USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
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No. 95-2264
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN AROCHO GONZALEZ,
Defendant, Appellant.
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No. 95-1652
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO AROCHO GONZALEZ,
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
Stahl, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Raymond Luis Sanchez Maceira for appellant Roberto Arocho
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Gonzalez.
Peter Diaz-Santiago for appellant Juan Arocho Gonzalez.
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Jeanette Mercado-Rios, Assistant United States Attorney, with
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whom Jose A. Quiles-Espinosa, Senior Litigation Counsel, Edwin O.
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Vazquez, and Nelson Perez-Sosa, Assistant United States Attorneys, and
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Guillermo Gil, United States Attorney, were on brief for appellee.
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August 1, 1996
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LYNCH, Circuit Judge. Two brothers, Roberto and
LYNCH, Circuit Judge.
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Juan Arocho Gonzalez, were accused by the government of
running a cocaine sales ring out of an apartment in the
Agustin Stahl Housing Project in Aguadilla, Puerto Rico.
After a jury trial, they were convicted on all counts of an
eleven count indictment charging them with conspiring to
possess cocaine with the intent to distribute it, with
distributing cocaine within 1000 feet of a public school,
with engaging in a Continuing Criminal Enterprise ("CCE"),
and with hiring minors to distribute cocaine. Both brothers
received the mandatory minimum sentence of twenty years.
They appeal, admitting that they sold small quantities of
narcotics, but contending that the evidence was insufficient
to establish the elements of a CCE violation. They also
assert that the trial court committed reversible error in
denying their motions to substitute counsel, in declining to
find Brady error, and in calculating the amount of drugs
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attributable to them for sentencing purposes. We affirm.
I.
Because the sufficiency of the evidence is at
issue, we describe the facts in the light most favorable to
the government, as the jury could have found them. See
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United States v. Hahn, 17 F.3d 502, 505 (1st Cir. 1994).
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Local police received information that a drug point
was being operated out of the Housing Project. From May
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through November of 1994, federal Drug Enforcement
Administration special agents and local police observed and
videotaped activities conducted from Apartments 165 and 161.
Roberto and Juan1 lived in Apartment 161, which was leased in
their mother's name. The two apartments are about twenty
feet from each other and both are less than eighty feet from
an elementary school.
Visual surveillance established that the drug point
was in operation about eighteen hours a day, seven days a
week. Sales were made by drug peddlers in front of Apartment
161. Cars would pull up in front of the apartment, where the
drivers would exchange money for small plastic bags
containing cocaine. The peddlers making the exchanges would
take the money into Apartment 161 and bring out the plastic
bags containing the cocaine.
Roberto and Juan were observed on various occasions
handing bags to the peddlers, receiving money from them, and
counting that money. The brothers appeared primarily to be
supervising the sales, although at times they made direct
sales themselves. At least ten people were observed peddling
drugs at this drug point, some of whom were minors. In six
controlled buys, agents bought bags whose contents tested
positive for cocaine and heroin.
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1. Because the two defendants share a common last name, we
refer to each by his first name.
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On December 1, 1994, a search of Apartment 161,
pursuant to a search warrant, turned up twenty-three bags of
cocaine (worth no more than $20 each), measuring scales,
plastic baggies, leasing receipts for cars, and empty money
wrappers in denominations of $100, $500, and $1000. The
scales, money wrappers and leasing receipts were found in
Juan's bedroom. In addition, cellular telephone equipment and
a beeper receipt were seized. Roberto and Juan were
arrested. Roberto was carrying a beeper. Although only
$70.66 was found on Roberto, and $2 on Juan, an agent witness
estimated the volume of cocaine transactions over the period
the apartments were under observation to be approximately
eight kilograms, which would have generated an income in the
region of $300,000.
II.
