[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals For the First Circuit
No. 98-1750
UNITED STATES,
Appellee,
v.
GIOVANY HERNANDEZ-GARCIA, A/K/A VANI, A/K/A BANI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell and Wallace, Senior Circuit Judges.
Laura Maldonado-Rodrguez, by appointment of the Court, for appellant. Miguel A. Pereira, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Chief Criminal Division, Nelson Prez-Sosa and Michelle Morales, Assistant United States Attorneys were on brief, for appellee.
February 15, 2000
WALLACE, Senior Circuit Judge. Giovanni Hernndez-Garca was tried and convicted of conspiracy to distribute more than five kilograms of cocaine in violation of 21 U.S.C. 841, 846. The district court had jurisdiction pursuant to 18 U.S.C. 3231. His appeal was timely filed, and we have jurisdiction pursuant to 28 U.S.C. 1291. We affirm. I. Hernndez-Garca first argues that he received ineffective assistance of counsel at trial because of a conflict of interest with his attorney. This conflict arose, Hernndez-Garca argues, because his counsel was unprepared, failed to file motions, and previously represented one of the cooperating witnesses who testified against him. This is not the proper forum to address an ineffective assistance of counsel argument. Such claims "will not be entertained on direct appeal absent a sufficiently developed evidentiary record. Instead, a collateral proceeding under 28 U.S.C. 2255 is the appropriate vehicle for such an ineffective-assistance claim." United States v. Ademaj, 170 F.3d 58, 64 (1st Cir.) (citations omitted), cert. denied, 120 S. Ct. 206 (1999). Hernandez's ineffective assistance of counsel argument is fact-intensive, making it more appropriate in a section 2255 setting. II. Hernndez-Garca next argues that the district court erred in admitting tape recorded evidence against him without proper voice identification as required by Federal Rule of Evidence 901. We review for abuse of discretion. See United States v. Citro, 938 F.2d 1431, 1438 (1st Cir. 1991). Before certain voice evidence is admissible, it must be authenticated pursuant to Rule 901(a), (b)(15). "The rule does not erect a particularly high hurdle." United States v. Ortiz, 966 F.2d 707, 716 (1st Cir. 1992). The burden of authentication "does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood." United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994). At a Carbone hearing to determine the admissibility of wiretap evidence obtained during a Title III interception, see United States v. Carbone, 798 F.2d 21, 24-25 (1st Cir. 1986), Special Agent Cintrn identified Hernndez-Garca's voice. However, shortly thereafter, he stated he was not sure of his identification because the voice may have been that of another defendant. Regardless, Agent Cintrn testified that he presumed that Hernndez-Garca's voice was on the recording based on circumstantial evidence: a speaker on the recording identified himself as "Vani," Hernndez-Garca's alias, and there was only one "Vani" investigated and indicted. Angel Ruiz-Adorno, a cooperating government witness, also positively identified Hernndez-Garca's voice after listening to the recordings. Hernndez-Garca attempted to impeach Ruiz-Adorno, leaving a credibility finding for the district court. The district judge ruled that he was satisfied, based on Agent Cintrn's and Ruiz-Adorno's testimony, that Hernndez-Garca's voice was properly identified. The district court did not abuse its discretion. Circumstantial evidence, either alone or in conjunction with direct evidence, is admissible for Rule 901 authentication purposes. See United States v. Carrasco, 887 F.2d 794, 804 (7th Cir. 1989). Thus, the district court properly relied upon Agent Cintrn's testimony that the audiotapes identify "Vani," i.e., Hernndez- Garca, and that there was only one "Vani" associated to the drug conspiracy in making his Rule 901 ruling. Hernndez-Garca argues that Ruiz-Adorno could not have met him at the time Ruiz-Adorno testified, but this was a credibility issue to be resolved by the district court. In addition, at no time did Hernndez-Garca foreclose the possibility that Ruiz-Adorno actually met Hernndez-Garca at some other time prior to his positive voice identification at the Carbone hearing. For these reasons, the district court did not abuse its discretion in determining that the audiotapes were properly authenticated. III. Hernndez-Garca also argues that the evidence was insufficient to find that he ever joined the conspiracy. In making this argument, Hernndez-Garca: bears a heavy burden: he must show that no rational jury could have found him guilty beyond a reasonable doubt. We review the sufficiency of the evidence as a whole, in a light most favorable to the verdict, taking into consideration all reasonable inferences. We resolve all credibility issues in favor of the verdict. The evidence may be entirely circumstantial, and need not exclude every hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence.
