October 28, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-2298
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN ANTONIO CASILLAS,
Plaintiff, Appellant.
No. 92-1493
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE E. BONILLA-MARTINEZ,
Defendant, Appellant.
No. 92-1494
UNITED STATES OF AMERICA,
Appellee,
v.
FERNANDO FACIO-LABOY,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich and Coffin, Senior Circuit Judges.
Manfredo E. Lespier-Garcia for appellant John Antonio Casillas.
David Rive-Rivera, by Appointment of the Court, for appellant
Fernando Faccio-Laboy.
Carlos R. Noriega, by Appointment of the Court, for appellant
Jose E. Bonilla-Martinez.
Rosa Emilia Rodriguez-Velez, Assistant U.S. Attorney, with whom
Charles E. Fitzwilliam, United States Attorney, and Jose A. Quiles-
Espinosa, Senior Litigation Counsel, were on brief for appellee.
COFFIN, Senior Circuit Judge. These three appeals are
brought by defendants Jose Antonio Casillas (Casillas), Jose
Enrique Bonilla Martinez (Bonilla), and Fernando Faccio-Laboy
(Faccio), who were adjudged guilty of conspiracy to possess with
intent to distribute multi-kilo quantities of cocaine, in
violation of 21 U.S.C. 846. One defendant, Casillas, was
convicted of using a telephone in facilitating the conspiracy, in
violation of 21 U.S.C. 843(b). In addition to terms of
supervised release and special monetary assessments, the
following terms of imprisonment were imposed: Casillas, 292
months; Bonilla, 264 months; Faccio, 264 months.
Appellants Casillas and Bonilla challenge the sufficiency of
the evidence to support their convictions. Appellant Casillas
also challenges the district court's finding, pursuant to
Sentencing Guideline 3B1.1, U.S.S.G. 3B1.1, that his role was
that of manager/supervisor of the conspiracy, and its consequent
increasing of his offense level. Each appellant challenges the
court's finding that he was instrumental in negotiating for the
purchase of 150 kilograms of cocaine, a finding resulting in a
base offense level of 38. More particularly, each appellant
claims that he had neither the intent nor the capacity to bring
about the purchase of such a large quantity of cocaine.
After reviewing the record of events and the evidence of
appellants' intent and capacity, we affirm as to all issues.
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The reverse drug buy undercover operation
We set forth what we consider a sufficient narration of
events, as the jury was warranted in viewing them, to make our
discussion of the legal issues comprehensible. We have
necessarily excluded much and selected from not always consistent
testimony.
The conspiracy originated with the government. This was a
"reverse sting" operation, in which government undercover agents
posed as sellers and set up deals with would-be drug buyers.
Drug Enforcement Administration (DEA) special agent Jefferson
Justice worked with and often through a confidential informant,
William Hoercherl, to involve appellant Casillas in a drug
importing scheme. Casillas had participated with Hoercherl in a
prior deal, involving some 102 kilograms, and was thought to be a
suitable target for DEA activity. Contacts began in May, 1990,
and by June had progressed to the point where Casillas agreed to
be a broker for Hoercherl and Justice (now posing as Hoercherl's
nephew) in the importation and sale of 600 kilograms of cocaine.
New York and Miami were to be the locus for the sale of 400
kilograms and Puerto Rico the locus for 200 kilos. The price for
a kilo was $12,500. Casillas was to find the customers.
During July there was continual activity: Casillas brought
into the venture one Torres, who was expected to find buyers in
New York and Miami; a sampling of cocaine was done at the Caribe
Hilton Hotel, but Casillas canceled a scheduled transaction
because his buyers distrusted the location; and the terms
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changed, the amount of down payment required by the "sellers"
having dropped from $1,000,000 for 200 kilos to $400,000.
In early August, Torres introduced one Ortiz, who was to
come forward with property as collateral for part of the down
payment. On August 8, Ortiz attended a meeting with Justice,
Casillas, and others, and gave Justice documents concerning four
pieces of real estate: a four-unit apartment building, Ortiz's
residence, an urban lot in Dorado Del Mar, and a rural lot.
Casillas had received from Ortiz documents of title to eleven
automobiles; these he gave to Justice. Then Ortiz signed a note
giving Justice all of the collateral "if the money for services
[i.e., drugs delivered] is not paid in full." Ortiz also claimed
to have nineteen other vehicles on his lot and thirty-four en
route via barge. This satisfied the first half of the required
down payment of $400,000. Casillas, however, failed to come up
with the second half of the down payment in cash on that day.
