Elawyers Elawyers
Washington| Change

United States v. Velasquez-Marquez, 93-2101 (1995)

Court: Court of Appeals for the First Circuit Number: 93-2101 Visitors: 17
Filed: Oct. 31, 1995
Latest Update: Mar. 02, 2020
Summary: , ______________, Jose A. Quiles-Espinosa, Senior Litigation Counsel, W. Stephen, ________________________ ___________, Muldrow, Assistant United States Attorney, and Guillermo Gill, United, _______ ______________ ______, States Attorney, on brief for appellee.125 L. Ed. 2d 677 (1993).
USCA1 Opinion









October 31, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 93-2101

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

HECTOR GUZMAN RIVERA,

Defendant, Appellant.

____________________

No. 93-2102

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

RAFAEL VELASQUEZ-MARQUEZ,

Defendant, Appellant.

____________________

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.

_____________________

No. 93-2102

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

RAFAEL VELASQUEZ-MARQUEZ,

Defendant, Appellant.

____________________


APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge] __________________________

____________________

Before

Boudin, Circuit Judge, _____________

Aldrich and Coffin, Senior Circuit Judges. _____________________

____________________



















____________________


Rachel Brill on brief for appellant Hector Guzman-Rivera. ____________
Luis A. Amoros on brief for appellant Rafael Velasquez-Marquez. ______________
Jose A. Quiles-Espinosa, Senior Litigation Counsel, W. Stephen ________________________ ___________
Muldrow, Assistant United States Attorney, and Guillermo Gill, United _______ ______________ ______
States Attorney, on brief for appellee. _______________

____________________

October 17, 1995
____________________


















































ALDRICH, Senior Circuit Judge. Hector Guzman ______________________

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, ___ _____________ _____

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) _____________ ______

(same).

On the evening of December 3, 1992, Guzman arrived

at the Carib Inn in San Juan driving a dark-colored



-4-













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 ______________ ____________

20, 23 (1st Cir. 1977). See F.R.Evid. 801(d)(2)(E). There ___

is no requirement that the indictment charge conspiracy to

find such statements admissible. United States v. Ortiz, 966 _____________ _____

F.2d 707, 714 (1st Cir. 1992), cert. denied, ___ U.S. ___, ____________

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



-5-













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

____________________

1. The street name for heroin.

-6-













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 ______

States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993), ______ _________

cert. denied, ___ U.S. ___, 114 S. Ct. 2714, 129 L. Ed. 2d 840 ____________

(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

____________________

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.

-7-













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 ___

United States v. Castro-Lara, 970 F.2d 976, 983-84 (1st Cir. _____________ ___________

1992), cert. denied, ___ U.S. ___, 113 S.Ct 2935, 124 L.Ed.2d ____________

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), _____________ ________

cert. denied, 500 U.S. 936 (1991), a conclusion the evidence ____________

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 ___

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



-8-













aid in proving intent to distribute. United States v. _____________

Miller, 589 F.2d 1117, 1136 (1st Cir. 1978), cert. denied, ______ ____________

440 U.S. 958 (1979); United States v. Pigrum, 922 F.2d 249, _____________ ______

254 (5th Cir. 1991); United States v. Amaechi, 991 F.2d 374, _____________ _______

377 (7th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 2980, _____________

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); _____________ _______

see also, United States v. Agyen, 842 F.2d 203, 205 (8th _________ ______________ _____

Cir.), cert. denied, 486 U.S. 1035 (1988). ____________

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



-9-













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. _________









































-10-






Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer