United States v. Velez-Lopez

• Court: Court of Appeals for the First Circuit
• Decided: January 8, 1998
• Docket: 97-1139
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals

                                For the First Circuit
                                For the First Circuit

                                 ____________________



            No.  97-1139



                              UNITED STATES OF AMERICA,



                                 Plaintiff, Appellee,



                                          v.



                               LUIS A. ALICEA-CARDOZA,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO



                   [Hon. Salvador E. Casellas, U.S. District Judge]
                                               ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                               Cyr, Senior Circuit Judge,
                                    ____________________

                              and Lynch, Circuit Judge.
                                         _____________

                                 ____________________



                Rafael Anglada-Lopez for appellant.
                ____________________



                Miguel A.  Pereira-Castillo, U.S. Department  of Justice,
                ___________________________

            with whom Guillermo  Gil, United States Attorney, and Jose A.
                      ______________                              _______

            Quiles-Espinosa, Senior Litigation Counsel, were on brief for
            _______________

            appellee.



                                 ____________________



                                  December 19, 1997

                                 ____________________



LYNCH,  Circuit  Judge.    A  cocaine  distribution
                      LYNCH,  Circuit  Judge.
                              ______________



            conspiracy  out of the Virgilio D vila Public Housing Project



            in Bayam n,  Puerto Rico led to the  indictment of thirty-six



            defendants.  Twenty-five  pled guilty either before  trial or



            shortly after trial started.  Eight defendants were  tried to



            verdict, five were acquitted.



                      Luis Alicea-Cardoza,  nicknamed "Burbuja",  was one



            of the three convicted and  now appeals.  His main contention



            is that  the jury, confronted  with a maze of  defendants and



            drug  and violence  evidence, convicted  him  when there  was



            precious little evidence,  too little, he says,  to support a



            conviction.   The little  evidence  there was,  he says,  was



            based on beeper  transmissions and this court,  which has not



            previously addressed  the question, should find  those beeper



            records erroneously  admitted.   Although Alicea-Cardoza  has



            ably  argued  these  and  ancillary  points,  we  affirm  his



            conviction under  21 U.S.C.    841  and  the drug  conspiracy



            statute,  21 U.S.C.     846,  and his  sentence  of 27  years



            imprisonment.



                                          I
                                          I



                      Because the  defendant attacks  the sufficiency  of



            the  evidence,  we review  the  evidence  in the  light  most



            favorable to the  verdict, with a view to  whether a rational



            juror could have found guilt  beyond a reasonable doubt.  See
                                                                      ___



            United States v. Cruz, 981 F.2d 613, 615 (1st Cir. 1992).  
            _____________    ____


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Interception  of telephone  messages in  April 1994



            confirmed  that Jorge  Solano-Moreta  was  in  charge  of  an



            organization selling drugs, principally  cocaine, at numerous



            drug  points  in  Bayam n,  including a  drug  point  at  the



            Virgilio D vila Housing Project.  Alicea-Cardoza had acted as



            a "runner" (meaning that he managed the business operation by



            receiving, accounting  for, and safeguarding the  proceeds of



            drug sales)  for a  Virgilio D vila  drug  point since  1992.



            Approximately  four kilograms of cocaine were sold monthly at



            that  drug  point.   Alicea-Cardoza  was  also  a runner  for



            another  drug point in  the Virgilio D vila  Housing Project.



            There, approximately  one half of a kilogram  of cocaine base



            was sold monthly. 



                      The  evidence  implicating  Alicea-Cardoza  in  the



            conspiracy consisted  principally of  the testimony  of Amiud



            Alicea-Mat as and charts of intercepted  beeper messages sent



            to Solano-Moreta by Alicea-Cardoza.  Alicea-Mat as  testified



            that  he was  part  of  a drug  selling  organization at  the



            Virgilio  D vila Housing Project known as the Virgilio D vila



            group,  which sold cocaine, crack, and heroin.  Alicea-Mat as



            said he ran several drug points and was a trigger man for the



            group.  He  testified that the members of  the group included



            Luis Rosario-Rodr guez,  Richard Rosario-Rodr guez  and Edwin



            Rosario-Rodr guez (three brothers who ran the  group), Felipe



            Garc a-Roque, as well  as defendant "Luis Alicea,  [and] some


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people  who are confined in state institutions."  When asked,



            " . . .  do you know if  Ruiz [sic] Alicea has a  nickname or



            nicknames," Alicea-Mat as responded,  "Burbuja".  When  asked



            whether  "Luis Alicea-Cardoza,  also  known as  Burbuja"  was



            seated  in the  courtroom,  Alicea-Mat as identified  Alicea-



            Cardoza.  And  when asked "How many Burbujas  worked for this



            organization or  group,"  Alicea-Mat as responded,  "Just one



            Burbuja."   "Burbujas"  means "Bubbles"  and  members of  the



            jury,  applying  their  common  experience  of  Puerto  Rican
                   



            society, could reasonably have regarded it as an unusual male



            nickname.  No evidence was  presented to suggest that another



            "Burbuja" may have been involved in this organization.



