mechanics of the
drug transfer. Torres said that he had brought three vans
with him from New York equipped with hidden compartments
but had left them in Newton, Massachusetts. It was agreed
that Torres would drive to Newton with his companions to
collect the vans and would contact Dillon and Colon when he
returned to the Holiday Inn. Torres, De La Cruz and LaPaix
departed in the Cadillac.
Several hours later, around 9 p.m., Agent Dillon
received a telephone message that Torres was waiting at the
Holiday Inn. The agents returned to the parking lot. Torres
approached their car and told them that he had the vans; but
he said that having seen a police car driving through the
lot, he had directed his "rollos"--a term used in the drug
trade to refer to an underling such as a bodyguard or driver-
-to move the vans out of the lot. Torres and the agents then
agreed to meet at the rear of the lot.
A few minutes later, Torres arrived there driving a blue
van bearing New York plates with one Ruben Rodriguez seated
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next to him. A minute later De La Cruz pulled alongside the
agents' car driving a red van with New York plates. The red
van was followed by the gold Cadillac, now driven by LaPaix,
with one Sarah Tavares as a passenger. The third van did not
appear and a few minutes later Torres signaled the agents to
lead the way to where the cocaine was stored.
The FBI had located the shipment in a warehouse in
Middleboro, Massachusetts, equipping the facility with video
and audio recording equipment. Within half an hour, the
caravan of vehicles arrived at the warehouse and parked in
front. Agent Dillon, seeking to prevent too many of the
suspected gang members from concentrating in one place, asked
Torres to move one of his vehicles away to avoid attracting
attention. Torres and LaPaix conferred; they then spoke with
De La Cruz, who left the red van and drove the Cadillac
across the street into a parking lot shared by a gas station
and an ice cream parlor.
De La Cruz drove slowly through this lot, which was
partly lit and in view of a number of people. He then drove
back across the street to an unlit vacant lot where he
parked. This new lot was adjacent to the warehouse. De La
Cruz left the Cadillac and started back toward the warehouse.
He was then arrested by FBI agents. When arrested, he was
carrying both a beeper and a portable telephone.
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Meanwhile, after De La Cruz left the warehouse parking
lot in the Cadillac, Torres backed the blue van into the bay
area of the warehouse, where he was joined by Rodriguez and
LaPaix. The three men removed the rear seats and floor panel
of the van, uncovering a hidden compartment. They then began
loading the cocaine into the van. After about 70 kilograms
were loaded into the compartment, the three men were
arrested. Torres, when arrested, had in his pocket a
business card with the telephone number used to reach De La
Cruz's beeper.
Subsequently, all five of those present at the
warehouse--Torres, De La Cruz, Rodriguez, LaPaix and Tavares-
-were indicted for conspiring to possess cocaine with intent
to distribute. In early November 1991, some weeks before
trial, LaPaix entered into plea negotiations and, on November
7, he made a limited proffer to the government for purposes
of persuading it to treat him at sentencing as a minor
participant. He made clear that he would refuse to testify
for the government at trial and that he wanted his meeting
with the government to remain confidential.
During the proffer, LaPaix was asked how De La Cruz
became involved. He responded that they were long-time
friends and that prior to June 12 neither of them knew about
the cocaine pick-up nor was De La Cruz promised payment for
his help. Shortly after November 7, LaPaix' counsel told the
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other defense counsel--in what detail is not clear--about the
meeting with the government and its subject matter. Prior to
trial De La Cruz advised LaPaix' counsel that he intended to
call LaPaix as a witness.
Trial began on November 18, 1991. Immediately before
the jury was impaneled, Torres and LaPaix pled guilty. The
government dismissed the indictment as to Tavares. De La
Cruz and Rodriguez then went to trial. On November 22, a
Friday, the government rested and Rodriguez began to testify
in his own defense. Rodriguez did not return to court the
following Monday. The court refused De La Cruz's request to
sever or for a mistrial and the case proceeded against De La
Cruz and the now absent Rodriguez.
