USCA1 Opinion
December 1, 1995 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1968
UNITED STATES OF AMERICA,
Appellee,
v.
WILFREDO JIMENEZ-RODRIGUEZ,
Defendant, Appellant.
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No. 94-2072
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO REYES-VEJERANO,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Rafael F. Castro Lang for appellant Francisco Reyes-Vejerano.
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Rachel Brill with whom Carlos V. Garcia Gutierrez was on brief
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for appellant Wilfredo Jimenez-Rodriguez.
Sidney M. Glazer, Senior Appellate Counsel, Criminal Division,
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Department of Justice, with whom Guillermo Gil, United States
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Attorney, was on brief for the United States.
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BOUDIN, Circuit Judge. In January 1994, a federal grand
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jury indicted three men on drug-related offenses: Francisco
Reyes Vejerano, Wilfredo Jimenez Rodriguez and Jaime Ocampo
Ochoa. Ocampo pleaded guilty to one count, and his sentence
was subsequently affirmed by this court in United States v.
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Ocampo, No. 94-1897, 1st Cir. May 8, 1995. Reyes and Jimenez
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pled not guilty and were tried together in April 1994. Both
were convicted, and they now appeal.
Reyes and Jimenez were each convicted on two related
conspiracy charges, one to distribute heroin, 21 U.S.C.
841, 846, and the other to make false statements in an
application for a passport, 18 U.S.C. 1542, in order to
secure a false travel document for a drug courier. Reyes was
also convicted of three counts of possession with intent to
distribute heroin, 21 U.S.C. 841, for specific drug
transactions related to the conspiracy. Reyes was sentenced
to 188 months' imprisonment and a $50,000 fine, and Jimenez
to a 33-month term of imprisonment.
On this appeal, Reyes and Jimenez have filed over 100
pages of briefs, together making several dozen claims of
error. Most of these claims involve matters largely within
the scope of the trial court's discretion or claims where no
proper objection was taken. We direct most of our discussion
to those few issues that seem to us fair ground for argument
under the applicable standards of review and, in closing,
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illustrate why the balance of the claims do not merit
detailed discussion.
1. Although the government offered ten witnesses, the
brunt of its case rested on the testimony of Carmen Toledo
Gonzalez who, by her own admission, had participated in both
of the conspiracies and engaged in several of the drug
transactions and the attempted passport fraud. Her evidence
was bolstered by that of her boyfriend (Jeffrey Martinez) who
also participated in certain of the events. Their testimony,
with some gaps filled in by other witnesses, permitted the
jury to conclude that Reyes and Ocampo were responsible for
several efforts to import heroin into Puerto Rico.
As to Reyes, the details need not be recounted since he
does not deny that the evidence against him was adequate to
convict. Crediting the government witnesses, the case
against Reyes was a strong one. Toledo herself made two
trips, one in October 1992 to Colombia and one in 1993
(apparently in June) to Panama; and she helped recruit two
other individuals for separate trips, both to Colombia in
1993. These trips took place after consultation with Reyes,
or so the jury was entitled to find. Some drugs were
successfully imported, one effort resulted in an airport
arrest, and one fell through because the drugs were not
delivered to the courier.
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By contrast, Jimenez--whose role was far more limited--
argues that the government failed to prove the existence of a
single conspiracy to possess heroin as charged in the
indictment and that in any event it failed to show that
Jimenez joined such a conspiracy. The evidence certainly
permitted the jury to find that Reyes, Ocampo and Toledo were
members of one drug trafficking conspiracy. The finding was
supported by similarities in the participants, methods,
geographic locations, and the like. See United States v.
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Morrow, 39 F.3d 1228, 1233-34 (1st Cir. 1994); United States
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v. Cloutier, 966 F.2d 24, 28 (1st Cir. 1992).
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The more difficult question is whether Jimenez, who
participated in only one of the trips, could fairly be found
to have joined the charged conspiracy, or any drug conspiracy
at all. The two issues are significantly different, and we
address the latter one first. Taking the evidence in the
light most favorable to the verdict, the jury could
reasonably have found that the following occurred:
After Toledo's passport was seized by police in an
unrelated incident, Reyes and Ocampo gave Toledo
identification papers to help her obtain a new passport under
the name of Sarah Luz Velazquez Santiago. When Martinez
declined to accompany Toledo on another trip, Toledo
persuaded Jimenez to act as her escort, telling him that she
was going to bring in narcotics and that she was asking him
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to help. Before departing, Toledo applied for a passport in
the name of Sarah Luz Velazquez; Jimenez accompanied her to
the passport office; and he there signed a document
identifying Toledo as Sarah Luz Velazquez. No passport was
obtained, and Toledo changed the destination from Colombia to
Panama.
