United States v. Legarda

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-1448

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 EVER MIGUEL LEGARDA,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]
                                         __________________________

                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
                                          _____________
                            Coffin, Senior Circuit Judge, 
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Dominick  J. Porco with whom Martin L. Schmukler  was on brief for
            __________________           ___________________
        appellant.
            Margaret E.  Curran, Assistant United  States Attorney,  with whom
            ___________________
        Edwin  J.  Gale,  United  States  Attorney,  and Gerard  B.  Sullivan,
        _______________                                  ____________________
        Assistant United States Attorney, were on brief for appellee.

____________________

                                    March 3, 1994
                                 ____________________

STAHL,  Circuit  Judge.     In  this  drug  appeal,
                              ______________

            defendant Ever Miguel  Legarda challenges:  1)  trial rulings

            made by the  district court which excluded  certain testimony

            on  hearsay  grounds;  2)  the  court's  computation  of  the

            relevant  amount of cocaine  for sentencing purposes;  and 3)

            the court's upward departure from the Guidelines.  Finding no

            reversible error, we affirm.

                                          I.
                                          I.
                                          __

                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
                       ________________________________________

                      In July of  1992, defendant traveled from  New York

            City, where  he resided, to  his native country  of Colombia.

            Upon his return to New York, and apparently at the urging  of

            someone he had  met in Colombia, defendant  contacted Michael

            Teixera, known to defendant as Luis Rodrigues, and arranged a

            meeting on a Manhattan street  corner.  In a subsequent phone

            call by defendant to Teixera, the two arranged for Teixera to

            leave   an  automobile  for  defendant's  use  on  that  same

            Manhattan  street corner  where the  two  had initially  met.

            Defendant also agreed with Teixera that defendant would drive

            the car  to a restaurant in Astoria,  Queens, where he was to

            meet a  man named Nunyo,  that he would thereafter  drive the

            car to  Providence, Rhode Island,  and that he would  be paid

            several thousand dollars for doing so.

                      On August 20, 1992, adhering to the plan, defendant

            picked up  the car in  Manhattan, drove to the  restaurant in

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Queens, and  met Nunyo, who placed a box  in the trunk of the

            car.   The box contained  eleven kilograms of  cocaine, later

            found  to be  88%  pure.   Rather  than  proceed directly  to

            Providence,  defendant  drove  to  the  home  of  his  former

            girlfriend  and his  two  sons where  he obtained  his former

            girlfriend's permission to  travel to Providence in  her car,

            rather  than  in the  car  he  had  picked up  in  Manhattan.

            Defendant  drove to Providence  accompanied by his  two sons,

            both under the age of thirteen, and one dog.

                      Upon  arriving in  Providence, defendant  again met

            Teixera,  who  was  a  government  informant.    Teixera  had

            arranged  for a controlled  drug purchase in  which defendant

            would  sell  cocaine  to   United  States  Drug   Enforcement

            Administration ("DEA")  Task Force  Agent Lawrence  Lepore, a

            detective  in the  Providence Police  Department.   Defendant

            followed Teixera to an apartment where Lepore was to make the

            purchase.   Defendant's two sons entered the apartment, along

            with defendant.   After discussing  the price  of the  eleven

            kilograms  with Lepore,  as well  as  possible future  sales,

            defendant delivered the  eleven kilograms to Lepore.   During

            the consummation of the deal, defendant's two sons were  left

            in a separate room in the apartment.  DEA agents observed the

            purchase and arrested defendant.

                      After  his arrest, defendant  stated to Lepore that

            he  had brought  his children  along in  order to  lessen the

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likelihood of being  stopped on his drive from  New York City

            to Providence.   He  also stated  that he  knew that the  box

            contained drugs and that he was aware of larger quantities of

            drugs  being  imported  from Colombia.    At  trial, however,

            defendant  denied such knowledge.   He was  nonetheless found

            guilty of possession  with intent to distribute  a controlled

            substance  in  violation  of  21  U.S.C.     841  (a)(1)  and

            (b)(1)(A)(ii).   

