USCA1 Opinion

June 12, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-1688

UNITED STATES,

Appellee,

v.

VICTOR SERNA-VEGA,

Defendant - Appellant.

____________________

No. 94-1689

UNITED STATES,

Appellee,

v.

ANGEL RAMOS-SANTIAGO,

Defendant - Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

_____________________

Carlos
A.
V zquez-Alvarez,
_____________________________
Defender,

with

whom

Benicio S nchez-Rivera,
_______________________

Defender, was on joint

and

Assistant

Federal

Public

Federal

Public

brief for appellant Angel Ramos-Santiago;

Jorge E. Rivera-Ortiz,
______________________

by

Appointment of

the

Court, for

appellant V ctor Serna-Vega.

Lisa A. Kahn,
_____________
Guillermo Gil,
______________

Attorney, Department

United

States

Attorney,

of Justice,
and

with whom

Warren V zquez,
_______________

Assistant United States Attorney, were on brief for appellee.

____________________

____________________

-4-

Per Curiam.
Per Curiam
___________

Defendants Victor

Serna-Vega and

Angel

Ramos-Santiago were each charged with

possess

with

kilograms

drug

distribute approximately

eleven kilograms

one

hundred

of

cocaine.

Serna-Vega was

also

with two counts of using a telephone in facilitating the

conspiracy.

Serna-Vega guilty on

guilty

to

of cocaine, and one count of possession with intent to

distribute

charged

intent

one count of conspiracy to

Following

six-day trial,

all counts.

The jury

the

jury found

found Ramos-Santiago

on the substantive possession count and not guilty on the

conspiracy count.

Serna-Vega

was

sentenced to

prison and Ramos-Santiago was sentenced

235 months

to 120 months in prison.

Both defendants appeal their convictions, and Serna-Vega

his sentence.

For the reasons stated herein, we affirm.

BACKGROUND
BACKGROUND
__________

in

appeals

The facts

the verdict.

Cir. 1993).

Special

are presented in the light most favorable to

United States v.
_____________

Echeverri, 982 F.2d 675, 676 (1st

_________

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

Agent

Jefferson

Mor n

("Agent

Mor n")

and

DEA

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

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

owner of a

car dealership in Gu nica,

one hundred kilograms of cocaine.

the

drug transaction

appellant

man."

Puerto Rico, to

sell him

At

the first meeting in which

was discussed,

Ayala-Rodr guez introduced

Victor Serna-Vega

("Serna-Vega")

as his

"right-hand

Serna-Vega was present for most of the subsequent meetings

-3-

where the

drug transaction was discussed, and

he conducted some

of the early negotiations with the government agents.

V lez-Torres

and

Agent

Mor n

--

whom

V lez-Torres

introduced as his Colombian partner -- visited the car dealership

on June

and

drug

14, 1993.

In a conversation recorded by Agent Mor n, he

Ayala-Rodr guez discussed

the logistics for

completing the

transaction, including who would pick up the drugs.

Serna-

Vega was present for this discussion.

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

and

Serna-Vega at

the

car dealership

on

June 22,

discussed the final plans for the drug transaction.

1993,

and

He testified

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

hundred

have

kilos and

been from

Ayala-Rodr guez responded,

the start."

They

agreed that

"Yes, yes,

as we

the transaction

would occur the next day.

On the morning of

and

appellant

restaurant

Angel

in Caguas,

June 23, V lez-Torres met Serna-Vega

Ramos-Santiago

Puerto

Rico.

("Ramos-Santiago")

Serna-Vega called

at

Ayala-

Rodr guez on a cellular phone and informed him that

V lez-Torres

had

bring V lez-

arrived.

Torres to

Ayala-Rodr guez told

the TMT pier in

Serna-Vega to

Isla Grande where he

was waiting for

two cars from

Serna-Vega and

the United States to

use to transport the

Ramos-Santiago drove to the

drugs.

pier in Serna-Vega's

car and V lez-Torres followed.

After meeting with Ayala-Rodr guez at the

Vega,

Ramos-Santiago,

and

V lez-Torres

went

with

pier, Serna-

him

to

-4-

restaurant in Isla Verde.

They discussed how they would complete

the drug

that

transaction with only

three cars.1

Serna-Vega stated

three cars would be sufficient because one could hold fifty

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

each.

Ramos-Santiago

reminded

Ayala-Rodr guez

that

he

had

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

the transaction.

After about an hour,

the group individually

to a

other DEA agents were waiting.

arrived at

V lez-Torres drove each member of

Holiday Inn where

As each of the four

and

individuals

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

designated room where a transaction

cocaine was

agent Mor n

completed.

involving eleven kilos of

The transactions

were recorded by

the

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

jury.

The individuals were placed under arrest as they departed

the hotel room.

DISCUSSION
DISCUSSION
__________

The

defendants raise a host

of issues on

appeal.