On November 25, the sixth day of trial, De La Cruz moved
for production of any exculpatory material created by LaPaix'
proffer. In an ex parte submission, the government provided
to the court a summary of LaPaix' proffer. Over the
government's objection, the court found the material to be
subject to production under Brady v. Maryland, 373 U.S. 83
(1963). The government then disclosed to De La Cruz the
contents of LaPaix' proffer, so far as it concerned De La
Cruz, as follows:
[During the drive from New York to Boston] LaPaix contacted Efrain De La Cruz. And De La Cruz drove LaPaix and Torres to the Holiday Inn in Taunton for the meeting with Special Agent Dillon . . . . As to why there were so many telephone calls between De La Cruz and LaPaix prior to the pickup of the
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cocaine or prior to the drive to Taunton, he indicated that they were long-time friends from the Dominican Republic . . . . The import of the statement was that De La Cruz did not know prior to June 12 about the cocaine pickup in the same way that LaPaix did not know prior to June 12th.
De La Cruz then called LaPaix as a witness, advising the
court that the proffer bore out De La Cruz' defense that he
was unaware of the drugs and was merely helping out a
childhood friend (LaPaix) find his way around Massachusetts.
LaPaix was summoned but, in a voir dire examination, LaPaix
invoked the Fifth Amendment and refused to answer all
questions other than his name and address. De La Cruz
objected to the claim of privilege in light of LaPaix' prior
guilty plea. The district court nevertheless sustained the
claim of privilege, observing that government cross-
examination could produce testimony that would inculpate
LaPaix not merely in the instant transaction but in other
transactions.
On November 26, the jury found De La Cruz and Rodriguez
guilty. De La Cruz was sentenced to 188 months imprisonment
and Torres to 235 months. These appeals followed. In this
court, De La Cruz attacks his conviction by challenging the
sufficiency of the evidence, the denial of his motion to
sever or for a mistrial after Rodriguez disappeared, and the
treatment of the proffer and LaPaix' claim of privilege. We
address these issues first and then consider the claims of
both De La Cruz and Torres concerning their sentences.
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We start with De La Cruz' attack on the adequacy of the
evidence and find that the evidence as to his knowledge of
the conspiracy was circumstantial, arguably thin, but clearly
sufficient. The evidence, considered in the light most
favorable to the government, see United States v. Ortiz, 966
F.2d 707, 711 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005
(1993), shows that De La Cruz appeared at both meetings
accompanying three other men involved in the drug deal
(Torres, LaPaix and Rodriguez); that De La Cruz drove to
Taunton one of the vans intended to carry the drugs; that he
took instructions from Torres, the leader of the group; that
he cruised slowly through the lot opposite the warehouse and
then moved the Cadillac from a well-lit location to another
location where it would be less likely to be noticed; that he
carried a cellular telephone and a beeper--both well known
tools of the drug trade; that the contact number for the
beeper was in Torres' possession; and that De La Cruz and
LaPaix had exchanged various telephone calls in the days
prior to June 12.
These facts, in our view, permitted a rational jury to
conclude beyond a reasonable doubt that De La Cruz was a
knowing participant in the conspiracy to transport drugs.
Any one fact alone may be explained away; but the
combination--presence at the scene, suspicious conduct,
subordination to the gang leader on the scene, and possession
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of communication tools widely used in drug dealing--add up to
more than the sum of the parts. It was left largely to his
counsel to suggest, based on fragments of evidence, that De
La Cruz was essentially a bystander, innocently doing a favor
for his old friend LaPaix. It is not surprising that the
jury rejected this tale.
De La Cruz argues that his name never appeared in the
hundreds of tape recordings made by the FBI as Alvarez
promoted the sting with the Colombians, but there is no
reason why a low level "rollo" should be mentioned in such
conversations. True, De La Cruz never saw or touched the
cocaine, nor is there direct evidence that he knew of its
existence. But knowledge may be based on circumstantial
evidence, Ortiz, 966 F.2d at 711, and it is the jury's job to
draw the proper inference. Here the materials for drawing
the inference were supplied to the jury, and the inference
was rational.
De La Cruz' next claim is that the government wrongly
withheld information about LaPaix' proffer that it was
obligated to disclose under the Brady doctrine. The
government has properly abandoned any claim that the proffer
was not exculpatory at all. It now argues that the promise
of confidentiality to LaPaix excused the government from
disclosing the material, cf. United States v. Hicks, 848 F.2d
1 (1st Cir. 1988), and that in any case LaPaix' lawyer
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disclosed the substance of the proffer to De La Cruz well
before trial. We need not resolve the legal dispute on the
first point or the factual dispute on the second, for the
simple reason that the government did disclose the proffer,
under compulsion, during trial.1
In cases of belated disclosure, "the critical inquiry is
. . . whether the tardiness prevented defense counsel from
employing the material to good effect." United States v.
