United States v. Torres
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United States v. Torres, (1st Cir. 1995).
Opinion
USCA1 Opinion
April 25, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1039
UNITED STATES,
Appellee,
v.
WILLIAM RODRIGUEZ,
Defendant - Appellant.
____________________
No. 93-1040
UNITED STATES,
Appellee,
v.
ELVIS MATOS,
Defendant - Appellant.
____________________
No. 93-1225
UNITED STATES,
Appellee,
v.
JOSEPH TORRES,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
_____________________
John C. Doherty, by Appointment of the Court, for appellant _______________
William Rodr guez.
Eileen M. Donoghue, by Appointment of the Court, for ____________________
appellant Elvis Matos.
George L. Garfinkle, with whom Jeffrey A. Denner, James P. ___________________ __________________ ________
Brady and Perkins, Smith & Cohen, were on brief for appellant _____ ________________________
Joseph Torres.
Geoffrey E. Hobart, Assistant United States Attorney, with __________________
whom Donald K. Stern, United States Attorney, and George W. Vien, _______________ ______________
Assistant United States Attorney, were on brief for appellee.
____________________
____________________
Per Curiam. Appellants Joseph Torres, William Per Curiam. ____________
Rodr guez, and Elvis Matos each appeal their convictions for
conspiring to possess cocaine with intent to distribute and for
possession with intent to distribute. Torres' principal
challenge to his conviction is that the district court committed
reversible error when it denied his renewed motion for severance.
Torres also argues that he is entitled to a new trial because the
district court improperly admitted certain co-conspirator
statements against him. Rodr guez and Matos both claim that the
evidence was insufficient to support their convictions. Matos
also asserts that the district court erroneously denied his
motion to suppress evidence seized incident to his arrest. All
appellants also challenge their sentences, contending that the
district court erred in its drug quantity determinations. For
the following reasons, we affirm appellants' convictions and
sentences.
BACKGROUND BACKGROUND
We view and present the evidence in the light most
favorable to the government. United States v. Abreu, 952 F.2d _____________ _____
1458, 1460 (1st Cir.), cert. denied, __ U.S. __, 112 S. Ct. 1695, ____ ______
118 L.Ed.2d 406 (1992). The investigation of this case centered
on the undercover work of Drug Enforcement Agency Task Force
Agent Mart nez. During the course of this investigation, Agent
Mart nez purchased four ounces of cocaine from David Thomas on
October 18, 1991 and November 1, 1991, respectively, and a half-
kilogram from Thomas on November 8, 1991. The investigation
-3-
culminated on January 17, 1992 when defendant Abelardo Cuevas
delivered ten kilograms of cocaine to Agent Mart nez.
A. The January 17, 1992 Transaction A. The January 17, 1992 Transaction ________________________________
On the morning of January 17, 1992, Mart nez and Cuevas
spoke on the telephone, and agreed to conduct the transaction in
the parking lot of a Friendly's restaurant in Peabody,
Massachusetts. In anticipation of the transaction, government
agents established surveillance in several areas. At
approximately 8:00 a.m., police officers observed appellant
Torres pick up Cuevas in a brown Cadillac registered to Thomas,
and drive away. Approximately 45 minutes later, a state trooper
saw Torres and Cuevas pull up to the access code box at the gate
of North Shore Self Storage. Torres used the access code
assigned to appellant William Rodr guez to open the security
gate. Torres and Cuevas then entered the storage facility.
Approximately one minute later, the trooper saw an
older blue Toyota station wagon pull up to the access code box.
Although the officer observed that this car was occupied by two
Hispanic males, he was forced to look away when the two men
looked directly at him. Consequently, Trooper Dern was unable to
identify the men. The driver of this car, however, used Appellant
Rodr guez' access code to open the security gate and enter the
storage grounds, and the officials conducting the investigation
concluded that these men were Rodr guez and appellant Matos.
Five minutes later, Torres and Cuevas exited the
storage grounds in the brown Cadillac. Approximately three
-4-
minutes later, the blue Toyota station wagon exited the grounds
as well. Both Torres and the driver of the blue station wagon
used Rodr guez' access code to open the gate when they left the
premises.
Free access — add to your briefcase to read the full text and ask questions with AI
USCA1 Opinion
April 25, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1039
UNITED STATES,
Appellee,
v.
WILLIAM RODRIGUEZ,
Defendant - Appellant.
____________________
No. 93-1040
UNITED STATES,
Appellee,
v.
ELVIS MATOS,
Defendant - Appellant.
____________________
No. 93-1225
UNITED STATES,
Appellee,
v.
JOSEPH TORRES,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
_____________________
John C. Doherty, by Appointment of the Court, for appellant _______________
William Rodr guez.
Eileen M. Donoghue, by Appointment of the Court, for ____________________
appellant Elvis Matos.
George L. Garfinkle, with whom Jeffrey A. Denner, James P. ___________________ __________________ ________
Brady and Perkins, Smith & Cohen, were on brief for appellant _____ ________________________
Joseph Torres.
Geoffrey E. Hobart, Assistant United States Attorney, with __________________
whom Donald K. Stern, United States Attorney, and George W. Vien, _______________ ______________
Assistant United States Attorney, were on brief for appellee.
____________________
____________________
Per Curiam. Appellants Joseph Torres, William Per Curiam. ____________
Rodr guez, and Elvis Matos each appeal their convictions for
conspiring to possess cocaine with intent to distribute and for
possession with intent to distribute. Torres' principal
challenge to his conviction is that the district court committed
reversible error when it denied his renewed motion for severance.
