United States v. Parra

• Court: Court of Appeals for the First Circuit
• Decided: April 25, 1994
• Docket: 93-1352
• Status: Published

Opinion

USCA1 Opinion

April 25, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1352

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 JAIRO GIRALDO-PARRA,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

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

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

            Luis Rafael-Rivera for appellant.
            __________________
            Jos   A. Quiles-Espinosa,  Senior  Litigation  Counsel, with  whom
            ________________________
        Guillermo Gil, United States Attorney, was on brief for appellee.
        _____________

____________________

____________________

BOWNES,  Senior  Circuit Judge.   A  jury convicted
                      BOWNES,  Senior  Circuit Judge.
                               _____________________

            defendant-appellant  Jairo  Giraldo  Parra  of  conspiracy to

            possess  cocaine and  heroin  with intent  to distribute,  21

            U.S.C.     846; and  possession  of cocaine  and  heroin with

            intent to distribute,  21 U.S.C.    841(a)(1).   He was  also

            convicted  under the  "principals"  statute, 18  U.S.C.    2.

            Defendant was sentenced to 151 months of incarceration.

                      There  are two issues  on appeal:   (1) whether the

            district court erroneously denied defendant's Rule  29 motion

            for acquittal and (2)  whether the district court incorrectly

            applied the Sentencing Guidelines in  determining defendant's

            sentence.

                                          I.
                                          I.

                                     THE EVIDENCE
                                     THE EVIDENCE
                                     ____________

                      We review the relevant evidence and draw reasonable

            inferences  therefrom, in  the  light most  favorable to  the

            government.  United States v. Mena-Robles, 4  F.3d 1026, 1029
                         _____________    ___________

            (1st Cir.  1993); United States  v. Hernandez, 995  F.2d 307,
                              _____________     _________

            311  (1st  Cir. 1993).    Defendant's  arrest and  indictment

            followed  a Drug  Enforcement Administration  (DEA) sponsored

            undercover operation  spanning the last five  months of 1991.

            Five others were also  caught in the undercover net  and were

            indicted along  with defendant.   Although defendant  was the

            sole defendant at trial, the co-conspirators' names appear in

            the  record and  are  essential to  understand the  evidence:

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Oscar Gonzalez Lopez; Daniel Alberto  Atilio Adinolfi; Victor

            Rodriguez Alvarez;  John  Doe, a/k/a  Edgardo Rodriguez;  and

            Jorge Omar Lopez  Almeida.  As is usual in  a drug undercover

            operation,  many of the conversations, telephone and face-to-

            face, were recorded.

                      Defendant  was the  owner-operator of  a restaurant

            called "Mi  Pequena Colombia"  located on Domenech  Avenue in

            Hato  Rey.  The  undercover operation  started on  August 21,

            1991, when  DEA Agent  Jefferson Moran  and  Pablo Rivera,  a

            member  of the Police of Puerto Rico assigned to the DEA, met

            with Oscar Gonzalez Lopez (Oscar) at a shopping center in Rio

            Piedras,  Puerto Rico.   DEA  Agent Moran  was introduced  to

            Oscar by  Agent Rivera as being interested  in buying cocaine

            or heroin.   Oscar made a telephone call from  a public phone

            booth.   He then  asked  the agents  for $250  to obtain  two

            samples of heroin.  After obtaining the money, he accompanied

            the  agents to  Domenech Avenue,  where he  left the  car and

            headed  in  the  direction  of defendant's  restaurant.    He

            returned  shortly and  gave Agent  Moran a  cigarette package

            containing two separate samples of heroin.  Between August 23

            and 29, Oscar and Agent Moran discussed, mostly by telephone,

            the purchase of an ounce of heroin for $7,500.  On August 29,

            Oscar and the two agents met and went together to defendant's

            restaurant.  At the restaurant they were introduced to Victor

            Rodriguez Alvarez (Victor).   Victor asked for the payment of

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$7,500 before turning over  the heroin.  After  receiving the

            money,  he  went  into the  restaurant  and  gave  it to  the

            bartender, Edgar  Rodriguez Velazquez (Edgar).1   Edgar  then

            gave Victor  the heroin,  who  delivered it  to Agent  Moran.

            Victor went back  into the restaurant and  asked if defendant

            had  called and  Edgar  said "No."   Later,  defendant called

            Edgar and was  told that Victor had delivered the merchandise

            and he, Edgar, had the $7,500.  Sometime later defendant came

            to  the restaurant and  the $7,500 was turned  over to him by

            Edgar.

                      On September  13, 1991, Agent Rivera  was called by

            Victor and it  was agreed  that Victor would  sell Rivera  an

            ounce of heroin for  $7,000.  Agent Rivera then  proceeded to

            defendant's  restaurant and  asked  Edgar  where Victor  was.

            Defendant  was present when the inquiry was made.  Rivera was

            told that Victor was at a  nearby pizzeria.  Rivera made  the

            "buy"  at the pizzeria.   He paid Victor  $7,000 and received

            from him an ounce  of heroin.  After the  transaction, Victor

            went to defendant's restaurant and met with defendant, Edgar,

            and  Daniel Alberto Atilio Adinolfi (Atilio).  The $7,000 was

            given to Atilio, who passed it to Edgar, who put it under the

            counter.

____________________

            1.  Named in indictment as John Doe a/k/a Edgardo Rodriguez.

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On   September   25,  1991,   Agent   Moran  called

            defendant's  restaurant  and  asked  for  Victor.   Defendant

            answered  the phone and after  the inquiry, put  Edgar on the

            line.   Moran  asked Edgar to  have Victor  call him.   Later

            Victor called Agent Rivera and they  set up a meeting at  the

            pizzeria near defendant's restaurant.   Before meeting Rivera

            at the  pizzeria, Victor  went to defendant's  restaurant and

            obtained an ounce of heroin from Atilio.  Defendant and Edgar

            were at the restaurant  at the time the heroin  was obtained.

            Victor  delivered  the heroin  to  Rivera in  return  for the

            payment of $7,000.   Victor returned to the  restaurant, gave

            the money to  Atilio and  asked for his  commission.   Atilio

            refused to give Victor a commission; instead he referred  him

            to defendant.  Defendant told Victor that no commission would

            be paid  because Victor owed him  $200.  This was  the end of

            Victor's  dealings with the  undercover agents.   Presumably,

            defendant  and his cohorts found out that he had been dealing

            with a DEA agent.

                      In  late   November  or  early  December,  the  DEA

            recruited a confidential informant, Eliezer Gallegos, to join

            its undercover operation.   On December 5,  Gallegos met with

            defendant and Atilio at the restaurant where the purchase  of

            one-half of a  kilogram of cocaine for  $5,000 was discussed.

            On December  6, another negotiation  meeting was held  at the

            restaurant.   At  the end  of the  conversation,  Atilio told

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Gallegos that they would  take a ride and complete  the deal.

            Defendant had told Atilio:   "If he is going to buy  the car,

            take him  around for a  ride so  he will get  acquainted with

            it."  Gallegos understood  this to mean that the  cocaine was

            in a car.   Gallegos and Atilio left the restaurant, got into

            a car, and drove around the block.  The "buy" was made in the

            car; Gallegos paid Atilio $5,000 and received half a kilogram

            of  cocaine.   During the  drive around  the block  they were

            followed  by  Jorge  Omar Lopez  Almeida,  who  was  riding a

            motorcycle.  Presumably, this was to protect the "buy."

                      Later that same day, Gallegos called the restaurant

            and told Edgar that the half kilo of cocaine was short by six

            grams.  On December  11, Gallegos called Atilio and  told him

            that the  cocaine he had bought  was six grams less  than the

            amount  agreed upon.  Atilio promised  Gallegos that he would

            make up  the shortage the next  day and sell him  a sample of

            heroin  for $200.  Gallegos  went to the  restaurant the next

            day.   Defendant  was at  a table  with two  unknown persons.

            Atilio  was  at another  table  with Edgar.    Gallegos asked

            Atilio  for the six grams  of cocaine and  the heroin sample.

            He was told by Atilio to  wait because defendant was busy.  A

            little later Atilio  went over  to defendant who  gave him  a

            package.    Atilio  passed  the  package  to  Gallegos.    It

            contained six grams of cocaine and a heroin sample.  The next

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day Gallegos went to  the restaurant and paid Edgar  $200 for

            the heroin sample.  

                      It  was stipulated  that  the drugs  bought by  the

            undercover agents and  the confidential informant  tested out

            as heroin and cocaine.

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II.
                                         II.

                                      DISCUSSION
                                      DISCUSSION
                                      __________

            A.  The Rule 29 Motion2
            A.  The Rule 29 Motion

                      Defendant argues that  the district court  erred in

            denying  his   Fed.R.Crim.P.  29   motion  for  judgment   of

            acquittal.  In reviewing  the denial of a Rule 29  motion, we

            consider  all the  evidence, draw  all reasonable  inferences

            therefrom, and resolve all issues of credibility in the light

            most  favorable  to the  government,  in  order to  determine

            whether a jury could have reasonably concluded that defendant

            was guilty beyond a reasonable doubt.  Mena-Robles, 4 F.3d at
                                                   ___________

            1031;  Hernandez, 995 F.2d at 311.  
                   _________

                      The thrust  of defendant's argument is  that he was

            simply   an  honest   businessman  and   restauranteur  whose

            misadventure  it  was  that  drug  dealers  operated  on  his

            premises without his  blessing, knowledge, or  participation.

            In support of this position,  defendant points out that  none

            of  the myriad  DEA recordings  or photographs  introduced at

            trial capture him conducting an illicit drug transaction.  We

            have  reviewed the record carefully and, while we concur with

            defendant's contention  that the  government did  not produce

____________________

            2.  Fed.R.Crim.P. 29 states, in relevant part:  "The court on
            motion  of defendant  or on  its own  motion shall  order the
            entry  of  judgment  of acquittal  of  one  or more  offenses
            charged  in the indictment  or  information after evidence on
            either  side is  closed if  the  evidence is  insufficient to
            sustain a conviction of such offense or offenses."

                                         -8-
                                          8

any direct evidence  of his complicity,  we must reject  both

            his premise and  his conclusion, because neither has  a legal

            basis.  To  the contrary, it is  a well-established principle

            that,

                      [t]he  evidence  [introduced against  the
                      defendant  at  trial]  may   be  entirely
                      circumstantial,  and   need  not  exclude
                      every reasonable hypothesis of innocence,
                      that  is, the factfinder may decide among
                      reasonable    interpretations   of    the
                      evidence.

            United States v. Batista-Polanco,  927 F.2d 14, 17 (1st  Cir.
            _____________    _______________

            1991)(citations omitted).   

                      Defendant  has attempted to rely on "mere presence"

            as a  defense to the  charges of conspiracy,  possession, and

            distribution.    Of  course,  in  establishing  a  conspiracy

            charge, the prosecution must prove intent to agree and commit

            the  substantive  offense beyond  a  reasonable  doubt, Mena-
                                                                    _____

            Robles,  4  F.3d  at 1031.    The  evidence  for such  proof,
            ______

            however, may be either express or inferred  from conduct, and

            if  circumstantial  evidence  raises   reasonable  inferences

            sufficient to refute the claim of mere presence, it is enough

            to sustain the verdict. Id.; Batista-Polanco, 927 F.2d at 18.
                                    ___  _______________

            Further informing  this analysis  is the  oft-repeated truism

            that participants  in a  criminal conspiracy are  unlikely to

            permit or tolerate the  presence of extraneous observers, and

            a  jury is  presumed  capable of  drawing such  an inference.

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

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In the case at bar, the evidence shows that all the

            drug transactions which form the basis of the indictment took

            place  in  and  around  "Mi  Pequena  Columbia,"  defendant's

            restaurant.    There is  ample  evidence  that defendant  was

            present either before,  after, or during each  of the "buys."

            The jury  could reasonably  infer that the  drug transactions

            were  authorized and controlled by  defendant and that he was

            the  source of  supply.   Accordingly, we  reject defendant's

            contention that the evidence of his guilt was insufficient.

            B.  Sentencing Claims
            B.  Sentencing Claims

                      The  court enhanced defendant's  base offense level

            by  four levels  for  his role  as an  organizer in  the drug

            trafficking conspiracy,  U.S.S.G.   3B1.1, and  by two levels

            for  obstruction of justice, U.S.S.G.    3C1.1.   At the same

            time, the  court denied defendant's  request for a  two level

            downward   adjustment   for  acceptance   of  responsibility.

            Defendant  argues  that  the  court erred  in  each  of these

            determinations.

                      We will  disturb supported findings of a sentencing

            court only when our review of the record "convinces us that a

            grave  mistake was made."  United States v. Bradley, 917 F.2d
                                       _____________    _______

            601, 605 (1st Cir. 1990).  

                      1.  Role in the Offense
                      1.  Role in the Offense

                      Based on  the number of  individuals involved,  the

            nature  of  the enterprise,  and  the defendant's  leadership

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role,  the  district  court   imposed  a  four  level  upward

            adjustment to defendant's base offense level under U.S.S.G.  

            3B1.1(a).3    Because role  in  the  offense adjustments  are

            necessarily fact  specific, the  findings  of the  sentencing

            court are  reviewed under a deferential  standard. See United
                                                               ___ ______

            States v. Morillo, 8  F.3d 864, 873 (1st Cir. 1993);   United
            ______    _______                                      ______

            States v. Akitoye, 923  F.2d 221, 227  (1st Cir. 1991).   The
            ______    _______

            "standard  of  review  for  the   sentencing  court's  upward

            adjustment for  defendant's leading  role in the  offense ...