Devin, 918 F.2d 280, 290 (1st Cir. 1990). Here LaPaix'
proffer, assuming its contents were previously unknown to
counsel for De La Cruz, did not reveal any new line of
defense; rather, the proffer was consistent with the defense
that De La Cruz had pursued from the outset. No evidence was
lost by the delay: LaPaix was produced immediately. That he
then claimed privilege is a problem De La Cruz would have
faced whenever the proffer was disclosed. In short, we find
no prejudice from the delay.
We turn now to De La Cruz' claim that the district court
erred in sustaining LaPaix' invocation of the Fifth
Amendment. This claim is probably the most troublesome
aspect of De La Cruz' appeal because it sets in tension two
1We do not formally resolve the government's claim that it can avoid Brady by promising confidential treatment to
someone it interviews; but we are skeptical of any such blanket claim and would expect the government affirmatively to present the issue to the district court if otherwise exculpatory material were withheld on this ground.
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cardinal precepts: that a criminal defendant should have full
opportunity to secure evidence in his own defense, and that a
witness should be protected against being compelled to
provide testimony that may incriminate him. The core of De
La Cruz' argument is that LaPaix had already pled guilty to
the conspiracy at issue and could not incriminate himself
further if asked, as De La Cruz proposed to do, whether De La
Cruz was aware that drugs were to be transported.
It is uncertain what LaPaix would have said had he
testified (the proffer was that De La Cruz knew nothing prior
to June 12) but the proffer was suggestive and it is surely
possible that LaPaix would have exculpated his friend
entirely. The jury in turn might have disbelieved any such
exculpation in light of the friendship between the men and
the other evidence against De La Cruz. But the hoped-for
testimony was relevant and credibility is for the jury to
decide. Since the government's evidence of De La Cruz'
knowledge was circumstantial, the direct testimony of LaPaix
to the contrary might have been important, even decisive.
Yet whatever the cost to De La Cruz, under the
Constitution LaPaix was entitled to invoke his Fifth
Amendment privilege if testifying might incriminate him. The
trial court's on-the-spot judgment as to the risk of self-
incrimination is entitled to deference and "should not be
overruled unless it is 'perfectly clear` . . . that the
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answers [sought from the witness] 'cannot possibly`
incriminate." United States v. Johnson, 488 F.2d 1206, 1209
(1st Cir. 1973) (quoting Hoffman v. United States, 341 U.S.
479, 487-88 (1951)). In this case, we think the district
judge was not only reasonable but plainly correct in holding
that compelling LaPaix to testify could threaten to
incriminate him.
LaPaix had not been sentenced at the time of De La Cruz'
trial, and "the convicted but unsentenced defendant retains a
legitimate protectable Fifth Amendment interest" as to
matters that could affect his sentence. United States v.
Lugg, 892 F.2d 101, 102-03 (D.C. Cir. 1989); accord, United
States v. Lema, 987 F.2d 48, 54 n.6 (1st Cir. 1993). Here,
if LaPaix testified that he had recruited De La Cruz and
involved him in the plot without telling him of the drugs,
this testimony could have hurt LaPaix' chances at sentencing
of being treated as a minor or minimal participant, U.S.S.G.
3B1.2, and could even have led the court to classify him as
a "supervisor," and enhance his sentence. U.S.S.G. 3B1.1 &
comment note 1 (listing "the recruitment of accomplices" as
relevant to evaluating a defendant's role in the offense).
As the district court suggested, testifying would also
have put LaPaix at risk of disclosing his involvement in
other drug transactions. The government, in order to
challenge LaPaix' testimony exculpating De La Cruz, would
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almost certainly have sought to question LaPaix vigorously
about other possible transactions in which LaPaix and De La
Cruz were involved. The aim would be to undercut LaPaix'
claim of an innocent friendship that led by accident to De La
Cruz' presence at the scene. See Fed. R. Evid. 404(b) (other
wrongs may be proved to refute claim of mistake or accident).