Jimenez then accompanied Toledo to Panama. He had been
selected because he was a book importer, and it was thought
that his legitimate business travels would provide cover for
the scheme. There was some evidence that Jimenez sought to
distance himself from the importation efforts, but other
evidence that he requested (unsuccessfully) a third of "what
was coming" and that, for the return trip to Puerto Rico,
Jimenez made arrangements to make it "look like it was a
[trip] having to do with books." Toledo alone collected the
drugs in Panama and carried them back to Puerto Rico in the
company of Jimenez.
Jimenez' assistance was certainly limited, and it was
open to him to argue that his role was too equivocal to
justify conviction. But the jury was entitled to find that
the facts were as Toledo represented them. Further, an
illegal agreement need not be explicit, Ianelli v. United
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States, 420 U.S. 770, 777 n.10 (1975); United States v. Ruiz,
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905 F.2d 499, 506 (1st Cir. 1990), and a rational jury could
conclude that Jimenez' participation was sufficient to make
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out an agreement. Jimenez was not helped by the fact that
the evidence clearly showed his participation in the
ancillaryconspiracy tosecurea passportbasedon falsedocuments.
Assuming that the evidence allowed the jury to convict
Jimenez of the heroin conspiracy, the question remains
whether he joined the overarching conspiracy to import drugs
as charged in the indictment or only a smaller encompassed
conspiracy related to the specific Panama transaction. A
conspirator can be part of a larger conspiracy without
knowledge of all its details and dimensions. Blumenthal v.
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United States, 332 U.S. 539, 557 (1947); United States v.
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Cruz, 981 F.2d 613, 617 (1st Cir. 1992). Still, on the
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present facts there is a reasonable argument (which we need
not resolve) that Jimenez, in addition to the passport
conspiracy, was at worst knowingly engaged only in a single
narrow conspiracy to import drugs on one occasion.
Nevertheless, the evidence (as already noted) was
sufficient to find that Jimenez conspired to possess heroin
with intent to distribute in connection with the Panama
episode; and the prosecution made clear at trial that he had
not yet joined the conspiracy at the time of the prior acts
of importation. Jimenez was sentenced based only on the 250
grams of heroin imported with his assistance; in fact, the
trial court generously based Jimenez' sentence on one-third
of that amount, in view of the testimony that he had asked to
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be given one-third of the drugs Toledo was to procure. Thus,
Jimenez has not demonstrated prejudice as a result of the
possible variance between the scope of the broader drug
conspiracy charged and narrower drug conspiracy that was
adequately proved. United States v. Morrow, 39 F.3d at 1235.
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In a different variance argument, Jimenez protests that
the indictment charged that the conspiracies were alleged to
have continued to April 1993 (as to the heroin conspiracy)
and until "on or about April 1993" [sic] (in the case of the
passport conspiracy). In reality, the second application for
the passport occurred in June 1993, and the Jimenez trip to
Panama occurred shortly thereafter. But the indictment also
identified as an overt act Jimenez' false identification of
Toledo and said correctly that it occurred "on or about June
7, 1993." There is no indication that Jimenez was misled by
the mistaken reference to his trip as one that occurred in
April. Again there was no showing of prejudice.
2. Reyes argues that his sentence was substantially
enhanced from a base level of 32 to one of 36, because the
district court proposed a four-level increase under U.S.S.G.
3B1.1(a). This section provides that a four-level
increase, for an aggravating role, should be imposed "[i]f
the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive . . . ." The pre-sentence report
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recommended that Reyes be deemed a leader-organizer on the
ground that in addition to Reyes there were at least five
other participants in the criminal activities, namely, Jaime
Ocampo, Carmen Toledo, Jeffrey Martinez, Lourival Quinones
and Wilfredo Jimenez.
At the sentencing hearing, Reyes' counsel argued that
Reyes and Ocampo had passed polygraph tests showing that they
were not involved in drug trafficking and that other evidence
showed that Toledo had lied at various points in her
testimony. The district court, although it referred to the
jury verdict, made clear that the court was making an
independent judgment as to whether the facts supported the
four-level increase. The court then imposed the four-level
increase but on slightly different grounds than those
suggested in the pre-sentence report.
The district judge said although he might treat Martinez
and Jimenez as participants, he was declining to do so; but
that there were still the necessary five participants
comprised of Reyes, Ocampo, Toledo, Quinones and an
individual referred to at trial as "Negro." Alternatively,
the court concluded that the criminal activity was "otherwise
extensive"; under the explicit language of the guideline
which uses the word "or," criminal enterprise of fewer than
five would still be the basis for a four-level increase.
