United States v. Esperanza Matiz

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 92-1534

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                NANCY ESPERANZA MATIZ,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________
                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
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                            Rosenn,* Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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                                 ____________________

            Theodore L.  Craft, by  Appointment  of the  Court, for  appellant
            __________________
        Nancy Esperanza Matiz.
            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.
                                 ____________________

                                   January 4, 1994

                                 ____________________

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        *Of the Third Circuit, sitting by designation.

ROSENN,  Senior Circuit  Judge.   Appellant  Nancy
                                ______________________

             Esperanza Matiz  was tried  to a jury  and convicted  in the

             United   States   District   Court  for   the   District  of

             Massachusetts  for  conspiracy  to possess  with  intent  to

             distribute five or  more kilograms of cocaine,  in violation

             of  21 U.S.C.      841(a)(1)  and 846.    Matiz appeals  her

             conviction and  argues that:   (1)  the evidence  introduced

             against her was  insufficient to support the  guilty verdict

             returned by the jury, (2) her  conviction should be reversed

             on the grounds that the Government's conduct was outrageous,

             and (3) the  district court erred in  enhancing her sentence

             for obstruction of justice pursuant to   3C1.1 of the United

             States Sentencing Guidelines.  We affirm.1     

                                          I.

                       This case arose out of a large scale investigation

             conducted by  various  government  agencies  in  the  United

             States  and  Colombia,  South   America  into  the   cocaine

             distribution activities  of a  number of  individuals.   The

             United States Government (the Government) had the assistance

             of Pedro Alvarez, a defendant in another criminal matter.

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             1The district  court possessed  subject matter  jurisdiction
             pursuant to 18  U.S.C.   3231.  This  court has jurisdiction
             pursuant to 28 U.S.C.   1291 and 18 U.S.C.   3742 (a)(2).

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Alvarez, at the behest of the Government, posed as

             a purchaser and  contacted a number of  cocaine suppliers in

             Colombia.      Negotiations  ensued   over   several  months

             pertaining to the  purchase of large quantities  of cocaine.

             In  the  early  part  of  1991,  the  suppliers in  Colombia

             informed  Alvarez  that  they  were  experiencing  temporary

             difficulties  in  smuggling  the  cocaine  into  the  United

             States.   In light of these difficulties, they asked Alvarez

             to  assist them in transporting the shipment.  Additionally,

             the  suppliers asked  Alvarez to  store  and distribute  the

             cocaine to their associates.

                       The Government told Alvarez to request an up-front

             payment   of   $30,000  for   his  troubles   and  expenses.

             Reluctantly, the suppliers agreed and informed  Alvarez that

             the payment  would be made  by one of  their New  York based

             associates,  "La  Negra,"  a  code  name  for  Matiz.    The

             suppliers gave Alvarez  "La Negra's" beeper number  and code

             phrase for communication with her.

                       Alvarez and  Matiz ultimately scheduled  a meeting

             for May  23, 1991, for  Matiz to hand  over the money  to an

             associate of Alvarez, actually Special Agent Dominick Lopez,

             at a Burger  King restaurant  in Queens, New  York.  At  the

             scheduled hour, Matiz,  along with an associate  named Diaz,

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drove to  the meeting place  in a Nissan Pathfinder.   After

             Lopez entered the vehicle, Matiz  instructed Diaz to get the

             money.  Diaz retrieved the money  from under the seat of the

             automobile and passed it to Matiz who then gave it to Lopez.

             The  sum,  however,  amounted  to  only  $20,000  and  Matiz

             promised to make  an additional payment  of $5,000 the  next

             day, explaining that  she had been told that  the amount due

             was $25,000.

                       After  this  exchange,  Matiz  remained  in  close

             contact with  Alvarez.    She  informed  him  that  she  was

             personally  expecting  to  receive a  large  portion  of the

             cocaine  shipment  upon  its  arrival.    The  suppliers  in

             Colombia  confirmed this  information both  in conversations

             with Alvarez and in facsimile messages sent to him.  T  h  e

             shipment  consisting of  615  kilograms of  cocaine  finally

             arrived in the  United States on June  4, 1991.  On  June 5,

             1991,  the suppliers  sent Alvarez  written  instructions by

             facsimile from  Colombia regarding  the distribution  of the

             cocaine.   The  instructions  directed  that, among  others,

             Matiz should receive 51 1/2 kilograms of the cocaine.   