A. Sufficiency of Evidence
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Defendants' most vigorous challenge is to the
sufficiency of the evidence supporting their convictions for
engaging in a CCE in violation of 21 U.S.C. 848. "In
reviewing a sufficiency of the evidence claim we look at the
evidence in the light most favorable to the verdict." United
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States v. Cruz-Kuilan, 75 F.3d 59, 61-62 (1st Cir. 1996). In
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order to preserve a sufficiency of the evidence challenge for
appeal, a defendant must first move for judgment of acquittal
at trial. See United States v. Concemi, 957 F.2d 942, 950
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(1st Cir. 1992). Juan did not do so and has therefore waived
his sufficiency challenge. Given waiver, a defendant can
succeed only if he can demonstrate that his conviction was
"clearly and grossly unjust." Id. at 950. We do not find
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Juan's conviction to be so. We focus therefore on Roberto's
challenge, which was properly preserved.
A CCE conviction requires proof that the defendant:
(i) committed a felony drug offense; (ii) as part of a
continuing series of such violations; (iii) in concert with
five or more persons in relation to whom he acted as a
supervisor, organizer, or manager; and (iv) from which
multiple operations he realized substantial income or other
resources. 21 U.S.C. 848(c); Hahn, 17 F.3d at 506.
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Roberto claims that the government established neither the
third nor fourth elements of the CCE offense.
(a) Supervisor, Organizer or Manager
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Roberto argues that the evidence was insufficient
to show that he was a supervisor, organizer or manager at the
drug point. He asserts that there was no direct evidence of
his giving orders or instructions to anyone. He further
asserts that he was no more than a drug addict working as a
low-level drug peddler in order to support his habit. There
was evidence sufficient for the jury to find to the contrary.
The government need show only that the defendant
occupied some managerial position with respect to five or
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more persons,2 and not that the defendant was the dominant
organizer or manager. See Hahn, 17 F.3d at 506 n.4. There
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was an abundance of evidence from which the jury could
reasonably have concluded that Roberto performed a
supervisory role with respect to the operation of the drug
point. The operation was run out of Roberto's home. At most
times Roberto appeared to be monitoring the peddlers as the
peddlers executed sales with customers. In an estimated 90%
of the transactions observed, the proceeds of the sales by
the peddlers appeared to have been turned over to Roberto or
Juan. Roberto, specifically, was observed dispensing drugs
to the peddlers, receiving the proceeds, and counting those
proceeds. Roberto points out that the evidence at trial
showed him conducting a few direct sales himself and says
that this shows he was merely a peddler. But the fact that
Roberto conducted a few sales himself does not insulate him
from the evidence demonstrating his supervisory role. There
was ample evidence for the jury to reasonably infer that
Roberto's role was supervisory.
(b) Substantial Income or Resources
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Roberto makes two attacks on the sufficiency of the
government's evidence as to substantial income or resources.
First, he says that there was not sufficient evidence for the
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2. It is undisputed that, in addition to Roberto and Juan,
the drug point employed at least ten other people.
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jury to have concluded that a substantial volume of drugs was
sold at the drug point. Second, he asserts that in the
absence of evidence in the nature of bank accounts, material
possessions or an expensive lifestyle, the jury could not
have reasonably concluded that the drug point provided him
with substantial income. Both arguments fail.
First, there was adequate evidence from which the
jury could have reasonably inferred that the volume of drug
transactions at the drug point was large enough to generate
substantial income. Specifically, there was:
(i) testimony from government agents
that, based on their surveillance over a
period of seven months, they estimated
the drug point to operate eighteen hours
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a day, seven days a week;
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(ii) videotaped surveillance for
approximately a six hour period between
12:30 p.m. and 6:25 p.m. on a Friday
afternoon that showed twenty-three
separate sales to have been made; and
(iii) testimony from government agents as
to six controlled buys that they had made
from the drug point on two Fridays, where
the average weight of the purchased
amounts of cocaine was .54 grams.
