United States v. Torres ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4849
FRANK RODRIGUEZ TORRES, a/k/a
Frank Rodriguez,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-98-10-5-BO)
Argued: January 24, 2000
Decided: May 30, 2000
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Gregory John Ramage, Raleigh, North Carolina, for
Appellant. Banumathi Rangarajan, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie
Cole, United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The defendant, Frank Rodriguez Torres, appeals his conviction and
63-month prison sentence for conspiring unlawfully to distribute and
possess with intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1). We affirm the district court's conviction and sentence.
I.
Torres worked at the New York Auto Clinic (Auto Clinic), an auto
shop which provides a variety of electrical services to its customers.
In addition to installing car stereos and other electrical equipment,
Torres installed secret compartments within automobiles. Testimony
at trial revealed that drug dealers use these compartments to avoid
detection of guns, drugs, and money by law enforcement officers.
Some time in 1996, Torres met Shawn Page* who came to the
Auto Clinic for service on his car. Upon learning that Torres installed
secret compartments, Page discussed installation and details of the
compartments with Torres. During one conversation, Torres showed
Page work he had completed on another customer's car. Referring to
that customer as a drug dealer, Torres demonstrated how he had
installed secret compartments and flip-license plates to avoid law
enforcement detection.
By May of 1996, Page was involved in the drug distribution busi-
ness selling powder cocaine. Coby Geter and Rickey Congleton testi-
fied that they would buy drugs from Page in New York and then
transport the drugs to North Carolina. By May of 1997, Congleton
and Geter purchased cocaine from Page every other week.
_________________________________________________________________
*Page was also indicted with Torres. He pleaded guilty to the conspir-
acy charge and cooperated with the government.
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Between 1996 and 1997, Congleton traveled to New York on sev-
eral occasions. He was introduced to Torres and visited the Auto
Clinic several times. During one of these conversations, Torres
informed Congleton that the best type of car for a secret compartment
was a 1989 Acura because it could hold eight to nine kilograms of
cocaine.
Geter also became interested in having a secret compartment
installed in his automobile. Geter testified that he needed a secret
compartment to transport drugs, guns, and money. Geter was then
introduced to Torres. Geter testified that he and Torres spoke about
installation of a secret compartment and that Geter told Torres he
needed the compartment to hold one kilogram of cocaine. The gov-
ernment produced evidence that Torres installed this type of compart-
ment in Geter's car. After installation, Geter returned to North
Carolina where he was arrested and agreed to cooperate with the gov-
ernment.
On July 17, 1997, Page picked up Geter's car from Torres at the
Auto Clinic. Also on July 17, 1997, Torres spoke with Geter on the
telephone and indicated that the compartment could possibly hold two
kilograms of cocaine. Geter told Torres that he was going to have a
driver use the car and the compartment to deliver cocaine from New
York to North Carolina.
In the district court, the government presented evidence that
Geter's car was eventually picked up for return to North Carolina by
Kristian Thomas. Thomas, who sold drugs for both Geter and Congle-
ton, planned to use the new secret compartment to bring back one-half
kilogram of cocaine at the request of Congleton. However, federal
agents stopped Thomas in the Raleigh-Durham airport in North Caro-
lina and seized the money that was to be used to purchase the cocaine.
Nevertheless, Thomas flew to New York, picked up Geter's car, and
drove it back to North Carolina.
On January 21, 1998, Torres was indicted and charged with con-
spiracy to distribute and possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 846. After being found guilty by a jury, Tor-
res filed a motion for judgment of acquittal or a new trial claiming
that there was insufficient evidence to sustain his conviction or to
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establish venue in the Eastern District of North Carolina. The district
court denied this motion finding that the government had proffered
substantial evidence to show that: (1) Geter, Congleton, Page, and
Thomas agreed to distribute and possess with intent to distribute
cocaine; (2) Torres knew Geter, Congleton, and Page were drug deal-
ers; (3) Torres knowingly joined the conspiracy by agreeing to install
a compartment with the explicit purpose of transporting cocaine; and
(4) at least one act in furtherance of the conspiracy was committed in
North Carolina. The district court found that this evidence was suffi-
cient for a reasonable jury to find Torres guilty of the conspiracy
charge beyond a reasonable doubt.