            [is] clear error."   United States v. Reyes, 927  F.2d 48, 50
                                 _____________    _____

            (1st Cir. 1991).

                      The  evidence established  that  the drug  activity

            took  place  almost  exclusively in  and  around  defendant's

            restaurant.  Moreover, there was testimony to the effect that

            transactions  took  place only  when defendant  was entering,

            leaving, or physically  present at the restaurant.  From this

            alone  the   judge  could  have   reasonably  concluded  that

            defendant was the  organizer and  leader of a  group of  drug

            dealers.   Added to this we have  the testimony of one of the

            co-conspirators, Victor  Rodriguez,  that defendant  ran  the

            operation, and  that he alone could  determine whether Victor

            was to be paid a commission on the sales he made.

____________________

            3.  Section 3B1.1(a)  provides that "If the  defendant was an
            organizer or leader of a criminal activity that involved five
            or more participants or  was otherwise extensive, increase by
            4 levels."

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                                          11

We  reject defendant's  claim  of error  as to  the

            four-levelenhancement for hisrole in theoffense as meritless.

2.  Obstruction of Justice
                      2.  Obstruction of Justice

                      At trial, Victor Rodriguez testified that defendant

            had  approached  him  during  their  pretrial  detention  and

            requested  that  Victor write  a  letter to  the  trial judge

            explaining that  defendant had  no involvement in  the counts

            charged  in the indictment.   This letter was  solicited as a

            quid pro quo, in exchange for which defendant would see to it
            ____ ___ ___

            that Victor's family was adequately provided for while Victor

            was incarcerated.  Victor also testified, and the presentence

            report  states,  that co-conspirator  Atilio  threatened that

            Victor  would be harmed if  he were to  provide assistance to

            the government.  This was clearly an attempted obstruction of

            justice.    Section 3C1.14  of  the guidelines  calls  for an

            enhancement  of  two  levels  for  such  conduct.    Such  an

            enhancement, like  that for a leadership role in the offense,

            is fact-based and therefore reviewed for clear error.  United
                                                                   ______

            States v.  Gonzales,  12  F.3d  298,  299  (1st  Cir.  1993);
            ______     ________

            Akitoye, 923  F.2d at  229.   There  was no  error, clear  or
            _______

____________________

            4.  Section  3C1.1  states:    "If  the  defendant  willfully
            obstructed or  impeded, or  attempted to obstruct  or impede,
            the  administration  of  justice  during  the  investigation,
            prosecution, or  sentencing of the  instant offense, increase
            the offense level by 2 levels."

                                         -12-
                                          12

otherwise,  by  the  court  in applying  the  obstruction  of

            justice guideline.  

                      3.  Acceptance of Responsibility
                      3.  Acceptance of Responsibility

                      Defendant  has a threshold problem in attacking the

            lower court's  determination that  he did  not qualify  for a

            downward  adjustment for  acceptance of  responsibility.   In

            Gonzales, we held that  "[o]nly 'extraordinary cases' qualify
            ________

            for  an  acceptance  of  responsibility credit  following  an

            enhancement for obstruction of justice." Gonzales, 12 F.3d at
                                                     ________

            300,  (quoting  U.S.S.G.    3E1.1, comment  (n.4)).   In this

            case,  there was  testimony at  trial  and at  the sentencing

            hearing   showing  that,   even  after   being  incarcerated,

            defendant actively sought to mislead the trial court in order

            to escape responsibility for the  charges against him.  These

            are  the  same  charges for  which  he  now  alleges to  have

            accepted responsibility.

                      Only  at  his  presentence  interview  and  in  his

            allocution at  the sentencing  hearing  did defendant  accept

            responsibility  for  his actions,  and he  did  so only  in a

            limited manner.  The district judge found that "the defendant

            had not"   accepted responsibility within the  meaning of the

            guidelines, and  that the  acceptance made was  not authentic

            and was devoid of remorse.  Findings as to these factors will

            not be reversed absent clear error.  United States v. Ocasio-
                                                 _____________    _______

            Rivera, 991 F.2d  1, 4-5  (1st Cir. 1993);  United States  v.
            ______                                      _____________

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                                          13

Royer,  895  F.2d  28,  29  (1st  Cir.  1990)  ("Because  the
            _____

            sentencing judge has the  unique opportunity of observing the

            defendant, hearing his  allocution, and evaluating acceptance

            of responsibility . . . against the backdrop of the case as a

            whole,hisdetermination isentitled toagreat dealof respect.").

                      Accordingly,  we reject  defendant's claim  that he

            was  entitled  to a  two  level reduction  for  acceptance of

            responsibility. 

                      The judgment of the district court is 

                      Affirmed.    
                      Affirmed.
                      ________

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