United States v. Parra

April 25, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1352

UNITED STATES,

Appellee,

v.

JAIRO GIRALDO-PARRA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Luis Rafael-Rivera for appellant.

Jos A. Quiles-Espinosa, Senior Litigation Counsel, with whom

Guillermo Gil, United States Attorney, was on brief for appellee.

BOWNES, Senior Circuit Judge. A jury convicted
BOWNES, Senior Circuit Judge.

defendant-appellant Jairo Giraldo Parra of conspiracy to

possess cocaine and heroin with intent to distribute, 21

U.S.C. 846; and possession of cocaine and heroin with

intent to distribute, 21 U.S.C. 841(a)(1). He was also

convicted under the "principals" statute, 18 U.S.C. 2.

Defendant was sentenced to 151 months of incarceration.

There are two issues on appeal: (1) whether the

district court erroneously denied defendant's Rule 29 motion

for acquittal and (2) whether the district court incorrectly

applied the Sentencing Guidelines in determining defendant's

sentence.

I.

THE EVIDENCE

We review the relevant evidence and draw reasonable

inferences therefrom, in the light most favorable to the

government. United States v. Mena-Robles, 4 F.3d 1026, 1029

(1st Cir. 1993); United States v. Hernandez, 995 F.2d 307,

311 (1st Cir. 1993). Defendant's arrest and indictment

followed a Drug Enforcement Administration (DEA) sponsored

undercover operation spanning the last five months of 1991.

Five others were also caught in the undercover net and were

indicted along with defendant. Although defendant was the

sole defendant at trial, the co-conspirators' names appear in

the record and are essential to understand the evidence:

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Oscar Gonzalez Lopez; Daniel Alberto Atilio Adinolfi; Victor

Rodriguez Alvarez; John Doe, a/k/a Edgardo Rodriguez; and

Jorge Omar Lopez Almeida. As is usual in a drug undercover

operation, many of the conversations, telephone and face-to-

face, were recorded.

Defendant was the owner-operator of a restaurant

called "Mi Pequena Colombia" located on Domenech Avenue in

Hato Rey. The undercover operation started on August 21,

1991, when DEA Agent Jefferson Moran and Pablo Rivera, a

member of the Police of Puerto Rico assigned to the DEA, met

with Oscar Gonzalez Lopez (Oscar) at a shopping center in Rio

Piedras, Puerto Rico. DEA Agent Moran was introduced to

Oscar by Agent Rivera as being interested in buying cocaine

or heroin. Oscar made a telephone call from a public phone

booth. He then asked the agents for $250 to obtain two

samples of heroin. After obtaining the money, he accompanied

the agents to Domenech Avenue, where he left the car and

headed in the direction of defendant's restaurant. He

returned shortly and gave Agent Moran a cigarette package

containing two separate samples of heroin. Between August 23

and 29, Oscar and Agent Moran discussed, mostly by telephone,

the purchase of an ounce of heroin for $7,500. On August 29,

Oscar and the two agents met and went together to defendant's

restaurant. At the restaurant they were introduced to Victor

Rodriguez Alvarez (Victor). Victor asked for the payment of

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$7,500 before turning over the heroin. After receiving the

money, he went into the restaurant and gave it to the

bartender, Edgar Rodriguez Velazquez (Edgar).1 Edgar then

gave Victor the heroin, who delivered it to Agent Moran.

Victor went back into the restaurant and asked if defendant

had called and Edgar said "No." Later, defendant called

Edgar and was told that Victor had delivered the merchandise

and he, Edgar, had the $7,500. Sometime later defendant came

to the restaurant and the $7,500 was turned over to him by

Edgar.

On September 13, 1991, Agent Rivera was called by

Victor and it was agreed that Victor would sell Rivera an

ounce of heroin for $7,000. Agent Rivera then proceeded to

defendant's restaurant and asked Edgar where Victor was.