                      Alicea-Mat as  testified that  the Virgilio  D vila



            group and  Solano-Moreta "established  a solid  relationship"



            during 1992 and 1993 to  help each other fight "wars" against



            competing  groups  for  control  of  the  local  drug  trade.



            Solano-Moreta and  the Virgilio  D vila group  would meet  to



            discuss drug points and plan attacks  against enemies of both



            groups,  pooling their  resources "in  order  to be  strong."



            They also did  business with each other:   Solano-Moreta sold



            kilos of  drugs to the  Virgilio D vila group, which  in turn



            sold  the  drugs  throughout   the  Virgilio  D vila  Housing



            Project.   In addition,  the Virgilio D vila  group collected



            money for Solano-Moreta at drug  points owned by him and took



            the money to  him.  They even committed  murders with Solano-


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Moreta to enforce their control over the drug trade.  The two



            groups developed a "frequent and close friendship" and "[met]



            on many occasions."  When asked who attended these  meetings,



            Alicea-Mat as responded:



                      Richard Rosario-Rodr guez, Edwin Rosario-

                      Rodr guez, I, Willy Nariz, [Jorge] Solano

                      Moreta, Perla.   When [Jorge] would  come

                      down  to  the   Virgilio  D vila  Housing

                      Project,   Luis   Rosario-Rodr guez   was

                      there.    Luis  Rosario-Rodr guez  [sic],
                                _______________________________

                      alias Burbuja,  and several  other people
                      _____________

                      who are jailed at the state institution.1



            (emphasis added).



                      In addition to  this testimony, Alicea-Cardoza  was



            implicated  by  charts  the  government  prepared  of  beeper



            messages.  These charts recorded the content of approximately



            four  thousand messages received  between April 26,  1995 and



            June 5, 1995  by Solano-Moreta on his beepers.   The messages



            were  intercepted  by   federal  agents  pursuant   to  court



            authorization.   Special Agent Gilberto Vazquez, who directed



            the investigation, testified that the charts transcribing the



            messages  sent  to  Solano-Moreta  were  produced  by  a  pen



            register,  which  intercepted the  messages  sent  to Solano-



            Moreta's beeper and printed them out.  Vazquez also testified



            that  he  tested  the pen  register  system  for  accuracy by



                                
            ____________________



            1.  Alicea-Mat as seemed to have mistakenly repeated the name

            Luis Rosario-Rodr guez.   The jury could have  concluded this

            was  an  inadvertent  mistake,  rather  than  evidence  of  a

            different "Burbuja", especially  in light of  Alicea-Mat as's

            direct   identification  of   Alicea-Cardoza   as  the   real

            "Burbuja".



                                         -5-
                                          5



checking its results against the messages received by a clone



            beeper, an  exact replica of  Solano's beeper.   He testified



            that the  pen register and clone beeper  received exactly the



            same messages received by Solano-Moreta.



                      Several hundred  of the  messages to  Solano-Moreta



            recorded  in the beeper charts  were from "Burbuja".  Typical



            were messages  asking Solano-Moreta  to call  "Burbuja" at  a



            certain  phone  number  or messages  leaving  a  phone number



            accompanied by "Burbuja, Urgente."  Some messages referred to



            obtaining  "work".      Vazquez  testified   that,   in   his



            considerable experience  investigating drug gangs,  these and



            other  messages received  by Solano-Moreta involved  the drug



            trade.



                      Of  the five members  of the Virgilio  D vila group



            who  originally  went  to   trial,  only  Alicea-Cardoza  was



            convicted.



                                          II
                                          II



                      Alicea-Cardoza claims  the district  court admitted



            the beeper charts without proper authentication under Fed. R.



            Evid. 901, that the evidence  was insufficient to support his



            conviction,  and  that  he  was  subject  to  a  constructive



            amendment to the indictment.



