United States v. Alicea Cardosa

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 97-1139
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
LUIS A. ALICEA-CARDOZA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Rafael Anglada-Lopez for appellant.
Miguel A. Pereira-Castillo, U.S. Department of Justice,
with whom Guillermo Gil, United States Attorney, and Jose A.
Quiles-Espinosa, Senior Litigation Counsel, were on brief for
appellee.
December 19, 1997
LYNCH, Circuit Judge. A cocaine distribution
LYNCH, Circuit Judge.
conspiracy out of the Virgilio D vila Public Housing Project
in Bayam n, Puerto Rico led to the indictment of thirty-six
defendants. Twenty-five pled guilty either before trial or
shortly after trial started. Eight defendants were tried to
verdict, five were acquitted.
Luis Alicea-Cardoza, nicknamed "Burbuja", was one
of the three convicted and now appeals. His main contention
is that the jury, confronted with a maze of defendants and
drug and violence evidence, convicted him when there was
precious little evidence, too little, he says, to support a
conviction. The little evidence there was, he says, was
based on beeper transmissions and this court, which has not
previously addressed the question, should find those beeper
records erroneously admitted. Although Alicea-Cardoza has
ably argued these and ancillary points, we affirm his
conviction under 21 U.S.C. 841 and the drug conspiracy
statute, 21 U.S.C. 846, and his sentence of 27 years
imprisonment.
I
I
Because the defendant attacks the sufficiency of
the evidence, we review the evidence in the light most
favorable to the verdict, with a view to whether a rational
juror could have found guilt beyond a reasonable doubt. See
United States v. Cruz, 981 F.2d 613, 615 (1st Cir. 1992).
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Interception of telephone messages in April 1994
confirmed that Jorge Solano-Moreta was in charge of an
organization selling drugs, principally cocaine, at numerous
drug points in Bayam n, including a drug point at the
Virgilio D vila Housing Project. Alicea-Cardoza had acted as
a "runner" (meaning that he managed the business operation by
receiving, accounting for, and safeguarding the proceeds of
drug sales) for a Virgilio D vila drug point since 1992.
Approximately four kilograms of cocaine were sold monthly at
that drug point. Alicea-Cardoza was also a runner for
another drug point in the Virgilio D vila Housing Project.
There, approximately one half of a kilogram of cocaine base
was sold monthly.
The evidence implicating Alicea-Cardoza in the
conspiracy consisted principally of the testimony of Amiud
Alicea-Mat as and charts of intercepted beeper messages sent
to Solano-Moreta by Alicea-Cardoza. Alicea-Mat as testified
that he was part of a drug selling organization at the
Virgilio D vila Housing Project known as the Virgilio D vila
group, which sold cocaine, crack, and heroin. Alicea-Mat as
said he ran several drug points and was a trigger man for the
group. He testified that the members of the group included
Luis Rosario-Rodr guez, Richard Rosario-Rodr guez and Edwin
Rosario-Rodr guez (three brothers who ran the group), Felipe
Garc a-Roque, as well as defendant "Luis Alicea, [and] some
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people who are confined in state institutions." When asked,
" . . . do you know if Ruiz [sic] Alicea has a nickname or
nicknames," Alicea-Mat as responded, "Burbuja". When asked
whether "Luis Alicea-Cardoza, also known as Burbuja" was
seated in the courtroom, Alicea-Mat as identified Alicea-
Cardoza. And when asked "How many Burbujas worked for this
organization or group," Alicea-Mat as responded, "Just one
Burbuja." "Burbujas" means "Bubbles" and members of the
jury, applying their common experience of Puerto Rican
society, could reasonably have regarded it as an unusual male
nickname. No evidence was presented to suggest that another
"Burbuja" may have been involved in this organization.
Alicea-Mat as testified that the Virgilio D vila
group and Solano-Moreta "established a solid relationship"
during 1992 and 1993 to help each other fight "wars" against
competing groups for control of the local drug trade.
Solano-Moreta and the Virgilio D vila group would meet to
discuss drug points and plan attacks against enemies of both
groups, pooling their resources "in order to be strong."
They also did business with each other: Solano-Moreta sold
kilos of drugs to the Virgilio D vila group, which in turn
sold the drugs throughout the Virgilio D vila Housing
Project. In addition, the Virgilio D vila group collected
money for Solano-Moreta at drug points owned by him and took
the money to him. They even committed murders with Solano-
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Moreta to enforce their control over the drug trade. The two
groups developed a "frequent and close friendship" and "[met]
on many occasions." When asked who attended these meetings,
Alicea-Mat as responded:
Richard Rosario-Rodr guez, Edwin Rosario-
Rodr guez, I, Willy Nariz, [Jorge] Solano
Moreta, Perla. When [Jorge] would come
down to the Virgilio D vila Housing
Project, Luis Rosario-Rodr guez was
there. Luis Rosario-Rodr guez [sic],
alias Burbuja, and several other people
who are jailed at the state institution.1
(emphasis added).
In addition to this testimony, Alicea-Cardoza was
implicated by charts the government prepared of beeper
messages. These charts recorded the content of approximately
four thousand messages received between April 26, 1995 and
June 5, 1995 by Solano-Moreta on his beepers. The messages
were intercepted by federal agents pursuant to court
authorization. Special Agent Gilberto Vazquez, who directed
the investigation, testified that the charts transcribing the
messages sent to Solano-Moreta were produced by a pen
register, which intercepted the messages sent to Solano-
Moreta's beeper and printed them out. Vazquez also testified
that he tested the pen register system for accuracy by
1. Alicea-Mat as seemed to have mistakenly repeated the name
Luis Rosario-Rodr guez. The jury could have concluded this
was an inadvertent mistake, rather than evidence of a
different "Burbuja", especially in light of Alicea-Mat as's
direct identification of Alicea-Cardoza as the real
"Burbuja".
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checking its results against the messages received by a clone
beeper, an exact replica of Solano's beeper. He testified
that the pen register and clone beeper received exactly the
same messages received by Solano-Moreta.
Several hundred of the messages to Solano-Moreta
recorded in the beeper charts were from "Burbuja". Typical
were messages asking Solano-Moreta to call "Burbuja" at a
certain phone number or messages leaving a phone number
accompanied by "Burbuja, Urgente." Some messages referred to
obtaining "work". Vazquez testified that, in his
considerable experience investigating drug gangs, these and
other messages received by Solano-Moreta involved the drug
trade.
Of the five members of the Virgilio D vila group
who originally went to trial, only Alicea-Cardoza was
convicted.
II
II
Alicea-Cardoza claims the district court admitted
the beeper charts without proper authentication under Fed. R.
Evid. 901, that the evidence was insufficient to support his
conviction, and that he was subject to a constructive
amendment to the indictment.
A. Beeper Charts
Under Fed. R. Evid. 901(a), "The requirement of
authentication or identification as a condition precedent to
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admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent
claims." Fed. R. Evid. 901(a). To establish authenticity,
the proponent need not rule out "all possibilities
inconsistent with authenticity, or . . . prove beyond any
doubt that the evidence is what it purports to be. Rather,
the standard for authentication, and hence for admissibility,
is one of reasonable likelihood." United States v.
Holmquist, 36 F.3d 154, 168 (1st Cir. 1994). Generally, if
the district court is satisfied that the evidence is
sufficient to allow a reasonable person to believe the
evidence is what it purports to be, Rule 901(a) is satisfied
and the jury may decide what weight it will give the
evidence. See id. at 167. Because authentication rulings
are necessarily fact specific, we review such rulings only
for mistake of law or abuse of discretion. See id.The district court did not abuse its discretion in
admitting the beeper charts as a record of the messages sent
to Solano-Moreta's beeper. Vazquez adequately explained the
means by which the pen register intercepted and recorded the
beeper messages, and how the clone beeper confirmed the
accuracy of that system. Asked by the prosecution how the
beeper charts had been produced, Vazquez responded, "It is a
machine known as a pen register. As the message comes in the
pen register just annotates or writes exactly what comes out
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on the beeper." Vazquez explained clone beepers. "A clone
is an exact replica of a beeper. If I was going to have a
clone to my beeper and you had it, you would receive exactly
the same message that I get." Vazquez testified that he
carried a clone of Solano-Moreta's beeper for about a week
during the intercept period. Asked whether Vazquez found any
difference between the written messages produced by the pen
register and those received by the clone beeper, Vazquez
responded, "No difference." This testimony was not
contradicted or challenged by the defense.