The district court also found that the government presented suffi-
cient evidence to establish venue. Specifically, the district court noted
that Congleton and Geter were involved in the cocaine business in
Raleigh, North Carolina, and testimony showed the drugs were trans-
ported from Page in New York to North Carolina. Also, the car with
the secret drug compartment was transported from New York to
North Carolina. The district court concluded that because at least one
act in furtherance of the conspiracy had been committed in the East-
ern District of North Carolina, venue was proper.
Defendant appeals the denial of his motion for judgment of acquit-
tal and the sentence entered by the district court.
II.
Because defendant's appeal requires review under various stan-
dards, we will address each point appealed separately.
A.
Defendant first claims that there is insufficient evidence to sustain
a conviction as to the conspiracy charge and that the district court
erred in denying his motion for judgment of acquittal. "The verdict of
the jury must be sustained if there is substantial evidence, taking the
view most favorable to the Government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942).
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The defendant contends that while he agreed to install a compart-
ment large enough to hold one kilogram of cocaine, he never pos-
sessed, distributed, transported, or saw cocaine and he had no
knowledge that Geter bought cocaine from Page or that Geter was
involved in the cocaine trade with Congleton and Thomas. Defendant
contends that he only knew Geter wanted a secret compartment. How-
ever, we are of opinion that there is substantial evidence, viewing the
same most favorably to the government, to support the guilty verdict.
A defendant may be proven guilty of a conspiracy by wholly cir-
cumstantial evidence. United States v. Burgos , 94 F.3d 849, 858 (4th
Cir. 1996). Further, "a defendant may be convicted of conspiracy with
little or no knowledge of the entire breadth of the criminal enterprise."
Burgos, 94 F.3d at 858. To prove a defendant's connection to the con-
spiracy beyond a reasonable doubt, "the Government need not prove
that the defendant knew the particulars of the conspiracy or all of his
coconspirators." Burgos, 94 F.3d at 858. A defendant may be con-
victed of conspiracy "without full knowledge of all of [the conspira-
cy's] details, . . . if he joins the conspiracy with an understanding of
the unlawful nature thereof and willfully joins in the plan on one
occasion . . . even though he played only a minor part." United States
v. Roberts, 881 F.2d 95, 101 (4th Cir. 1989).
In this case, the evidence indicates that Page introduced Torres to
Congleton and Geter. It is undisputed that Congleton, Geter, and Page
conspired to possess illegal drugs with the intent to distribute them.
There were multiple discussions between Torres, Congleton, Geter,
and Page about secret compartments and the amount of cocaine that
those compartments could hold. Most importantly, Torres actually
installed a secret compartment in Geter's car. This compartment was
manufactured with the purpose of allowing Geter to carry at least one
kilogram of cocaine without being detected by law enforcement
agents. Geter discussed with Torres bringing two kilograms of drugs
in the car's secret compartment from New York to North Carolina.
And finally, Thomas intended to use the secret compartment to bring
cocaine to North Carolina for Congleton and, in fact, did bring the car
back to North Carolina.
It is noteworthy that the defendant acknowledges that "[t]he Gov-
ernment presented substantial evidence that the Government's four
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lay witnesses had been co-conspirators in a conspiracy to distribute
cocaine." Br. p.11. So the question is whether Torres became a mem-
ber of that conspiracy. Those four lay witnesses were Geter, Congle-
ton, Page and Thomas. Thomas flew from North Carolina to New
York, picked up Geter's BMW from Page, with the secret compart-
ment for transporting drugs installed by Torres already in the car, and
drove the car to North Carolina. The fact that no drugs were trans-
ported on this trip was only due to the fact that the FBI had seized
$13,000 from Thomas with which sum he had intended to buy drugs.
Page had delivered Geter's BMW to Torres so that the secret com-
partment could be installed, and Page picked up Geter's BMW from
Torres. Page took Geter to the Auto Clinic to meet Torres, where
Geter and Torres discussed the installation of a secret compartment
in Geter's BMW. Geter told Torres that the secret compartment
needed to hold a kilogram of cocaine. Geter and Torres agreed on the
price of the installation of the secret compartment and a stereo. Page
and Torres had talked about secret compartments in cars such as the
one involved here.