We

address their arguments seriatim.

I.
I.

Ramos-Santiago

argues

that

the

evidence

was

insufficient to support his conviction for possession with intent

to

distribute approximately

Fed. R. Crim. P. 29.

eleven kilograms

of cocaine.

See
___

He bears "the heavy burden of demonstrating

____________________

Ayala-Rodr guez had informed

them at the

pier that the

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

two

-5-

that

no reasonable jury could

reasonable doubt."

469 (1st Cir.),

the

evidence

have found [him]

United States
_____________

v. Innamorati, 996
__________

cert. denied, 114 S. Ct. 409

____________

in the

light

guilty beyond a

most favorable

"drawing all plausible inferences in its favor

(1993).

to

F.2d 456,

We review

the government,

and resolving all

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

Id.
__

The evidence adduced at trial was sufficient to sustain

the verdict.

DEA

Santiago was

informant V lez-Torres testified

present approximately an hour

that Ramos-

before the scheduled

pick-up during a discussion concerning the logistics of splitting

up the cocaine among the three cars.

V lez-Torres testified that

Ramos-Santiago reminded Ayala-Rodr guez

he had

promised

Ramos-Santiago

assistance in the transaction.

he and Ramos-Santiago drove

pick-up,

concerning

cocaine.

and

that

which car

one kilo

of

cocaine

for

his

V lez-Torres also testified that

together to the Holiday Inn

Ramos-Santiago

he was

during this meeting that

questioned

supposed to

use to

for the

V lez-Torres

transport the

Finally, the jury viewed an audio and videotape showing

Ramos-Santiago receiving

eleven kilos of cocaine

at the Holiday

Inn.

From

this evidence,

Ramos-Santiago knowingly

kilograms of cocaine.

1105, 1109

quantity

jury could

infer that

and intentionally possessed

the eleven

See
___

(1st Cir. 1993).

of

distribution.

429 (1st Cir.

cocaine

a reasonable

United States v.
_____________

Akinola, 985
_______

F.2d

The jury could also infer, from the

involved,

that

it

was

intended

for

See, e.g., United States v. Vargas, 945 F.2d 426,

___ ____ _____________
______

1991) (possession

-6-

of one kilogram

of cocaine

is

sufficient

intended

quantity to

merely for

support jury inference

personal

consumption).

that it

was not

The evidence

was

therefore sufficient for the jury to conclude beyond a reasonable

doubt that Ramos-Santiago

knowingly and intentionally

possessed

eleven kilograms of cocaine with the intent to distribute it.

II.
II.

Serna-Vega

admitting certain

argues

that

the district

co-conspirator statements

out-of-court statement by a co-conspirator

government established

by a

court

erred in

into evidence.

An

is not hearsay if the

preponderance of the

evidence that

the defendant and the declarant were members of a conspiracy when

the

statement

was

made and

that

the

statement

was made

in

furtherance of the

961

F.2d 972,

977

conspiracy.

See
___

(1st Cir.

1992)

Petrozziello, 548 F.2d

____________

801(d)(2)(E).

statements

in

20, 23

We need

this

not

case

United States v.
_____________

(citing United States

______________

(1st Cir. 1977));

determine

are

because we conclude

case,

admissions by a

801(d)(2)(A)

(an

admission

offered

Fed. R.

whether the

admissible

statements, however,

admissible as

McCarthy,
________

as

v.

Evid.

challenged

co-conspirator

that they are,

in any

party.

See Fed. R. Evid.

___

against

party

is

not

hearsay).

We

generally review

district

admit or exclude evidence under an abuse

United States v. Tuesta-Toro,

_____________
___________

court's decision

to

of discretion standard.

29 F.3d 771, 775 (1st

Cir. 1994),

-7-

cert. denied,
____________

115 S.

Ct.

discretion in this case.

two statements.

Torres

that

947 (1995).2

find

no abuse

of

Serna-Vega specifically challenges only

First, he

Serna-Vega

We

challenges the

said:

"Look,

testimony of

Ayala,

if

he

V lez-

has

the

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

in two

or three days."

V lez-Torres

has such

Second, he challenges

the testimony of

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

a big trunk, that

they could get fifty

kilos into it,

twenty-five in the Chevrolet

and twenty-five in the one

man

hundred."

has, and

contrary to

they were

there's

your

Serna-Vega's

position during

admissible through V lez-Torres

These

the old

statements

trial.

were

Accordingly,

as admissions against

interest under Federal Rule of Evidence 801(d)(2)(A).

See United
___ ______

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

______
_____

III.
III.

Serna-Vega argues that the

district court erred in not

providing a multiple conspiracy jury instruction.

Serna-Vega did

____________________

We review a

conspirator

district court's

statements

pursuant

decision whether to
to Federal

Rule

admit co-

of

Evidence

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

the decision is
applying

predicated on

the court's findings

the Petrozziello test (supra).

____________
_____

of fact

in

See McCarthy, 961 F.2d

___ ________

at 977; United States v. Patterson, 644 F.2d 890,

______________
_________

894 (1st Cir.

1981).

Serna-Vega

statements, but

alludes

generally

does not

specifically

statements.

We cannot

evidentiary

ruling

to

F.2d 1193,

appellant's

alleged

identify any

hearsay

challenged

conduct effective appellate review of

admitting

co-conspirator statements

reference to the challenged statement.

945

other

1199 (1st

with

statements.

-8-

absent

United States v. Isabel,

_____________
______

Cir. 1991).

general arguments

an

Accordingly,

respect to

we reject

alleged hearsay

not request such a jury charge, nor did he object

instructions.

Consequently,

establishing that

conspiracy

the trial court's

has

high

error."

burden

of

a multiple

See United States

___ _____________

F.2d 97, 100 (1st Cir.), cert. denied, 484 U.S.

_____________

844 (1987); Fed.

R. Crim. P. 52(b).

shocking that they seriously

Plain

errors are "those so

affect the fundamental fairness and

integrity of the proceedings."

982 F.2d 659,

the

failure to give

charge amounted to "plain

v. Griffin, 818
_______

basic

he

to the court's

663 (1st Cir. 1992).

United States v. Alvarado,

_____________
________

It

follows that such errors

will be

noticed only

circumstances

to

F.2d 1,

"exceptional cases

prevent

Griffin, 818 F.2d at

_______

870, 873 (1st

in

clear

or under

miscarriage

of

100 (quoting Nimrod v. Sylvester,

______
_________

peculiar

justice."

369 F.2d

Cir. 1966)); United States v. Ocasio-Rivera,

______________
_____________

3 (1st Cir. 1993).

context, is whether there

The test

for plain error,

in this

is a prejudicial variance between

conspiracy charged in the indictment and

991

the

the evidence adduced at

trial.

See United States v.

___ _____________

Thomas, 895 F.2d 51,

______

1990).

A variance will be deemed prejudicial only if it affects

the substantial rights of the accused.

55 (1st Cir.

Id.
__

The indictment charged a single conspiracy involving an

agreement

to

purchase

approximately one

hundred

kilograms of

cocaine.

The

government introduced evidence from which the jury

could infer that the negotiations for the purchase of the cocaine

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

the

conspiracy was, at all

hundred kilograms

of

times, the eventual

cocaine.

There

transfer of one

was evidence

which,

if

the conspiracy began

in

-9-

credited by the

jury, established that

early

March 1993

visit

to

when informant

Ayala-Rodr guez'

testimony

that

car

V lez-Torres made

dealership.

Ayala-Rodr guez originally

The

offered

his initial

jury

heard

to purchase

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

buy one

and

hundred kilograms.

the

During

government

a taped

Torres that

agent continued

further that

would

discussed at

he wanted to buy

then

bring

between the appellants

over

telephone conversation,

Ayala-Rodr guez was

the cocaine they

that he

Negotiations

the

next few

Serna-Vega told

still interested

together money

for

V lez-

in purchasing

the initial meeting.

two kilos first as

days.

He

stated

a sample, and

fifteen

kilos.

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

this size

for the buyer to purchase a sample of the drugs before

making the final purchase.

He testified that the

conversations

regarding the two and fifteen kilos

were part of the larger deal

for one hundred kilos.

The continuing negotiations

the

government

agents

support

the

between the defendants and

single

V lez-Torres testified that Ayala-Rodr guez

conspiracy charge.

showed him a deed to

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

automobile

had

registration titles to establish that Ayala-Rodr guez

the necessary collateral

transaction.

scheduled

Finally,

pick-up,

to complete

appellants took

and

Rodr guez intended to have

the

evidence

the large

three cars to

indicated

a fourth car delivered to

-10-

scale drug

make the

that

Ayala-

help carry

the cocaine.

Serna-Vega assured

enough because one car

him that three

cars would

be

could carry fifty kilos and the other two

could carry twenty-five each.

The

totality

of

the

evidence

indicates

conspiracy to purchase one hundred kilograms of cocaine.

no prejudicial

adduced

variance between the indictment

at trial.

single

We find

and the evidence

Accordingly, the court's failure to provide a

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

IV.
IV.

Serna-Vega

court with respect

challenges two

to his

sentence.

district court's finding that

the

possession offense

Sentencing Guidelines.

under

We

findings

by

First,

the

district

he challenges

he was a manager or

3B1.1(c) of

the

supervisor of

the

United States

review only for clear error.

United
______

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

______
_________

Under

3B1.1,

sentencing court

defendant's

base offense

establishes

that the crime involved

defendant "was

the

level by

two

points if

two or more

an organizer, leader, manager,

criminal activity.