At trial, extrapolating from the number of sales for the six
hour period, the average weight of the individual amounts
purchased, and the evidence that the drug point operated
eighteen hours a day, seven days a week, the government
estimated monthly sales to be in the order of one and a
quarter kilograms. Roberto attacked this estimation at
trial, as he does now, asserting that the government should
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have discounted for the fact that the volume of sales on
Fridays was probably higher than that on the weekdays. But
even if the jury had been instructed to discount the
government's Friday-based estimation, it could still have
readily determined that the drug point transacted a high
volume of drugs.
Roberto further argues that the government produced
no direct evidence of his having accumulated wealth from the
drug operation. But the substantial income or resources
element can be met by circumstantial evidence of the
defendant's role in the operation and the scope of the
operation. See Hahn, 17 F.3d at 507; United States v. Roman,
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870 F.2d 65, 75 (2d Cir.), cert. denied, 490 U.S. 1109
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(1989). Proof that a large quantity of drugs was sold, in
addition to proof of defendant's position in the
organization, is adequate to produce the inference that
substantial revenue must have been derived. See Hahn, 17
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F.3d at 507. Here there was evidence of a high-volume drug
operation, from which the jury could reasonably have inferred
that substantial income resulted for Roberto, a supervisor.
A government witness estimated the income from the operation,
for the approximately seven months it was observed, to be
almost $300,000.
Roberto also points out that he lived in a housing
project where the rent was only $3 per month. However, given
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the evidence of a high-volume drug operation, the jury could
have reasonably discounted the lack of evidence as to
accumulated wealth. Cf. Hahn, 17 F.3d at 507 n.6 (where
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government presented evidence of a high-volume drug
operation, jury could have reasonably discounted evidence
from defendant's father that defendant lived in a trailer
park and was constantly short of money).
B. Motion to Substitute Counsel
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Both brothers assert error in the district court's
denial of their last-minute motions to substitute counsel.
They argue that the district court failed its obligation to
make an inquiry into an alleged failure of communication in
the attorney-client relationship. The trial transcript shows
the argument to be without merit.
Denials of motions for substitution of counsel are
reviewed for an abuse of discretion. United States v. Diaz-
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Martinez, 71 F.3d 946, 950 (1st Cir. 1995). Within that, we
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consider the circumstances of the denial, such as the
timeliness of the motions and whether the attorney-client
conflict was so great as to preclude an adequate defense.
United States v. Allen, 789 F.2d 90, 92 (1st Cir.), cert.
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denied, 479 U.S. 846 (1986).
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As to timeliness, the motions were raised on the
first day of trial, after the jury was impaneled, and
allowance of the motion would have delayed the trial.
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Questioning by the district court revealed that neither
brother had substitute counsel ready to step into place.
"[W]hen, as here, the granting of the defendant's request
would almost certainly necessitate a last-minute continuance,
the trial judge's actions are entitled to extraordinary
deference." United States v. Pierce, 60 F.3d 886, 890 (1st
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Cir. 1995), cert. denied, __ S. Ct. __, No. 95-6474 (July 1,
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1996); see also Diaz-Martinez, 71 F.3d at 950; United States
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v. Betancourt-Arretuche, 933 F.2d 89, 94 (1st Cir.)
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("eleventh-hour" requests may interfere with orderly court
procedure and are disfavored), cert. denied, 502 U.S. 959
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(1991); United States v. Torres, 793 F.2d 436, 440 (1st
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Cir.), cert. denied, 479 U.S. 889 (1986).
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Defendants argue that there was a total lack of
communication between themselves and their attorneys. This
showed itself, they say, in counsel advising them to plead
when they wanted to go to trial. What defendants point to is
a disagreement, not a lack of communication precluding an
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adequate defense. Indeed, it is an attorney's role to
provide a client with his or her independent informed
judgment as to the client's options. That the client
disagrees with the attorney's weighing of options is not,
alone, an adequate basis from which to infer a lack of
communication. See Allen, 789 F.2d at 93 (attorney-client
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disagreement over whether client's better option was to
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accept plea or go to trial was not, by itself, enough to
create good cause for substitution of counsel).