While we have just recited only a part of the evidence in the case,
and this acknowledged by the defendant, the evidence before the jury
fully supports the conclusion that Torres participated in the conspir-
acy of Geter, Congleton, Page and Thomas, which was dealing in
drugs in North Carolina and bringing the drugs to North Carolina
from New York.
B.
Defendant next appeals the district court's denial of his motion for
judgment of acquittal based on insufficient proof of venue. Defendant
claims that the government did not proffer sufficient evidence to
establish venue in the Eastern District of North Carolina. In determin-
ing if venue is appropriate, we review the evidence in the light most
favorable to the government to determine whether it proved by a pre-
ponderance of the evidence that the crime charged occurred within the
district. United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985).
Since we decide that the evidence supports the conviction of Torres
in the conspiracy to sell drugs by his alteration of Geter's BMW to
install a secret compartment for the transport of drugs by an acknowl-
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edged conspirator, when Geter's BMW was picked up in New York
by Page, a member of the conspiracy, and taken to North Carolina by
Thomas, another member of the conspiracy, having been fitted as a
drug transporting vehicle, the act of taking the car prepared by Torres
from New York to the Eastern District of North Carolina is sufficient
proof of venue in the Eastern District of North Carolina by a prepon-
derance of the evidence. Other related acts of the conspirators in
North Carolina only add to the proof.
C.
The remainder of defendant's claims on appeal concern sentencing
issues. Defendant asserts that the district court erred in overruling his
objection to being accountable for 500 grams of cocaine. Addition-
ally, defendant argues that he should have received a downward
adjustment for a mitigating role in the conspiracy.
The quantity of drugs attributable to a defendant is an issue of fact
that we review for clear error. United States v. Mark, 943 F.2d 444,
450 (4th Cir. 1991). The government need only prove the quantity of
drugs involved in a conspiracy by a preponderance of the evidence.
United States v. Goff, 907 F.2d 1411 (4th Cir. 1990).
As we have previously held, "[a] defendant convicted of conspiracy
should be sentenced not only on the basis of his conduct, but also on
the basis of conduct of co-conspirators in furtherance of the conspir-
acy that was known to the defendant or reasonably foreseeable to
him." United States v. Williams, 986 F.2d 86, 90 (4th Cir. 1993).
Here, testimony demonstrated that Congleton and Geter intended to
buy one-half kilogram (500 grams) of cocaine from Page. Thomas
intended to transport this cocaine from New York to North Carolina
using the secret compartment Torres installed. Further, Torres
engaged in various conversations with his co-conspirators regarding
the amounts of cocaine that could be placed in the compartment for
transport. This evidence is more than sufficient to satisfy the govern-
ment's burden of showing that Torres could reasonably foresee that
his co-conspirators would use the compartment for its intended pur-
pose; to transport cocaine undetected. Because the record indicates
Torres's co-conspirators planned to transport, in the secret compart-
ment, 500 grams of cocaine, to the knowledge of Torres, we are of
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opinion that the district court did not err in holding Torres account-
able for the 500 grams of cocaine.
We are also of opinion that the district court did not err in refusing
to grant Torres a sentencing reduction for having a mitigating role in
the offense. We review the district court's findings regarding the
defendant's role in the offense under the clearly erroneous standard.
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Torres
is entitled to a reduction in sentence under Section 3B1.2(b) of the
United States Sentencing Guidelines if he was a minor participant in
the criminal activity. In light of the fact that the overwhelming evi-
dence shows that Torres purposely designed a compartment for Geter
with the express purpose of transporting and concealing illegal drugs,
we do not find that the district court was clearly erroneous in denying
Torres's motion. While the defendant may not have transported the
drugs himself, he provided the means and did so in a way designed
to thwart the detection of illegal drugs. We are of opinion that Tor-
res's actions are in no way minor, and we affirm the district court's
denial of a sentence reduction.
III.
The judgment of the district court is accordingly
AFFIRMED.
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