An

evidence demonstrates that the

may

enhancement is

increase

the evidence

people and the

or supervisor" of

appropriate if

defendant "exercised some

the

degree

of

Id.
__

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

(quoting United States

_____________

(1st Cir.),

cert. denied,
____________

v. De La Cruz, 996 F.2d

___________

__ U.S.

(other citation omitted).

-11-

__, 114

1307, 1315

S. Ct. 356

(1993))

There was

which

the

exercised

criminal

ample evidence

sentencing

some supervisory

activity.

Rodr guez

Informant

court

could

control

Special Agent

introduced

presented in this

Serna-Vega

V lez-Torres testified

conclude

that

of others

his

Serna-Vega

involved in

Mor n testified

as

case from

the

that Ayala-

"right-hand

that Ayala-Rodr guez

man."

told him

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

Vega

suggested that

Ayala-Rodr guez ask

because Serna-Vega could

It was

for one

distribute fifty in two

Serna-Vega who conducted the initial

hundred kilos

or three days.

negotiations -- via

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

purchase of the cocaine.

meeting in

Finally, Serna-Vega was present for the

which Ayala-Rodr guez

would pick up the

and Agent Mor n

discussed who

cocaine, and Serna-Vega objected to

a certain

person being included in the drug pick-up.

The

delegated a

evidence

thus

certain amount

indicates

that

Ayala-Rodr guez

of responsibility to

Serna-Vega and

that he acted,

indeed, as Ayala-Rodr guez' right-hand

evidence

indicates

position,

also

in

he exercised supervisory

The court could infer

Ramos-Santiago

recruited

that,

was

this

relatively

friend

and

that

his assistance in the drug transaction.

Vega who brought

Ramos-Santiago to

scheduled pick-up.

-12-

The

powerful

control over Ramos-Santiago.

from the evidence presented at

Serna-Vega's

man.

San Juan on

trial that

Serna-Vega

It was Serna-

the day of

the

Based on

court's finding

the foregoing, we conclude

that Serna-Vega was

that the district

a manager or

supervisor of

the offense conduct was not clearly erroneous.

Serna-Vega also contends that

considering

the full hundred

kilos of cocaine

base offense

level under the sentencing

argues

the

that

court

the trial court erred in

should

have

in computing his

guidelines.

found

that

Serna-Vega

he

was

not

reasonably capable of

amount of drugs

producing the purchase money for

and, therefore,

actually purchased should

See U.S.S.G.
___

2D1.1

that only the

have been

n.12.

eleven kilos

considered for

For sentencing, the

the full

he

sentencing.

government need

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

we

review the sentencing court's

United States v. Cetina-G mez,

______________
____________

findings only for clear error.

951 F.2d

432, 434-35

(1st Cir.

1991).

The jury found Serna-Vega

conspiracy

to

possess with

kilograms of cocaine.

which

the

court

intent

guilty of participating in a

to

distribute one

hundred

In addition, there was ample evidence from

could

determine

that

the

members

of

the

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

complete

the transaction.

Rodr guez intended to

The

evidence indicated

put up his

that Ayala-

car dealership, including

the

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

collateral for

the transaction.

conclude that the court's

Under these

circumstances, we

finding with respect to

was not clearly erroneous.

-13-

drug quantity

V.
V.

Appellants raise one final argument which requires only

brief

discussion.

instructed the

On

the

first

day

jury that Serna-Vega and

of

trial,

the

court

Ramos-Santiago had pled

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

the jury.

Appellants contend that this instruction implied that

other co-defendants named in

the indictment had pled

that appellants were prejudiced

maintain

that

instruction with

the

court

by this implication.

should

have

respect to the missing

given

guilty and

Appellants

cautionary

co-defendants.

Neither

appellant requested such an instruction and, therefore, we review

only for plain error.

Alvarado, 982 F.2d at 663.

________

We have approved the use of a cautionary instruction in

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

See, e.g., United States v.

___ ____ ______________

Cir.

1987)

speculate

(approving

Chapdelaine, 989 F.2d

___________

not

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

The

not implicated

defendants pled guilty

admonishment

that

(1st

jurors

same concerns are

court's

28, 32

in this case

prior to the

because the

commencement of the

co-

trial.

Therefore, the jurors never saw

the co-defendants and would have

no reason

their sudden

courtroom.

the charges

Under

to

speculate

about

Moreover, there was no suggestion

against the

absence

court's failure to provide,

we

discern no

the

at trial as to how

other co-defendants had

these circumstances,

from

plain

been disposed.

error in

the

sua sponte, a cautionary instruction

__________

with respect to the missing co-defendants.

-14-

CONCLUSION
CONCLUSION
__________

For the foregoing reasons, appellants'

sentences are affirmed.

affirmed
________

convictions and

-15-