Two days later, on August 10, Casillas introduced appellant
Faccio to Hoercherl as the person who would provide the money for
the additional down payment. The amount of drugs to be delivered
had dropped from 200 kilos to 150 kilos. Hoercherl discussed the
transaction, which would require a down payment of $400,000 (one
half of which was the Ortiz collateral), and would buy 50 kilos
of cocaine, 25 of which would be delivered at once, the remainder
to be delivered on consignment. Presumably this meant that the
seller would retain title until payment was accomplished. The
remaining 100 kilos were to be delivered later in the day. Not
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part of Hoercherl's discussion but elsewhere revealed in the
testimony was the understanding that Casillas would be charged
with ensuring that the sales proceeds would be collected and paid
to the sellers. In other words, delivery of the 100 kilos was
not conditioned on a down payment.
A meeting took place on August 13, which was attended by
Hoercherl, Justice, Faccio, and Casillas. While the August 10
meeting was not recorded on tape, this one was. Although
Hoercherl testified that on August 13 there was discussion of
arrangements to deliver the 150 kilos on August 15, the tape
contains no reference to this total amount. Faccio, who spoke
only Spanish and to whom the remarks of Justice and Hoercherl had
to be translated by Casillas, was recorded as mentioning "the 25"
and being told by Casillas that "those 25 are gonna leave you
with 25 more" and that "It will pay off for you." It was agreed
that the transaction not take place until August 15 in Faccio's
Feria Court Apartments building. Faccio preferred that date to
the 14th "Because that way you give me all day today to get a
hold of Quique." Quique was elsewhere identified as appellant
Bonilla. However, on August 15, Casillas spoke with Justice and
Hoercherl and postponed the meeting until the following day, as
he needed more time to secure the money for the deal.
On August 16, Justice and Hoercherl came to Faccio's
apartment building. At 4:30, Bonilla drove up in a white Ford
Bronco, talked with Casillas, and entered the building. Bonilla
came back to the Bronco at 4:45, reentered the building, came out
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again at 4:55, went to the Bronco, took out a white box and
reentered the building. Faccio and Bonilla talked in front of
the building, then Bonilla made a third trip to the Bronco,
bringing back a blue money pouch. He was then seen shortly after
at a fifth story window. He and another person (an acquitted co-
defendant) were seen talking together at apartment 203; Bonilla
was nervous about this location, because of some adjacent
occupant. He then talked to Faccio, who told him that the money
would be in apartment 305. Faccio went to the elevator, and
pushed the button; the door opened, revealing Bonilla and an
associate with both the white box and the blue pouch. Hoercherl
subsequently saw the white box and the blue pouch in apartment
305, both with money in them. When he asked Casillas if the
$200,000 were all there, Casillas replied that it was "a little
short." Casillas then said that Bonilla and his associate must
inspect the delivered drug cargo, for it was "their money."
Casillas exited the building, carrying the white box, and
went to his Volvo, outside the gate to the apartment complex. At
this juncture, Justice, who was waiting outside the gate, gave
Hoercherl the keys to the car which supposedly was carrying the
cocaine. Hoercherl walked toward it, meanwhile telling other
government agents what to expect inside the gate. He then drove
to the gate, followed by federal agents in a van, entered, and
the arrest of the appellants followed. The white box in
Casillas's Volvo contained $97,950. Bonilla threw away the key
to the pouch, which was now empty. Keys to apartment 305 were
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found on him. Faccio possessed a box containing many keys to
apartments, including number 305.
A Preliminary Inquiry - Entrapment?
Appellant Casillas has devoted a substantial part of his
brief to asserting that this prosecution was the kind of
situation described in Sorrells v. United States, 287 U.S. 435,
442 (1932), "when the criminal design originates with the
officials of the Government, and they implant in the mind of an
innocent person the disposition to commit the alleged offense and
induce its commission in order that they may prosecute."
Appellant cites as support the governmental origin of the scheme,
the use and instruction of an informant, the uninvited visits to
Casillas, the initiation of telephone calls by the informant or
the undercover agent, and the absence of cocaine.
But entrapment (a word which does not appear in Casillas's
brief) is not an issue in this case. Appellant requested, and
the district court refused, an instruction on entrapment.
Appellant has not identified this ruling as error or made it an
issue. He cannot now slide it into the case. Nor can appellant
gain any comfort from the safety valve of "plain error" -- which
in any event he has not invoked. The evidence of predisposition
was manifest. See generally United States v. Panet-Collazo, 960
F.2d 256, 259-60 (1st Cir. 1992). And this is not that rare case
where we might characterize the government's conduct as
outrageous. As we have noted in United States v. Rafael Santana
and Francis Fuentes, No. 90-1393, slip op. at 6 (1st Cir. Sept.
