USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1534
UNITED STATES,
Appellee,
v.
NANCY ESPERANZA MATIZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Rosenn,* Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Theodore L. Craft, by Appointment of the Court, for appellant
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Nancy Esperanza Matiz.
Geoffrey E. Hobart, Assistant United States Attorney, with whom
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A. John Pappalardo, United States Attorney, and Jeffrey A. Locke,
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Assistant United States Attorney, were on brief for appellee.
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January 4, 1994
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*Of the Third Circuit, sitting by designation.
ROSENN, Senior Circuit Judge. Appellant Nancy
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Esperanza Matiz was tried to a jury and convicted in the
United States District Court for the District of
Massachusetts for conspiracy to possess with intent to
distribute five or more kilograms of cocaine, in violation
of 21 U.S.C. 841(a)(1) and 846. Matiz appeals her
conviction and argues that: (1) the evidence introduced
against her was insufficient to support the guilty verdict
returned by the jury, (2) her conviction should be reversed
on the grounds that the Government's conduct was outrageous,
and (3) the district court erred in enhancing her sentence
for obstruction of justice pursuant to 3C1.1 of the United
States Sentencing Guidelines. We affirm.1
I.
This case arose out of a large scale investigation
conducted by various government agencies in the United
States and Colombia, South America into the cocaine
distribution activities of a number of individuals. The
United States Government (the Government) had the assistance
of Pedro Alvarez, a defendant in another criminal matter.
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1The district court possessed subject matter jurisdiction
pursuant to 18 U.S.C. 3231. This court has jurisdiction
pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742 (a)(2).
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Alvarez, at the behest of the Government, posed as
a purchaser and contacted a number of cocaine suppliers in
Colombia. Negotiations ensued over several months
pertaining to the purchase of large quantities of cocaine.
In the early part of 1991, the suppliers in Colombia
informed Alvarez that they were experiencing temporary
difficulties in smuggling the cocaine into the United
States. In light of these difficulties, they asked Alvarez
to assist them in transporting the shipment. Additionally,
the suppliers asked Alvarez to store and distribute the
cocaine to their associates.
The Government told Alvarez to request an up-front
payment of $30,000 for his troubles and expenses.
Reluctantly, the suppliers agreed and informed Alvarez that
the payment would be made by one of their New York based
associates, "La Negra," a code name for Matiz. The
suppliers gave Alvarez "La Negra's" beeper number and code
phrase for communication with her.
Alvarez and Matiz ultimately scheduled a meeting
for May 23, 1991, for Matiz to hand over the money to an
associate of Alvarez, actually Special Agent Dominick Lopez,
at a Burger King restaurant in Queens, New York. At the
scheduled hour, Matiz, along with an associate named Diaz,
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drove to the meeting place in a Nissan Pathfinder. After
Lopez entered the vehicle, Matiz instructed Diaz to get the
money. Diaz retrieved the money from under the seat of the
automobile and passed it to Matiz who then gave it to Lopez.
The sum, however, amounted to only $20,000 and Matiz
promised to make an additional payment of $5,000 the next
day, explaining that she had been told that the amount due
was $25,000.
After this exchange, Matiz remained in close
contact with Alvarez. She informed him that she was
personally expecting to receive a large portion of the
cocaine shipment upon its arrival. The suppliers in
Colombia confirmed this information both in conversations
with Alvarez and in facsimile messages sent to him. T h e
shipment consisting of 615 kilograms of cocaine finally
arrived in the United States on June 4, 1991. On June 5,
1991, the suppliers sent Alvarez written instructions by
facsimile from Colombia regarding the distribution of the
cocaine. The instructions directed that, among others,
Matiz should receive 51 1/2 kilograms of the cocaine.
Alvarez telephoned Matiz on numerous occasions to
discuss the details of the pickup of her portion of the
cocaine. During these conversations, Matiz expressed her
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desire to obtain her portion of the cocaine as soon as
possible. Initially, she also voiced an interest in
purchasing some of the cocaine that Alvarez had received as
his fee for transporting the cocaine. Ultimately, however,
she decided against it because of financial constraints.
Finally, Alvarez informed Matiz that she would be
able to pick up her portion of the cocaine on June 12, 1991.
He reserved a hotel room for Matiz in Middleboro,
Massachusetts near the site for the transfer of the cocaine.
Matiz and Diaz arrived at the hotel on June 10. In a
continued effort to conceal their identities, they checked
into the hotel using fictitious names and addresses.
The following evening, Alvarez and Special Agent
Dillon met Matiz at the hotel to review the final
arrangements for the pickup. A number of Matiz's
assistants, who had arrived at the hotel on the same day as
Matiz, were designated to collect the cocaine. Also, during
this meeting, Agent Dillon gave Matiz a facsimile message
from the suppliers that they sent to Alvarez instructing her
to deposit the purchase price for the cocaine in various
accounts in branches of the Chase Manhattan Bank and the
Central Bank in Miami.
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At the time of the pickup, one of Matiz's
assistants followed an undercover agent to the warehouse
where the car was loaded. Matiz, however, remained behind
at the hotel with another undercover agent who was to
accompany her to a meeting with Alvarez. On the way, they
decided to purchase a bottle of champagne to celebrate the
deal. Upon arriving at the liquor store, an agent placed
Matiz under arrest.
II.
A. Sufficiency of the Evidence
Matiz first disingenuously contends that the
evidence produced at trial does not show that she knew of or
participated in the conspiracy. Rather, she claims that she
"recklessly made a loan to her friend." In evaluating a
claim of insufficiency of the evidence, we "review the
evidence as a whole, including all reasonable inferences
from that evidence, in the light most favorable to the
government." United States v. Argencourt, 996 F.2d 1300,
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1303 (1st Cir. 1993). In addition, both direct and
circumstantial evidence must be credited on appeal. United
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States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993).
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Thus, as long as a jury could rationally find guilt beyond a
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reasonable doubt, we must affirm. Argencourt, 996 F.2d at
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1303.
Matiz is unable to overcome the very heavy burden
that a claim of insufficiency of evidence places upon her.
There is an abundance of evidence that Matiz knowingly
participated in the conspiracy to distribute cocaine.
Granted, Matiz's role initially was to supply Alvarez with a
payment of money. That payment, however, was intrinsically
linked to the drug conspiracy to smuggle illicit drugs into
the United States. The advance payment would facilitate the
transportation of the cocaine. In addition, the Government
presented evidence at trial that Matiz spoke to Alvarez over
thirty times, in code, with respect to the shipment of the
cocaine. Moreover, the facsimile from the suppliers in
Colombia noted that Matiz was an intended recipient of the
cocaine.
Finally, Matiz organized and directed the pickup
operation in Massachusetts. Although she herself did not go
down to load the cocaine, she sent an assistant of hers to
do the task. The jury simply did not believe Matiz's
incredible story concerning her lack of involvement in the
conspiracy. Because of the abundance of evidence supporting
the jury's verdict, this challenge is rejected.
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B. Outrageous Government Misconduct
Matiz next contends that her conviction should be
overturned because the Government's conduct throughout the
course of the investigation constituted outrageous
misconduct in violation of her Due Process rights. Her
claim essentially rests on the Government's initiation of
the transaction, the arranged transportation of the cocaine
into the country, and its delivery to various individuals
including herself.
Law enforcement conduct runs afoul of the Due
Process Clause of the Fifth Amendment when it violates
"fundamental fairness, shocking to the universal sense of
justice." United States v. Russell, 411 U.S. 423, 432
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(1973) (quoting Kinsella v. United States ex rel. Singleton,
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361 U.S. 234, 246 (1960)). See also Hampton v. United
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States, 425 U.S. 484, 491-95 (1976) (Powell, J.,
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concurring); id. at 495-500 (Brennan, J., dissenting);
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United States v. Twigg, 588 F.2d 373, 381 (3d Cir. 1978).
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This court has reviewed many claims similar to
the one advanced here and has consistently rejected them.
