United States v. Serna-Vega

Opinion

USCA1 Opinion

June 12, 1995         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________



          No. 94-1688



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  VICTOR SERNA-VEGA,



                                Defendant - Appellant.



                                 ____________________



          No. 94-1689



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                ANGEL RAMOS-SANTIAGO,



                                Defendant - Appellant.



                                 ____________________



                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



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



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Coffin, Senior Circuit Judge,
                                    ____________________



                               and Cyr, Circuit Judge.
                                        _____________



_____________________



Carlos   A.   V zquez-Alvarez,   Assistant  Federal   Public
               _____________________________

          Defender,  with  whom   Benicio  S nchez-Rivera,  Federal  Public
                                  _______________________

          Defender, was on joint  brief for appellant Angel Ramos-Santiago;

          and  Jorge  E. Rivera-Ortiz,  by  Appointment of  the  Court, for
               ______________________

          appellant V ctor Serna-Vega.

               Lisa  A. Kahn,  Attorney, Department  of Justice,  with whom
               _____________

          Guillermo  Gil,  United  States  Attorney,  and  Warren  V zquez,
          ______________                                   _______________

          Assistant United States Attorney, were on brief for appellee.


____________________


____________________


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Per  Curiam.   Defendants Victor  Serna-Vega and  Angel
                    Per  Curiam
                    ___________



          Ramos-Santiago were each charged with  one count of conspiracy to



          possess  with  intent  to  distribute approximately  one  hundred



          kilograms  of cocaine, and one count of possession with intent to



          distribute  eleven kilograms  of  cocaine.   Serna-Vega was  also



          charged  with two counts of using a telephone in facilitating the



          drug  conspiracy.   Following  a  six-day trial,  the  jury found



          Serna-Vega guilty on  all counts.  The jury  found Ramos-Santiago



          guilty  on the substantive possession count and not guilty on the



          conspiracy count.   Serna-Vega  was  sentenced to  235 months  in



          prison and Ramos-Santiago was sentenced  to 120 months in prison.



          Both defendants appeal their convictions, and Serna-Vega  appeals



          his sentence.  For the reasons stated herein, we affirm.



                                      BACKGROUND
                                      BACKGROUND
                                      __________



                    The facts  are presented in the light most favorable to



          the verdict.  United States v.  Echeverri, 982 F.2d 675, 676 (1st
                        _____________     _________



          Cir. 1993).  In early March 1993, Drug Enforcement Agency ("DEA")



          Special  Agent   Jefferson   Mor n  ("Agent   Mor n")   and   DEA



          confidential informant Freddy V lez-Torres ("V lez-Torres") began



          negotiations with H ctor Ayala-Rodr guez ("Ayala-Rodr guez"), the



          owner of a  car dealership in Gu nica,  Puerto Rico, to  sell him



          one hundred kilograms of cocaine.  At  the first meeting in which



          the  drug transaction  was discussed,  Ayala-Rodr guez introduced



          appellant  Victor Serna-Vega  ("Serna-Vega")  as his  "right-hand



          man."  Serna-Vega was present for most of the subsequent meetings


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where the  drug transaction was discussed, and  he conducted some



          of the early negotiations with the government agents.



                    V lez-Torres  and  Agent  Mor n  --  whom  V lez-Torres



          introduced as his Colombian partner -- visited the car dealership



          on June  14, 1993.  In a conversation recorded by Agent Mor n, he



          and  Ayala-Rodr guez discussed  the logistics for  completing the



          drug  transaction, including who would pick up the drugs.  Serna-



          Vega was present for this discussion.



                    V lez-Torres testified that he met with Ayala-Rodr guez



          and  Serna-Vega at  the  car dealership  on  June 22,  1993,  and



          discussed the final plans for the drug transaction.  He testified



          that he asked Ayala-Rodr guez whether they were interested in the



          hundred  kilos and  Ayala-Rodr guez responded,  "Yes, yes,  as we



          have  been from  the start."   They  agreed that  the transaction



          would occur the next day.



                    On the morning of  June 23, V lez-Torres met Serna-Vega



          and  appellant  Angel  Ramos-Santiago  ("Ramos-Santiago")   at  a



          restaurant  in Caguas,  Puerto  Rico.   Serna-Vega called  Ayala-



          Rodr guez on a cellular phone and informed him that  V lez-Torres



          had  arrived.   Ayala-Rodr guez told  Serna-Vega to  bring V lez-



          Torres to  the TMT pier in  Isla Grande where he  was waiting for



          two cars from  the United States to  use to transport the  drugs.