Torres also argues that he is entitled to a new trial because the
district court improperly admitted certain co-conspirator
statements against him. Rodr guez and Matos both claim that the
evidence was insufficient to support their convictions. Matos
also asserts that the district court erroneously denied his
motion to suppress evidence seized incident to his arrest. All
appellants also challenge their sentences, contending that the
district court erred in its drug quantity determinations. For
the following reasons, we affirm appellants' convictions and
sentences.
BACKGROUND BACKGROUND
We view and present the evidence in the light most
favorable to the government. United States v. Abreu, 952 F.2d _____________ _____
1458, 1460 (1st Cir.), cert. denied, __ U.S. __, 112 S. Ct. 1695, ____ ______
118 L.Ed.2d 406 (1992). The investigation of this case centered
on the undercover work of Drug Enforcement Agency Task Force
Agent Mart nez. During the course of this investigation, Agent
Mart nez purchased four ounces of cocaine from David Thomas on
October 18, 1991 and November 1, 1991, respectively, and a half-
kilogram from Thomas on November 8, 1991. The investigation
-3-
culminated on January 17, 1992 when defendant Abelardo Cuevas
delivered ten kilograms of cocaine to Agent Mart nez.
A. The January 17, 1992 Transaction A. The January 17, 1992 Transaction ________________________________
On the morning of January 17, 1992, Mart nez and Cuevas
spoke on the telephone, and agreed to conduct the transaction in
the parking lot of a Friendly's restaurant in Peabody,
Massachusetts. In anticipation of the transaction, government
agents established surveillance in several areas. At
approximately 8:00 a.m., police officers observed appellant
Torres pick up Cuevas in a brown Cadillac registered to Thomas,
and drive away. Approximately 45 minutes later, a state trooper
saw Torres and Cuevas pull up to the access code box at the gate
of North Shore Self Storage. Torres used the access code
assigned to appellant William Rodr guez to open the security
gate. Torres and Cuevas then entered the storage facility.
Approximately one minute later, the trooper saw an
older blue Toyota station wagon pull up to the access code box.
Although the officer observed that this car was occupied by two
Hispanic males, he was forced to look away when the two men
looked directly at him. Consequently, Trooper Dern was unable to
identify the men. The driver of this car, however, used Appellant
Rodr guez' access code to open the security gate and enter the
storage grounds, and the officials conducting the investigation
concluded that these men were Rodr guez and appellant Matos.
Five minutes later, Torres and Cuevas exited the
storage grounds in the brown Cadillac. Approximately three
-4-
minutes later, the blue Toyota station wagon exited the grounds
as well. Both Torres and the driver of the blue station wagon
used Rodr guez' access code to open the gate when they left the
premises.
Ten minutes later, agents observed Torres and Cuevas
enter the parking lot of a Friendly's restaurant in Peabody. A
few minutes later, Agent Mart nez arrived in his undercover
vehicle. The three men met briefly outside the restaurant.
During this meeting, Cuevas introduced Torres to Mart nez as his
"socio," the literal translation of which is "associate."1 _____
Torres, Cuevas, and Mart nez then entered the restaurant and
discussed the mechanics of the ten-kilogram transaction. Torres
stated that he did not like the location and proposed completing
the transaction in an apartment, a proposal Mart nez rejected.
Torres then stated that they had to be careful, because they were
talking about ten kilos, not one or two. In this same
discussion, Torres indicated that he had a three kilogram
delivery to make later that day in Dorchester. After some
further conversation about the details of the transfer, Cuevas
instructed Torres to retrieve the cocaine. Torres then left in
the brown Cadillac.
After Torres left the parking lot, he drove south on a
highway for a short time, then suddenly exited the highway and
reversed his direction. After driving north for a short
____________________
1 Appellant Torres contends that in Caribbean Spanish, "socio"
is a colloquial term meaning "buddy" or "cousin."
-5-
distance, he drove into a strip mall, parked the Cadillac and
went to the trunk area of the car for a few seconds. According
to the toll records obtained for the cellular telephones
subscribed to Torres and Cuevas, Torres contacted Cuevas at or
about the time he reversed direction on the highway. After this
contact, Torres returned to the Friendly's restaurant, and met
again with Mart nez and Cuevas inside. Torres and Cuevas
informed Mart nez that they would not complete the transaction
there. After Mart nez complained about the sudden change of
plan, Cuevas agreed to complete the deal in an hour at Weylu's
Restaurant in Saugus, Massachusetts. The three men then left, at
about 10:30 a.m.
After Cuevas and Torres left the parking lot, they
drove to an area near the Northgate Shopping Center in Revere,
Massachusetts. At approximately 10:55 a.m., an agent observed
Torres driving the brown Cadillac, alone, south to Chelsea,
Massachusetts. Torres parked the Cadillac in front of 20
Lawrence Street. At approximately 11:15 a.m., Torres came out of
the residence carrying a white shoulder bag. Agents were unable
to maintain surveillance of Torres after that.
At 11:30 a.m., agents observed a 1977 blue BMW, driven
by appellant Rodr guez, moving slowly down the exit road of the
Weylu's Restaurant. Appellant Matos was seated in the front
passenger seat. After driving down the exit road, Rodr guez and
Matos drove slowly through the lower parking area past several
parked cars, including a DEA surveillance van. As Rodr guez
-6-
drove past the van, both Rodr guez and Matos looked into the van,
and then parked behind it. Rodr guez and Matos remained there
for about five minutes.
