-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2034
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE HERNANDEZ,
Defendant, Appellant.
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No. 91-2035
UNITED STATES OF AMERICA,
Appellee,
v.
AGUILINO JOSE SANCHEZ,
Defendant, Appellant.
_____________________
No. 91-2036
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE L. SOSTRE,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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____________________
Before
Torruella, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Robert R. Anderson for appellant Hernandez.
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Ernest Barone for appellant Sanchez.
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Joel D. Landry for appellant Sostre.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Lincoln C. Almond, United States Attorney, James H. Leavey, Assistant
__________________ _______________
United States Attorney, and Kenneth P. Madden, Assistant United States
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Attorney, were on brief for appellee.
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May 12, 1993
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CYR, Circuit Judge. Following trial, defendants Jose
CYR, Circuit Judge.
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Hernandez, Aguilino Jose Sanchez, and Jorge Luis Sostre (herein-
after, collectively: "appellants") were convicted and sentenced
on various charges arising out of an undercover cocaine transac-
tion in Providence, Rhode Island. Finding no error, we affirm.
I
I
BACKGROUND
BACKGROUND
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In February 1991, Rodrigo Sostre ("Rodrigo"), through
an intermediary, offered to sell a kilogram of cocaine to Frdy
Vegas, a paid DEA informant. While consulting with his usual
cocaine source, one Luis Guillermo Santiago-Martinez, Rodrigo
repeatedly spoke by telephone with Vegas between February 15 and
February 19, finally arranging for the drug transaction to take
place at Rodrigo's apartment on the afternoon of February 19.
At 2:00 p.m. on February 19, Rodrigo and his brother
Jorge Luis Sostre ("Jorge") met Vegas and an undercover DEA
agent, Anthony Roberto, on the front porch of Rodrigo's apartment
building. Agent Roberto asked Rodrigo if "everything [was]
ready," and Rodrigo responded that "the people were on their
way." Rodrigo went upstairs to his second floor apartment to
phone his "source." When he returned to the porch, Rodrigo
stated that the cocaine was of good quality, and that his neigh-
borhood was a much safer place for a drug transaction because
3
there was "less police activity." Jorge agreed with his brot-
her's assessment.
At 2:15 the cocaine had not yet arrived, and Rodrigo
returned to his apartment to make another phone call. Jorge, who
remained on the front porch with Vegas and Agent Roberto, stated:
"I don't blame you guys to leave [sic], you've got a lot of money
and that's a lot of merchandise to be waiting around for."
Rodrigo returned, informing Vegas and Agent Roberto: "they [are]
on their way." After a third unsuccessful phone call by Rodrigo,
Vegas told the Sostre brothers that he would wait at a nearby
store until notified by beeper that the cocaine had arrived.
In the meantime, DEA agents observed appellants Sanchez
and Hernandez as they arrived by car at the residence of Santia-
go-Martinez, Rodrigo's usual drug supplier. Santiago-Martinez
entered the back seat of the car, which then proceeded to Ro-
drigo's apartment, arriving at approximately 2:54. At approxi-
mately the same time, Vegas's beeper was activated, and he
returned with Agent Roberto to Rodrigo's apartment house, where
the Sostre brothers met them on the front porch. Rodrigo brought
them upstairs, while Jorge remained on the porch. Once inside
the upstairs apartment, Rodrigo locked the door. Sanchez,
Santiago-Martinez, and Hernandez were inside the apartment as
well, standing around a table upon which lay a one-kilogram
package of cocaine which later tested 94% pure. Agent Roberto
inquired in Spanish: "Why do you need three people?" Sanchez
responded in Spanish: "That's the way I do business." After
4
inspecting the cocaine, Agent Roberto went out to his car,
ostensibly to get the $28,000 purchase money, and signalled for
the waiting DEA agents to raid the apartment. Just after the
raid commenced, DEA agents saw Jorge walk off the front porch "in
a rapid manner," then "start casually slowing down and walking up
the sidewalk." Jorge was arrested, as were Rodrigo, Santiago-
Martinez, Sanchez, and Hernandez. Hernandez had a loaded semi-
automatic in his possession at the time of his arrest. The five-
count indictment followed, and Hernandez, Sanchez, and Jorge
Sostre were convicted on all charges.1
II
II
DISCUSSION
DISCUSSION
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A. Hernandez' Appeal.