                       Alvarez telephoned Matiz on  numerous occasions to

             discuss  the details  of the  pickup of  her portion  of the

             cocaine.   During  these conversations, Matiz  expressed her

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desire  to obtain  her portion  of  the cocaine  as soon  as

             possible.    Initially,  she  also  voiced  an  interest  in

             purchasing some of the cocaine that Alvarez had received  as

             his  fee for transporting the cocaine.  Ultimately, however,

             she decided against it because of financial constraints.

                       Finally, Alvarez informed Matiz that  she would be

             able to pick up her portion of the cocaine on June 12, 1991.

             He   reserved  a  hotel   room  for  Matiz   in  Middleboro,

             Massachusetts near the site for the transfer of the cocaine.

             Matiz  and Diaz  arrived at  the  hotel on  June 10.    In a

             continued effort  to conceal their identities,  they checked

             into the hotel using fictitious names and addresses.  

                       The following  evening, Alvarez and  Special Agent

             Dillon   met  Matiz  at  the  hotel   to  review  the  final

             arrangements  for  the   pickup.      A  number  of  Matiz's

             assistants, who  had arrived at the hotel on the same day as

             Matiz, were designated to collect the cocaine.  Also, during

             this  meeting, Agent Dillon  gave Matiz a  facsimile message

             from the suppliers that they sent to Alvarez instructing her

             to deposit  the purchase  price for  the cocaine  in various

             accounts  in branches  of the Chase  Manhattan Bank  and the

             Central Bank in Miami.  

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At   the  time  of  the  pickup,  one  of  Matiz's

             assistants followed  an undercover  agent  to the  warehouse

             where the  car was loaded.  Matiz,  however, remained behind

             at  the  hotel with  another  undercover  agent who  was  to

             accompany her to a meeting  with Alvarez.  On the  way, they

             decided  to purchase a bottle  of champagne to celebrate the

             deal.    Upon arriving at the  liquor store, an agent placed

             Matiz under arrest.

                                        II.  

                           A.  Sufficiency of the Evidence

                       Matiz  first  disingenuously   contends  that  the

             evidence produced at trial does not show that she knew of or

             participated in the conspiracy.  Rather, she claims that she

             "recklessly made  a loan  to her friend."   In  evaluating a

             claim  of  insufficiency  of the  evidence,  we  "review the

             evidence as  a whole,  including  all reasonable  inferences

             from  that evidence,  in  the light  most  favorable to  the

             government."   United States  v. Argencourt, 996  F.2d 1300,
                            ____________________________

             1303  (1st  Cir.  1993).    In  addition,  both  direct  and

             circumstantial  evidence must be credited on appeal.  United
                                                                   ______

             States v.  Echeverri, 982  F.2d  675, 677  (1st Cir.  1993).
             ____________________

             Thus, as long as a jury could rationally find guilt beyond a

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reasonable doubt, we  must affirm.  Argencourt, 996  F.2d at
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             1303.   

                       Matiz  is unable to overcome the very heavy burden

             that a claim  of insufficiency of evidence  places upon her.

             There  is  an  abundance of  evidence  that  Matiz knowingly

             participated  in  the  conspiracy   to  distribute  cocaine.

             Granted, Matiz's role initially was to supply Alvarez with a

             payment  of money.  That payment, however, was intrinsically

             linked to the drug conspiracy to  smuggle illicit drugs into

             the United States.  The advance payment would facilitate the

             transportation  of the cocaine.  In addition, the Government

             presented evidence at trial that Matiz spoke to Alvarez over

             thirty times, in  code, with respect to the  shipment of the

             cocaine.    Moreover, the  facsimile from  the suppliers  in

             Colombia  noted that Matiz was  an intended recipient of the

             cocaine.