At about 11:34 a.m., Rodr guez received a page from
Cuevas. Immediately after Rodr guez received this page, agents
observed Rodr guez and Matos drive away, going north on the
highway. The agents did not follow.
Approximately ten minutes later, Mart nez drove up to
the front entrance of Weylu's. As Mart nez arrived, Cuevas
walked up to his car and got in. Once inside Mart nez' vehicle,
Cuevas indicated that he wanted to leave the area immediately.
Mart nez, however, parked his car near the front entrance of the
restaurant. After Mart nez had parked, Cuevas informed him that
he had noticed two suspicious-looking vans in the lower parking
lot, and explained that, because of his concern about these vans,
he had removed the drugs from the area. As the two men were
walking toward the restaurant entrance, Cuevas explained that the
cocaine had been moved to the Kowloon Restaurant, a short
distance away, and asked Mart nez to drive there to pick it up.
Once inside Weylu's, Mart nez demanded that the
transaction be completed there, and Cuevas agreed. He told
Mart nez that he needed to contact his men to have the cocaine
brought back to Weylu's. After Cuevas said this, Mart nez
observed Cuevas using his cellular telephone to contact these
men. According to the toll records obtained for Cuevas' cellular
phone, Cuevas paged Rodr guez at 11:55 a.m. and again at 12:03
-7-
p.m.
When Rodr guez failed to respond to these pages, Cuevas
returned to Mart nez' table and explained that he was having
difficulty reaching his men. Cuevas then pleaded with Mart nez
to travel to the Kowloon Restaurant to pick up the cocaine.
Mart nez explained that he could not complete the transaction at
the Kowloon because he did not have the purchase money with him.
Mart nez and Cuevas then agreed to pick up the cocaine at the
Kowloon and then return to Weylu's.
At 12:15 p.m., while Mart nez and Cuevas were still
inside Weylu's, Rodr guez and Matos returned to the Weylu's
parking lot in the blue BMW. They drove directly to the upper
parking area adjacent to the restaurant.
At approximately 12:30 p.m., Mart nez and Cuevas left
Weylu's and entered Mart nez' car. Almost immediately after,
Rodr guez and Matos were observed running from the drive-through
area of the restaurant to their car. They got in their car and
drove rather quickly after Mart nez' car. At the bottom of the
exit road, Rodr guez and Matos pulled up behind Mart nez and
Cuevas, and then followed Mart nez' car onto the highway. Once
on the highway, Cuevas adjusted Mart nez' rear-view mirror so
that he, not Mart nez, had a better view of traffic behind them.
When Mart nez and Cuevas entered the parking lot of the Kowloon
Restaurant, Rodr guez and Matos followed them into the lot as
well.
In the parking lot, Cuevas left Mart nez' car, went to
-8-
the blue Toyota station wagon parked there and retrieved a gym
bag containing ten kilograms of cocaine. After retrieving the
cocaine, Cuevas returned to Mart nez' car and the two men
returned to Weylu's. While he was waiting at a table to get paid
for the cocaine, Cuevas was placed under arrest.
As Cuevas was retrieving the cocaine from the blue
Toyota, Rodr guez and Matos watched from the blue BMW. When
Mart nez and Cuevas left the Kowloon parking lot, Rodr guez and
Matos pulled onto the highway and followed them. They were
followed by agents in the same surveillance van that had drawn
the attention of Rodr guez and Matos earlier that morning.
Rodr guez and Matos drove north for a distance and then reversed
direction. After driving south a short distance, they pulled
over to the side of the road and allowed the surveillance van to
pass them.
After the van passed them, Agent Geibel, the van's
driver, pulled the van into a parking lot and parked there. A
short time later, Rodr guez and Matos drove by the lot slowly,
looking at the van as they passed. Instead of continuing,
however, Rodr guez and Matos pulled into the parking lot of a gas
station, where they waited for about five minutes. When
Rodr guez and Matos exited the station parking lot, Agent Geibel
also pulled out and followed them. Geibel then followed them
into the parking lot of a Sears store.
After parking their car, Rodr guez and Matos entered
the Sears store through the front entrance. A few minutes later,
-9-
they exited the building through the rear entrance. As the two
men were walking along the side of the building, Rodr guez and
Matos again looked at the surveillance van. Rather than
returning to their car, they reentered the store through a side
entrance. A few minutes later, they exited the store from the
front, and Rodr guez walked to a nearby public telephone.
Rodr guez was then arrested. According to the cellular telephone
records obtained for Torres' cellular telephone, Torres placed a
page to Rodr guez at or about the time that Rodr guez walked to
the payphone.
As Rodr guez was being arrested, Matos turned and ran
back to the store. After a brief chase, he was apprehended and
arrested. At the time of the arrest, Matos had the registration
for the blue Toyota station wagon, from which Cuevas had
retrieved the cocaine, in his possession. Later that afternoon,
Torres was placed under arrest near his home in Chelsea.
B. The Search of Rodr guez' Storage Unit B. The Search of Rodr guez' Storage Unit _____________________________________
During the early evening hours of that same day,
January 17, 1992, agents applied for and obtained a search
warrant to search the storage unit at North Shore Storage rented
by Rodr guez. Torres had a key to this unit, along with keys to
the brown Cadillac, in his possession at the time of his arrest.
Rodr guez also had a key to this storage unit on his key ring at
the time of his arrest.