            A.  Beeper Charts
                _____________



                      Under Fed.  R.  Evid. 901(a),  "The requirement  of



            authentication or identification as a condition precedent  to


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admissibility is satisfied by  evidence sufficient to support



            a finding that  the matter in question is  what its proponent



            claims."   Fed. R. Evid. 901(a).   To establish authenticity,



            the   proponent  need   not   rule  out   "all  possibilities



            inconsistent with  authenticity, or .  . .  prove beyond  any



            doubt  that the evidence is what  it purports to be.  Rather,



            the standard for authentication, and hence for admissibility,



            is  one  of   reasonable  likelihood."    United   States  v.
                                                      _______________



            Holmquist, 36 F.3d  154, 168 (1st Cir. 1994).   Generally, if
            _________



            the   district  court  is  satisfied  that  the  evidence  is



            sufficient  to allow  a  reasonable  person  to  believe  the



            evidence is what it purports  to be, Rule 901(a) is satisfied



            and  the  jury  may  decide  what weight  it  will  give  the



            evidence.   See id. at  167.  Because  authentication rulings
                        ___ ___



            are  necessarily fact specific,  we review such  rulings only



            for mistake of law or abuse of discretion.  See id.  
                                                        ___ ___



                      The  district court did not abuse its discretion in



            admitting the beeper charts as  a record of the messages sent



            to  Solano-Moreta's beeper.  Vazquez adequately explained the



            means by which the pen  register intercepted and recorded the



            beeper  messages,  and  how the  clone  beeper  confirmed the



            accuracy of  that system.   Asked by the prosecution  how the



            beeper charts had been produced, Vazquez responded, "It  is a



            machine known as a pen register.  As the message comes in the



            pen register just annotates or writes exactly  what comes out


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                                          7



on the beeper."   Vazquez explained clone beepers.   "A clone



            is an exact replica  of a beeper.   If I was going to  have a



            clone to my beeper and you had it,  you would receive exactly



            the  same message  that I  get."   Vazquez testified  that he



            carried a  clone of Solano-Moreta's  beeper for about  a week



            during the intercept period.  Asked whether Vazquez found any



            difference between the  written messages produced by  the pen



            register  and those  received by  the  clone beeper,  Vazquez



            responded,  "No  difference."     This   testimony  was   not



            contradicted or challenged by the defense. 



                      Alicea-Cardoza's  argument is  that  the charts  of



            these phone  calls were  not  properly authenticated  because



            there was  no evidence  that Alicea-Cardoza  was in  fact the



            person who  left  the  messages.   Defendant  relies  on  the



            general rule that  self-identification by a speaker  alone is



            not  sufficient authentication.  See United States v. Puerta-
                                             ___ _____________    _______



            Restrepo, 814  F.2d 1236, 1239 (7th Cir. 1987); United States
            ________                                        _____________



            v.  Pool, 660 F.2d 547, 560 (5th Cir.  Unit B Nov. 1981).  We
                ____



            agree that, under Puerta-Restrepo and Pool, the beeper charts
                              _______________     ____



            could not  be authenticated  under Rule  901 were  they being



            offered for the sole purpose of identifying Alicea-Cardoza as



            the "Burbuja" who sent the messages.  



                      Here,  however,  the   government's  evidence  only



            showed the  beeper  messages that  Solano-Moreta himself  had



            received, not who specifically had sent them.   This is not a


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                                          8



case of  the jury being asked to take  on faith that a caller



            was who the witness  said the caller was.  Rather, the charts



            were introduced  for the  different purpose  of proving  that



            Solano-Moreta  received these messages on his beeper, and the



            beeper  charts plainly constitute  an accurate record  of the



            messages that  Solano-Moreta received.  As Vazquez testified,



            a beeper decodes  a digital message which it  displays on its



            screen,  e.g., "Call Burbuja."   The pen  register intercepts



            that message and records  it, over time producing  a complete



            record  of all  messages sent  to  that beeper.   That  these



            beeper charts  produced by the  pen register are  an accurate



            record of  the messages  sent to  Solano-Moreta's beeper  was



            established by the  testimony of Vazquez, who  explained that



            the beeper  charts were checked  against a  clone beeper  and



            that there was no difference between the two.  This testimony



            was sufficient to  authenticate the beeper charts  as records



            of the messages sent to Solano-Moreta's beeper.  



