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USCA1 Opinion
April 25, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1352
UNITED STATES,
Appellee,
v.
JAIRO GIRALDO-PARRA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Luis Rafael-Rivera for appellant.
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Jos A. Quiles-Espinosa, Senior Litigation Counsel, with whom
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Guillermo Gil, United States Attorney, was on brief for appellee.
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BOWNES, Senior Circuit Judge. A jury convicted
BOWNES, Senior Circuit Judge.
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defendant-appellant Jairo Giraldo Parra of conspiracy to
possess cocaine and heroin with intent to distribute, 21
U.S.C. 846; and possession of cocaine and heroin with
intent to distribute, 21 U.S.C. 841(a)(1). He was also
convicted under the "principals" statute, 18 U.S.C. 2.
Defendant was sentenced to 151 months of incarceration.
There are two issues on appeal: (1) whether the
district court erroneously denied defendant's Rule 29 motion
for acquittal and (2) whether the district court incorrectly
applied the Sentencing Guidelines in determining defendant's
sentence.
I.
I.
THE EVIDENCE
THE EVIDENCE
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We review the relevant evidence and draw reasonable
inferences therefrom, in the light most favorable to the
government. United States v. Mena-Robles, 4 F.3d 1026, 1029
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(1st Cir. 1993); United States v. Hernandez, 995 F.2d 307,
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311 (1st Cir. 1993). Defendant's arrest and indictment
followed a Drug Enforcement Administration (DEA) sponsored
undercover operation spanning the last five months of 1991.
Five others were also caught in the undercover net and were
indicted along with defendant. Although defendant was the
sole defendant at trial, the co-conspirators' names appear in
the record and are essential to understand the evidence:
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Oscar Gonzalez Lopez; Daniel Alberto Atilio Adinolfi; Victor
Rodriguez Alvarez; John Doe, a/k/a Edgardo Rodriguez; and
Jorge Omar Lopez Almeida. As is usual in a drug undercover
operation, many of the conversations, telephone and face-to-
face, were recorded.
Defendant was the owner-operator of a restaurant
called "Mi Pequena Colombia" located on Domenech Avenue in
Hato Rey. The undercover operation started on August 21,
1991, when DEA Agent Jefferson Moran and Pablo Rivera, a
member of the Police of Puerto Rico assigned to the DEA, met
with Oscar Gonzalez Lopez (Oscar) at a shopping center in Rio
Piedras, Puerto Rico. DEA Agent Moran was introduced to
Oscar by Agent Rivera as being interested in buying cocaine
or heroin. Oscar made a telephone call from a public phone
booth. He then asked the agents for $250 to obtain two
samples of heroin. After obtaining the money, he accompanied
the agents to Domenech Avenue, where he left the car and
headed in the direction of defendant's restaurant. He
returned shortly and gave Agent Moran a cigarette package
containing two separate samples of heroin. Between August 23
and 29, Oscar and Agent Moran discussed, mostly by telephone,
the purchase of an ounce of heroin for $7,500. On August 29,
Oscar and the two agents met and went together to defendant's
restaurant. At the restaurant they were introduced to Victor
Rodriguez Alvarez (Victor). Victor asked for the payment of
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$7,500 before turning over the heroin. After receiving the
money, he went into the restaurant and gave it to the
bartender, Edgar Rodriguez Velazquez (Edgar).1 Edgar then
gave Victor the heroin, who delivered it to Agent Moran.
Victor went back into the restaurant and asked if defendant
had called and Edgar said "No." Later, defendant called
Edgar and was told that Victor had delivered the merchandise
and he, Edgar, had the $7,500. Sometime later defendant came
to the restaurant and the $7,500 was turned over to him by
Edgar.
On September 13, 1991, Agent Rivera was called by
Victor and it was agreed that Victor would sell Rivera an
ounce of heroin for $7,000. Agent Rivera then proceeded to
defendant's restaurant and asked Edgar where Victor was.
Defendant was present when the inquiry was made. Rivera was
told that Victor was at a nearby pizzeria. Rivera made the
"buy" at the pizzeria. He paid Victor $7,000 and received
from him an ounce of heroin. After the transaction, Victor
went to defendant's restaurant and met with defendant, Edgar,
and Daniel Alberto Atilio Adinolfi (Atilio). The $7,000 was
given to Atilio, who passed it to Edgar, who put it under the
counter.
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1. Named in indictment as John Doe a/k/a Edgardo Rodriguez.
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On September 25, 1991, Agent Moran called
defendant's restaurant and asked for Victor. Defendant
answered the phone and after the inquiry, put Edgar on the
line. Moran asked Edgar to have Victor call him. Later
Victor called Agent Rivera and they set up a meeting at the
pizzeria near defendant's restaurant. Before meeting Rivera
at the pizzeria, Victor went to defendant's restaurant and
obtained an ounce of heroin from Atilio. Defendant and Edgar
were at the restaurant at the time the heroin was obtained.