The searching agents found a 1988 Ford Taurus car with
New York license plates in the storage unit. Under the front
-10-
seat of the car, agents found National Car Rental documents dated
January 11, 1992 in Cuevas' name. A search of the trunk area of
the car revealed a secret compartment and two kilograms of
cocaine. The search of Rodr guez' self-storage unit also
produced a triple-beam scale, various packaging materials and a
safe. When the safe was opened a few days later, agents
discovered another kilogram of cocaine and more packaging
materials.
-11-
C. Prior Proceedings C. Prior Proceedings _________________
On January 30, 1992, a grand jury returned a five-count
indictment against Cuevas, Torres, Rodr guez, Matos, and Thomas.
Count One charged all six with participating in a conspiracy to
possess cocaine with intent to distribute. Counts Two through
Five of the indictment contained substantive distribution charges
relating to the four undercover cocaine purchases. Cuevas and
Thomas were named as defendants in Counts Two, Three, and Four.
Cuevas, Torres, Rodr guez and Matos were named as defendants in
Count Five, regarding the ten kilogram transaction.
After a trial, a jury returned guilty verdicts against
all defendants on all counts. Rodr guez, Matos and Thomas were
sentenced on December 8, 1992. The district court sentenced
Thomas to 70 months' imprisonment. Based on their participation
in the ten kilogram transaction of January 17, 1992, Rodr guez
and Matos each received ten-year, mandatory minimum sentences.
The district court sentenced Cuevas to 235 months' imprisonment,
and Torres to 210-months' imprisonment.
ANALYSIS ANALYSIS
A. Denial of Torres' Motion for Severance A. Denial of Torres' Motion for Severance ______________________________________
Several months prior to trial, Torres filed a motion
for severance under Fed. R. Crim. P. 14, arguing that his case
should be severed because "one or more co-defendants has given or
would give exculpatory testimony or evidence in his behalf if
called as a witness at trial." His motion was unaccompanied by
affidavit or other evidence of such a witness. Torres did,
-12-
however, submit an affidavit from Cuevas with a markedly
different version of the events of January 17, 1992. Although
Cuevas' affidavit attempted to exculpate Torres, nothing in the
affidavit indicated whether he would actually testify on Torres'
behalf. The district court rejected Torres' motion for
severance, holding that Torres had not met his burden under
United States v. Drougas, 748 F.2d 8, 19 (1st Cir. 1984). _____________ _______
Immediately prior to jury selection for his trial,
Torres filed a Supplemental Motion for Severance, arguing that
severance was required on two grounds. First, he contended, a
severance was required due to "prejudicial spillover." Second,
Torres contended that a separate trial was required in order to
make Cuevas' exculpatory testimony available to him. In his
motion, Torres admitted that Cuevas' attorney had recently
advised Torres' counsel that Cuevas would not testify on Torres'
behalf at a separate trial. However, according to Torres, Cuevas
had personally indicated to him that he would testify for Torres
at a separate trial. Torres again failed, however, to produce
any affidavits supporting this assertion. Torres requested that
the court ask Cuevas directly of his intentions. Cuevas' counsel
objected to such a procedure. The district court then declined
to question Cuevas directly, found that the basis for Torres'
severance motion was "entirely too speculative" and denied the
motion. Torres now challenges the district court's denial of his
motion.
We have held that "[a] motion for severance is
-13-
committed to the sound discretion of the trial court, and we
review only for a manifest abuse of discretion resulting in a
miscarriage of justice." United States v. Welch, 15 F.3d 1202, _____________ _____
1210 (1st Cir. 1993), cert. denied sub. nom, Driesse v. United ____ ______ ___ ___ _______ ______
States, 114 S. Ct. 1661 (1994) and Welch v. United States, 114 S. ______ _____ _____________
Ct. 1863 (1994). A trial judge thus has considerable latitude
in deciding severance questions, and we will overturn that
judge's resolution of them only if that wide discretion is
plainly abused. United States v. O'Bryant, 998 F.2d 21, 25 (1st _____________ ________
Cir. 1993) (internal quotations omitted). Reviewing Torres'
challenge under this standard, we find no abuse of discretion.
1. Severance to allow exculpatory testimony of a 1. Severance to allow exculpatory testimony of a _________________________________________________
codefendant codefendant ___________
Torres' motion for severance in order to allow
exculpatory testimony by a codefendant is governed by our holding
in Drougas, 748 F.2d at 19. Under the Drougas test, in order to _______ _______
be entitled to a severance on the basis of a codefendant's
testimony, the movant must demonstrate 1) a bona fide need for __________
the testimony; 2) the substance of the testimony; 3) its
exculpatory nature and effect; and 4) that the codefendant will
in fact testify if the cases are severed. A court reviewing such
a motion should 1) examine the significance of the testimony in
relation to the defendant's defense theory; 2) consider whether
the testimony would be subject to substantial, damaging
impeachment; 3) assess the counterarguments of judicial economy;
and 4) give weight to the timeliness of the motion. Id. at 19. __
Torres did not meet the fourth prong of the Drougas _______
-14-
test -- i.e., he did not sufficiently establish that Cuevas would ____
indeed testify in a separate trial. Torres insists that Cuevas
had repeatedly assured him that he would testify in his behalf,
yet Torres did not submit any affidavits, either his own or
Cuevas', in support of these assurances. More importantly,
Cuevas' attorney told Torres and the district court specifically
that Cuevas would not testify. Torres concedes now that "some ___
doubt remained" as to whether Cuevas would actually testify at a
separate trial. He argues, however, that given this doubt, the
district court should have asked Cuevas directly over counsel's
objection whether he would testify at a separate trial on Torres'
behalf, and that the court's failure to ask this "single,
clarifying question" of Cuevas "crippled" Torres' defense and
constituted an abuse of discretion.