          Serna-Vega and  Ramos-Santiago drove to the  pier in Serna-Vega's



          car and V lez-Torres followed.



                    After meeting with Ayala-Rodr guez at the  pier, Serna-



          Vega,  Ramos-Santiago,  and  V lez-Torres  went  with  him  to  a


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restaurant in Isla Verde.  They discussed how they would complete



          the drug  transaction with only  three cars.1   Serna-Vega stated



          that  three cars would be sufficient because one could hold fifty



          kilos in its trunk and the other two could hold twenty-five kilos



          each.    Ramos-Santiago  reminded  Ayala-Rodr guez  that  he  had



          promised Ramos-Santiago one kilo of cocaine for his assistance in



          the transaction.



                    After about an hour,  V lez-Torres drove each member of



          the group individually  to a  Holiday Inn where  agent Mor n  and



          other DEA agents were waiting.   As each of the four  individuals



          arrived at  the Holiday Inn, agent Mor n led them, one by one, to



          a  designated room where a transaction  involving eleven kilos of



          cocaine was  completed.   The transactions  were recorded by  the



          government on both audio and videotape, which were played for the



          jury.   The individuals were placed under arrest as they departed



          the hotel room.



                                      DISCUSSION
                                      DISCUSSION
                                      __________



                    The  defendants raise a host  of issues on  appeal.  We



          address their arguments seriatim.



                                          I.
                                          I.



                    Ramos-Santiago   argues   that    the   evidence    was



          insufficient to support his conviction for possession with intent



          to  distribute approximately  eleven kilograms  of cocaine.   See
                                                                        ___



          Fed. R. Crim. P. 29.  He bears "the heavy burden of demonstrating



                              
          ____________________



          1   Ayala-Rodr guez had informed  them at the  pier that the  two

          cars he was waiting for were not going to be delivered.



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that  no reasonable jury could  have found [him]  guilty beyond a



          reasonable doubt."   United States  v. Innamorati, 996  F.2d 456,
                               _____________     __________



          469 (1st Cir.),  cert. denied, 114 S. Ct. 409  (1993).  We review
                           ____________



          the  evidence  in the  light  most favorable  to  the government,



          "drawing all plausible inferences in its favor  and resolving all



          credibility determinations in line with the jury's verdict."  Id.
                                                                        __



                    The evidence adduced at trial was sufficient to sustain



          the verdict.   DEA  informant V lez-Torres testified  that Ramos-



          Santiago was  present approximately an hour  before the scheduled



          pick-up during a discussion concerning the logistics of splitting



          up the cocaine among the three cars.  V lez-Torres testified that



          Ramos-Santiago reminded Ayala-Rodr guez  during this meeting that



          he had  promised  Ramos-Santiago  one kilo  of  cocaine  for  his



          assistance in the transaction.   V lez-Torres also testified that



          he and Ramos-Santiago drove  together to the Holiday Inn  for the



          pick-up,   and   that   Ramos-Santiago  questioned   V lez-Torres



          concerning  which car  he was  supposed to  use to  transport the



          cocaine.  Finally, the jury viewed an audio and videotape showing



          Ramos-Santiago receiving  eleven kilos of cocaine  at the Holiday



          Inn.   From  this evidence,  a reasonable  jury could  infer that



          Ramos-Santiago knowingly  and intentionally possessed  the eleven



          kilograms of cocaine.   See  United States v.  Akinola, 985  F.2d
                                  ___  _____________     _______



          1105, 1109  (1st Cir. 1993).  The jury could also infer, from the



          quantity  of   cocaine  involved,   that  it  was   intended  for



          distribution.   See, e.g., United States v. Vargas, 945 F.2d 426,
                          ___  ____  _____________    ______



          429 (1st Cir.  1991) (possession  of one kilogram  of cocaine  is


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sufficient  quantity to  support jury inference  that it  was not



          intended  merely for  personal  consumption).   The evidence  was



          therefore sufficient for the jury to conclude beyond a reasonable



          doubt that Ramos-Santiago  knowingly and intentionally  possessed



          eleven kilograms of cocaine with the intent to distribute it.