Victor delivered the heroin to Rivera in return for the
payment of $7,000. Victor returned to the restaurant, gave
the money to Atilio and asked for his commission. Atilio
refused to give Victor a commission; instead he referred him
to defendant. Defendant told Victor that no commission would
be paid because Victor owed him $200. This was the end of
Victor's dealings with the undercover agents. Presumably,
defendant and his cohorts found out that he had been dealing
with a DEA agent.
In late November or early December, the DEA
recruited a confidential informant, Eliezer Gallegos, to join
its undercover operation. On December 5, Gallegos met with
defendant and Atilio at the restaurant where the purchase of
one-half of a kilogram of cocaine for $5,000 was discussed.
On December 6, another negotiation meeting was held at the
restaurant. At the end of the conversation, Atilio told
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Gallegos that they would take a ride and complete the deal.
Defendant had told Atilio: "If he is going to buy the car,
take him around for a ride so he will get acquainted with
it." Gallegos understood this to mean that the cocaine was
in a car. Gallegos and Atilio left the restaurant, got into
a car, and drove around the block. The "buy" was made in the
car; Gallegos paid Atilio $5,000 and received half a kilogram
of cocaine. During the drive around the block they were
followed by Jorge Omar Lopez Almeida, who was riding a
motorcycle. Presumably, this was to protect the "buy."
Later that same day, Gallegos called the restaurant
and told Edgar that the half kilo of cocaine was short by six
grams. On December 11, Gallegos called Atilio and told him
that the cocaine he had bought was six grams less than the
amount agreed upon. Atilio promised Gallegos that he would
make up the shortage the next day and sell him a sample of
heroin for $200. Gallegos went to the restaurant the next
day. Defendant was at a table with two unknown persons.
Atilio was at another table with Edgar. Gallegos asked
Atilio for the six grams of cocaine and the heroin sample.
He was told by Atilio to wait because defendant was busy. A
little later Atilio went over to defendant who gave him a
package. Atilio passed the package to Gallegos. It
contained six grams of cocaine and a heroin sample. The next
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day Gallegos went to the restaurant and paid Edgar $200 for
the heroin sample.
It was stipulated that the drugs bought by the
undercover agents and the confidential informant tested out
as heroin and cocaine.
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II.
II.
DISCUSSION
DISCUSSION
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A. The Rule 29 Motion2
A. The Rule 29 Motion
Defendant argues that the district court erred in
denying his Fed.R.Crim.P. 29 motion for judgment of
acquittal. In reviewing the denial of a Rule 29 motion, we
consider all the evidence, draw all reasonable inferences
therefrom, and resolve all issues of credibility in the light
most favorable to the government, in order to determine
whether a jury could have reasonably concluded that defendant
was guilty beyond a reasonable doubt. Mena-Robles, 4 F.3d at
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1031; Hernandez, 995 F.2d at 311.
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The thrust of defendant's argument is that he was
simply an honest businessman and restauranteur whose
misadventure it was that drug dealers operated on his
premises without his blessing, knowledge, or participation.
In support of this position, defendant points out that none
of the myriad DEA recordings or photographs introduced at
trial capture him conducting an illicit drug transaction. We
have reviewed the record carefully and, while we concur with
defendant's contention that the government did not produce
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2. Fed.R.Crim.P. 29 states, in relevant part: "The court on
motion of defendant or on its own motion shall order the
entry of judgment of acquittal of one or more offenses
charged in the indictment or information after evidence on
either side is closed if the evidence is insufficient to
sustain a conviction of such offense or offenses."
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any direct evidence of his complicity, we must reject both
his premise and his conclusion, because neither has a legal
basis. To the contrary, it is a well-established principle
that,
[t]he evidence [introduced against the
defendant at trial] may be entirely
circumstantial, and need not exclude
every reasonable hypothesis of innocence,
that is, the factfinder may decide among
reasonable interpretations of the
evidence.
United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.
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1991)(citations omitted).
Defendant has attempted to rely on "mere presence"
as a defense to the charges of conspiracy, possession, and
distribution. Of course, in establishing a conspiracy
charge, the prosecution must prove intent to agree and commit
the substantive offense beyond a reasonable doubt, Mena-
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Robles, 4 F.3d at 1031. The evidence for such proof,
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however, may be either express or inferred from conduct, and
if circumstantial evidence raises reasonable inferences
sufficient to refute the claim of mere presence, it is enough
to sustain the verdict. Id.; Batista-Polanco, 927 F.2d at 18.
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Further informing this analysis is the oft-repeated truism
that participants in a criminal conspiracy are unlikely to
permit or tolerate the presence of extraneous observers, and
a jury is presumed capable of drawing such an inference.
United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992).
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In the case at bar, the evidence shows that all the
drug transactions which form the basis of the indictment took
place in and around "Mi Pequena Columbia," defendant's
restaurant. There is ample evidence that defendant was
present either before, after, or during each of the "buys."
The jury could reasonably infer that the drug transactions
were authorized and controlled by defendant and that he was
the source of supply. Accordingly, we reject defendant's
contention that the evidence of his guilt was insufficient.