-8-
16, 1993), "The banner of outrageous misconduct is often raised
but seldom saluted."
Sufficiency
Both Casillas and Bonilla challenge the sufficiency of the
evidence to support their convictions for conspiracy. Our
standard of review is limited. We indulge all reasonable
inferences favoring the prosecution. Our query is whether a
rational jury could have found guilt beyond a reasonable doubt.
United States v. Benevides, 985 F.2d 629, 633 (1st Cir. 1993).
So long as the government has shown by direct or circumstantial
evidence that a defendant intended to agree and to commit
whatever substantive criminal offense may have been the target of
the conspirators' agreement, it has met its obligations. United
States v. Cruz, 981 F.2d 613, 616 (1st Cir. 1992). It does not
need to show that a defendant took part in all aspects of the
conspiracy. Id., at 617; Benevides, 985 F.2d at 633 (proof of
the essential nature of the plan, and defendant's connection with
it is enough) (quoting Blumenthal v. United States, 332 U.S. 539
(1947)).
The record, insofar as it concerns Casillas, is voluminous.
He participated in all the meetings, conducted negotiations, and
sought buyers, recruiting Torres who brought in Ortiz, and
Faccio, who brought in Bonilla. He inspected samples, called off
or delayed meetings, and decided when a transaction was ready.
He was the spokesman of the buyer group and was the person who
placed the money in his car for exchange on delivery of the
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cocaine. The evidence of his participation was more than
sufficient.
Bonilla's main argument is that he had not appeared at any
of the many meetings at which the drug deal was discussed, and
that his presence on August 16 at the Feria Court Apartments (the
scene of the drug transaction) was innocent, as he was there to
negotiate the purchase of an apartment, not drugs. But that day
was crucial to the conspiracy, and Bonilla proved to be a most
active and visible actor. In the first place, a defendant's
"mere presence" claim is more difficult to sustain when his
"presence" was at the scene of the transaction. See United
States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) ("Jurors can
be assumed to know that criminals rarely welcome innocent persons
as witnesses to serious crimes and rarely seek to perpetrate
felonies before larger-than-necessary audiences."). In the
second place, Faccio's expressed satisfaction that postponement
of the transaction would give him a day to "get a hold of Quique"
(identified as Bonilla) could be taken by the jury to indicate
the essentiality of his role. In the third place, the events of
August 16 reveal his omnipresence: his several trips to the
Bronco; his nervousness at having the transaction in apartment
203 and his apparent influence in changing to apartment 305; his
appearance in the elevator with the white box and the blue money
pouch; Casillas's statement that Bonilla and his associate should
inspect the drugs being delivered, for it was "their money;" his
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attempt to throw away the key to the pouch; and his possession of
the key to apartment 305, the money room.
The jury, of course, was entitled to disbelieve his
proffered alibi that he was there to inspect an apartment that he
and his wife might decide to buy. Moreover, the jury was
entitled to draw the inference that Bonilla would not likely have
brought almost a hundred thousand dollars to the transaction if
he had not known of the total down payment requirement, the
extent of Ortiz's contribution of collateral, and the
understanding as to the remaining delivery. In short, the
evidence was sufficient to support the verdict.
Sentencing Issues
Manager/Supervisor. Appellant Casillas devotes two
sentences in his brief to the claim that the district court erred
in increasing his offense level because of his role as manager or
supervisor of the conspiracy. He argues that Justice and
Hoercherl occupied that role.
We review this finding only for clear error. United States
v. Wright, 873 F.2d 437, 442-44 (1st Cir. 1989); United States v.
Vega-Encarnacion, 914 F.2d 20, 24 (1st Cir. 1990). From what we
have already said about Casillas's participation, it is manifest
that there was no error. His acceptance of the role of broker,
his recruiting efforts, and his central role in negotiating,
planning and delaying meetings support the finding. Moreover,
Agent Justice testified that Casillas was to be given a
percentage of the sale proceeds plus fifty kilograms of cocaine.
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This record satisfies most, if not indeed all, of the factors
characterizing a leadership role specified in U.S.S.G.
3B1.1(c). See id., comment. (note 3).