                                         II.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                      As noted  above, defendant offers  three challenges

            on appeal.  We address them in turn.

            A.  The District Court's Hearsay Rulings
            ________________________________________

                      At trial, defendant took the stand and attempted to

            recount  statements  that  were  allegedly  made  to  him  by

            individuals in Colombia, as well as statements made by Nunyo,

            his  contact in  Astoria, Queens,  and by  Teixera.   In each

            case, the  district court sustained  government objections on

            hearsay grounds.   See  Fed. R. Evid.  802.   Defense counsel
                               ___

            repeatedly explained  that defendant  was not offering  these

            statements  in  order  to  prove  the  truth  of  the  matter

            asserted.  Rather,  he argued that the  significance of these

            alleged statements lay solely in the fact that they were made

            and   that  they  therefore  had  an  effect  on  defendant's

            behavior.    See,   e.g.,  Fed.  R.  Evid.   801(c)  advisory
                         ___    ____

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                                          4

committee's  note   ("If  the  significance  of   an  offered

            statement lies solely in  the fact that it was made, no issue

            is  raised as  to the  truth  of anything  asserted, and  the

            statement is not hearsay."); United States v. Hicks, 848 F.2d
                                         _____________    _____

            1, 3 (1st Cir. 1988) (quoting same).

                      On  appeal,  the  government  concedes  that  these

            hearsay rulings were erroneous, and we agree  that the record

            clearly demonstrates  error on the  part of the  trial court.

            Nonetheless, not all improper exclusions  of evidence require

            reversal.   Rather,  an appellant  must  show that  an  error

            "results  in actual prejudice because it `had substantial and

            injurious effect  or  influence  in  determining  the  jury's

            verdict.'"  United  States v. Lane, 474 U.S.  438, 449 (1985)
                        ______________    ____

            (quoting  Kotteakos v.  United  States,  328  U.S.  750,  776
                      _________     ______________

            (1946)).  See also  28 U.S.C.   2111 ("On the  hearing of any
                      ___ ____

            appeal . . . in any case, the court shall give judgment after

            an examination  of the  record without  regard  to errors  or

            defects which do  not affect  the substantial  rights of  the

            parties.");  Fed.  R.  Crim. P.  52(a)  ("Any  error, defect,

            irregularity or  variance which  does not affect  substantial

            rights shall be disregarded.").  Defendant fails to establish

            such harm. 

                      Judging from the  contexts of the district  court's

            multiple erroneous hearsay rulings, it appears that defendant

            in   each  instance   was   prepared  to   offer  exculpatory

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                                          5

information about each of  the conversations, i.e., innocuous

            reasons offered  to him  by each  speaker which  would prompt

            defendant  to perform  the acts which  eventually led  to his

            arrest.    Later  in his  testimony,  however,  defendant was

            allowed  to  offer this  exculpatory  explanation of  events.

            Defendant testified that in  his conversations with  Teixera,

            Nunyo and  others, he  was led to  believe that  the delivery

            concerned either  "spare parts" or  cash.  Thus,  despite the

            erroneous  rulings,  defendant  was   eventually  allowed  to

            recount  the essential elements of his own version of events.

            Notwithstanding   his  general   complaints  of   unfairness,

            defendant does not  argue, nor could he on  the record before

            us, that these errors had  a substantial and injurious effect

            or influence on the jury's decision to convict him.    

                      In sum, defendant "was allowed to put on a defense,

            even  if  not  quite  so  complete  a  defense  as  he  might

            reasonably have  desired."  United States v. Hanson, 994 F.2d
                                        _____________    ______

            403,  407 (7th  Cir. 1993).   The  substance of  the excluded

            portions   of  his  testimony  was  eventually  allowed  into

            evidence.  Given these errors and no more, we cannot say that

            reversal is warranted.