United States v. Scharon, 187 F.3d 17, 21 (1st Cir. 1999) (citations omitted). Having reviewed the evidence as outlined above, we hold that it was sufficient to uphold the jury's verdict. Ruiz-Adorno testified that he saw Hernndez-Garca give a bag full of money to Wes Solano-Moreta, the head of the drug conspiracy. The jury heard two audiotapes comprising conversations between Hernndez-Garca and Wes Solano-Moreta concerning drug trafficking. It saw two videotapes showing Hernndez-Garca at known drug distribution points. It also saw a photograph in which Hernndez-Garca is seen with Wes Solano-Moreta. FBI Special Agent Vzquez testified that during an authorized wiretap of a beeper Solano-Moreta used, the beeper received 192 messages from "Vani." The fact that much of the evidence is circumstantial, and that the government did not identify Hernndez-Garca's precise role in the conspiracy, do not diminish the jury's finding of guilt. See Scharon, 187 F.3d at 21 (stating that jury can rely entirely upon circumstantial evidence); United States v. Laboy-Delgado, 84 F.3d 22
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[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals For the First Circuit
No. 98-1750
UNITED STATES,
Appellee,
v.
GIOVANY HERNANDEZ-GARCIA, A/K/A VANI, A/K/A BANI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell and Wallace, Senior Circuit Judges.
Laura Maldonado-Rodrguez, by appointment of the Court, for appellant. Miguel A. Pereira, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Chief Criminal Division, Nelson Prez-Sosa and Michelle Morales, Assistant United States Attorneys were on brief, for appellee.
February 15, 2000
WALLACE, Senior Circuit Judge. Giovanni Hernndez-Garca was tried and convicted of conspiracy to distribute more than five kilograms of cocaine in violation of 21 U.S.C. 841, 846. The district court had jurisdiction pursuant to 18 U.S.C. 3231. His appeal was timely filed, and we have jurisdiction pursuant to 28 U.S.C. 1291. We affirm. I. Hernndez-Garca first argues that he received ineffective assistance of counsel at trial because of a conflict of interest with his attorney. This conflict arose, Hernndez-Garca argues, because his counsel was unprepared, failed to file motions, and previously represented one of the cooperating witnesses who testified against him. This is not the proper forum to address an ineffective assistance of counsel argument. Such claims "will not be entertained on direct appeal absent a sufficiently developed evidentiary record. Instead, a collateral proceeding under 28 U.S.C. 2255 is the appropriate vehicle for such an ineffective-assistance claim." United States v. Ademaj, 170 F.3d 58, 64 (1st Cir.) (citations omitted), cert. denied, 120 S. Ct. 206 (1999). Hernandez's ineffective assistance of counsel argument is fact-intensive, making it more appropriate in a section 2255 setting. II. Hernndez-Garca next argues that the district court erred in admitting tape recorded evidence against him without proper voice identification as required by Federal Rule of Evidence 901. We review for abuse of discretion. See United States v. Citro, 938 F.2d 1431, 1438 (1st Cir. 1991). Before certain voice evidence is admissible, it must be authenticated pursuant to Rule 901(a), (b)(15). "The rule does not erect a particularly high hurdle." United States v. Ortiz, 966 F.2d 707, 716 (1st Cir. 1992). The burden of authentication "does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood." United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994). At a Carbone hearing to determine the admissibility of wiretap evidence obtained during a Title III interception, see United States v. Carbone, 798 F.2d 21, 24-25 (1st Cir. 1986), Special Agent Cintrn identified Hernndez-Garca's voice. However, shortly thereafter, he stated he was not sure of his identification because the voice may have been that of another defendant. Regardless, Agent Cintrn testified that he presumed that Hernndez-Garca's voice was on the recording based on circumstantial evidence: a speaker on the recording identified himself as "Vani," Hernndez-Garca's alias, and there was only one "Vani" investigated and indicted. Angel Ruiz-Adorno, a cooperating government witness, also positively identified Hernndez-Garca's voice after listening to the recordings. Hernndez-Garca attempted to impeach Ruiz-Adorno, leaving a credibility finding for the district court. The district judge ruled that he was satisfied, based on Agent Cintrn's and Ruiz-Adorno's testimony, that Hernndez-Garca's voice was properly identified. The district court did not abuse its discretion. Circumstantial evidence, either alone or in conjunction with direct