The district court made a detailed inquiry as to
each brother's reasons for wanting a substitution of counsel.
The questioning revealed that counsel for each defendant met
with his client on a number of occasions to discuss the case.
It further revealed that at least in Roberto's case the real
cause of his dissatisfaction was that counsel had not been
able to obtain for him as favorable a plea bargain offer as
some of his former co-defendants had obtained. But
defendant's counsel does not control either what the
prosecution charges or is willing to offer. The district
court was well within its discretion in denying the motions
for substitution of counsel.
C. Brady Violation
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Defendants argue that there was prejudicial error
in the prosecution's failure to turn over to the defense
certain computer records in violation of the rule established
in Brady v. Maryland, 373 U.S. 83 (1963). The computer
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reports contained the identities of the owners of four cars
that government witnesses testified were under the control
and in the possession of the defendants. Defendants assert
that the information as to the owners' identities would have
brought into question the credibility of the government
witnesses on the question of the scope of the drug operation
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and the allegedly substantial income that it generated. They
hypothesize that if the owners' identities had been known,
they could have been called to testify that the vehicles had
not been under the control of the defendants. The district
court found no Brady violation, reasoning that since the
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government witnesses testified only as to the defendants
having control and possession of the vehicles, not ownership,
the computer reports were not exculpatory. We agree.
"To show a Brady violation, the defendant must show
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(among other factors) that the withheld `evidence was
exculpatory, as measured by its materiality.'" United States
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v. Watson, 76 F.3d 4, 7 (1st Cir.) (quoting United States v.
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Hemmer, 729 F.2d 10, 14 (1st Cir.), cert denied, 467 U.S.
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1218 (1984)), cert. denied, 116 S. Ct. 1889 (1996).
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"Evidence is material if there is a reasonable probability
that the outcome of the proceeding would have been different
had the evidence been disclosed." See id. (citing United
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States v. Bagley, 473 U.S. 667, 682 (1985)).
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In the face of this, defendants have not
demonstrated why the information as to ownership of the cars
was material. Further, defendants did know who owned the
cars they used, as counsel admitted at oral argument. Had
the evidence had any exculpatory value, defendants had the
ability to present it.
III.
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Defendants appear to challenge their convictions
under 21 U.S.C. 841(a)(1) & 846 on the ground that there
was insufficient evidence to support a finding that they
distributed in excess of five kilograms of cocaine. The
challenge is unavailing.
The government was not required to prove any
particular quantity of drugs before the jury in order to gain
convictions under 21 U.S.C. 841 and 846. See United
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States v. Barnes, 890 F.2d 545, 551-52 & n.6 (1st Cir. 1989),
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cert. denied, 494 U.S. 1019 (1990). The evidence relating to
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drug quantity in excess of five kilograms was relevant only
at the sentencing phase, and specifically, to whether the
defendants were subject to the mandatory minimum sentence of
ten years imposed by section 841.3 However, any challenge by
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the defendants on this sentencing point would be of no
practical significance, because their ten-year sentences
under Section 841 were imposed concurrently to the twenty-
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year mandatory sentences required for their CCE convictions.4
Therefore, we need not address it. See Vanetzian v. Hall,
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562 F.2d 88, 90 (1st Cir. 1977) (declining to entertain
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3. A mandatory minimum sentence of ten years is triggered if
the offense involves five kilograms or more of a mixture
containing a detectable amount of cocaine. See 21 U.S.C.
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841(b)(1)(A)(ii)(II); see also United States v. Muniz, 49
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F.3d 36, 38 (1st Cir. 1995).
4. The five-kilogram determination does not directly affect
the defendants' CCE sentences.
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challenge to sentence where validity of longer, concurrent
sentence was not in question).
Affirmed.
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