B. Sentencing Claims
B. Sentencing Claims
The court enhanced defendant's base offense level
by four levels for his role as an organizer in the drug
trafficking conspiracy, U.S.S.G. 3B1.1, and by two levels
for obstruction of justice, U.S.S.G. 3C1.1. At the same
time, the court denied defendant's request for a two level
downward adjustment for acceptance of responsibility.
Defendant argues that the court erred in each of these
determinations.
We will disturb supported findings of a sentencing
court only when our review of the record "convinces us that a
grave mistake was made." United States v. Bradley, 917 F.2d
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601, 605 (1st Cir. 1990).
1. Role in the Offense
1. Role in the Offense
Based on the number of individuals involved, the
nature of the enterprise, and the defendant's leadership
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role, the district court imposed a four level upward
adjustment to defendant's base offense level under U.S.S.G.
3B1.1(a).3 Because role in the offense adjustments are
necessarily fact specific, the findings of the sentencing
court are reviewed under a deferential standard. See United
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States v. Morillo, 8 F.3d 864, 873 (1st Cir. 1993); United
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States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991). The
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"standard of review for the sentencing court's upward
adjustment for defendant's leading role in the offense ...
[is] clear error." United States v. Reyes, 927 F.2d 48, 50
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(1st Cir. 1991).
The evidence established that the drug activity
took place almost exclusively in and around defendant's
restaurant. Moreover, there was testimony to the effect that
transactions took place only when defendant was entering,
leaving, or physically present at the restaurant. From this
alone the judge could have reasonably concluded that
defendant was the organizer and leader of a group of drug
dealers. Added to this we have the testimony of one of the
co-conspirators, Victor Rodriguez, that defendant ran the
operation, and that he alone could determine whether Victor
was to be paid a commission on the sales he made.
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3. Section 3B1.1(a) provides that "If the defendant was an
organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive, increase by
4 levels."
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We reject defendant's claim of error as to the
four-levelenhancement for hisrole in theoffense as meritless.
2. Obstruction of Justice
2. Obstruction of Justice
At trial, Victor Rodriguez testified that defendant
had approached him during their pretrial detention and
requested that Victor write a letter to the trial judge
explaining that defendant had no involvement in the counts
charged in the indictment. This letter was solicited as a
quid pro quo, in exchange for which defendant would see to it
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that Victor's family was adequately provided for while Victor
was incarcerated. Victor also testified, and the presentence
report states, that co-conspirator Atilio threatened that
Victor would be harmed if he were to provide assistance to
the government. This was clearly an attempted obstruction of
justice. Section 3C1.14 of the guidelines calls for an
enhancement of two levels for such conduct. Such an
enhancement, like that for a leadership role in the offense,
is fact-based and therefore reviewed for clear error. United
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States v. Gonzales, 12 F.3d 298, 299 (1st Cir. 1993);
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Akitoye, 923 F.2d at 229. There was no error, clear or
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4. Section 3C1.1 states: "If the defendant willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the investigation,
prosecution, or sentencing of the instant offense, increase
the offense level by 2 levels."
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otherwise, by the court in applying the obstruction of
justice guideline.
3. Acceptance of Responsibility
3. Acceptance of Responsibility
Defendant has a threshold problem in attacking the
lower court's determination that he did not qualify for a
downward adjustment for acceptance of responsibility. In
Gonzales, we held that "[o]nly 'extraordinary cases' qualify
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for an acceptance of responsibility credit following an
enhancement for obstruction of justice." Gonzales, 12 F.3d at
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300, (quoting U.S.S.G. 3E1.1, comment (n.4)). In this
case, there was testimony at trial and at the sentencing
hearing showing that, even after being incarcerated,
defendant actively sought to mislead the trial court in order
to escape responsibility for the charges against him. These
are the same charges for which he now alleges to have
accepted responsibility.
Only at his presentence interview and in his
allocution at the sentencing hearing did defendant accept
responsibility for his actions, and he did so only in a
limited manner. The district judge found that "the defendant
had not" accepted responsibility within the meaning of the
guidelines, and that the acceptance made was not authentic
and was devoid of remorse. Findings as to these factors will
not be reversed absent clear error. United States v. Ocasio-
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Rivera, 991 F.2d 1, 4-5 (1st Cir. 1993); United States v.
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Royer, 895 F.2d 28, 29 (1st Cir. 1990) ("Because the
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sentencing judge has the unique opportunity of observing the
defendant, hearing his allocution, and evaluating acceptance
of responsibility . . . against the backdrop of the case as a
whole,hisdetermination isentitled toagreat dealof respect.").
Accordingly, we reject defendant's claim that he
was entitled to a two level reduction for acceptance of
responsibility.
The judgment of the district court is
Affirmed.
Affirmed.
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Document Info
Docket Number： 93-1352
Filed Date： 4/25/1994
Precedential Status： Precedential
Modified Date： 9/21/2015