                                         II.
                                         II.



                    Serna-Vega  argues  that  the district  court  erred in



          admitting certain  co-conspirator statements  into evidence.   An



          out-of-court statement by a co-conspirator  is not hearsay if the



          government established  by a  preponderance of the  evidence that



          the defendant and the declarant were members of a conspiracy when



          the  statement  was  made and  that  the  statement  was made  in



          furtherance of the  conspiracy.  See  United States v.  McCarthy,
                                           ___  _____________     ________



          961  F.2d 972,  977  (1st Cir.  1992)  (citing United  States  v.
                                                         ______________



          Petrozziello, 548 F.2d  20, 23  (1st Cir. 1977));  Fed. R.  Evid.
          ____________



          801(d)(2)(E).    We need  not  determine  whether the  challenged



          statements  in  this   case  are  admissible  as   co-conspirator



          statements, however,  because we conclude  that they are,  in any



          case,  admissible as  admissions by a  party.   See Fed. R. Evid.
                                                          ___



          801(d)(2)(A)  (an  admission  offered  against  a  party  is  not



          hearsay).



                    We  generally review  a  district  court's decision  to



          admit or exclude evidence under an abuse  of discretion standard.



          United States v. Tuesta-Toro,  29 F.3d 771, 775 (1st  Cir. 1994),
          _____________    ___________


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cert. denied,  115 S.  Ct.  947 (1995).2   We  find  no abuse  of
          ____________



          discretion in this case.  Serna-Vega specifically challenges only



          two statements.   First, he  challenges the  testimony of  V lez-



          Torres  that  Serna-Vega  said:  "Look,  Ayala,  if  he  has  the



          capacity, ask for a hundred, because fifty, I can distribute that



          in two  or three days."   Second, he challenges  the testimony of



          V lez-Torres  that Serna-Vega said that "the white car is so big,



          has such  a big trunk, that  they could get fifty  kilos into it,



          twenty-five in the Chevrolet  and twenty-five in the one  the old



          man  has, and  there's  your  hundred."   These  statements  were



          contrary to  Serna-Vega's  position during  trial.   Accordingly,



          they were  admissible through V lez-Torres  as admissions against



          interest under Federal Rule of Evidence 801(d)(2)(A).  See United
                                                                 ___ ______



          States v. Palow, 777 F.2d 52, 56 (1st Cir. 1985).3
          ______    _____



                                         III.
                                         III.



                    Serna-Vega argues that the  district court erred in not



          providing a multiple conspiracy jury instruction.  Serna-Vega did



                              
          ____________________



          2   We review a  district court's  decision whether to  admit co-

          conspirator  statements  pursuant  to Federal  Rule  of  Evidence

          801(d)(2)(E), however, under a clearly erroneous standard because

          the decision is  predicated on  the court's findings  of fact  in

          applying  the Petrozziello test (supra).   See McCarthy, 961 F.2d
                        ____________       _____     ___ ________

          at 977; United  States v. Patterson, 644 F.2d 890,  894 (1st Cir.
                  ______________    _________

          1981).



          3    Serna-Vega  alludes   generally  to  other  alleged  hearsay

          statements, but  does not  specifically  identify any  challenged

          statements.  We cannot  conduct effective appellate review of  an

          evidentiary  ruling  admitting  co-conspirator statements  absent

          reference to the challenged statement.   United States v. Isabel,
                                                   _____________    ______

          945  F.2d 1193,  1199 (1st  Cir. 1991).   Accordingly,  we reject

          appellant's  general arguments  with  respect to  alleged hearsay

          statements.



                                         -8-



not request such a jury charge, nor did he object  to the court's



          instructions.     Consequently,  he   has  the  high   burden  of



          establishing that  the trial court's  failure to give  a multiple



          conspiracy  charge amounted to "plain  error."  See United States
                                                          ___ _____________



          v. Griffin, 818  F.2d 97, 100 (1st Cir.), cert.  denied, 484 U.S.
             _______                                _____________



          844 (1987); Fed.  R. Crim. P. 52(b).  Plain  errors are "those so



          shocking that they seriously  affect the fundamental fairness and



          basic  integrity of the proceedings."  United States v. Alvarado,
                                                 _____________    ________



          982 F.2d 659,  663 (1st Cir. 1992).  It  follows that such errors



          will be  noticed only  in  "exceptional cases  or under  peculiar



          circumstances  to  prevent  a  clear  miscarriage   of  justice."