                       Finally, Matiz  organized and directed  the pickup

             operation in Massachusetts.  Although she herself did not go

             down to load the cocaine, she  sent an assistant of hers  to

             do  the task.    The  jury simply  did  not believe  Matiz's

             incredible story concerning  her lack of involvement  in the

             conspiracy.  Because of the abundance of evidence supporting

             the jury's verdict, this challenge is rejected.

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B.  Outrageous Government Misconduct

                       Matiz  next contends that her conviction should be

             overturned because the  Government's conduct throughout  the

             course   of   the   investigation   constituted   outrageous

             misconduct  in violation  of  her Due  Process rights.   Her

             claim essentially rests  on the  Government's initiation  of

             the transaction, the arranged transportation of  the cocaine

             into  the country, and  its delivery to  various individuals

             including herself.  

                       Law  enforcement  conduct  runs afoul  of  the Due

             Process  Clause  of  the Fifth  Amendment  when  it violates

             "fundamental fairness,  shocking to  the universal  sense of

             justice."   United  States  v. Russell,  411  U.S. 423,  432
                         __________________________

             (1973) (quoting Kinsella v. United States ex rel. Singleton,
                             ___________________________________________

             361  U.S. 234,  246 (1960)).    See also  Hampton v.  United
                                             ___ ____  __________________

             States,   425   U.S.  484,   491-95   (1976)  (Powell,   J.,
             ______

             concurring);  id.  at  495-500  (Brennan,  J.,  dissenting);
                           __

             United States v. Twigg, 588 F.2d 373, 381 (3d Cir. 1978).
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                        This court  has reviewed  many claims  similar to

             the  one advanced here  and has consistently  rejected them.

             See, e.g., United  States v. Santana,       F.3d     1993 WL
             ___  ____  _________________________   ___       __

             345746 (1st Cir.  1993); United States v.  Barnett, 989 F.2d
                                      _________________________

             546,  560 (1st  Cir.),  cert. denied,  114 S.Ct  148 (1993);
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United States v. Marino, 936 F.2d 23, 26-27 (1st Cir. 1991);
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             United States  v. Panitz, 907  F.2d 1267, 1272-73  (1st Cir.
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             1990).  We  have recognized that in these  modern times with

             advanced  technology and  transportation facilities  readily

             available to criminals, drug  conspiracies, especially of an

             international   character,   are  extremely   difficult   to

             penetrate  and  therefore   enforcement  ingenuity  must  be

             encouraged and greater government involvement allowed.   See
                                                                      ___

             Barnett, 989 F.2d  at 560;  Panitz,  907 F.2d at 1273.   The
             _______                     ______

             extent  of  government   involvement  here,  initiating  the

             transaction and transporting and  delivering the cocaine, is

             no more  excessive than  government actions  that have  been

             upheld  in other  cases.    See Panitz,  907  F.2d at  1273;
                                         ___ ______

             Marino, 936 F.2d at 27.
             ______

                       Law   enforcement   conduct   does   not   violate

             fundamental fairness when government officials do not foment

             crime,  cf.  Twigg,  588  F.2d  at  381,  but  resourcefully
                     ___  _____

             penetrate  an existing  drug  ring  and  engage  in  limited

             participation   in   their   unlawful  practices.      "Such

             infiltration  is  a  recognized  and  permissible  means  of

             investigation; if that  be so, then the supply  of some item

             of  value that  the drug  ring requires  must, as  a general

             rule, also be permissible."  Russell, 411 U.S.  at 432.  The
                                          _______

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record demonstrates that Matiz was an important figure in an

             organized  conspiracy  to smuggle  illicit  drugs into  this

             country and distribute  them.  When the  Colombian suppliers

             needed  money  to  facilitate  the  transportation  in  this

             country, they turned to her.  The suppliers' instructions to

             their associates in this country also filtered through her.