            B.  Sentencing
            ______________

                 1.  The Amount of  Cocaine and the District Court's Base
                 ________________________________________________________
                 Offense Level Determination
                 ___________________________

                      The  sentencing court  determined defendant's  base

            offense  level  on  the  basis  of  twenty-one  kilograms  of

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                                          6

cocaine; eleven  kilograms that were actually  delivered, and

            ten more that  defendant purportedly promised to  deliver the

            following  week.  Defendant  challenges the  district court's

            inclusion of the latter amount.

                      We  begin  by   noting  that  facts   supporting  a

            sentence,  such as  drug  quantity  determinations,  must  be

            proven by the government by a preponderance  of the evidence.

            See United States v. Marino, 936 F.2d 23, 27 (1st Cir. 1991).
            ___ _____________    ______

            Factual findings on such  issues are reviewed only  for clear

            error.  Id.         Commentary  Note 12  to section  2D1.1 of
                    ___

            the United States Sentencing Guidelines provides in  relevant

            part:

                           In an offense  involving negotiation
                      to traffic in a controlled substance, the
                      weight    under    negotiation    in   an
                      uncompleted distribution shall be used to
                      calculate    the    applicable    amount.
                      However, where  the court finds  that the
                      defendant did  not intend to  produce and
                      was not  reasonably capable  of producing
                      the  negotiated amount,  the court  shall
                      exclude  from  the  guideline calculation
                      the amount  that it  finds the  defendant
                      did  not intend  to produce  and was  not
                      reasonably capable of producing.  

            Our case  law has  followed the  language of  this Commentary

            Note  in a  rather faithful fashion,  requiring a  showing of

            both  intent and  ability to  deliver in  order to  allow the

            inclusion  of negotiated amounts to be  delivered at a future

            time.  See, e.g.,  United States v. Rotolo,  950 F.2d 70,  72
                   ___  ____   _____________    ______

            (1st Cir. 1991); United States v. Moreno, 947  F.2d 7, 9 (1st
                             _____________    ______

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                                          7

Cir.  1991), United States  v. Estrada-Molina, 931  F.2d 964,
                         _____________     ______________

            966 (1st Cir. 1991); United  States v. Bradley, 917 F.2d 601,
                                 ______________    _______

            604 (1st Cir. 1991).   In this case, defendant challenges the

            district court's findings that he had both the intent and the

            ability to  produce  ten  additional  kilograms  of  cocaine.

            Though the case is close, we affirm.

                      At  trial, a tape recording of the drug transaction

            in Lepore's  apartment was  placed in  evidence.   The  taped

            conversation  spans the period of time during which defendant

            purportedly   negotiated  to   deliver  the   additional  ten

            kilograms.    Audible  portions  of  the  tape  reveal  vague

            comments,   made  exclusively   by  Lepore  rather   than  by

            defendant, about the possibility of  future deals.  Thus, the

            tape itself does not reveal  the existence of an agreement to

            provide additional drugs.1

____________________

            1.  Compare,  e.g., United  States v. Cedano-Rojas,  999 F.2d
                _______   ____  ______________    ____________
            1175,  1179 (7th  Cir.  1993)  (finding  that  defendant  had
            negotiated purchase of nine  additional kilograms of  cocaine
            where  he stated,  "`Save them,  save  them,' and  instructed
            [government  informant who was selling the drugs] `Don't give
            them away.'"); United States v. Williams, 994 F.2d 1287, 1293
                           _____________    ________
            (8th  Cir.  1993)  (finding  that  defendant  had  negotiated
            additional sale where,  "[o]nce the [government]  agent asked
            about  the price of a quarter-pound [of cocaine], [defendant]
            did offer to try to obtain and sell him this amount"); United
                                                                   ______
            States v. Mahoney, 972 F.2d 139, 143 (7th Cir. 1992) (finding
            ______    _______
            that defendant had negotiated additional sale where defendant
            discussed options for  delivery and payment, and  stated that
            he  was  "positive"  that  his  supplier  could  deliver  the
            additional amount); United States v. Cea, 963 F.2d 1027, 1031
                                _____________    ___
            (7th Cir.) (finding that defendant  had negotiated additional
            purchase  where evidence of "very specific negotiations as to
            price and  amount" showed  that defendant  was "dead  serious
            about  buying and  distributing ten  kilograms of  cocaine"),