A. Hernandez' Appeal.
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Hernandez challenges the district court's refusal to
instruct the jury that he could not be convicted on Count 3
(using or carrying a firearm during and in relation to a drug
____________________
1The original indictment charged appellants, along with
Santiago-Martinez and Rodrigo Sostre, in two counts: Count 1
(conspiracy to distribute and to possess with intent to dis-
tribute, 21 U.S.C. 846) and Count 2 (possession of cocaine with
intent to distribute, id. 841(a)(1), (b)(1)(B); 18 U.S.C.
___
2). Only Sanchez and Jorge appeal their convictions on counts 1
and 2.
The indictment charged Hernandez and Sanchez in two counts:
Count 3 (using or carrying a firearm during and in relation to a
drug trafficking offense, 18 U.S.C. 924(c)(1); id. 2), and
___
Count 4 (possession of a firearm by an illegal alien, id. 922-
___
(g)(5); id. 2). After trial, Sanchez won a judgment of acquit-
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tal on Count 3. Hernandez appeals his conviction under Count 3.
The government dismissed Count 4 prior to trial. Finally,
Sanchez appeals his conviction under Count 5 (possession of a
firearm by a convicted felon, id. 922(g)(1); id. 2).
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5
trafficking offense, 18 U.S.C. 924(c)(1)) for "mere possession"
of a firearm, but that the government was required to prove that
the firearm was an "integral part" of the offense, or that his
possession of it was made known to others present during the drug
_____
transaction.2 These arguments are without merit.
The challenged instruction recited the corresponding
principles that a conviction under section 924(c) would not be
warranted for "mere possession," and that the jury must find that
the firearm "facilitated" the crime.3 As the district court
suggested, the "facilitation" element of section 924(c) would
depend on whether Hernandez' intent was reasonably inferable from
the totality of the circumstances, which is "a matter for a
[trier of fact] applying common sense theories of human nature
and causation." United States v. Plummer, 964 F.2d 1251, 1255
_____________ _______
____________________
2Hernandez' proposed instruction provided, in its entirety:
"Possession of a firearm constitutes use in relation to drug
trafficking offense if possession is [sic] integral part of, and
facilitates commission of, drug trafficking offense."
3The jury was instructed that:
The term "used or carried a firearm" includes the act
of carrying, wearing, or using a firearm. The firearm
must be within the Defendant's reach at the time of the
offense. Mere possession of a firearm is not sufficient
proof. The government must prove the firearm facilitat-
ed the drug-trafficking crime. To facilitate is a [sic]
crime does not require actual use of a firearm. Howev-
er, a Defendant may not be convicted of this offense
unless the jury finds beyond a reasonable doubt from
the circumstances, the Defendant intended to use the
________ __ ___
firearm if a contingency arose potentially requiring
its use or that the Defendant intended to use it to
possibly facilitate escape should the need arise.
(Emphasis added.)
6
(1st Cir.) (quoting United States v. Wilkinson, 926 F.2d 22, 26
______________ _________
(1st Cir.1991)), cert. denied, 113 S. Ct. 350 (1992). Given the
_____ ______
$28,000 in cash being exchanged for the kilogram of cocaine, as
well as Hernandez' proximity to the cocaine during the exchange
and the fact that there was a bullet in the chamber of the gun,
the challenged instruction provided adequate guidance on "facili-
tation."
As to Hernandez' second contention, it is simply not a
correct statement of the law that the presence of a firearm used
to "facilitate" a drug trafficking offense need be made known to
other participants in the transaction. See United States v.
