Professional Documents
Culture Documents
____________________
No. 91-2298
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN ANTONIO CASILLAS,
Plaintiff, Appellant.
_____________________
No. 92-1493
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE E. BONILLA-MARTINEZ,
Defendant, Appellant.
_____________________
No. 92-1494
UNITED STATES OF AMERICA,
Appellee,
v.
FERNANDO FACIO-LABOY,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
____________________
COFFIN,
brought
by defendants
Enrique
Bonilla
Jose
Antonio
Martinez (Bonilla),
These
three
appeals are
Casillas (Casillas),
and
Jose
Fernando Faccio-Laboy
to
violation
distribute
of 21
multi-kilo
U.S.C.
quantities
846.
One
to possess with
of
cocaine,
defendant, Casillas,
in
was
21
U.S.C.
release
terms
843(b).
and
of
In addition
special
monetary
imprisonment were
to
terms
assessments,
imposed:
Casillas,
of
the
292
evidence to support
challenges
the
Sentencing Guideline
that
district
court's
3B1.1, U.S.S.G.
Appellant Casillas
finding,
pursuant
to
increasing of his
court's finding
purchase of
base
their convictions.
offense level.
150 kilograms of
offense level
claims that he
Each
of
38.
in a
each appellant
capacity to bring
reviewing the
record of
evidence of
-3-
set forth
what
we consider
events, as the
discussion
the
of
legal
a sufficient
narration of
in viewing them, to
issues
make our
comprehensible.
We
have
was a
as sellers
and set
up deals
Enforcement Administration
This
(DEA)
involve
drug buyers.
special agent
Hoercherl, to
importing scheme.
with would-be
appellant
Jefferson
confidential informant,
Casillas
in
drug
Hoercherl in a
DEA activity.
York and
Miami were
to be
the sale
in May, 1990,
Contacts began
of 400
brought
Hotel,
but
Casillas
because
his
buyers
canceled a
distrusted
buyers in
the
scheduled
location;
transaction
and
the
terms
-4-
changed, the
amount of
down payment
required by
the "sellers"
August, Torres
with property
introduced one
as collateral for
part of
the down
On August
Casillas,
of real estate:
residence, an
Casillas
urban
a four-unit apartment
lot in
had received
a meeting
to
payment.
pieces
8, Ortiz attended
Dorado Del
building, Ortiz's
Mar, and
with Justice,
a rural
of title
lot.
to eleven
to have
route via
nineteen other
barge.
down payment of
vehicles on his
lot and
thirty-four en
to come up
with the second half of the down payment in cash on that day.
Two
Faccio to Hoercherl as the person who would provide the money for
the additional down payment.
on consignment.
Presumably this
accomplished.
The
Not
-5-
part
of Hoercherl's
testimony
discussion but
elsewhere
revealed in
the
be charged
with ensuring that the sales proceeds would be collected and paid
to the sellers.
In other words,
kilos was
was
took place
on August 13,
on
Casillas.
tape,
this
which was
While
attended by
the August 10
one was.
Although
Hoercherl
testified that
arrangements
contains no
to deliver
on August 13
the 150
reference to this
there was
discussion of
kilos on
August 15,
the tape
total amount.
Faccio,
who spoke
only Spanish and to whom the remarks of Justice and Hoercherl had
by Casillas that
"those 25 are
gonna leave
with 25 more" and that "It will pay off for you."
that the transaction
Feria Court Apartments
hold of
Quique
Bonilla.
Hoercherl
15 in Faccio's
Faccio preferred
It was agreed
me all day
that date to
today to get
However, on August
you
as appellant
August
16,
apartment building.
Bronco,
Justice
and
Hoercherl
At 4:30, Bonilla
came
to
drove up in a
Faccio's
white Ford
Bonilla
came back to the Bronco at 4:45, reentered the building, came out
-6-
again at
4:55, went
to the
Bronco, took
out a
white box
and
reentered the
the
building.
building, then
Faccio
Bonilla made
nervous
occupant.
would
this
location,
apartment 305.
the button;
because
of
Faccio went
203; Bonilla
some
the door
to the
opened, revealing
Bronco,
adjacent
be in
pushed
to the
about
He
third trip
front of
with money
Bonilla and
pouch.
in them.
When he
short."
an
Hoercherl
in apartment
asked Casillas
elevator, and
if the
box, and
Hoercherl walked
toward it,
the
arrest
of
the
appellants
meanwhile telling
to the pouch,
agents in a
followed.
$97,950.
gate, gave
At
other
He then drove
white
box
in
the key
Keys to apartment
305 were
found
on him.
Faccio possessed
a box containing
many keys to
to
asserting
has devoted
that
this
(1932),
"when
the
prosecution
was
part of
the
criminal
a substantial
design
originates
kind
his
of
U.S. 435,
with
the
an
its
commission
in
order
that
they
may
prosecute."
or
brief) is not
an issue in this
case.
the
court
an
district
Appellant
issue.
gain
refused,
in Casillas's
Appellant requested,
instruction
on
and
entrapment.
error or made it an
invoked.
we
might
outrageous.
characterize
v. Panet-Collazo, 960
_____________
government's
conduct
as
Rafael Santana
______________
Sept.
-8-
is often raised
evidence
to support
their
standard
of
is
inferences
review
favoring the
convictions
limited.
We
prosecution.
v. Benevides, 985
_________
defendant
conspiracy.
indulge
Our
all
query is
intended
Our
reasonable
whether a
a reasonable doubt.
for
of the
Cir. 1993).
direct or circumstantial
to
agree
and to
commit
need to show
conspiracy.
that a defendant
Id.,
___
obligations.
took part in
United
______
It does not
all aspects of
the
of
(1947)).
The
He
sought
buyers, recruiting
Torres
who
in
Ortiz,
and
He was the
placed the
money in
his car
brought
a transaction was
for exchange
on
ready.
person who
delivery of
the
-9-
cocaine.
sufficient.
The
evidence
of his
participation
was
more
than
appeared at any
discussed, and
crucial to the
active
"mere
and visible
to be a most
actor.
presence" claim
"presence"
was at
he was there to
is
In the
first place,
more difficult
the scene
of
to
a defendant's
sustain when
the transaction.
See
___
his
United
______
("Jurors can
to serious
before
second place,
crimes and
rarely
larger-than-necessary
seek to
perpetrate
audiences.").
In
the
that postponement
Bonilla) could be
16 reveal
his
to indicate
omnipresence: his
his nervousness at
several
events of
trips to
the
in apartment
the elevator with the white box and the blue money
-10-
attempt to throw away the key to the pouch; and his possession of
the key to apartment 305, the money room.
The
jury,
of
course,
was
entitled
to
disbelieve
his
his
wife might
decide
to
buy.
Moreover,
the
jury was
entitled to draw the inference that Bonilla would not likely have
brought almost a
he
had not
extent
of
understanding
known of
the
Ortiz's
contribution
as
to the
total down
payment requirement,
of
remaining
transaction if
collateral,
delivery.
In
the
and
the
short,
the
Appellant
Casillas
devotes
two
sentences in his brief to the claim that the district court erred
the
conspiracy.
He
argues
that
Justice
and
United States
_____________
v. Wright, 873 F.2d 437, 442-44 (1st Cir. 1989); United States v.
______
_____________
Vega-Encarnacion,
________________
have
was no error.
recruiting efforts,
planning
Agent
From what we
that there
his
His acceptance
and his
testified
role in
negotiating,
that
central
Casillas
was
to
Moreover,
be
given
This record
satisfies most,
characterizing
3B1.1(c).
leadership
if not indeed
role
all, of
specified
in
the factors
U.S.S.G.
claim that
the negotiated
amount
of 150
three
kilograms
Casillas
should be either
All
50
to purchase) or
per kilo),
not 38.
involvement
Faccio
in
the
argues that
enterprise was
the only
his
evidence of
tape
his
recorded remarks
addressing these
guidelines.
contentions, we
U.S.S.G.
1B1.3(a)(1)(B)
conspirator is responsible
of the
conspiracy and
are
directed by
provides
they
are includible
that
two
in furtherance
in the
defendant's
offense level to the extent that they are either within the scope
2).
U.S.S.G.
to jointly undertake."
In addition,
2D1.4,
in
connection
then applicable
amount of drugs
-12-
"reasonably
capable" of
instruction applies
those who
producing
to buyers as
negotiate purchases
the
well as
larger
amount.
sellers and
from undercover
agents.
This
includes
United
______
States v. Frazier, 985 F.2d 1001, 1002-3 (9th Cir. 1993).