                      Whether  the "Burbuja"  who  sent the  messages was



            Alicea-Cardoza  is a separate question not within the purview



            of Rule 901.  The  jury had to decide on its own, taking into



            account other evidence, some  direct and some circumstantial,



            whether Alicea-Cardoza  was "Burbuja".  Given  that evidence,



            the jury reasonably  established that "Burbuja" was  a member



            of the  drug ring  and that "Burbuja"  was, in  fact, Alicea-



            Cardoza.


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                                          9



It is true that someone who was not "Burbuja" could



            have  been leaving  the messages  or that  some other  person



            named  "Burbuja" left the  messages.  Alicea-Cardoza  did not



            make  such a  contention  at trial,  but  if he  had,  such a



            contention  does not  go  to whether  the  beeper charts  are



            properly authenticated.   The jury could still  have assessed



            the weight  of the evidence  in light of that  contention and



            made a judgment accordingly.   In sum, whether the  "Burbuja"



            who sent the messages  is in fact Alicea-Cardoza,  or perhaps



            some other  "Burbuja", is a  separate matter for the  jury to



            decide.  



                      As for the  whether the charts  were authenticated,



            the standard of  reasonable likelihood was satisfied  in this



            case.



            B.  Sufficiency
                ___________



                      Thus,  we turn to the question whether the evidence



            in  this  case  is  sufficient  to  support  Alicea-Cardoza's



            conviction.  In assessing a sufficiency challenge, we "review



            the record to  determine whether the evidence  and reasonable



            inferences therefrom, taken as a  whole and in the light most



            favorable to the prosecution, would allow a rational jury  to



            determine  beyond a reasonable  doubt that the  defendant was



            guilty as charged."  United  States v. Fulmer, 108 F.3d 1486,
                                 ______________    ______



            1490  (1st Cir. 1997)  (citations, internal  quotation marks,



            and alterations omitted).  


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                                          10



Taking  the   beeper  charts   and  Alicea-Mat as's



            testimony together, we conclude the  evidence was sufficient.



            Alicea-Mat as's  testimony  identifies  Alicea-Cardoza  as  a



            member  of the  Virgilio  D vila group  and  links the  drug-



            related  enterprises of that group to those of Solano-Moreta.



            The testimony establishes that  Alicea-Cardoza was "Burbuja".



            The  beeper charts  demonstrate that  "Burbuja" had  frequent



            contact with Solano-Moreta.   And the jury could easily  find



            that  these  communications involved  matters related  to the



            manufacture and sale of drugs.  While it is possible that the



            "Burbuja"  who   sent  those  messages   was  indeed  another



            "Burbuja",  or that Alicea-Cardoza and Solano-Moreta had only



            a non-criminal  relationship, the  jury was  not required  to



            accept either  of these conclusions.   To  the contrary,  the



            evidence  clearly  suggests that  Alicea-Cardoza  was closely



            involved with Solano-Moreta in the drug trade, and is plainly



            sufficient to sustain the conviction.  



                      That the jury did not also convict other members of



            the Virgilio  D vila group  based  solely on  Alicea-Mat as's



            testimony does  not undercut this  conclusion.  The  jury may



            well have regarded Alicea-Mat as's  testimony as insufficient



            to  prove  the  guilt  of those  other  defendants  beyond  a



            reasonable doubt, but  this does not mean,  as Alicea-Cardoza



            argues,  that  we   must  therefore  accord   Alicea-Mat as's



            testimony no  weight in considering  this sufficiency  claim.


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                                          11



The jury could reasonably have  found, as indeed it did, that



            Alicea-Mat as's testimony  in  conjunction  with  the  beeper



            charts  proved  Alicea-Cardoza's  guilt  beyond a  reasonable



            doubt.



            C.  Constructive Variance
                _____________________



                      Alicea-Cardoza claims  that his  conviction amounts



            to a constructive variance of  the indictment in that (1) the



            indictment charges  him with being  a triggerman, but  he was



            tried for  being a  runner, and (2)  the evidence  showed the



            existence of multiple  conspiracies, while Alicea-Cardoza did



            not participate in the conspiracy for which he was convicted.



            Variances  between the indictment and the evidence ultimately



            proved  against a  single defendant  may be  common when  the



            government prosecutes large criminal  enterprises in a single



            trial.   See United States  v. Glenn, 828  F.2d 855, 858 (1st
                     ___ _____________     _____



            Cir. 1987).  When constructive variance is  alleged on appeal



            in a conspiracy case, under Glenn the following questions are
                                        _____



            asked: 



                      (1) Is the  evidence sufficient to permit

                      a  jury  to find  the (express  or tacit)

                      agreement  that  the  indictment charges?