___ _____________
Abreu, 952 F.2d 1458, 1466 (1st Cir.), cert. denied, 112 S. Ct
_____ _____ ______
1695 (1992); United States v. Hadfield, 919 F.2d 987, 997 (1st
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Cir. 1990), cert. denied, 111 S. Ct. 2036 (1991); see also United
_____ ______ ___ ____ ______
States v. Jones, 965 F.2d 1507, 1514-15 (8th Cir.), cert. denied,
______ _____ _____ ______
113 S. Ct. 346 (1992); United States v. Contreras, 950 F.2d 232,
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241 (5th Cir. 1991), cert. denied, 112 S. Ct. 2276 (1992); United
_____ ______ ______
States v. Torres-Medina, 935 F.2d 1047, 1049 (9th Cir. 1991);
______ _____________
United States v. Paz, 927 F.2d 176, 179 (4th Cir. 1991); United
_____________ ___ ______
States v. Torres, 901 F.2d 205, 217 (2d Cir. 1990); United States
______ ______ _____________
v. McKinnell, 888 F.2d 669, 674-75 (10th Cir. 1989); United
_________ ______
States v. Acosta-Cazares, 878 F.2d 945, 951 (6th Cir.), cert.
______ ______________ _____
denied, 493 U.S. 899 (1989). The challenged instruction provided
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the jury with an accurate statement of the law.
B. Sanchez' Appeal.
B. Sanchez' Appeal.
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7
Sanchez advances four claims on appeal, which we
consider in turn.
8
1. Sufficiency of Evidence of Conspiracy and Possession.
1. Sufficiency of Evidence of Conspiracy and Possession.
____________________________________________________
Sanchez contends that the government did not introduce
enough evidence to support his conviction under Count 1 (conspir-
acy to distribute and to possess with intent to distribute, 21
U.S.C. 846) and Count 2 (possession of cocaine with intent to
distribute, id. 841(a)(1), (b)(1)(B); 18 U.S.C. 2), but that
___
the evidence instead proved "mere presence" at the site of the
crime, and that he was therefore entitled to judgments of acquit-
tal. On review of a district court ruling under Fed. R. Crim. P.
29, we evaluate the evidence, draw all reasonable inferences, and
resolve all credibility determinations in the light most favor-
able to the government. United States v. Yefsky, No. 90-1174,
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slip op. at 6 (1st Cir. May ___, 1992); United States v. Wight,
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968 F.2d 1393, 1395 (1st Cir. 1992).
Our review satisfies us that the jury supportably could
have found, beyond a reasonable doubt, that Sanchez was the
individual who transported the cocaine to Rodrigo's apartment on
February 19, 1991. Vegas and Agent Roberto had asked to be
summoned by beeper as soon as the cocaine arrived. They were
summoned at approximately the same time Sanchez arrived at the
apartment, giving rise to a reasonable inference that Sanchez was
the "source," or that a person "in charge" of the transaction had
finally arrived.4 Moreover, inside the apartment, it was San-
____________________
4The record provides no direct support for the government's
contention that the beeper was activated at precisely 2:55 p.m.,
i.e., one minute following Sanchez' and Hernandez' arrival at the
____
crime scene. We note, however, that Agent Roberto merely testi-
fied that the beeper signal came at "approximately 2:50," and
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9
chez who advised Agent Roberto: "That's the way I do business."
In the circumstances revealed by the evidence, this admission
would support a jury determination that Sanchez not only partici-
pated in the transaction but was in charge of supplying the
cocaine to Rodrigo for sale to Roberto.5
In an effort to negate the latter evidence, Sanchez
contends that, without his alleged incriminatory statement to
Agent Roberto, the government would not have had sufficient
evidence to convict. Citing two allegedly erroneous evidentiary
rulings, Sanchez argues that the district court improperly
restricted his defense, by which he sought to establish that
Agent Roberto was less than fluent in Spanish and may have
mistranslated Sanchez' Spanish statement into English during
direct examination at trial.6
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Vegas and Roberto, who were waiting at a nearby store, returned
to Rodrigo's apartment at 2:58.