Intent to Accomplish Sale of 150 Kilograms. All three
appellants claim that the negotiated amount of 150 kilograms
should not be used in calculating their offense levels. Casillas
argues that the amount of drugs, "if any," should be either 50
kilograms (the total he claims that he intended to purchase) or
"around 7 kilograms." Bonilla argues that, since the sum seized
could have purchased only 7.7 kilograms (at $12,500 per kilo),
this figure should have been used, resulting in an offense level
of 30, not 38. Faccio argues that the only evidence of his
involvement in the enterprise was his tape recorded remarks
concerning his interest in purchasing, at most, 25 kilograms.
In addressing these contentions, we are directed by two
guidelines. U.S.S.G. 1B1.3(a)(1)(B) provides that a
conspirator is responsible for all criminal acts in furtherance
of the conspiracy and they are includible in the defendant's
offense level to the extent that they are either within the scope
of the criminal activity embraced by the defendant's agreement or
"reasonably foreseeable in connection with the criminal activity
the defendant agreed to jointly undertake." See id., comment.
(note 2). In addition, in connection with then applicable
U.S.S.G. 2D1.4, comment. (note 1) (1991), the amount of drugs
sought or under negotiation in a conspiracy should be used if the
amount seized is less and defendant intended to produce and was
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"reasonably capable" of producing the larger amount. This
instruction applies to buyers as well as sellers and includes
those who negotiate purchases from undercover agents. United
States v. Frazier, 985 F.2d 1001, 1002-3 (9th Cir. 1993).
There can be no question that appellant Casillas was
properly charged with the intent to bring about the purchase of
150 kilograms. He was in the center of developments from the
very beginning, when the total amount contemplated was 600
kilograms, and privy to every subsequent change of plans.
With reference to Bonilla the district court found that he
was "fully aware of the total amount negotiated and he produced a
substantial amount of money towards the purchase of the 150
kilograms of cocaine. [He] played an instrumental role in the
conspiracy as a financier, an essential part of the
conspiratorial scheme."
With reference to Faccio, the court found that he "was aware
of the total amount negotiated and he negotiated to produce the
monies for the purchase of 150 kilograms of cocaine. As one of
the financier[s] his role in the conspiracy was instr[u]mental."
The court filed supplemental findings, after reviewing its notes
and the arguments of the parties, that Faccio had "negotiated the
amount of 150 kilograms of cocaine, that the amount of money
corresponding to quantity and the condition [sic] for the
delivery were also a part of the discussions."
We review a trial court's determination of the amount of
drugs included in the offense for sentencing purposes under the
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strict "clearly erroneous" standard. United States v. Panet-
Collazo, 960 F.2d at 261. Can we say that the court was clearly
wrong in finding that Bonilla and Faccio, called in to provide
the second half of the required down payment, could reasonably
foresee the wider reaches of the scheme? Whether or not Faccio
was to receive substantial amounts of cocaine as extra
compensation, as some testimony indicated, we cannot believe that
it was irrational to find that Bonilla, who contributed nearly
$100,000, and Faccio, who, according to the taped record of the
August 13 meeting, was willing to give a deed to his property,
knew of the extent of the underlying agreement. Specifically,
the court cannot be faulted for concluding that Faccio and
Bonilla knew that the cash contribution Bonilla would make would
complete the $400,000 down payment required to transfer the title
to 25 kilograms, obtain the delivery of another 25 kilograms on
consignment, and pave the way, if the money count was
satisfactory, to the delivery later in the day of 100 kilograms
which could be sold before payment was made to the sellers.
In short, even though Faccio and Bonilla came in at the last
chapter, it was a chapter that reflected all that had gone
before. The roles of both men were far more significant than
that of a guard for a "money man" where, in United States v.
Alfonso Mena-Robles and Miguel Torres-Rivera, Nos. 92-1233, 1299,
slip op. at 21 (1st Cir. Sept. 28, 1993), we held, "his general
knowledge of the size of the cocaine deal is inferable." We
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therefore hold that the court's findings of the appellants'
knowledge and intent were not clearly erroneous.
Capacity to Finance the 150 Kilogram Purchase. Faccio is
the only appellant who clearly raises a challenge to the district
court's 150-kilogram finding by arguing that the government
failed to carry its burden of showing, by a preponderance of the
evidence, that he was reasonably capable of buying that much
cocaine from the government agents. He relies on our statements
in United States v. Estrada-Molina, 931 F.2d 964, 966 (1st Cir.
1991) and United States v. Bradley, 917 F.2d 601, 604-05 (1st
Cir. 1990), where we said that the government had the burden of
proving capability as well as intent to produce the quantity
proposed to be used for determining the offense level.