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                                          8

In addition to the  tape, however, Lepore testified

            at trial that during that  same meeting at which the delivery

            took place, defendant had agreed to provide ten kilograms  on

            a weekly basis.  Moreover, the inaudible portions of the tape

            do not altogether rule out the possibility that  the specific

            agreement  described by Lepore  was made sometime  during the

            transaction.  The  district court apparently chose  to credit

            Lepore's testimony,  and we have no basis for concluding that

            it was clearly  erroneous in doing so.   Accordingly, we find

            no  error in the  district court's conclusion  that defendant

____________________

            cert.  denied,  113  S.  Ct. 281  (1992);  United  States  v.
            _____  ______                              ______________
            Burrell, 963 F.2d 976, 995 (7th Cir.) (finding that defendant
            _______
            had  negotiated additional purchase  where "the terms  of the
            sale were  negotiated and agreed upon"), cert. denied, 113 S.
                                                     _____ ______
            Ct.  357  (1992);  Rotolo,  950  F.2d  at  72  (finding  that
                               ______
            defendant had  negotiated additional purchase where he, inter
                                                                    _____
            alia,  "spoke  specifically  about  taking  delivery   of  an
            ____
            additional  half ton")  (emphasis in  original); Moreno,  947
            __________                                       ______
            F.2d at 9  (finding that defendant had  negotiated additional
            sale where  he told  government agents  that he  could supply
            five  to ten  kilograms at  fifteen-day  intervals and  where
                                                               ___
            defendant "agreed  to supply  these amounts,  with the  first
                       ______
            delivery to  be made within  a week") (emphasis  in original)
            with United States  v. Reyes, 979 F.2d 1406,  1410 (10th Cir.
            ____ _____________     _____
            1992) (finding  that defendant had not  negotiated additional
                                               ___
            sale  because,  "[w]hile  Defendant  did  not  rule  out  the
            possibility  [of  future  drug  transactions],  the  lack  of
            specific   details  concerning   an  additional   transaction
            indicates  that,  at best,  Defendant  intended  to negotiate
            later"); United  States  v. Ruiz,  932 F.2d  1174, 1184  (7th
                     ______________     ____
            Cir.)  (finding that defendant  had not negotiated additional
                                                ___
            sale  where  defendant,  having promised  two  kilograms  and
            delivered only one, commented, "It  doesn't matter.  I'll get
            you the  other kilo.   And if you  want, even ten  more I can
            get."), cert. denied, 112 S. Ct. 151 (1991); United States v.
                    _____ ______                         _____________
            Foley,  906 F.2d  1261, 1264  (8th  Cir. 1990)  (finding that
            _____
            defendant had not negotiated additional sale where government
                          ___
            agent  had "simply  inquired about  the  cost" of  additional
            quantities of drugs).

                                         -9-
                                          9

fully  intended to  produce the  first  weekly instalment  of

            cocaine under the agreement which Lepore described.2

                      As  to  defendant's  ability  to  produce  the  ten
                                           _______

            additional kilograms, we find entirely plausible the district

            court's conclusion  that defendant,  having delivered  eleven

            kilograms of cocaine  one week, was capable of delivering ten

            kilograms the following week.  Accordingly, we  find no clear

            error in the district court's drug quantity calculation.