We have held that an allegation that a codefendant may
testify, without more, is insufficient to entitle a defendant to
severance. United States v. Nason, 9 F.3d 155, 159 (1st Cir. _____________ _____
1993). Given the complete lack of either factual or legal
support for Torres' request, it is clear to us that the district
court's refusal to interrogate Cuevas directly was entirely
reasonable and within its broad discretion.2 This lack of
____________________
2 The government suggests that because Cuevas had not waived his
right to counsel, a forced inquiry of Cuevas by the court over ____
his attorney's objection may well have given rise to a claim by _________________________
Cuevas that his Sixth Amendment right to effective assistance of
counsel had been compromised. While we do not opine on this
possibility, such lurking constitutional concerns underscore the
reasonableness of the district court's refusal to question Cuevas
directly.
-15-
evidence also leads us to the inescapable conclusion that the
district court properly applied the Drougas test and denied _______
Torres' severance motion on this ground.
2. Severance to avoid "prejudicial spillover" of 2. Severance to avoid "prejudicial spillover" of ________________________________________________
evidence evidence ________
Torres also claims that because he only played a "minor
role" in the charged conspiracy and much of the evidence adduced
at trial concerned the codefendants, he was unfairly prejudiced
by the "spillover" of this evidence. "Spillover" occurs when
evidence establishing guilt of one defendant, but not admissible
against another, creates an "atmosphere clouding the jury's
ability to evaluate fairly the guilt or innocence of the latter."
United States v. Perkins, 926 F.2d 1271, 1281 (1st Cir. 1991). ______________ _______
We have explained, however, that where evidence featuring one
defendant is independently admissible against a codefendant, the
latter cannot convincingly complain of an improper spillover.
O'Bryant, 998 F.2d at 26. Furthermore, the existence of stronger ________
evidence against codefendants does not necessarily entitle a
defendant to automatic severance, nor does a defendant's
relatively minor conspiratorial role normally preclude a joint
trial with more prominent codefendants. Welch, 15 F.3d at 1210. _____
Thus, when multiple defendants are named in a single indictment,
a defendant who seeks severance will succeed only by making a
"strong showing of evident prejudice." O'Bryant, 998 F.2d at 25. ________
Even where large amounts of evidence are irrelevant to one
defendant, or where one defendant's involvement in an overall
conspiracy is far less than that of others, a reviewing court
-16-
must be reluctant to second-guess severance denials. Id. at 26. __
In support of his "spillover" claim, Torres contends
that the government's trial evidence actually proved two
conspiracies, not one, as charged in the indictment. Torres
maintains that the evidence proved one conspiracy involving
Thomas and Cuevas that produced the three early cocaine
transactions. He contends that the evidence then established a
second conspiracy involving Cuevas, Rodr guez, Matos and himself
to deliver the ten kilograms of cocaine on January 17, 1992.
Torres argues that he was unfairly prejudiced by the evidence of
the three smaller cocaine transactions among Agent Mart nez and
defendants Thomas and Cuevas.
Torres' defense counsel raised this objection
repeatedly during trial, and the district court carefully
instructed the jury with respect to the issue of multiple
conspiracies. Torres did not object to this aspect of the
district court's jury charge, and does not challenge it here.
In any case, the evidence strongly indicates that
Torres was much more than a one-day, one-time conspirator, as he
now avers. During his conversations with Agent Mart nez,
defendant Cuevas repeatedly stated that he needed to confer with
his "partner." When introducing Torres, he referred to him as
his "socio," or associate. Immediately before and after one of _____
his meetings with Mart nez negotiating a multi-kilogram
transaction, Cuevas called Torres on his cellular telephone. The
evidence also shows an ongoing relationship between Torres and
-17-
Rodr guez, and that Rodr guez was responding to Torres' page at
the time of his arrest. We think that this evidence all fairly
supports the reasonable inference that Torres was Cuevas' partner
inanongoingdrug conspiracy,whichincludedthethree smallertransactions.
Most importantly, the evidence introduced at trial
firmly supports Torres' conviction for participating in a single
conspiracy to distribute ten kilograms of cocaine on January 17,
1992. In fact, the evidence indicates that Torres had an
influential, even leading, role in the conspiracy. He went with
Cuevas in the morning to the storage facility where the cocaine
was presumably stored; he actively participated in the
discussions with Agent Mart nez, suggesting the place and
mechanics of the transaction; and he stated that he had another
smaller delivery that day. Torres has not indicated how he was
prejudiced by any alleged "spillover," and in light of all the
evidence against him, we do not see any prejudice. Accordingly,
we affirm the district court's denial of his motion to sever.
B. Admission of Co-Conspirator Statements against B. Admission of Co-Conspirator Statements against __________________________________________________
Torres Torres ______
Torres also maintains that the district court committed
clear error when it admitted into evidence statements made by
Thomas and Cuevas prior to January 17, 1992, under Fed. R. Evid.
801(d)(2)(E). In particular, Torres challenges the admission of
the statements made by Thomas to Agent Mart nez during a recorded
conversation on October 18, 1991. Torres claims that the
statement should have been excluded because 1) United States v. _____________
Petrozziello, 548 F.2d 20 (1st Cir. 1977), requires that the ____________
-18-
government have independent evidence that the defendant was a
member of the conspiracy at the time the co-conspirator statement
was made; 2) there was no significant evidence linking Torres to
the conspiracy other than the challenged statement; and 3) the
statement prejudiced him by "possibly rais[ing] an inference that
Torres had any knowledge of or connection to the drug trafficking
activities of Thomas and Cuevas before January 17, 1992."