Neither the government below nor the district court
responded to this argument. In reviewing the record we can
understand why. The thrust of Faccio's objections to his pre-
sentence report was that, not understanding English, he did not
know the extent of the planning, and his own intended purchase
was limited to 25 kilograms. He invoked U.S.S.G. 2D1.4,
comment. (note 1) (now consolidated as part of U.S.S.G. 2D1.1,
comment. (note 12)), recognizing the inappropriateness of
considering the total amount negotiated when the court finds the
defendant "did not intend to produce and was not reasonably
capable of producing the negotiated amount." He also cited
Estrada-Molina.
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But even these passing references to capability disappeared
at the subsequent hearing on objections to the presentence
report. Faccio repeatedly stated his position that the evidence
did not support a finding that he knew or had anything to do with
facilitating the purchase of more than 25, or at most 50,
kilograms. The issue of Faccio's capability to produce
sufficient funds was never presented to the district court.
Since, however, the leveraging effect of considering
negotiated but undelivered amounts is so enormous, we look at the
record. Our conclusion is that, though harsh, it supports the
higher offense level of 38. We first point out that the planned
purchase of 150 kilograms (about which Faccio was told at the
August 10, untaped meeting, notwithstanding the fact that the
August 13 meeting made no mention of this amount), was not to be
made wholly in cash. The requirements had been narrowed to a
down payment of $400,000. This would trigger the immediate
delivery of complete title to 25 kilograms and delivery, on
consignment, of another 25 kilograms, followed by a delivery for
sale and later repayment of 100 kilograms. The first half of the
down payment had been supplied by the Ortiz collateral. And what
was actually delivered by Bonilla was approximately half of the
remaining $200,000. So the focus must be: would the district
court have been clearly in error in finding Faccio capable of
providing the remaining $100,000?
What we find in the record are unrebutted intimations of
Faccio's capacity to do so. On August 13, Faccio was recorded
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saying that he could give a deed to his property and that "I
have there over $83,000 that are mine." This is followed by a
statement by Casillas that Faccio had property worth $800,000,
and by Hoercherl's comment that the amount was a million. Then
there is the evidence that Bonilla and his wife were prepared to
pay $103,000 for one of Faccio's apartments. We do not know the
size of the apartment building, but the record discloses that
there were five floors, that perhaps half had been sold (occupied
by professional people), with half yet to be sold. Perhaps most
compelling is the statement in Faccio's pre-sentence report,
unobjected to, that the government had confiscated properties
valued at over two million dollars. All this may not be
conclusive, for mortgage indebtedness is not revealed. But the
district court was surely entitled to accept these figures,
absent any indication that they were misleading. All of these
indicia meet if not exceed those we found sufficient to prove
capacity in United States v. Bradley, 917 F.2d 601 (1st Cir.
1990).
In objecting to his pre-sentence report, Bonilla merely
stated that he had been able to come up with only the money
seized (nearly $98,000), not $200,000. He did not specifically
argue incapacity in either his appellate brief or at oral
argument. Even were we to consider such an argument now, we
should have to treat Bonilla as accountable for the reasonable
capacity of his co-conspirators. As the Sixth Circuit held in
United States v. Snelling, 961 F.2d 93, 96 (1991),
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Since the negotiated amount in this reverse buy was three
kilograms and the co-defendants had sufficient funds at the
time of arrest to purchase three kilograms of cocaine, the
district court was correct in utilizing a base level of 28.
As we said of a defendant making a similar argument in Mena-
Robles, appellant's "personal financial ability is inapposite to
the matter at hand." Nos. 92-1233, 1299, slip op. at 19 (1st
Cir. Sept. 28, 1993) (emphasis in original).
Casillas advanced an incapacity argument only conclusorily
and obliquely. But, again, spurred by the dramatic impact of the
total amount negotiated on his prison sentence, we have reviewed
the record. Here, unlike with Faccio and Bonilla, we are not
concerned with Casillas's own ability to finance the purchases.
Casillas's role was that of finder, facilitator, recruiter. That
he performed this role with considerable effectiveness was shown
by his track record in this case. Being a middleman, his own
inability to pay is not controlling. United States v. Fowler,
990 F.2d 1005, 1006-08 (7th Cir. 1993). He supplied the
financiers with most of the down payment; it is likely that any
shortfall could have been remedied; he would be free to sell the
cocaine delivered on consignment and have the remaining 100 kilos
delivered without down payment.
We therefore reject the arguments asserting lack of proof of
the defendants' ability to finance the down payment for the
planned 150 kilogram transaction.
AFFIRMED.
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