                       The  Government did not  entice Matiz  to purchase

             and  distribute  cocaine.    She  already  had  an  existing

             arrangement with  her  suppliers  in  Colombia  and  eagerly

             sought a substantial  share of the smuggled drug  load after

             it reached this country.  Government agents never sought her

             out; the Colombian  suppliers arranged to have  Alvarez meet

             her.   The  Government,  at the  request  of the  suppliers,

             merely facilitated the transportation of the drugs into this

             country  and Matiz freely joined  in the arrangements and in

             acquiring   a  share  of  the  contraband.    Moreover,  the

             Government  did not take  part in processing,  packaging, or

             labelling any of the 615 kilograms of cocaine.  Furthermore,

             they delivered  the cocaine to individuals  predetermined by

             the suppliers.   We do not believe  that the conduct of  the

             agents employing guile, deception, and clever  stratagems in

             infiltrating the Colombian drug ring and communicating  with

             Matiz at the direction of  the suppliers to obtain funds for

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the  transportation of the drugs to this country constituted

             outrageous  and impermissible conduct.  See Panitz, 907 F.2d
                                                     ___ ______

             at 1273.

                       As an  alternative to vacating  Matiz's conviction

             based  on  the  Government's violation  of  her  Due Process

             rights, Matiz requests  that this court use  its supervisory

             power to reverse  her conviction.  Guided  by considerations

             of justice, federal courts  may exercise on a limited  basis

             their supervisory power  to "formulate procedural  rules not

             specifically required  by the Constitution or the Congress."

             United States  v. Hasting,  461 U.S. 499,  505 (1983).   The
             _________________________

             Supreme Court has recognized  only three legitimate purposes

             for  the  exercise  of  a  court's  supervisory  power:  "To

             implement  a remedy for  violation of recognized  rights, to

             preserve judicial integrity, . .  . and finally, as a remedy

             designed  to deter future  illegal conduct.   Id. (citations
                                                           ___

             omitted).      Neither of  these three bases  are applicable

             to  the  case  sub judice.    As  discussed previously,  the
                            __________

             Government's  conduct was not outrageous, and Matiz fails to

             show any specific violation of a statutory or constitutional

             right.   Moreover preserving  judicial integrity  is only  a

             basis for a court to  use its supervisory power to supervise

             its  own  affairs,  not  the  affairs  of  other  government

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branches.  The court's supervisory power does not "justify a

             chancellor's foot veto  over activities of  coequal branches

             of government."  Id. at 1089 (citations omitted).  Since the
                              ___

             conduct alleged by  Matiz to be outrageous  occurred outside

             the  courtroom,  judicial  integrity  is  not  at  risk  and

             therefore cannot  be used as a  basis for a court  to invoke

             its supervisory  power.  See id.    Finally, since there was
                                      ___ ___

             no past illegal  conduct on the part of  the Government with

             respect to Matiz, we could  not use our supervisory power to

             deter  it from  engaging in  future,  illegal conduct.   See
                                          ______                      ___

             United  States v.  Simpson, 927  F.2d 1088,  1091 (9th  Cir.
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             1991).   Thus,  the  use  of our  supervisory  power is  not

             warranted under the present facts. 

                      C.  Enhancement for Obstruction of Justice

                       Finally,  Matiz  presents  two  challenges to  the

             district court's enhancement of her sentence for obstruction

             of  justice  pursuant  to  U.S.S.G.     3C1.1.    Her  first

             challenge is that the district court failed to make specific

             findings necessary to establish perjury. 

                       Section  3C1.1  requires  a  sentencing  court  to

             enhance a defendant's sentence level by two points "[i]f the

             defendant willfully  obstructed or impeded,  or attempted to

             obstruct or impede, the administration of justice during the

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. .  . prosecution  . .  .   of the  instant offense."   The

             commentary to   3C1.1 provides that committing perjury is an

             example  of the  type of conduct  to which  this enhancement

             applies. U.S.S.G.    3C1.1, comment (n. 3(b)).   The Supreme

             Court  has stated  that  a  witness  testifying  under  oath

             commits perjury if  "she gives false testimony  concerning a

             material matter  with the  willful intent  to provide  false

             testimony, rather than as a result of confusion, mistake, or

             faulty memory."  United States v. Dunnigan, 113 S. Ct. 1111,
                              _________________________

             1116 (1993).   An enhancement for  obstruction of justice is

             sufficiently  supported where  a  sentencing  court makes  a

             finding  "that encompasses all of the factual predicates for

             a  finding of perjury".  Id. at 1117.  At Matiz's sentencing
                                      __

             the court made the following finding:  