evidence, is admissible for Rule 901 authentication purposes. See United States v. Carrasco, 887 F.2d 794, 804 (7th Cir. 1989). Thus, the district court properly relied upon Agent Cintrn's testimony that the audiotapes identify "Vani," i.e., Hernndez- Garca, and that there was only one "Vani" associated to the drug conspiracy in making his Rule 901 ruling. Hernndez-Garca argues that Ruiz-Adorno could not have met him at the time Ruiz-Adorno testified, but this was a credibility issue to be resolved by the district court. In addition, at no time did Hernndez-Garca foreclose the possibility that Ruiz-Adorno actually met Hernndez-Garca at some other time prior to his positive voice identification at the Carbone hearing. For these reasons, the district court did not abuse its discretion in determining that the audiotapes were properly authenticated. III. Hernndez-Garca also argues that the evidence was insufficient to find that he ever joined the conspiracy. In making this argument, Hernndez-Garca: bears a heavy burden: he must show that no rational jury could have found him guilty beyond a reasonable doubt. We review the sufficiency of the evidence as a whole, in a light most favorable to the verdict, taking into consideration all reasonable inferences. We resolve all credibility issues in favor of the verdict. The evidence may be entirely circumstantial, and need not exclude every hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence.
United States v. Scharon, 187 F.3d 17, 21 (1st Cir. 1999) (citations omitted). Having reviewed the evidence as outlined above, we hold that it was sufficient to uphold the jury's verdict. Ruiz-Adorno testified that he saw Hernndez-Garca give a bag full of money to Wes Solano-Moreta, the head of the drug conspiracy. The jury heard two audiotapes comprising conversations between Hernndez-Garca and Wes Solano-Moreta concerning drug trafficking. It saw two videotapes showing Hernndez-Garca at known drug distribution points. It also saw a photograph in which Hernndez-Garca is seen with Wes Solano-Moreta. FBI Special Agent Vzquez testified that during an authorized wiretap of a beeper Solano-Moreta used, the beeper received 192 messages from "Vani." The fact that much of the evidence is circumstantial, and that the government did not identify Hernndez-Garca's precise role in the conspiracy, do not diminish the jury's finding of guilt. See Scharon, 187 F.3d at 21 (stating that jury can rely entirely upon circumstantial evidence); United States v. Laboy-Delgado, 84 F.3d 22, 27 (1st Cir. 1996) (stating "to prove a defendant guilty of a narcotics-related conspiracy the government need not specify and prove with particularity the defendant's exact role in the scheme"). The evidence was sufficient to uphold the jury verdict. IV. Hernndez-Garca next argues that the district court erred in calculating his sentencing range. He challenges the district court's findings on drug quantities and role in the offense, contending that because the district court's findings are not specific, we cannot properly settle the sentencing issue. In United States v. Fal-Gonzlez, No. 98-1749, slip op. at (collecting cases), a companion case, we held that if a defendant is dissatisfied with the district court's sentencing findings, he must request more specific findings at sentencing in order to challenge the findings on appeal. Hernndez-Garca did challenge the presentence report recommendation concerning drug- quantity and role in the offense. However, after the district court heard evidence from both sides and made its findings regarding these issues, Hernndez-Garca offered no further objections, despite the district court's asking three times whether counsel had any further points to make. Having failed to request more specific findings in the district court, Hernndez-Garca cannot challenge the specificity of those findings here. See id. V. Finally, Hernndez-Garca argues that the district court should have granted his motion for new trial, brought pursuant to Federal Rule of Criminal Procedure 33, based on newly discovered evidence that one telephone call recorded during a Title III intercept of Solano-Moreta cellular phone, and used against Hernndez-Garca at trial, did not take place during the authorized intercept time. The basis for Hernndez-Garca's argument is that cellular billing records, obtained after trial, do not indicate a call being made on the Title III target phone at the time the government maintains. Hernndez-Garca's co-defendant Fal- Gonzlez raised this identical issue. See Fal-Gonzlez, slip op. at . For the same reasons stated there, we hold that there was no manifest abuse of discretion in denying the motion. AFFIRMED.