Defendant was present when the inquiry was made. Rivera was

told that Victor was at a nearby pizzeria. Rivera made the

"buy" at the pizzeria. He paid Victor $7,000 and received

from him an ounce of heroin. After the transaction, Victor

went to defendant's restaurant and met with defendant, Edgar,

and Daniel Alberto Atilio Adinolfi (Atilio). The $7,000 was

given to Atilio, who passed it to Edgar, who put it under the

counter.

1. Named in indictment as John Doe a/k/a Edgardo Rodriguez.

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On September 25, 1991, Agent Moran called

defendant's restaurant and asked for Victor. Defendant

answered the phone and after the inquiry, put Edgar on the

line. Moran asked Edgar to have Victor call him. Later

Victor called Agent Rivera and they set up a meeting at the

pizzeria near defendant's restaurant. Before meeting Rivera

at the pizzeria, Victor went to defendant's restaurant and

obtained an ounce of heroin from Atilio. Defendant and Edgar

were at the restaurant at the time the heroin was obtained.

Victor delivered the heroin to Rivera in return for the

payment of $7,000. Victor returned to the restaurant, gave

the money to Atilio and asked for his commission. Atilio

refused to give Victor a commission; instead he referred him

to defendant. Defendant told Victor that no commission would

be paid because Victor owed him $200. This was the end of

Victor's dealings with the undercover agents. Presumably,

defendant and his cohorts found out that he had been dealing

with a DEA agent.

In late November or early December, the DEA

recruited a confidential informant, Eliezer Gallegos, to join

its undercover operation. On December 5, Gallegos met with

defendant and Atilio at the restaurant where the purchase of

one-half of a kilogram of cocaine for $5,000 was discussed.

On December 6, another negotiation meeting was held at the

restaurant. At the end of the conversation, Atilio told

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Gallegos that they would take a ride and complete the deal.

Defendant had told Atilio: "If he is going to buy the car,

take him around for a ride so he will get acquainted with

it." Gallegos understood this to mean that the cocaine was

in a car. Gallegos and Atilio left the restaurant, got into

a car, and drove around the block. The "buy" was made in the

car; Gallegos paid Atilio $5,000 and received half a kilogram

of cocaine. During the drive around the block they were

followed by Jorge Omar Lopez Almeida, who was riding a

motorcycle. Presumably, this was to protect the "buy."

Later that same day, Gallegos called the restaurant

and told Edgar that the half kilo of cocaine was short by six

grams. On December 11, Gallegos called Atilio and told him

that the cocaine he had bought was six grams less than the

amount agreed upon. Atilio promised Gallegos that he would

make up the shortage the next day and sell him a sample of

heroin for $200. Gallegos went to the restaurant the next

day. Defendant was at a table with two unknown persons.

Atilio was at another table with Edgar. Gallegos asked

Atilio for the six grams of cocaine and the heroin sample.

He was told by Atilio to wait because defendant was busy. A

little later Atilio went over to defendant who gave him a

package. Atilio passed the package to Gallegos. It

contained six grams of cocaine and a heroin sample. The next

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day Gallegos went to the restaurant and paid Edgar $200 for

the heroin sample.

It was stipulated that the drugs bought by the

undercover agents and the confidential informant tested out

as heroin and cocaine.

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II.

DISCUSSION

A. The Rule 29 Motion2
A. The Rule 29 Motion

Defendant argues that the district court erred in

denying his Fed.R.Crim.P. 29 motion for judgment of

acquittal. In reviewing the denial of a Rule 29 motion, we

consider all the evidence, draw all reasonable inferences

therefrom, and resolve all issues of credibility in the light

most favorable to the government, in order to determine

whether a jury could have reasonably concluded that defendant

was guilty beyond a reasonable doubt. Mena-Robles, 4 F.3d at

1031; Hernandez, 995 F.2d at 311.

The thrust of defendant's argument is that he was

simply an honest businessman and restauranteur whose

misadventure it was that drug dealers operated on his

premises without his blessing, knowledge, or participation.