______
_______
There
can
be
no
question
that
appellant
He was
beginning, when
in the center
the
total
Casillas
the purchase of
of developments from
amount
was
contemplated
was
the
600
found that he
amount
kilograms of
conspiracy
of money
cocaine.
as
[He]
towards
the purchase
of
the 150
financier,
an
essential
part
in the
of
the
conspiratorial scheme."
to produce the
As one of
the
The
and the arguments of the parties, that Faccio had "negotiated the
amount
of 150
corresponding
kilograms of
to
quantity
cocaine, that
and
the
the amount
condition
[sic]
of money
for
the
a trial
drugs included in
court's determination of
the amount
of
strict "clearly
erroneous" standard.
Collazo,
_______
wrong in
the
second half of
to
receive
Panet______
United States v.
______________
of the scheme?
substantial
to provide
amounts
Whether or
of
cocaine
not Faccio
as
extra
irrational to find
contributed nearly
be
record of the
give a deed to
his property,
concluding
Specifically,
that
Faccio
and
and
pave
satisfactory, to the
the
way,
if
the
25 kilograms on
money
count
was
of 100 kilograms
it was
chapter
before.
The roles of
that reflected
both men
all
that had
gone
significant than
that of
a guard
for a "money
man" where,
in United States v.
______________
of the
size of the
cocaine deal
We
-14-
therefore
hold
that
the court's
findings
of
the appellants'
Faccio
is
150-kilogram
finding
by
arguing
that the
government
that he
was reasonably
capable
of buying
v. Bradley, 917
_______
that much
United States
_____________
the
F.2d 601,
604-05 (1st
proving
capability as
well as
intent to
produce
the quantity
the
to
government
this argument.
understand why.
The thrust
25
In
(note
the
district
of Faccio's objections to
kilograms.
He
nor
extent of the
limited to
below
12)),
capable
"did not
of
intend
producing the
he did not
U.S.S.G.
2D1.4,
to produce
negotiated
2D1.1,
inappropriateness
his pre-
as part of U.S.S.G.
the
we can
intended purchase
invoked
recognizing
court
and
was not
amount."
of
He
reasonably
also cited
Estrada-Molina.
______________
-15-
But even
at
the subsequent
report.
Faccio
hearing
on
objections
to
the
presentence
facilitating
the
kilograms.
The
purchase of
issue
of
more
than
Faccio's
25,
or at
capability
most
to
50,
produce
however,
the
leveraging
effect
of
considering
Our conclusion is
of 38.
purchase of
150 kilograms
August 10,
untaped meeting,
August 13 meeting
made wholly
down payment
delivery
supports the
was told
notwithstanding the
at the
fact that
The requirements
$400,000.
of complete
title
This
would trigger
to 25
kilograms
the
and delivery,
remaining $200,000.
court have
So
been clearly
on
for
to a
immediate
was
the
in cash.
of
And what
be: would
finding Faccio
the district
capable of
find in
Faccio's capacity to
On
unrebutted intimations
-16-
of
was recorded
saying that
he could give a
deed to his
by Casillas that
worth $800,000,
Then
by a
size of
"I
record discloses
that
there were five floors, that perhaps half had been sold (occupied
by
compelling
is the
unobjected
to,
valued
over
at
statement
that the
two
in
Faccio's pre-sentence
government had
million dollars.
court
absent any
surely entitled
indicia meet
capacity
was
if not
this
may not
not revealed.
accept
were misleading.
exceed those we
in United States v.
______________
to
report,
confiscated properties
All
Perhaps most
But
be
the
these figures,
All
of these
found sufficient
to prove
Bradley, 917
_______
F.2d 601
(1st Cir.
1990).
In objecting
stated that
seized
argue
to
he had
his pre-sentence
been able
to come
argument.
in
Even were
either
we to
his
report,
Bonilla
merely
up with
only the
money
appellate
consider such an
brief or
at
argument now,
oral
we
should have to
capacity of
treat Bonilla as
his co-conspirators.
reasonable
held in
we said
of a
defendant making a
Robles, appellant's
______
the
matter at hand."
similar argument
in Mena_____
at 19 (1st
conclusorily
total amount
the record.
Faccio and
Bonilla, we are
not
the purchases.
That
he
by
in this case.
Being a
inability to
990
F.2d
pay is not
1005,
controlling.
1006-08
(7th
United States
_____________
Cir. 1993).
He
v. Fowler,
______
supplied
the
that any
defendants'
ability to
finance
-18-
the down
payment
for the