5Sanchez argues that Santiago-Martinez testified that
Sanchez did not make this comment to Agent Roberto. To the
extent this alleged conflict in testimony necessitated a credi-
bility determination, we must presume the jury found Roberto more
credible. Furthermore, Santiago-Martinez' testimony could be
understood as indicating his lack of recollection ("I wasn't
paying attention"), rather than as stating that no such comment
was made.
6Roberto, a DEA agent since the early 1980s, testified that
he had taken a four-month Spanish course in 1984, was stationed
in Monterey, Mexico from 1984 through 1986, attended an advanced
Spanish course in 1986, and used his Spanish language experience
daily as a DEA agent. Sanchez does not appear to challenge the
original admission of Roberto's interpretive testimony, to which
defense counsel raised no objection at trial. Accordingly, we
deem the issue waived. He merely argues that he should have been
allowed more opportunity to impeach Roberto on cross-examination
and on rebuttal.
10
The trial court has broad discretion over the scope and
extent of cross-examination. United States v. Figueroa, 976 F.2d
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1446, 1457 (1st Cir. 1992); United States v. Berrio-Londono, 946
_____________ ______________
F.2d 158, 160 (1st Cir. 1991), cert. denied, 112 S. Ct. 1223
_____ ______
(1992). Sanchez contends that the district court cut short his
cross-examination of Agent Roberto concerning his proficiency
with the Spanish language. We do not agree. Out of the hearing
of the jury, the district court merely questioned the relevancy
of defense counsel's line of questioning, which had become mired
in minute detail concerning the identity of Agent Roberto's
neighbors while he was residing in Monterey during 1986. At no
time did the court prohibit defense counsel from continuing the
line of questioning, nor does the record reflect any objection to
the district court's statements. In fact, when the jury was
returned to the courtroom, defense counsel posed a follow-up
question along the same line. There was no error.
Sanchez also claims that his Sixth Amendment right to
confrontation was violated by the court's refusal to allow him to
call the person who was serving as the court-appointed interpret-
er during Agent Roberto's direct examination.7 Sanchez argues
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7The court explained its ruling as follows:
I was advised yesterday afternoon that the Interpreter
whom we had here yesterday afternoon had been told to
appear here today to testify. I advised, I sent work
[sic] to him that he was not to come here today. I
_
can't for the life of me understand why he would be
_____ ___ ___ ____ __ __ __________ ___ __ _____ __
asked to testify in the first place. In the second
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place, I'm not going to permit someone to come into
this courtroom, and in front of the jury interpret
testimony and then put that same person on the witness
stand to give opinion testimony as to one's control of
11
that the interpreter could have testified that Roberto's transla-
tion of Sanchez' incriminatory statement was unreliable, or that
Sanchez' statement was susceptible to a less incriminating
English rendition. However, defense counsel neither objected to
the district court's exclusionary ruling nor made an offer of
proof pursuant to Fed. R. Evid. 103(d), notwithstanding the
court's express statement that it could not understand "why the
[interpreter] would be asked to testify in the first place." See
___
supra note 7. Accordingly, we review for "plain error" affecting
_____
the "fundamental fairness" of the trial. United States v.
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Tracy, Nos. 92-1459, 92-1461, 92-1554, 1993 U.S. App. LEXIS 6245,
_____
at 12 (1st Cir. Mar. 29, 1993); United States v. McGill, 952 F.2d
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16, 18 (1st Cir. 1991).
Sanchez argues that the interpreter's testimony was the
only practicable way to convey to a non-Spanish-speaking jury the
untrustworthiness of Agent Roberto's testimony. Even discounting
defense counsel's unexplained failure to come forward with either
an objection or the "invited" offer of proof, cf. Hernandez-Garza
___ _______________
v. INS, 882 F.2d 945, 948 (5th Cir. 1989) (immigration judge
___
erred by refusing to allow party to test INS agent's fluency in
Spanish, and by dismissing party's observation "that a qualified
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the Spanish language. That's vouching in the highest
order. Anything else?
(Emphasis added.)
12
interpreter was present"),8 Sanchez does not explain why it was
necessary that the court-appointed interpreter testify, particu-
larly in light of the district court's plainly stated concern
that the interpreter might be placed in the position of appearing
to vouch for or against a translation previously rendered in his
role as court-appointed interpreter. Agent Roberto's proficiency
in Spanish could as well have been tested on cross-examination9
or through an interpreter selected by the defense, as indeed
could other possible translations of Sanchez' incriminating
remark. Therefore, even if defense counsel believed the district
court was adamantly opposed to calling the court-appointed inter-
preter, there was no apparent reason for neither explaining the
defense's position nor requesting a continuance to obtain an
interpreter. Finally, since Sanchez has never suggested another
English translation of the incriminating statement, there has
been no showing of plain error.
2. Evidence of Constructive
2. Evidence of Constructive
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8At oral argument, Sanchez' counsel explained that not all
objections can be made in "the heat of trial." Yet it is pre-
cisely in the "heat of trial" that counsel's timely articulation
of grounds for proposing or opposing the admission of evidence is
most important to the trial court. Similarly, "[i]f lawyers
could pursue on appeal issues not properly raised below, there
would be little incentive to get it right the first time and no
end of retrials." Poliquin v. Garden Way, Inc., ___ F.2d ___,
________ ________________
___ (1st Cir. 1993) [Nos. 92-1115, 92-1116, slip op. at 8 (1st
Cir. Mar. 24, 1993)].
9Indeed, during his extended cross-examination of Agent
Roberto, Sanchez' counsel was allowed great latitude, and engaged
Roberto in a prolonged exercise in which he asked Roberto to give
Spanish-English and English-Spanish translations for a series of
common expressions.
13
Possession of Firearm.
Possession of Firearm.
_____________________
Sanchez argues that he could not be convicted on Count
5 (transportation of a firearm by a convicted felon, 18 U.S.C.
922(g)(1)) for "constructive possession" of Hernandez' firearm
because the government introduced no direct evidence that Sanchez
______
knew that Hernandez was carrying it. Sanchez' argument depends
____
primarily on his unsuccessful attempt to undermine Agent Rob-
erto's testimony concerning the incriminating statement Sanchez
made on February 19, 1991. The government points out that since
Sanchez proclaimed that he was in charge of the drug deal, he
could be found to have "controlled" Hernandez. A reasonable
inference could then be drawn that Hernandez was there at San-
chez' behest to protect the drugs, and Sanchez. "[A]s long as a
convicted felon knowingly has the power and the intention at a
given time of exercising dominion and control over a firearm,
. . . directly or through others, he is in [constructive] posses-
__ _______ ______
sion of the firearm." United States v. Wight, 968 F.2d 1393,
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1398 (1st Cir. 1992) (emphasis added); see also United States v.
___ ____ _____________
McAnderson, 914 F.2d 934, 947-48 (7th Cir. 1990). The evidence
__________
was sufficient to establish Sanchez' constructive possession of
the firearm carried by Hernandez.
3. Entrapment Defense.
3. Entrapment Defense
__________________
Sanchez contends that he was entitled to an entrapment
instruction. Since there was no post-charge objection to the
refusal to give an entrapment instruction, however, we review for
plain error. See United States v. Arias-Santana, 964 F.2d 1262,
___ _____________ _____________
14
1268 (1st Cir. 1992) (citing Fed. R. Crim. P. 52(b), which
mandates renewed objection after court's charge and before jury
retires to deliberate).
The entrapment defense consists of two components: (1)
government inducement of the crime, and (2) an absence of predis-
position on the part of the defendant to commit the alleged
crime. United States v. Reed, 977 F.2d 14, 18 (1st Cir. 1992);
_____________ ____
United States v. Tejeda, 974 F.2d 210, 217 (1st Cir. 1992).
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Sanchez contends that the district court improperly required him
to produce evidence of lack of predisposition, whereas the burden
of production should have shifted to the government to prove
predisposition once Sanchez established government inducement.
The argument is irreparably flawed in at least two respects.
First, Sanchez was entitled to an entrapment instruc-
tion only if he first produced "some evidence" on both ele-
____
ments of the entrapment defense sufficient to raise a reason-
able doubt as to whether he "was an 'unwary innocent' rather than
an 'unwary criminal.'" Id. (quoting Mathews v. United States,
___ _______ _____________
485 U.S. 58, 63 (1988)). Second, Sanchez produced no evidence of
government inducement. Before he arrived at the scene of the
drug transaction on February 19, 1991, Sanchez had no direct
contact with any government agent. "[T]his court [has] refused
to extend the entrapment defense to a defendant in contact only
____
with an intermediary, and not the government agent, absent 'a
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showing that pressure had been put upon him by the intermediary
at the instruction of the government agent.'" United States v.
__ ___ ___________ __ ___ __________ _____ ______________
15
Murphy, 852 F.2d 1, 6 (1st Cir. 1988) (quoting United States v.
______ _____________
Bradley, 820 F.2d 3, 8 (1st Cir. 1987)) (emphasis added), cert.
_______ _____
denied, 489 U.S. 1022 (1989); see also United States v. McKenna,
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889 F.2d 1168, 1174 (1st Cir. 1989). Sanchez does not suggest,
nor does the record disclose any evidence, that government agents
even knew about Sanchez or his involvement in the offense prior
to his arrival at the scene of the undercover drug buy, let alone
that agents instructed anyone to pressure Sanchez to take part.
Absent any evidence of government inducement, Sanchez was not
entitled to a jury charge on entrapment, and the court committed
no error, plain or otherwise.
4. Refusal to Depart.
4. Refusal to Depart
_________________
Finally, citing 18 U.S.C. 3553 ("The court shall
impose a sentence sufficient, but not greater than necessary
____________________________
. . . .") (emphasis added), Sanchez says the district court erred
in refusing to depart below the "excessive" thirty-year guideline
sentence to reflect Sanchez' "minimal" role in the offense. Even
accepting Sanchez' characterization of his role in the offense,
the refusal to depart is not reviewable unless the district court
mistakenly believed it lacked the authority to depart. United
______
States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113
______ ______ _____ ______
S. Ct. 224 (1992); United States v. Lauzon, 938 F.2d 326, 330
______________ ______
(1st Cir.), cert. denied, 112 S. Ct 450 (1991). As the district
_____ ______
court was fully cognizant of its authority, we are without
jurisdiction to consider Sanchez' guideline sentencing appeal.
16
C. Jorge's Appeal.
C. Jorge's Appeal.
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Jorge Sostre claims that his convictions under Count 1
(conspiracy to distribute and to possess with intent to distrib-
ute, 21 U.S.C. 846) and Count 2 (possession of cocaine with
intent to distribute, id. 841(a)(1), (b)(1)(B); 18 U.S.C. 2)
___
were based solely on his "mere presence" in the vicinity of the
drug transaction. Jorge contends that he was simply visiting
brother Rodrigo's apartment, and that the casual statements he
made to Vegas and Agent Roberto, though arguably indicating his
general awareness of the drug transaction, were far too vague to
establish his active participation. Jorge says the government's
characterization of him as a "lookout" is unsupported by the
evidence, which shows that the front door of the apartment
building was left open during the drug transaction, and that he
never made any attempt to signal or warn the others when the DEA
raid began. As to his constructive possession of the cocaine,
Jorge argues that there is no evidence he ever had access to it
or power over it.