And LaPaix' refusals on voir dire to provide anything except
his name and address indicate that the privilege would have
been promptly invoked in response to such questions.
Some courts have said that the trial judge may or even
must limit the government's cross-examination on collateral
matters if this can be done without unduly limiting the
government and if doing so will preserve the defendant's
ability to call a material witness who would otherwise claim
the privilege.2 In this case, however, effective government
cross-examination would have been seriously impaired if the
prosecutor were denied latitude to explore the joint criminal
history of De La Cruz and LaPaix. Faced with a simple denial
by LaPaix that he had told De La Cruz of the cocaine--the
testimony that De La Cruz' counsel said he hoped to elicit--
2See United States v. Esparsen, 930 F.2d 1461, 1469-70
(10th Cir.), cert. denied, 112 S. Ct. 882 (1991) (collecting
cases). United States v. Pardo, 636 F.2d 535 (D.C. Cir.
1980), is the classic example. In United States v. Zirpolo,
704 F.2d 23, 26 (1st Cir.), cert. denied, 464 U.S. 822
(1983), this court declined to decide whether it would follow Pardo.
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inquiry into the past activities of the two would have been
the most obvious resort for cross-examination.
We have "recognized the need to prevent coconspirators
from `whitewashing' each other through use of testimony
unchallengeable for one reason or another." Zirpolo, 704
F.2d at 26 (quoting United States v. Lowell, 649 F.2d 950,
962 (3d Cir. 1981)). There is nothing that prevents a
defendant from offering such testimony if the alleged co-
conspirator is willing to testify, but the safeguard of
cross-examination is more important than usual in such a
case. Cf. Fed. R. Evid. 804(b)(3) (excluding hearsay
evidence of this kind, unless corroborated, from declaration-
against-interest exception to the hearsay rule). In short,
we do not think that in this case the privilege could
properly be preserved by cabining the government's cross-
examination.
Of course, the prosecutor could resolve the dilemma by
seeking formal immunity for the witness under 18 U.S.C.
6003, but most courts have held that judges are powerless to
compel such a grant by the U.S. Attorney. See United States
v. Angiulo, 897 F.2d 1169, 1191 (1st Cir.) (collecting
cases), cert. denied, 498 U.S. 845 (1990). Indeed, the
privilege has been routinely invoked by alleged co-
conspirators called by the defendant to exculpate him. E.g.,
Zirpolo, 704 F.2d at 25; Johnson, 448 F.2d at 109. A trial
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court might still refuse to entertain the prosecution if it
found that defense testimony had been thwarted by the
misconduct of the prosecutor (e.g., by gratuitously
threatening to prosecute the witness if he testifies). No
basis has been suggested for a misconduct claim in this case.
It must be remembered that the defendant could also
testify to the very same exculpatory facts, for "[a]
defendant is available to himself as a witness." Gacy v.
Welborn, Nos. 92-3448 and 92-3965, slip op. at 22 (7th Cir.
April 12, 1993). A defendant who declines to testify,
protecting himself against self-incrimination on cross-
examination, is well within his rights; but so is the witness
who invokes his own Fifth Amendment rights to avoid
testifying and so is the prosecutor who declines to grant
immunity to the witness. There may be rare cases where the
denial of immunity would comprise a miscarriage of justice.
This is not such a case.
De La Cruz' final argument, apart from sentencing
issues, is that the court erred in denying his motion for a
mistrial or a severance when Rodriguez failed to appear for
the sixth day of trial. While the jury might have inferred
Rodriguez' guilt from his flight, the jury was shown a
videotape of Rodriguez loading cocaine into the van so the
inference added little. De La Cruz had no direct link with
Rodriguez and there is no reason why he should have been
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affected by the inference. Finally, the court offered to
negate the inference with an appropriate instruction, but De
La Cruz' counsel objected to such an instruction, preferring
to argue to the jury about the import of Rodriguez' absence.
Nor can any prejudice be traced to Rodriguez' own
testimony, completed but not fully cross-examined, when he
left the trial. We have reviewed Rodriguez' testimony and
conclude that it did not incriminate De La Cruz or seriously
conflict with his own theory of defense. Indeed, Rodriguez
never once referred to De La Cruz. In any case, the court
offered to strike the testimony and so instruct the jury but
again, for tactical reasons, De La Cruz rejected this offer,
so we do not see how he can now complain that the testimony
remained on the record.