                       I  don't need  to  address the  issue of
                       Ramirez.2  I  do not wish to  imply that
                       a defendant  does not  have  a right  to
                       testify.      I  make   an   independent
                       determination here that I simply did not
                       credit Ms. Matiz' testimony when she did
                       testify.  It's  my determination that  I
                       do  not believe her.  I believe that she
                       knowingly  told   a  false   story  and,
                       accordingly,    will    overrule     the
                                 
             ____________________

             2The  court's  reference  to   "Ramirez"  concerns  evidence
             presented at  trial that Matiz used an alias, Maria Ramirez.
             On  cross-examination, Matiz  denied  using the  alias, even
             though a social security card and an apartment lease bearing
             that name  were  found  in  her diary.    Additionally,  her
             landlord identified her as the woman he knew as Ramirez.

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objection.  It's  appropriate to have an
                       upward  adjustment  for  obstruction  of
                       justice in this case.

             The  court  also stated  that  it "finds  the  defendant did

             commit perjury."

                       The findings encompass all the elements of perjury

             --  falsity,  materiality, and willfulness.  The only matter

             about which the court was  not explicit was whether  Matiz's

             testimony was material.  A sentencing court, however, is not

             required to address  each element of  perjury in a  separate

             and clear finding.  See id.  In fact, the Court  in Dunnigan
                                 ______                          ________

             affirmed a  district court's  finding that  did not  use the

             term willful.3  Id. at 1113.  Dunnigan  only requires that a
                             ___           ________

             sentencing  court's  findings encompass  all of  the factual

             predicates for a finding of perjury.  

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             33The finding at issue in Dunnigan stated: 
                                       ________

                       The court finds  that the defendant  was
                       untruthful  at  trial  with  respect  to
                       material  matters in  this  case.   [B]y
                       virtue of her  failure to give  truthful
                       testimony on material  matters that were
                       designed  to  substantially  affect  the
                       outcome of the case, the court concludes
                       that  the   false  testimony   at  trial
                       warrants  an  upward adjustment  by  two
                       levels.

             Dunnigan, 113 S.Ct. at 1117.
             ________

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Moreover, the record  demonstrates that Matiz's

             false  testimony denying  knowledge of and  participation in

             the conspiracy was  material.  If  believed, the jury  would

             have acquitted her.  Thus,  we can make the determination of

             materiality on  our own  without remanding  to the  district

             court.   See  United States  v.  Arias-Villanueva, 998  F.2d
                      ___  ___________________________________

             1491, 1513 (9th Cir.), cert.  denied, 114 S. Ct. 359 (1993).
                                    _____________

             Therefore,  the challenge to the district court's failure to

             make specific findings is rejected.  

                       Matiz  also  contends   that  the  district  court

             erroneously found that she committed perjury inasmuch as the

             record  contains no  evidence  of  material  untruths.    In

             reviewing a court's application of the sentencing guidelines

             to facts of  a case, we use a  "clearly erroneous" standard.

             See United States  v. Wright, 873 F.2d 437  (1st Cir. 1989).
             ___ ________________________

             We perceive  no  clear error;  on the  contrary, the  record

             overwhelmingly supports the district court's finding.  

                       Throughout her  testimony, Matiz  argued that  she

             merely loaned money  to a friend and that  she was otherwise

             unconnected  to  the  drug  conspiracy.     The  Government,

             however,  rebutted  her  explanation  and  proved  at  trial

             through  the use of recordings and testimony from Government

             agents that  she  was  intimately   connected  to  the  drug

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conspiracy.   Thus, we  cannot say that  the district  court

             committed error in finding that Matiz perjured herself.

                                         III.

                       In  sum, we  conclude  that:    (1)  the  evidence

             introduced  against  Matiz  was sufficient  to  support  the

             guilty verdict  returned by  the jury,  (2) the  Goverment's

             conduct was not outrageous, and  (3) the district court  did

             not  err  in  enhancing  her  sentence  for  obstruction  of

             justice.

                       The judgment of the district court is 

                       Affirmed.
                       _________

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