The test for admissibility of a coconspirator statement
under Fed. R. Evid. 801(d)(2)(E) is whether, under a
"preponderance of the evidence" standard, it is more likely than
not that a conspiracy embracing both the declarant and the
defendant existed, and that the declarant uttered the statement
during and in furtherance of that conspiracy. United States v. ______________
Sep lveda, 15 F.3d 1161, 1180 (1st Cir. 1993) (citing, inter _________ _____
alia, Petrozziello, 548 F.2d at 23). A district court's rulings ____ ____________
on the admissibility of co-conspirator declarations are reviewed
under the clearly erroneous standard. Id. at 1180. __
We have held that when a defendant joins a conspiracy ____
is irrelevant in determining whether a co-conspirator's statement
is admissible under Rule 801(d)(2)(E). Once found to be a member
of a conspiracy, a defendant is subject to proof of the prior
acts and comments of his co-conspirators, even if those comments
were made prior to the defendant's involvement in the conspiracy.
United States v. Masse, 816 F.2d 805, 811 (1st Cir. 1987). In _____________ _____
the instant case, the district court conducted a Petrozziello ____________
hearing at the close of all the evidence, and concluded, by a
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preponderance of the evidence, that a single conspiracy existed
and that Torres was a participant. Nothing more was required
under our precedents to render the statements of co-conspirators
Thomas and Cuevas admissible under Rule 801(d)(2)(E). In light
of the ample evidence, discussed above, of the existence of a
conspiracy and Torres' influential participation in it, we cannot
say that the district court's Petrozziello rulings were clearly ____________
erroneous. We therefore affirm Torres' conviction.
C. Denial of Matos' Motion to Suppress C. Denial of Matos' Motion to Suppress ___________________________________
On March 17, 1992, Matos moved to suppress evidence
seized by the government incident to his arrest on the grounds
that his arrest was conducted without probable cause.
Essentially, Matos claims that his arrest at the Sears store on
January 17, 1992 was based on a mere hunch or subjective
suspicion by the arresting agents that Matos and Rodr guez were
conducting "counter-surveillance" for Cuevas' cocaine
transaction. In a written memorandum and order, the district
court denied Matos' motion, concluding that his arrest was
supported by probable cause. The district court reviewed Matos'
activities prior to his arrest, and noted that "[t]he fact that
Matos fled adds weight to the determination of probable cause,
but is not necessary to that determination." Matos now claims
that we must find that the district court's denial of his
suppression motion constituted reversible error.
A district court's findings of fact on a motion to
suppress are reviewable only for clear error as to probable
-20-
cause, and questions of law remain subject to de novo review. __ ____
United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).3 ______________ ______
Regardless of the degree of deference in our review, however, we
believe that the district court was correct in finding that
Matos' arrest was supported by probable cause.
It is elementary that the constitutionality of a
warrantless arrest depends upon whether, at the time the arrest _______________________
was made, the officers had probable cause to make it -- that is, ________
whether at that moment the facts and circumstances within their
knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent person in
believing that the defendant had committed or was committing an
offense. United States v. Morris, 977 F.2d 677, 684 (1st Cir. _____________ ______
1992). Probable cause is determined under an objective standard,
and the government need not show the quantum of proof necessary
to convict. Id. Probability, and not a prima facie showing of __
criminal activity, is the standard of probable cause. Id. __
We have held that probable cause must be determined in
light of the collective knowledge of the law enforcement officers
involved in an investigation. United States v. Diallo, 19 F.3d _____________ ______
23, 25-26 (1st Cir. 1994). Accordingly, an officer's experience
and expertise as a police officer may also be crucial factors in
the probable cause determination. United States v. Maguire, 918 _____________ _______
____________________
3 Here, the district court ruled on Matos' motion without a
hearing and did not make specific findings of fact. It is clear,
however, that the court implicitly adopted the government's
version of the facts.
-21-
F.2d 254, 258 (1st Cir. 1990), cert. denied sub. nom. Kavanaugh ____ ______ ____ ____ _________
v. United States, 501 U.S. 1234 (1991). _____________
Applying these principles here, we think it clear that
an objective view of the facts support the district court's
finding of probable cause for Matos' arrest. It was Rodr guez'
storage unit that Cuevas and Torres accessed on the morning of
January 17, 1992, a fact that the agents knew during their
surveillance of Matos and Rodr guez that afternoon. The agents
also had a reasonable suspicion that it had been Matos and
Rodr guez in the blue Toyota station wagon who met with Torres
and Cuevas at the storage facility that morning. The activities
of Matos and Rodr guez that afternoon support a reasonable
inference that they were closely involved in the delivery of ten
kilograms of cocaine to Mart nez on January 17, 1992. Their
behavior and carefully synchronized movements strongly support
the agents' theory that they were in charge of counter-
surveillance for the transaction. We therefore find that the
district court correctly denied Matos' motion to suppress.
E. Denial of Matos' and Rodr guez' Motions for Entry E. Denial of Matos' and Rodr guez' Motions for Entry __________________________________________________
of Judgments of Acquittal of Judgments of Acquittal ___ ______________________
Both Matos and Rodr guez challenge the district court's
denial of their motions for judgments of acquittal. Matos
contends that his "mere presence" at the scene of a crime is the
only evidence of his membership in the conspiracy, and therefore
that his conviction cannot stand. Rodr guez likewise contends
that no evidence of his membership in the conspiracy exists, or
-22-
that he violated any laws, and that the government's case against
him is based solely on conjecture and speculative inference.
