USCA1 Opinion
October 31, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2101
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
HECTOR GUZMAN RIVERA,
Defendant, Appellant.
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No. 93-2102
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
RAFAEL VELASQUEZ-MARQUEZ,
Defendant, Appellant.
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ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on October 17, 1995, is
amended as follows:
On page 3, second paragraph, line 6, change "F.R.Civ.P." to
"F.R.Crim.P."
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-2101
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
HECTOR GUZMAN RIVERA,
Defendant, Appellant.
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No. 93-2102
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
RAFAEL VELASQUEZ-MARQUEZ,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Aldrich and Coffin, Senior Circuit Judges.
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Rachel Brill on brief for appellant Hector Guzman-Rivera.
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Luis A. Amoros on brief for appellant Rafael Velasquez-Marquez.
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Jose A. Quiles-Espinosa, Senior Litigation Counsel, W. Stephen
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Muldrow, Assistant United States Attorney, and Guillermo Gill, United
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States Attorney, on brief for appellee.
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October 17, 1995
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ALDRICH, Senior Circuit Judge. Hector Guzman
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Rivera (Guzman) and Rafael Velasquez Marquez (Velasquez) were
indicted on December 9, 1992 for, inter alia, aiding and
abetting each other in 1) the possession with intent to
distribute approximately two-eighths of a kilogram of heroin,
21 U.S.C. 841(a)(1) and 18 U.S.C. 2, and 2) using
firearms in relation to a drug trafficking offense. 18
U.S.C. 924(c) and 2. Guzman, found guilty by a jury on
both counts, appeals, alleging various errors at his trial
and from the court's imposition of a fine. Velasquez, who
pleaded guilty, complains only of his fine. We affirm.
So far as the trial is concerned, this is a typical
case where appellate counsel is able to find nothing but
matters so apparently proper on their face as to have invoked
no objection at the time. In fact there was no error, let
alone the plain error that Guzman must now demonstrate.
F.R.Crim.P. 52(b). See United States v. Young, 470 U.S. 1,
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15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1 (1985) (rule 52(b)
authorizes courts of appeal to correct only "particularly
egregious errors" that seriously undermine "fairness,
integrity or public reputation of judicial proceedings");
United States v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995)
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(same).
On the evening of December 3, 1992, Guzman arrived
at the Carib Inn in San Juan driving a dark-colored
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automobile. A confidential informant was in the front seat,
and Velasquez in the back. Velasquez proved to possess two-
eighths of a kilogram of heroin, which he was planning to
exchange with Moran, an undercover DEA agent, for $50,000.
The evidence, post, warranted a finding that Guzman had a
revolver. As expected, the auto was met by Moran, who put
his head in the window and asked if they had the heroin.
Defendants simultaneously said yes -- the clearest evidence
of a conspiracy relationship. The court admitted tapes of
conversations between Velasquez and Moran arranging for the
heroin transaction, recorded only hours before it took place.
Guzman now complains of this.
Hearsay statements are admissible against a
defendant when it is more likely than not that he was a
coconspirator of the speaker, that the conspiracy existed at
the time the statements were made, and that they were made in
furtherance of it. United States v. Petrozziello, 548 F.2d
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20, 23 (1st Cir. 1977). See F.R.Evid. 801(d)(2)(E). There
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is no requirement that the indictment charge conspiracy to
find such statements admissible. United States v. Ortiz, 966
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F.2d 707, 714 (1st Cir. 1992), cert. denied, ___ U.S. ___,
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113 S. Ct. 1005, 122 L. Ed. 2d 154 (1993). While there were
some arguable contradictions in the testimony, the fact that
Velasquez stated during the taped conversations that the
heroin belonged to himself and two partners, that Guzman and
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another in fact showed up to deliver the heroin very shortly
after Velasquez' final conversation cementing the deal with
Moran, that he was driving the vehicle to the meeting place
Velasquez negotiated during those conversations, that he was
armed with a loaded weapon and carried additional ammunition,
coupled with the uncontroverted evidence that he responded
positively, in concert with Velasquez, when Moran asked if
they had the "manteca,"1 are more than sufficient to
convince us no plain error occurred. We do not take the fact
that Moran was not expecting Guzman as necessarily meaning
that Velasquez was so casual as to seek a driver and
additional protection only at the last minute.