          Griffin, 818 F.2d at  100 (quoting Nimrod v. Sylvester,  369 F.2d
          _______                            ______    _________



          870, 873 (1st  Cir. 1966)); United  States v. Ocasio-Rivera,  991
                                      ______________    _____________



          F.2d 1,  3 (1st Cir. 1993).   The test  for plain error,  in this



          context, is whether there  is a prejudicial variance between  the



          conspiracy charged in the indictment and  the evidence adduced at



          trial.   See United States v.  Thomas, 895 F.2d 51,  55 (1st Cir.
                   ___ _____________     ______



          1990).   A variance will be deemed prejudicial only if it affects



          the substantial rights of the accused.  Id.
                                                  __



                    The indictment charged a single conspiracy involving an



          agreement  to  purchase  approximately one  hundred  kilograms of



          cocaine.  The  government introduced evidence from which the jury



          could infer that the negotiations for the purchase of the cocaine



          took place over a period of several weeks, and that the object of



          the  conspiracy was, at all  times, the eventual  transfer of one



          hundred kilograms  of  cocaine.   There  was evidence  which,  if


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credited by the  jury, established that  the conspiracy began  in



          early  March 1993  when informant  V lez-Torres made  his initial



          visit  to  Ayala-Rodr guez'  car  dealership.    The  jury  heard



          testimony  that  Ayala-Rodr guez originally  offered  to purchase



          fifty kilograms of cocaine, but that Serna-Vega encouraged him to



          buy one  hundred kilograms.  Negotiations  between the appellants



          and  the  government  agent continued  over  the  next few  days.



          During  a taped  telephone conversation,  Serna-Vega told  V lez-



          Torres that  Ayala-Rodr guez was  still interested  in purchasing



          the cocaine they  discussed at  the initial meeting.   He  stated



          further that  he wanted to buy  two kilos first as  a sample, and



          that he  would  then  bring  together money  for  fifteen  kilos.



          V lez-Torres testified that it was common in drug transactions of



          this size  for the buyer to purchase a sample of the drugs before



          making the final purchase.   He testified that the  conversations



          regarding the two and fifteen kilos  were part of the larger deal



          for one hundred kilos.



                    The continuing negotiations  between the defendants and



          the  government  agents  support  the  single  conspiracy charge.



          V lez-Torres testified that Ayala-Rodr guez  showed him a deed to



          his dealership property, a deed of sale for a house he owned, and



          automobile  registration titles to establish that Ayala-Rodr guez



          had  the necessary collateral  to complete  the large  scale drug



          transaction.   Finally,  appellants took  three cars to  make the



          scheduled  pick-up,  and  the  evidence  indicated   that  Ayala-



          Rodr guez intended to have  a fourth car delivered to  help carry


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the cocaine.   Serna-Vega assured  him that three  cars would  be



          enough because one car  could carry fifty kilos and the other two



          could carry twenty-five each.



                    The  totality  of  the  evidence  indicates   a  single



          conspiracy to purchase one hundred kilograms of cocaine.  We find



          no prejudicial  variance between the indictment  and the evidence



          adduced  at trial.  Accordingly, the court's failure to provide a



          multiple conspiracy charge was not error, much less plain error.



                                         IV.
                                         IV.



                    Serna-Vega  challenges two  findings  by  the  district



          court with respect  to his  sentence.  First,  he challenges  the



          district court's finding that  he was a manager or  supervisor of



          the  possession offense  under    3B1.1(c) of  the  United States



          Sentencing Guidelines.  We  review only for clear error.   United
                                                                     ______



          States v. Jadusingh, 12 F.3d 1162, 1169 (1st Cir. 1994).
          ______    _________



                    Under     3B1.1,  a  sentencing court  may  increase  a



          defendant's  base offense  level by  two  points if  the evidence



          establishes  that the crime involved  two or more  people and the



          defendant "was  an organizer, leader, manager,  or supervisor" of



          the  criminal activity.   An  enhancement is  appropriate if  the



          evidence demonstrates that the  defendant "exercised some  degree



          of  control over others involved in the commission of the crime."



          Id.  (quoting United States  v. De La  Cruz, 996 F.2d  1307, 1315
          __            _____________     ___________



          (1st Cir.),  cert. denied,  __ U.S.  __, 114  S. Ct. 356  (1993))
                       ____________



          (other citation omitted).


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There was  ample evidence  presented in this  case from



          which  the  sentencing  court   could  conclude  that  Serna-Vega



          exercised  some supervisory  control  of others  involved in  the



          criminal  activity.   Special Agent  Mor n testified  that Ayala-



          Rodr guez   introduced  Serna-Vega   as  his   "right-hand  man."



          Informant  V lez-Torres testified  that Ayala-Rodr guez  told him



          that he wanted to buy fifty kilograms of cocaine, and that Serna-



          Vega  suggested that  Ayala-Rodr guez ask  for one  hundred kilos



          because Serna-Vega could  distribute fifty in two  or three days.



          It was  Serna-Vega who conducted the initial  negotiations -- via



          two recorded telephone conversations -- with V lez-Torres for the



          purchase of the cocaine.  Finally, Serna-Vega was present for the



          meeting in  which Ayala-Rodr guez  and Agent Mor n  discussed who



          would pick up the  cocaine, and Serna-Vega objected to  a certain



          person being included in the drug pick-up.



                    The  evidence  thus   indicates  that   Ayala-Rodr guez



          delegated a  certain amount  of responsibility to  Serna-Vega and



          that he acted,  indeed, as Ayala-Rodr guez' right-hand  man.  The



          evidence  also  indicates  that,  in  this  relatively   powerful



          position,  he exercised supervisory  control over Ramos-Santiago.



          The court could infer  from the evidence presented at  trial that



          Ramos-Santiago   was  Serna-Vega's  friend  and  that  Serna-Vega



          recruited  his assistance in the drug transaction.  It was Serna-



          Vega who brought  Ramos-Santiago to  San Juan on  the day of  the



          scheduled pick-up.


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Based on  the foregoing, we conclude  that the district



          court's finding  that Serna-Vega was  a manager or  supervisor of



          the offense conduct was not clearly erroneous.



                    Serna-Vega also contends that  the trial court erred in



          considering  the full hundred  kilos of cocaine  in computing his



          base offense  level under the sentencing  guidelines.  Serna-Vega



          argues  that  the  court  should  have  found  that  he  was  not



          reasonably capable of  producing the purchase money for  the full



          amount of drugs  and, therefore,  that only the  eleven kilos  he



          actually purchased should  have been  considered for  sentencing.



          See U.S.S.G.   2D1.1  n.12.  For sentencing, the  government need
          ___



          prove relevant facts only by a preponderance of the evidence, and



          we  review the sentencing court's  findings only for clear error.



          United  States v. Cetina-G mez,  951 F.2d  432, 434-35  (1st Cir.
          ______________    ____________



          1991).



                    The jury found Serna-Vega  guilty of participating in a



          conspiracy  to  possess with  intent  to  distribute one  hundred



          kilograms of cocaine.  In addition, there was ample evidence from



          which  the  court  could  determine  that  the  members  of   the



          conspiracy, principally Ayala-Rodr guez, could raise the money to



          complete  the transaction.   The  evidence indicated  that Ayala-



          Rodr guez intended to  put up his  car dealership, including  the



          cars to which he owned title, and some real property he owned, as



          collateral for  the transaction.   Under these  circumstances, we



          conclude that the court's  finding with respect to  drug quantity



          was not clearly erroneous.


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V.
                                          V.



                    Appellants raise one final argument which requires only



          brief  discussion.    On  the  first  day  of  trial,  the  court



          instructed the  jury that Serna-Vega and  Ramos-Santiago had pled



          not guilty and, therefore, that issues of fact had to be tried by



          the jury.   Appellants contend that this instruction implied that



          other co-defendants named in  the indictment had pled  guilty and



          that appellants were prejudiced  by this implication.  Appellants



          maintain  that   the  court   should  have  given   a  cautionary



          instruction with  respect to the missing  co-defendants.  Neither



          appellant requested such an instruction and, therefore, we review



          only for plain error.  Alvarado, 982 F.2d at 663.
                                 ________



                    We have approved the use of a cautionary instruction in



          cases where co-defendants plead guilty after trial has commenced.



          See, e.g., United  States v.  Chapdelaine, 989 F.2d  28, 32  (1st
          ___  ____  ______________     ___________



          Cir.  1987)  (approving  court's  admonishment  that  jurors  not



          speculate  as to the reason for the co-defendants' absence).  The



          same concerns are  not implicated  in this case  because the  co-



          defendants pled guilty  prior to the  commencement of the  trial.



          Therefore, the jurors never saw  the co-defendants and would have



          no reason  to  speculate  about  their sudden  absence  from  the



          courtroom.  Moreover, there was no suggestion  at trial as to how



          the charges  against the  other co-defendants had  been disposed.



          Under  these circumstances,  we  discern no  plain  error in  the



          court's failure to provide,  sua sponte, a cautionary instruction
                                       __________



          with respect to the missing co-defendants.


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CONCLUSION
                                      CONCLUSION
                                      __________



                    For the foregoing reasons, appellants'  convictions and



          sentences are affirmed.
                        affirmed
                        ________


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