U.S.S.G. 3B1.1.(a)
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On appeal, Reyes continues to argue that the polygraph
tests, and other information inconsistent with Toledo's
version of events, undermines the district court's finding.
The difficulty is that the district court, like the jury, was
entitled to accept Toledo's version. While some of the
information relied on by Reyes to impeach the verdict was not
before the jury (e.g., the polygraph test), most of the
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evidence was considered by the jury and much is self-serving
statements by other participants or impeachment material.
The district court's decision to believe Toledo was not
clearly erroneous.
A slightly more troubling problem is presented by the
district court's decision to exclude Martinez and Jimenez and
to substitute Negro. While Reyes' appeals brief says nothing
about Quinones, it says that Negro "had nothing to do with
the present indictment" and therefore could not be included
as a participant. The government in response points us to
statements in the sentencing hearing that suggest that Toledo
had met Negro through Reyes; but it is not clear that the
transaction in which Negro played a role involved Reyes at
all.
In any event, the district court--faced with Reyes'
objection to describing Negro as a participant--did not
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reaffirm that designation. Instead, the court said: "Well,
Counsel, still you have--you have the other--other--the
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`otherwise extensive.'" After further colloquy the court
continued:
[E]ven if you take Negro away from the
picture, take it off the picture--out of
the picture still there are `otherwise
extensive,' and this was a conspiracy
that went through Panama, Colombia,
Puerto Rico and sometimes the Dominican
Republic . . . . So that's my ruling.
Let's move on.
We conclude that the four-level adjustment can be
affirmed without difficulty on the "otherwise extensive"
branch of section 3B1.1. The district court was entitled to
find that as to Reyes there were multiple participants, a
number of trips, broad geographic scope and a substantial
amount of heroin. Under the precedents, this is sufficient.
See United States v. Dietz, 950 F.2d 50, 53 (1st Cir. 1991);
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United States v. Morphew, 909 F.2d 1143, 1145 (8th Cir.
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1990). Reyes challenges other aspects of the sentencing--
including the determination that he played a leadership role
and could properly be sentenced to a fine of $50,000--but the
remaining arguments are not substantial.
3. As we noted at the outset, there are a large number
of additional claims of error. Reyes, for example, argues
that a continuance sought only six days before trial should
have been granted, a matter that is largely within the trial
court's discretion absent extraordinary circumstances not
present here. United States v. Soldevila-Lopez, 17 F.3d 480,
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487 (1st Cir. 1994). Reyes also asserts that his conviction
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was based upon perjured testimony but the record reflects
only the kinds of conflicts or discrepancies that are
commonly left to juries.
Both Reyes and Jimenez complain that testimony was
admitted concerning extraneous criminal acts, including other
drug transactions involving Toledo, and that the testimony
was inadmissible (as irrelevant or as hearsay), highly
prejudicial, or both. On examination, it appears that almost
all of the evidence in question related to incidents that
were relevant (e.g., to explain how Toledo came to need a
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false passport) or not made the subject of a contemporaneous
objection or both. None of these claims needs separate
discussion.
Reyes objects now to three alleged misstatements by the
prosecutor in closing arguments. The only one objected to at
trial was a reasonable inference by the prosecutor; and the
only actual misstatement (that the passport sought by Toledo
was actually used) was the kind of slip of the tongue that
could easily have been corrected at the time if an objection
had been made; and the evidence plainly showed that the
passport had been sought based on false statements but never
issued. The jury instructions challenged on appeal were not
objected to at the time and are not remotely plain error.
Both Reyes and Jimenez argue that the government failed
to disclose to the defense material that might have been used
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to impeach Toledo and Martinez. The government stated in
Reyes' sentencing hearing and again in its brief that it did
not have the information that appellants argue should have
been disclosed, and appellants bring to our attention no
substantial evidence that the prosecution did have the
information. The government has no obligation to disclose
information it does not possess, United States v. Sepulveda,
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15 F.3d 1161, 1179 (1st Cir. 1993); the rule of Brady v.
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Maryland, 373 U.S. 83 (1963), imposes no general due
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diligence requirement. United States v. Moore, 25 F.3d 563,
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569 (7th Cir. 1994).
Finally, Reyes says that he was denied effective
assistance of counsel based on a parade of alleged failures
by counsel to investigate or object and also the failure to
have Reyes testify at trial. These are fact-based claims
that must be presented to the district court in the first
instance and we therefore do not reach them. United States
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v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991), cert. denied,
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112 S. Ct. 986 (1992).
Affirmed.
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