With respect to Guzman's possession of a firearm, a
police officer testified that as he was approaching the
parked car after Moran had given the prearranged arrest
signal, he saw Guzman draw a revolver from his waist, and
then lean forward as if he were placing an object on the
floor. While Guzman was placed under arrest, a revolver was
found on the driver's side, beneath the foot pedals. Guzman
complains that the court denied him early access to the
revolver, which might have shown absence of his fingerprints,
thereby contradicting his possession. The government's
response is twofold: where standard procedures (which we
have no occasion to question here) require arresting officers
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1. The street name for heroin.
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to seize the firearm for their own protection, and later to
have the weapon tested to determine whether it was operable,
no print examination was performed, and by the time Guzman
first sought examination it had been cleaned and thinly
coated with a preservative for storage. Guzman's own expert
conceded that after such treatment no previous fingerprints
could have remained. In any event, ultimately granted access
to the gun, Guzman had it checked for prints, established the
lack of his, and introduced this result at trial. It is
clear that these results would have been exactly the same had
the court granted Guzman's first request, rendering the
court's initial refusal, at most, harmless error. United
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States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993),
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cert. denied, ___ U.S. ___, 114 S. Ct. 2714, 129 L. Ed. 2d 840
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(1994).
The positive evidence attributing the revolver to
Guzman is confirmed by the fact that a "speed loader" that
fitted it was found on his person. We understand the
seriousness of this offense but are surprised that this claim
is made.
Next, the court's charge defining "use" of a
firearm2 under section 924(c) was so clearly correct, and
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2. Guzman's contention that the court's reference throughout
its instructions to the jury to "firearm," or "weapon" in the
singular, as opposed to the indictment's use of "firearms" in
the plural, impermissibly altered the indictment requiring
reversal, is specious.
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the evidence so fitting, that we take little time to expound
the law, or repeat the facts. Guzman's contention that the
jury could have convicted him for mere possession, not "use,"
as the statute requires, is groundless, given that the jury
specifically asked whether the firearms count required
"possession" or "use," and the court then properly instructed
it on the statutory meaning. "Use" means to obtain a benefit
from the arm's presence in relation to the drug transaction,
and does not require discharge or threat with same. See
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United States v. Castro-Lara, 970 F.2d 976, 983-84 (1st Cir.
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1992), cert. denied, ___ U.S. ___, 113 S.Ct 2935, 124 L.Ed.2d
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684 (1993). The sole issue is whether a firearm was
"available for use" to Guzman during the drug transaction,
United States v. Hadfield, 918 F.2d 987, 998 (1st Cir. 1990),
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cert. denied, 500 U.S. 936 (1991), a conclusion the evidence
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abundantly supports. It is scarcely helpful to cite cases
from the D.C. Circuit that have been overruled, or a dissent
from an early decision in our Circuit long ignored. Counsel
has a duty not to make such frivolous contentions. See
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A.B.A. Model Rules of Professional Conduct, Rules 3.1 and 3.3
(1994 ed.).
Next, Guzman now claims error in the court's
admitting Moran's testimony that the heroin, agreed to be
worth $50,000, might have brought $500,000 at retail after
being cut. There is little dispute that such information may
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aid in proving intent to distribute. United States v.
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Miller, 589 F.2d 1117, 1136 (1st Cir. 1978), cert. denied,
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440 U.S. 958 (1979); United States v. Pigrum, 922 F.2d 249,
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254 (5th Cir. 1991); United States v. Amaechi, 991 F.2d 374,
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377 (7th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 2980,
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125 L. Ed. 2d 677 (1993). DEA agents are especially qualified,
and need not be certified as experts, to testify about street
value, and counsel can argue reasonable inferences from it.
United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir. 1994);
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see also, United States v. Agyen, 842 F.2d 203, 205 (8th
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Cir.), cert. denied, 486 U.S. 1035 (1988).
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Finally, although the Sentencing Guidelines state
that the court "shall impose a fine in all cases, except
where the appellant establishes that he is unable to pay and
is not likely to become able to pay any fine," U.S.S.G.
5E1.2(a), and the minimum statutory fine was $10,000 for
Velasquez and $12,500 for Guzman, U.S.S.G. 5E1.2(c),
neither defendant is thankful that the court reduced each to
$5,000. Rather, both claim they should go scot-free. It is
true that the presentence reports for both defendants
indicated no apparent source of funds, but it is not true
that the reports recommended no fine, as defendants claim.
Both are healthy individuals with no apparent disabilities.
Neither objected to his fine at the time of sentencing,
although given an opportunity to do so, and even now they
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make no attempt to show incapacity to earn. Surely it would
be a dangerous precedent to take the argument they were given
counsel, and allowed to appeal in forma pauperis, as meeting
their burden, under 5E1.2(a), to show they could never earn
this relatively modest sum.
Affirmed.
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