                      (2)  If not, is it sufficient to permit a

                      jury, under a proper set of instructions,

                      to convict  the defendant  of a  related,

                      similar conspiracy?  (3)  If so, does the

                      variance    affect    the     defendant's

                      substantial rights or does the difference

                      between  the charged  conspiracy and  the

                      conspiracy  proved  amount  to  "harmless

                      error?



            Id.  
            ___


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                                          12



As to the  first test, the evidence permits  a jury



            to find that  Alicea-Cardoza did conspire with  Solano-Moreta



            to distribute drugs and that  he was an active participant in



            that enterprise.  Indeed, the beeper charts show that Alicea-



            Cardoza  and Solano-Moreta  were  in frequent  communication.



            Accordingly,  that Alicea-Cardoza  was indicted  for  being a



            conspirator/triggerman   but  the   evidence  proved   him  a



            conspirator/runner   does   not    constitute   impermissible



            variance.  "So  long as the  statutory violation remains  the



            same,  the jury  can  convict  even if  the  facts found  are



            somewhat  different than  those  charged --  so  long as  the



            difference does not cause unfair prejudice.  United States v.
                                                         _____________



            Twitty, 72  F.3d 228,  231 (citing Glenn,  828 F.3d  at 858).
            ______                             _____



            There is  no unfair prejudice  in this case.   Alicea-Cardoza



            had notice that he was under indictment for being involved in



            the Solano-Moreta  drug organization,  and he  knew that  his



            central defense  needed to be  that he was  not part  of that



            organization  --  as a  triggerman, runner,  or in  any other



            capacity.  The error in the indictment was not so grave as to



            cause  Alicea-Cardoza to defend himself on the wrong grounds,



            especially  when the evidence adduced at trial showed Alicea-



            Cardoza   to  be   deeply  involved   in  the   Solano-Moreta



            organization. 



                                         III
                                         III



                      The sentencing appeal  is also without merit.   The


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court assigned Alicea-Cardoza a base offense level of thirty-



            eight under  U.S.S.G.    2D1.1 for  conviction of  an offense



            involving at least 1.5 kilograms  of cocaine base.  The court



            increased  the offense  level by  two points  to forty  under



            U.S.S.G.      2D1(b)(1),  adopting   the   findings  of   the



            presentence report that weapons  were used by  Alicea-Cardoza



            in furtherance  of  the conspiracy.   The  court declined  to



            adopt the recommendation  of the presentence report  to raise



            Alicea-Cardoza's offense level by an additional three points,



            rejecting the  report's  finding that  Alicea-Cardoza  had  a



            managerial  role  in the  conspiracy.    The court  found  an



            imprisonment  range of  324  to  405  months,  and  sentenced



            Alicea-Cardoza to 324 months in prison, including a statutory



            minimum of ten years in jail under 21 U.S.C.   841(b)(1)(A).



                      The  government  has  the burden  of  proving  drug



            quantity by a fair preponderance of the  evidence, see United
                                                               ___ ______



            States v. Morillo, 8 F.3d 864, 871, and amply  met its burden
            ______    _______



            here.  The evidence shows that the Solano-Moreta organization



            was  a major  drug distribution  network  buying and  selling



            hundreds of  kilograms of  cocaine and  cocaine base  through



            various drug points,  including those at the  Virgilio D vila



            Housing  Project.  The evidence shows that Alicea-Cardoza was



            a runner for those drug points at Virgilio D vila.  According



            to  the presentence report, Alicea-Cardoza "ran" a drug point



            at  which approximately four  kilograms of cocaine  were sold


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                                          14



monthly, he "ran"  another drug point at  which approximately



            one half  kilogram of cocaine  base was sold monthly.   Given



            this  evidence, the  district court did  not commit  error in



            assigning Alicea-Cardoza a base offense level of thirty-eight



            for  committing an offense involving 1.5 kilograms of cocaine



            base. This  evidence at  trial is  sufficient to sustain  the



            offense level.    As to  Alicea-Cardoza's attack  on the  two



            point increase in his offense level  for use of a weapon, the



            evidence at trial shows that Alicea-Cardoza was armed when he



            served as a  watchman for drug points in  the Virgilio D vila



            Housing Project.  This is sufficient to sustain the increase.



                      The judgment of the district court is affirmed.


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