When reviewing the denial of a motion for judgment of
acquittal, we assess the sufficiency of the evidence as a whole
in the light most favorable to the verdict, with a view to
whether a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt. We do not weigh witness
credibility, but resolve all credibility issues in favor of the
verdict. United States v. Hahn, 17 F.3d 502, 506 (1st Cir. _____________ ____
1994). The evidence may be entirely circumstantial, and need not
exclude every reasonable hypothesis of innocence. In other
words, the factfinder may decide among reasonable interpretations
of the evidence. Id. __
Viewing the evidence according to these principles, we
think it clear that the convictions of both Matos and Rodr guez
were amply supported by the evidence. Both of these appellants'
challenges rest on the testimony offered by Rodr guez at trial.
Rodr guez testified at trial that he had rented a storage unit at
North Shore Self Storage with Cuevas for the purpose of repairing
a car. According to Rodr guez, he returned his keys and
paperwork to Cuevas and did not return to the storage unit after
December 19, 1991. Rodr guez also denied driving to the storage
unit on the morning of January 17, 1992, denied returning to the
Weylu's parking lot, denied running from the restaurant to his
BMW with Matos, and denied following Mart nez and Cuevas to the
Kowloon restaurant. Rodr guez claimed that his only contact with
-23-
Cuevas on that day was to drive him to Weylu's, after which he
and Matos proceeded to Sears to go shopping. Rodr guez also
denied that he was responding to a page from Torres when he was
arrested, despite the records indicating that just moments before
his arrest he had been paged by Torres.
Clearly, the jury rejected Rodr guez' testimony, no
doubt in light of the evidence to the contrary. As discussed
above, the government proved through strong circumstantial
evidence that Rodr guez and Matos were closely involved with
Cuevas in the ten kilogram transaction. The jury was entitled to
draw reasonable inferences from this evidence, and to reject
Rodr guez' testimony in whole or in part. We therefore find that
the evidence adduced at trial supports the jury's guilty verdict,
and that the district court properly denied the defendants'
motions for judgments of acquittal.
F. The Sentences of Torres, Matos & Rodr guez F. The Sentences of Torres, Matos & Rodr guez __________________________________________
All of the appellants challenge their sentences.
Torres, Rodr guez and Matos each challenge the drug quantity
determinations made by the district court during sentencing.
Torres claims that the district court committed clear error by
attributing to him two kilograms of cocaine discovered in a
second storage unit at North Shore Self Storage. Consequently,
Torres argues, his Base Offense Level under the Sentencing
Guidelines should have been 32 (5-15 kilograms of cocaine) rather
than level 34 (15-50 kilograms of cocaine), as determined by the
district court.
-24-
Rodr guez and Matos also claim that the district court
committed clear error in finding that a drug quantity of at least
five kilograms of cocaine was reasonably foreseeable to them as a
consequence of their participation in the ten kilogram
transaction of January 17, 1992. Accordingly, Rodr guez and
Matos both claim that their ten-year mandatory minimum sentences
must be vacated.
It is well settled that "[a] narcotics conspirator is
responsible not only for the drugs he actually handled or saw but
also for the full quantity of drugs that he reasonably could have
foreseen to be embraced by the conspiracy he joined." United ______
States v. De La Cruz, 996 F.2d 1307, 1313 (1st Cir.), cert. ______ ___________ ____
denied, 114 S. Ct. 356 (1993). Moreover, the district court's ______
finding as to the quantity embraced by the conspiracy and
reasonably foreseen by the defendant is a factual one and will
not be disturbed unless it is clearly erroneous. Id. In __
reviewing drug quantity determinations made by district courts,
we have held that the sentencing court has broad discretion to
determine what data is or is not sufficiently dependable to be
used in imposing sentences. United States v. Whiting, 28 F.3d _____________ _______
1296, 1304 (1st Cir. 1994) (internal quotations omitted). We
also defer to the sentencing court's credibility determinations.
Id. __
1. The district court's drug quantity determination 1. The district court's drug quantity determination ________________________________________________
as to Torres as to Torres ____________
The district court found Torres responsible for the ten
kilograms involved in the January 17, 1992 transaction; three
-25-
kilograms found in Rodr guez' storage unit; and two kilograms
found in another storage unit belonging to Mariquesa Cuevas.4
The district court based its sentencing determinations on its
factual finding that Torres was "very much involved" in "what was
going on out at the storage location," and that the evidence
regarding his participation in the cocaine distribution scheme
with Cuevas was compelling. The district court concluded, based
on these findings, that Torres was "involved and accountable" for
the five kilograms found in the two units at North Shore Self
Storage. Torres now argues that no evidence links him to
Mariquesa Cuevas' storage unit or to the two kilograms of cocaine
found therein. He contends that the sentencing court had to
engage in speculative and impermissible leaps of logic in order
to attribute these two kilograms to him, and his sentence must
therefore be vacated.
The relevant facts relied upon by the district court
during sentencing but not introduced into evidence at trial are
as follows. During the afternoon of January 17, 1992, after
Cuevas had been arrested, his sister Mariquesa attempted to enter
North Shore Self Storage. She was driving Cuevas' gold Honda
Accord, a car that Cuevas had driven to one of his meetings with
Agent Mart nez. Mariquesa Cuevas was stopped by a state trooper
before she could enter the storage facility premises. The
____________________
4 Mariquesa Cuevas, the sister of defendant Abelardo Cuevas, did
not appear for trial and is a fugitive from justice. The two
kilograms of cocaine found in her storage unit on January 17,
1992 were therefore not introduced at trial.