Alicea-Cardoza's argument is that the charts of
these phone calls were not properly authenticated because
there was no evidence that Alicea-Cardoza was in fact the
person who left the messages. Defendant relies on the
general rule that self-identification by a speaker alone is
not sufficient authentication. See United States v. Puerta-
Restrepo, 814 F.2d 1236, 1239 (7th Cir. 1987); United States
v. Pool, 660 F.2d 547, 560 (5th Cir. Unit B Nov. 1981). We
agree that, under Puerta-Restrepo and Pool, the beeper charts
could not be authenticated under Rule 901 were they being
offered for the sole purpose of identifying Alicea-Cardoza as
the "Burbuja" who sent the messages.
Here, however, the government's evidence only
showed the beeper messages that Solano-Moreta himself had
received, not who specifically had sent them. This is not a
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case of the jury being asked to take on faith that a caller
was who the witness said the caller was. Rather, the charts
were introduced for the different purpose of proving that
Solano-Moreta received these messages on his beeper, and the
beeper charts plainly constitute an accurate record of the
messages that Solano-Moreta received. As Vazquez testified,
a beeper decodes a digital message which it displays on its
screen, e.g., "Call Burbuja." The pen register intercepts
that message and records it, over time producing a complete
record of all messages sent to that beeper. That these
beeper charts produced by the pen register are an accurate
record of the messages sent to Solano-Moreta's beeper was
established by the testimony of Vazquez, who explained that
the beeper charts were checked against a clone beeper and
that there was no difference between the two. This testimony
was sufficient to authenticate the beeper charts as records
of the messages sent to Solano-Moreta's beeper.
Whether the "Burbuja" who sent the messages was
Alicea-Cardoza is a separate question not within the purview
of Rule 901. The jury had to decide on its own, taking into
account other evidence, some direct and some circumstantial,
whether Alicea-Cardoza was "Burbuja". Given that evidence,
the jury reasonably established that "Burbuja" was a member
of the drug ring and that "Burbuja" was, in fact, Alicea-
Cardoza.
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It is true that someone who was not "Burbuja" could
have been leaving the messages or that some other person
named "Burbuja" left the messages. Alicea-Cardoza did not
make such a contention at trial, but if he had, such a
contention does not go to whether the beeper charts are
properly authenticated. The jury could still have assessed
the weight of the evidence in light of that contention and
made a judgment accordingly. In sum, whether the "Burbuja"
who sent the messages is in fact Alicea-Cardoza, or perhaps
some other "Burbuja", is a separate matter for the jury to
decide.
As for the whether the charts were authenticated,
the standard of reasonable likelihood was satisfied in this
case.
B. Sufficiency
Thus, we turn to the question whether the evidence
in this case is sufficient to support Alicea-Cardoza's
conviction. In assessing a sufficiency challenge, we "review
the record to determine whether the evidence and reasonable
inferences therefrom, taken as a whole and in the light most
favorable to the prosecution, would allow a rational jury to
determine beyond a reasonable doubt that the defendant was
guilty as charged." United States v. Fulmer, 108 F.3d 1486,
1490 (1st Cir. 1997) (citations, internal quotation marks,
and alterations omitted).
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Taking the beeper charts and Alicea-Mat as's
testimony together, we conclude the evidence was sufficient.
Alicea-Mat as's testimony identifies Alicea-Cardoza as a
member of the Virgilio D vila group and links the drug-
related enterprises of that group to those of Solano-Moreta.
The testimony establishes that Alicea-Cardoza was "Burbuja".
The beeper charts demonstrate that "Burbuja" had frequent
contact with Solano-Moreta. And the jury could easily find
that these communications involved matters related to the
manufacture and sale of drugs. While it is possible that the
"Burbuja" who sent those messages was indeed another
"Burbuja", or that Alicea-Cardoza and Solano-Moreta had only
a non-criminal relationship, the jury was not required to
accept either of these conclusions. To the contrary, the
evidence clearly suggests that Alicea-Cardoza was closely
involved with Solano-Moreta in the drug trade, and is plainly
sufficient to sustain the conviction.
That the jury did not also convict other members of
the Virgilio D vila group based solely on Alicea-Mat as's
testimony does not undercut this conclusion. The jury may
well have regarded Alicea-Mat as's testimony as insufficient
to prove the guilt of those other defendants beyond a
reasonable doubt, but this does not mean, as Alicea-Cardoza
argues, that we must therefore accord Alicea-Mat as's
testimony no weight in considering this sufficiency claim.
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The jury could reasonably have found, as indeed it did, that
Alicea-Mat as's testimony in conjunction with the beeper
charts proved Alicea-Cardoza's guilt beyond a reasonable
doubt.
C. Constructive Variance
Alicea-Cardoza claims that his conviction amounts
to a constructive variance of the indictment in that (1) the
indictment charges him with being a triggerman, but he was
tried for being a runner, and (2) the evidence showed the
existence of multiple conspiracies, while Alicea-Cardoza did
not participate in the conspiracy for which he was convicted.
Variances between the indictment and the evidence ultimately
proved against a single defendant may be common when the
government prosecutes large criminal enterprises in a single
trial. See United States v. Glenn, 828 F.2d 855, 858 (1st
Cir. 1987). When constructive variance is alleged on appeal
in a conspiracy case, under Glenn the following questions are
asked:
(1) Is the evidence sufficient to permit
a jury to find the (express or tacit)
agreement that the indictment charges?
(2) If not, is it sufficient to permit a
jury, under a proper set of instructions,
to convict the defendant of a related,
similar conspiracy? (3) If so, does the
variance affect the defendant's
substantial rights or does the difference
between the charged conspiracy and the
conspiracy proved amount to "harmless
error?
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As to the first test, the evidence permits a jury
to find that Alicea-Cardoza did conspire with Solano-Moreta
to distribute drugs and that he was an active participant in
that enterprise. Indeed, the beeper charts show that Alicea-
Cardoza and Solano-Moreta were in frequent communication.
Accordingly, that Alicea-Cardoza was indicted for being a
conspirator/triggerman but the evidence proved him a
conspirator/runner does not constitute impermissible
variance. "So long as the statutory violation remains the
same, the jury can convict even if the facts found are
somewhat different than those charged -- so long as the
difference does not cause unfair prejudice. United States v.
Twitty, 72 F.3d 228, 231 (citing Glenn, 828 F.3d at 858).
There is no unfair prejudice in this case. Alicea-Cardoza
had notice that he was under indictment for being involved in
the Solano-Moreta drug organization, and he knew that his
central defense needed to be that he was not part of that
organization -- as a triggerman, runner, or in any other
capacity. The error in the indictment was not so grave as to
cause Alicea-Cardoza to defend himself on the wrong grounds,
especially when the evidence adduced at trial showed Alicea-
Cardoza to be deeply involved in the Solano-Moreta
organization.
III
III
The sentencing appeal is also without merit. The
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court assigned Alicea-Cardoza a base offense level of thirty-
eight under U.S.S.G. 2D1.1 for conviction of an offense
involving at least 1.5 kilograms of cocaine base. The court
increased the offense level by two points to forty under
U.S.S.G. 2D1(b)(1), adopting the findings of the
presentence report that weapons were used by Alicea-Cardoza
in furtherance of the conspiracy. The court declined to
adopt the recommendation of the presentence report to raise
Alicea-Cardoza's offense level by an additional three points,
rejecting the report's finding that Alicea-Cardoza had a
managerial role in the conspiracy. The court found an
imprisonment range of 324 to 405 months, and sentenced
Alicea-Cardoza to 324 months in prison, including a statutory
minimum of ten years in jail under 21 U.S.C. 841(b)(1)(A).
The government has the burden of proving drug
quantity by a fair preponderance of the evidence, see United
States v. Morillo, 8 F.3d 864, 871, and amply met its burden
here. The evidence shows that the Solano-Moreta organization
was a major drug distribution network buying and selling
hundreds of kilograms of cocaine and cocaine base through
various drug points, including those at the Virgilio D vila
Housing Project. The evidence shows that Alicea-Cardoza was
a runner for those drug points at Virgilio D vila. According
to the presentence report, Alicea-Cardoza "ran" a drug point
at which approximately four kilograms of cocaine were sold
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monthly, he "ran" another drug point at which approximately
one half kilogram of cocaine base was sold monthly. Given
this evidence, the district court did not commit error in
assigning Alicea-Cardoza a base offense level of thirty-eight
for committing an offense involving 1.5 kilograms of cocaine
base. This evidence at trial is sufficient to sustain the
offense level. As to Alicea-Cardoza's attack on the two
point increase in his offense level for use of a weapon, the
evidence at trial shows that Alicea-Cardoza was armed when he
served as a watchman for drug points in the Virgilio D vila
Housing Project. This is sufficient to sustain the increase.
The judgment of the district court is affirmed.
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