See, e.g., United States v. Santana, F.3d 1993 WL
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345746 (1st Cir. 1993); United States v. Barnett, 989 F.2d
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546, 560 (1st Cir.), cert. denied, 114 S.Ct 148 (1993);
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United States v. Marino, 936 F.2d 23, 26-27 (1st Cir. 1991);
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United States v. Panitz, 907 F.2d 1267, 1272-73 (1st Cir.
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1990). We have recognized that in these modern times with
advanced technology and transportation facilities readily
available to criminals, drug conspiracies, especially of an
international character, are extremely difficult to
penetrate and therefore enforcement ingenuity must be
encouraged and greater government involvement allowed. See
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Barnett, 989 F.2d at 560; Panitz, 907 F.2d at 1273. The
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extent of government involvement here, initiating the
transaction and transporting and delivering the cocaine, is
no more excessive than government actions that have been
upheld in other cases. See Panitz, 907 F.2d at 1273;
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Marino, 936 F.2d at 27.
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Law enforcement conduct does not violate
fundamental fairness when government officials do not foment
crime, cf. Twigg, 588 F.2d at 381, but resourcefully
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penetrate an existing drug ring and engage in limited
participation in their unlawful practices. "Such
infiltration is a recognized and permissible means of
investigation; if that be so, then the supply of some item
of value that the drug ring requires must, as a general
rule, also be permissible." Russell, 411 U.S. at 432. The
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record demonstrates that Matiz was an important figure in an
organized conspiracy to smuggle illicit drugs into this
country and distribute them. When the Colombian suppliers
needed money to facilitate the transportation in this
country, they turned to her. The suppliers' instructions to
their associates in this country also filtered through her.
The Government did not entice Matiz to purchase
and distribute cocaine. She already had an existing
arrangement with her suppliers in Colombia and eagerly
sought a substantial share of the smuggled drug load after
it reached this country. Government agents never sought her
out; the Colombian suppliers arranged to have Alvarez meet
her. The Government, at the request of the suppliers,
merely facilitated the transportation of the drugs into this
country and Matiz freely joined in the arrangements and in
acquiring a share of the contraband. Moreover, the
Government did not take part in processing, packaging, or
labelling any of the 615 kilograms of cocaine. Furthermore,
they delivered the cocaine to individuals predetermined by
the suppliers. We do not believe that the conduct of the
agents employing guile, deception, and clever stratagems in
infiltrating the Colombian drug ring and communicating with
Matiz at the direction of the suppliers to obtain funds for
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the transportation of the drugs to this country constituted
outrageous and impermissible conduct. See Panitz, 907 F.2d
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at 1273.
As an alternative to vacating Matiz's conviction
based on the Government's violation of her Due Process
rights, Matiz requests that this court use its supervisory
power to reverse her conviction. Guided by considerations
of justice, federal courts may exercise on a limited basis
their supervisory power to "formulate procedural rules not
specifically required by the Constitution or the Congress."
United States v. Hasting, 461 U.S. 499, 505 (1983). The
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Supreme Court has recognized only three legitimate purposes
for the exercise of a court's supervisory power: "To
implement a remedy for violation of recognized rights, to
preserve judicial integrity, . . . and finally, as a remedy
designed to deter future illegal conduct. Id. (citations
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omitted). Neither of these three bases are applicable
to the case sub judice. As discussed previously, the
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Government's conduct was not outrageous, and Matiz fails to
show any specific violation of a statutory or constitutional
right. Moreover preserving judicial integrity is only a
basis for a court to use its supervisory power to supervise
its own affairs, not the affairs of other government
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branches. The court's supervisory power does not "justify a
chancellor's foot veto over activities of coequal branches
of government." Id. at 1089 (citations omitted). Since the
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conduct alleged by Matiz to be outrageous occurred outside
the courtroom, judicial integrity is not at risk and
therefore cannot be used as a basis for a court to invoke
its supervisory power. See id. Finally, since there was
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no past illegal conduct on the part of the Government with
respect to Matiz, we could not use our supervisory power to
deter it from engaging in future, illegal conduct. See
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United States v. Simpson, 927 F.2d 1088, 1091 (9th Cir.
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1991). Thus, the use of our supervisory power is not
warranted under the present facts.