                 2.  The Upward Departure
                 ________________________

                      Finally,  defendant  appeals   a  two-level  upward

            departure to his sentence.  We review the departure along the

            lines set out in United States v. Rivera, 994 F.2d 942,  950-
                             _____________    ______

            52 (1st Cir.  1993).  Plenary review is  applied to determine

            whether the  allegedly special  circumstances underlying  the

            departure  are of  the kind  that the  Guidelines  permit the

            sentencing court to consider.  Id. at 951.  Plenary review is
                                           ___

            also applied to  interpretations of Guideline language.   Id.
                                                                      ___

            However,  we review the district court's determination that a

            case is  unusual, and  therefore worthy  of departure,  "with

____________________

            2.  Unlike  defendant, we are  not troubled by  the fact that
            the district  court might  have sentenced  defendant on  more
                                                                     ____
            than ten additional kilograms  based on the weekly nature  of
            the  purported  deal,  and  we  express  no  opinion  on  the
            propriety  of  a  hypothetical  maximum  base  offense  level
            quantity determination based on these facts.  Rather,  on the
            basis of  the  evidence before  it,  the district  court  was
            entitled to  find, and  it did in  fact find,  that defendant
            agreed to  deliver only  the first  weekly instalment  of ten
            kilograms.

                                         -10-
                                          10

full awareness of, and respect for, the trier's superior feel

            for the case."  Id.  at 952 (citations and internal quotation
                            ___

            marks omitted).   Similarly deferential is our  review of the

            sentencing court's findings of fact, as well as the direction

            and degree of the departure.  Id.
                                          ___

                      In  this  case,  the  district  court  offered  two

            reasons for its  upward departure:  1)  defendant's prominent

            role  in cocaine  dealing as  evidenced both by  the quantity

            involved   and  its  purity;   and  2)  the   involvement  of

            defendant's  minor children.  These grounds for departure are

            both  permissible under the  Guidelines and warranted  on the

            record before us.

                      a.    Defendant's  Prominent Role  as  Evidenced by
                      ___________________________________________________
                      Purity and Amount   
                      _________________

                      Defendant  argues that  the sentencing  court erred

            when, in deciding to depart upward, it relied upon the purity

            and amount of  the cocaine involved.   Consideration of  both

            factors was allowable in this case.

                      Commentary  Note  9  of  U.S.S.G.     2D1.1  states

            specifically  that "[t]rafficking  in controlled  substances,

            compounds, or mixtures  of unusually high purity  may warrant

            an upward  departure."  Note 9  goes on to state  that purity

            "may  be  relevant in  the sentencing  process because  it is

            probative of the defendant's role or position in the chain of
                                         ____ __ ________ __ ___ _____ __

            distribution."    Id.  (emphasis  supplied).    Thus,  upward
            ____________      ___

            departures which  are based on a defendant's  position in the

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chain  of drug distribution  and which are  evidenced by drug

            purity  are   clearly  contemplated   under  the   sentencing

            guidelines.  Cf. United States v. Iguaran-Palmar, 926 F.2d 7,
                         ___ _____________    ______________

            9 (1st  Cir. 1991)  (stating that  "the sentencing  court may

            consider the drug's purity in making an upward departure from
                                                 __ ______ _________

            the applicable guideline range") (emphasis in original).

                      As  defendant points out, Note 9 also provides, "As

            large quantities are normally  associated with high purities,

            this factor is particularly relevant where smaller quantities
                           ____________ ________

            are  involved." (emphasis  supplied).    We  agree  with  the

            Seventh Circuit, however, that "although the note states that

            purity   is  especially  relevant  in  the  case  of  smaller
                         __________

            quantities  of  controlled  substances, it  does  not thereby

            render  purity   irrelevant  where   larger  quantities   are

            involved.   Rather, the correct  reading of the note  is that

            purity   is  relevant  without  regard  to  the  quantity  of

            controlled substances, but is particularly relevant where the
                                          ____________ ________

            quantities involved are small."  United States v. Connor, 992
                                             _____________    ______

            F.2d 1459, 1463 (7th Cir. 1993) (emphasis supplied).  In sum,

            the district  court did  not err in  taking into  account the

            purity  of the  drugs  at  issue in  its  decision to  depart

            upward.