-26-
officer observed a large amount of cash on the back seat of the
Honda. When asked about the money, Mariquesa Cuevas said that
she knew nothing about it, and that the car belonged to her
brother. The car, the money (approximately $7,000) and the car
keys were then seized.
Later that evening, agents obtained and executed a
search warrant for a storage unit leased in the name of Mariquesa
Cuevas, as well as the unit leased in Rodr guez' name. Two
kilograms of cocaine were recovered from Mariquesa Cuevas' unit.
Agents later determined that one of the keys on the gold Honda's
key ring fit the lock to Mariquesa Cuevas' storage unit.
The district court evidently found Torres responsible
at sentencing for these two kilograms because of the ample
circumstantial evidence of his close, influential association
with Cuevas, and the fact that Torres had the key to Rodr guez'
storage unit in which three kilograms of cocaine were found.
Despite Torres' protestations at sentencing, the court faced a
sizeable quantity of evidence that Torres exerted a significant,
even a leading, role in a cocaine distribution conspiracy, and
that use of the storage units at North Shore Self Storage was
part of the conspiracy's mechanics. Therefore, even if Torres
did not know specifically about the two kilograms in Mariquesa
Cuevas' storage unit, the district court acted well within the
bounds of its discretion in concluding, based on its factual
findings, that Torres could have reasonably foreseen that any
additional cocaine found in the storage unit would be deemed
-27-
"embraced" by the overall conspiracy. Torres fails to point to
any competent evidence that contradicts the district court's
findings and conclusions, other than his own testimony. Because
the district court was entitled to disbelieve Torres' testimony,
and because we cannot say that the court's findings of fact and
conclusions were clearly erroneous, we reject Torres' challenge
and affirm his sentence.
2. The district court's drug quantity calculations 2. The district court's drug quantity calculations ________________________________________________
as to Rodr guez and Matos as to Rodr guez and Matos _________________________
Rodr guez and Matos also argue that the ten kilograms
of cocaine delivered to Agent Mart nez on January 17, 1992 should
not have been attributed to them. They contend that the
government failed to establish that they had the requisite
knowledge of the the amount of cocaine involved in the
conspiracy. Accordingly, they argue, the ten-year mandatory
minimum penalty prescribed by 21 U.S.C. 841(b)(1)(A)(ii),
applicable to conspiracies involving five or more kilograms of
cocaine, does not apply to them.
In rejecting this argument at sentencing and ruling
that the ten-year mandatory minimum did indeed apply, the
district court found by a preponderance of the evidence that
Rodr guez and Matos joined Cuevas and Torres in the morning of
January 17, 1992 to pick up the ten kilograms of cocaine from the
storage facility to sell to Agent Mart nez. The evidence adduced
at trial, moreover, also indicates that it was Rodr guez and
Matos who, at Cuevas' instruction, moved the ten kilograms of
cocaine from Weylu's restaurant to the Kowloon restaurant later
-28-
that day. When Rodr guez' storage unit was searched that
evening, a car with a secret compartment and three kilograms of
cocaine were found. Rodr guez had a key to this unit at the time
of his arrest. In light of all of this evidence and the
reasonable inferences that can be drawn therefrom, we cannot say
that the district court committed clear error in finding that a
drug quantity of at least five kilograms was reasonably
foreseeable to both Rodr guez and Matos.
We have previously explained that "[a] defendant who
conspires to transport for distribution a large quantity of
drugs, but happens not to know the precise amount, pretty much
takes his chances that the amount involved will be quite large."
De La Cruz, 996 F.2d at 1314. We see no reason or special ___________
circumstances here to justify a departure from our prior ruling.
Accordingly, we reject Rodr guez' and Matos' challenges to their
ten-year minimum mandatory sentences, and affirm the district
court's ruling.5
CONCLUSION CONCLUSION
For the foregoing reasons, the convictions and
sentences of appellants Torres, Rodr guez, and Matos are
affirmed. ________
____________________
5 Rodr guez and Matos also contend that the district court
erroneously refused to consider their requests for downward
departures. Because we have affirmed the district court as to
their ten-year mandatory minimum sentences, their arguments
regarding downward departures are moot, and we therefore need not
address them.
-29-
Related
United States v. Nason
9 F.3d 155 (First Circuit, 1993)
United States v. Welch
15 F.3d 1202 (First Circuit, 1993)
United States v. Hahn
17 F.3d 502 (First Circuit, 1994)
United States v. Zapata
18 F.3d 971 (First Circuit, 1994)
United States v. Ralph Petrozziello
548 F.2d 20 (First Circuit, 1977)
United States v. Stephen O. Masse
816 F.2d 805 (First Circuit, 1987)
United States v. Patrick Perkins, United States of America v. Lois Perkins
926 F.2d 1271 (First Circuit, 1991)
United States v. Howard Morris, United States v. Rafael Tormes-Ortiz
977 F.2d 677 (First Circuit, 1992)
United States v. Efrain De La Cruz, United States v. Luis Torres
996 F.2d 1307 (First Circuit, 1993)
United States v. David S. O'Bryant
998 F.2d 21 (First Circuit, 1993)
United States v. Drougas
748 F.2d 8 (First Circuit, 1984)
Driesse v. United States
511 U.S. 1076 (Supreme Court, 1994)
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