C. Enhancement for Obstruction of Justice
Finally, Matiz presents two challenges to the
district court's enhancement of her sentence for obstruction
of justice pursuant to U.S.S.G. 3C1.1. Her first
challenge is that the district court failed to make specific
findings necessary to establish perjury.
Section 3C1.1 requires a sentencing court to
enhance a defendant's sentence level by two points "[i]f the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the
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. . . prosecution . . . of the instant offense." The
commentary to 3C1.1 provides that committing perjury is an
example of the type of conduct to which this enhancement
applies. U.S.S.G. 3C1.1, comment (n. 3(b)). The Supreme
Court has stated that a witness testifying under oath
commits perjury if "she gives false testimony concerning a
material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or
faulty memory." United States v. Dunnigan, 113 S. Ct. 1111,
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1116 (1993). An enhancement for obstruction of justice is
sufficiently supported where a sentencing court makes a
finding "that encompasses all of the factual predicates for
a finding of perjury". Id. at 1117. At Matiz's sentencing
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the court made the following finding:
I don't need to address the issue of
Ramirez.2 I do not wish to imply that
a defendant does not have a right to
testify. I make an independent
determination here that I simply did not
credit Ms. Matiz' testimony when she did
testify. It's my determination that I
do not believe her. I believe that she
knowingly told a false story and,
accordingly, will overrule the
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2The court's reference to "Ramirez" concerns evidence
presented at trial that Matiz used an alias, Maria Ramirez.
On cross-examination, Matiz denied using the alias, even
though a social security card and an apartment lease bearing
that name were found in her diary. Additionally, her
landlord identified her as the woman he knew as Ramirez.
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objection. It's appropriate to have an
upward adjustment for obstruction of
justice in this case.
The court also stated that it "finds the defendant did
commit perjury."
The findings encompass all the elements of perjury
-- falsity, materiality, and willfulness. The only matter
about which the court was not explicit was whether Matiz's
testimony was material. A sentencing court, however, is not
required to address each element of perjury in a separate
and clear finding. See id. In fact, the Court in Dunnigan
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affirmed a district court's finding that did not use the
term willful.3 Id. at 1113. Dunnigan only requires that a
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sentencing court's findings encompass all of the factual
predicates for a finding of perjury.
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33The finding at issue in Dunnigan stated:
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The court finds that the defendant was
untruthful at trial with respect to
material matters in this case. [B]y
virtue of her failure to give truthful
testimony on material matters that were
designed to substantially affect the
outcome of the case, the court concludes
that the false testimony at trial
warrants an upward adjustment by two
levels.
Dunnigan, 113 S. Ct. at 1117.
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Moreover, the record demonstrates that Matiz's
false testimony denying knowledge of and participation in
the conspiracy was material. If believed, the jury would
have acquitted her. Thus, we can make the determination of
materiality on our own without remanding to the district
court. See United States v. Arias-Villanueva, 998 F.2d
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1491, 1513 (9th Cir.), cert. denied, 114 S. Ct. 359 (1993).
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Therefore, the challenge to the district court's failure to
make specific findings is rejected.
Matiz also contends that the district court
erroneously found that she committed perjury inasmuch as the
record contains no evidence of material untruths. In
reviewing a court's application of the sentencing guidelines
to facts of a case, we use a "clearly erroneous" standard.
See United States v. Wright, 873 F.2d 437 (1st Cir. 1989).
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We perceive no clear error; on the contrary, the record
overwhelmingly supports the district court's finding.
Throughout her testimony, Matiz argued that she
merely loaned money to a friend and that she was otherwise
unconnected to the drug conspiracy. The Government,
however, rebutted her explanation and proved at trial
through the use of recordings and testimony from Government
agents that she was intimately connected to the drug
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conspiracy. Thus, we cannot say that the district court
committed error in finding that Matiz perjured herself.
III.
In sum, we conclude that: (1) the evidence
introduced against Matiz was sufficient to support the
guilty verdict returned by the jury, (2) the Goverment's
conduct was not outrageous, and (3) the district court did
not err in enhancing her sentence for obstruction of
justice.
The judgment of the district court is
Affirmed.
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