                      Equally futile  is defendant's insistence  that the

            sentencing court erred  in considering the amount  of cocaine

            at  issue in enhancing  defendant's guideline  range.   It is

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                                          12

true, as  defendant argues,  that an  upward departure  based

            upon amount alone may unfairly duplicate a base offense level
                        _____

            determination.  See, e.g., United States v. Fuller, 897  F.2d
                            ___  ____  _____________    ______

            1217, 1221-22 (1st Cir. 1990).   Here, however, the departure

            was not  based  solely  upon  the amount  involved.    Rather

            defendant's role in the drug distribution chain served as the

            partial basis  for the  departure, and  the amount  involved,

            much like the purity of the cocaine, was merely indicative of

            defendant's  role.   Thus, we  find no  error in  the court's

            finding  that  the amount  and  purity  of  the cocaine  were

            significant indicators  of defendant's prominent  role in the

            drug distribution chain.

                      As to the factual findings of high purity and large

            amounts of  cocaine, as well  as the  "unusualness" of  these

            factors, see, e.g., Rivera, 994 F.2d at 952, we find no error
                     ___  ____  ______

            in the district  court's determination that eleven  kilograms

            of 88%  pure cocaine serves,  in part, as  a valid  basis for

            departure. 

                      b.  Involvement of Children
                      ___________________________

                      Defendant also argues that the district court erred

            in  basing its  upward departure  in part  on the use  of his

            children in the offense.  Defendant essentially concedes that

            the involvement of  children in drug trafficking  activity is

            an accepted ground  for upward departure and  challenges only

            the  existence of  factual circumstances  in  this case  that

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                                          13

warrant  a departure  on  that  basis.   He  argues that  the

            involvement of his own children is significantly less serious

            than the  involvement of  children  in other  cases in  which

            departures were found warranted.  See, e.g., United States v.
                                              ___  ____  _____________

            Rodriguez-Cardona,  924 F.2d 1148, 1155 (1st Cir.) (affirming
            _________________

            upward departure  where defendant  had, inter  alia, "used  a
                                                    _____  ____

            minor, a nine or ten year old boy, as a messenger in his drug

            business"), cert. denied, 112 S. Ct. 54 (1991); United States
                        _____ ______                        _____________

            v.  Diaz-Villafane, 874  F.2d 43,  50  (1st Cir.)  (affirming
                ______________

            upward  departure  where  defendant  had,  inter  alia,  used
                                                       _____  ____

            children  to deliver  drugs),  cert.  denied,  493  U.S.  862
                                           _____  ______

            (1989).  

                      In essence, we are asked  to make a judgment "about

            whether  the given circumstances,  as seen from  the district

            court's  unique vantage point, are usual or unusual, ordinary

            or not  ordinary, and to what  extent."  Rivera, 994  F.2d at
                                                     ______

            951.  Given the  deferential standard of review dictated  for

            such determinations by  Rivera, id. at  951-52, and given  1)
                                    ______  ___

            the  well-known  relation  between  drugs  and  violence;  2)

            defendant's own  statement that  he brought  his children  to

            avoid being stopped by the police;  and 3) the fact that  the

            children were  present in  the apartment at  the time  of the

            drug  deal,  we  find  no  error  in  the   district  court's

            determination that the  presence of children was  relevant to

            its decision to depart upward.    

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                                          14

c.  The Reasonableness of the Departure
                      _______________________________________

                      As  we have noted previously in examinations of the

            reasonableness of departures,  "`the district court's  leeway

            is  substantial.'"    Rodriguez-Cardona,  924  F.2d  at  1156
                                  _________________

            (quoting United  States v.  Aguilar-Pena, 887  F.2d 347,  350
                     ______________     ____________

            (1st Cir.  1990)).  In  this case, given the  various factors

            supporting upward departure, we find no error in the district

            court's two-level enhancement.

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                                          15

III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      For the  foregoing reasons,  defendant's conviction

            and his sentence are both

                      Affirmed.
                      ________

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