We come, finally, to the objections of De La Cruz and
Torres to the sentences imposed upon them. A narcotics
conspirator is responsible not only for drugs he actually
handled or saw but also for the full quantity of drugs that
he reasonably could have foreseen to be embraced by the
conspiracy he joined. See U.S.S.G. 2D1.4, 2D1.1, 1B1.3 &
comment n.1; United States v. O'Campo, 973 F.2d 1015, 1023
(1st Cir. 1992). The district court's finding as to the
quantity embraced by the conspiracy and reasonably foreseen
by the defendant is a factual one and will not be disturbed
unless clearly erroneous. United States v. Tracy, 989 F.2d
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1279, 1287 (1st Cir.), cert. denied, 61 U.S.L.W. 3773 (1993).
The same standard of review applies to other factual issues
pertinent to sentencing, including the role played by the
defendant in the conspiracy. United States v. Tabares, 951
F.2d 405, 410 (1st Cir. 1991).
Here, the district court held De La Cruz responsible for
the entire 240 kilograms of cocaine that the Lucho group
sought to collect from the warehouse. De La Cruz argues in
this court that there is no evidence that he knew the precise
amount of cocaine that was inside the warehouse. Strictly
speaking, that is so. What he must have known, however, was
that a very large quantity was involved: as the district
court noted, De La Cruz was part of a four vehicle caravan
that included two vans destined to carry away the cocaine
stored at the warehouse.
A defendant who conspires to transport for distribution
a large quantity of drugs, but happens not to know the
precise amount, pretty much takes his chances that the amount
actually involved will be quite large. On De La Cruz'
theory, no amount at all could properly be assigned to him
if, as may well be the case, he never had a specific quantity
in mind. The danger actually posed by the conspiracy was the
distribution of 240 kilograms, De La Cruz knew that a large
quantity was involved, and--absent special circumstances--we
think that is enough.
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De La Cruz also takes issue with the district court's
decision to treat him as a "minor participant" in the
conspiracy, resulting in a two-level downward adjustment.
U.S.S.G. 3B1.2(b). Instead, De La Cruz argues, he should
have been classed as a "minimal participant" and given a
four-level reduction under section 3B1.2(a). The guidelines
and commentary do not define "minimal" but they do say that
the adjustment will be used "infrequently"; and they also
furnish a pair of examples of a minimal participant: "someone
who played no other role in a very large smuggling operation
than to offload part of a single marihuana shipment, or . . .
an individual [who] was recruited as a courier for a single
smuggling transaction involving a small amount of drugs."
U.S.S.G. 3B1.2 comment note 2. Here, De La Cruz was one of
the drivers in a caravan seeking to carry away a very large
cache of narcotics. He fits neither the letter nor the
spirit of the examples.
Torres, by contrast, was found to be an "organizer,
leader, manager or supervisor" and accorded a two-level
increase in his offense level. U.S.S.G. 3B1.1(c). This
enhancement is appropriate if the defendant "exercised some
degree of control over others involved in the commission of
the crime . . . ." United States v. Fuller, 897 F.2d 1217,
1220 (1st Cir. 1990). Here, the facts already recited amply
support the district court's finding that Torres' role was
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equivalent to that of a job-site foreman: he took charge of
the negotiations with the undercover agents to fix the final
time for the drug transfer, orchestrated the arrival of the
vans, and directed the actions of De La Cruz and Rodriguez.
Contrary to Torres' argument in this court, the fact
that Torres may have been working for Lucho does not prevent
Torres from being treated as a supervisor. "A defendant need
not be the highest ranking member of a criminal troupe in
order to be a manager or supervisor." United States v.
Savoie, 985 F.2d 612, 616 (1st Cir. 1993). United States v.
Sostra, 967 F.2d 728 (1st Cir. 1992), relied upon by Torres,
is not on point. There, the defendant's role in the drug
transactions was that of "steerer," bringing together
potential buyers and sellers. Id. at 733. There was
"nothing in the record to show that he [Sostra] exerted
control over any of the other codefendants, with the possible
exception of his brother . . . ." Id.
In sum, we conclude that De La Cruz' conviction and
sentence and Torres' sentence were proper and must be
affirmed.
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