We again view all evidence in the light most favorable
to the government, Wight, 968 F.2d at 1395, while at the same
_____
time recognizing that "'the line that separates mere presence [at
the site of a drug offense] from culpable presence is a thin one,
difficult to plot,'" United States v. O'Campo, 973 F.2d 1015,
______________ _______
1020 (1st Cir. 1992) (quoting United States v. Ortiz, 966 F.2d
_____________ _____
707 (1st Cir. 1992)). In this case, however, we believe that the
evidence, as a whole, adequately supported the conclusion that
17
Jorge knowingly remained on the front porch to facilitate the
prearranged drug transaction.
First, Jorge's presence during Rodrigo's incriminating
conversations with Vegas and Agent Roberto, his apparent agree-
ment with his brother's assessments concerning the quality of the
cocaine and the low level of police activity in the neighborhood,
and his later statements about the "money" and "merchandise,"
provided firm support for an inference that Jorge knew that an
illegal drug transaction was about to occur.
Second, "jurors are neither required to divorce them-
selves from their common sense nor to abandon the dictates of
mature experience," which reasonably may include their recogni-
tion that "criminals rarely welcome innocent persons as witnesses
to serious crimes." Cf. Ortiz, 966 F.2d at 712; United States v.
___ _____ _____________
Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991). Jorge did not
_______________
reside at the apartment where the drug transaction occurred, nor
was he a captive of the circumstances. Although appellate
counsel suggested the possibility that Jorge's visit to his
brother's apartment may have been occasioned by the innocent
impulse to promote their filial bond, the jury reasonably could
conclude that an innocent person, with knowledge of an impending
drug transaction, would not linger outside for over an hour on a
winter day in a location which afforded him an obvious vantage
point from which to observe the surrounding neighborhood as well
as the ingress to the site of the drug deal. Cf. United States
___ ______________
v. Padilla, 961 F.2d 322, 325 (2d Cir.) (while "mere negative
_______
18
acquiescence," even coupled with "guilty knowledge," is generally
insufficient to establish participation, the otherwise innocent
behavior of "scanning the area" may support a reasonable infer-
ence that defendant acted as "lookout"), cert. denied, 113 S. Ct.
_____ ______
138 (1992); see also United States v. Martinez, 479 F.2d 824,
___ ____ ______________ ________
829 (1st Cir. 1973). ("[P]resence itself implies participation
[where] . . . a companion stands by during a [crime], ready to
sound a warning or give other aid if required.").
Finally, the record indicates that Jorge, at the onset
of the DEA raid, moved off the front porch and away from the
residence "in a rapid manner," then "casually slow[ed] down and
walk[ed] up the sidewalk." We have recognized that "[e]vidence
of flight . . . is a particularly eloquent reflection of a guilty
mind," United States v. Martinez, 922 F.2d 914, 923 (1st Cir.
_____________ ________
1991), which "'may be admitted at trial . . . so long as there is
an adequate factual predicate creating an inference of guilt of
_________________
the crime charged.'" United States v. Montoya, 917 F.2d 680, 683
_____________ _______
(1st Cir. 1990) (quoting United States v. Hernandez-Bermudez, 857
_____________ __________________
F.2d 50, 52 (1st Cir. 1983)) (emphasis added). While the evi-
dence of flight would not have been enough in and of itself to
support Jorge Sostre's convictions, the jury fairly could have
found, beyond a reasonable doubt, that in so acting he was
attempting to flee the crime scene, thereby recasting his earlier
admissions and conduct as the factual predicate for the ultimate
common-sense inference of guilt. Id. (significance of evidence
___
of flight is exclusively for the jury).
19
The judgments of conviction are affirmed.
The judgments of conviction are affirmed.
________________________________________
20
Document Info
Docket Number： 91-2034
Filed Date： 5/18/1993
Precedential Status： Precedential
Modified Date： 9/21/2015