In support of this position, defendant points out that none

of the myriad DEA recordings or photographs introduced at

trial capture him conducting an illicit drug transaction. We

have reviewed the record carefully and, while we concur with

defendant's contention that the government did not produce

2. Fed.R.Crim.P. 29 states, in relevant part: "The court on
motion of defendant or on its own motion shall order the
entry of judgment of acquittal of one or more offenses
charged in the indictment or information after evidence on
either side is closed if the evidence is insufficient to
sustain a conviction of such offense or offenses."

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any direct evidence of his complicity, we must reject both

his premise and his conclusion, because neither has a legal

basis. To the contrary, it is a well-established principle

that,

[t]he evidence [introduced against the
defendant at trial] may be entirely
circumstantial, and need not exclude
every reasonable hypothesis of innocence,
that is, the factfinder may decide among
reasonable interpretations of the
evidence.

United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.

1991)(citations omitted).

Defendant has attempted to rely on "mere presence"

as a defense to the charges of conspiracy, possession, and

distribution. Of course, in establishing a conspiracy

charge, the prosecution must prove intent to agree and commit

the substantive offense beyond a reasonable doubt, Mena-

Robles, 4 F.3d at 1031. The evidence for such proof,

however, may be either express or inferred from conduct, and

if circumstantial evidence raises reasonable inferences

sufficient to refute the claim of mere presence, it is enough

to sustain the verdict. Id.; Batista-Polanco, 927 F.2d at 18.

Further informing this analysis is the oft-repeated truism

that participants in a criminal conspiracy are unlikely to

permit or tolerate the presence of extraneous observers, and

a jury is presumed capable of drawing such an inference.

United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992).

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In the case at bar, the evidence shows that all the

drug transactions which form the basis of the indictment took

place in and around "Mi Pequena Columbia," defendant's

restaurant. There is ample evidence that defendant was

present either before, after, or during each of the "buys."

The jury could reasonably infer that the drug transactions

were authorized and controlled by defendant and that he was

the source of supply. Accordingly, we reject defendant's

contention that the evidence of his guilt was insufficient.

B. Sentencing Claims

The court enhanced defendant's base offense level

by four levels for his role as an organizer in the drug

trafficking conspiracy, U.S.S.G. 3B1.1, and by two levels

for obstruction of justice, U.S.S.G. 3C1.1. At the same

time, the court denied defendant's request for a two level

downward adjustment for acceptance of responsibility.

Defendant argues that the court erred in each of these

determinations.

We will disturb supported findings of a sentencing

court only when our review of the record "convinces us that a

grave mistake was made." United States v. Bradley, 917 F.2d

601, 605 (1st Cir. 1990).

1. Role in the Offense

Based on the number of individuals involved, the

nature of the enterprise, and the defendant's leadership

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role, the district court imposed a four level upward

adjustment to defendant's base offense level under U.S.S.G.

3B1.1(a).3 Because role in the offense adjustments are

necessarily fact specific, the findings of the sentencing

court are reviewed under a deferential standard. See United

States v. Morillo, 8 F.3d 864, 873 (1st Cir. 1993); United

States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991). The

"standard of review for the sentencing court's upward

adjustment for defendant's leading role in the offense ...

[is] clear error." United States v. Reyes, 927 F.2d 48, 50

(1st Cir. 1991).

The evidence established that the drug activity

took place almost exclusively in and around defendant's

restaurant. Moreover, there was testimony to the effect that

transactions took place only when defendant was entering,

leaving, or physically present at the restaurant. From this

alone the judge could have reasonably concluded that

defendant was the organizer and leader of a group of drug

dealers. Added to this we have the testimony of one of the

co-conspirators, Victor Rodriguez, that defendant ran the

operation, and that he alone could determine whether Victor

was to be paid a commission on the sales he made.

3. Section 3B1.1(a) provides that "If the defendant was an
organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive, increase by
4 levels."

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We reject defendant's claim of error as to the

four-levelenhancement for hisrole in theoffense as meritless.

2. Obstruction of Justice

At trial, Victor Rodriguez testified that defendant

had approached him during their pretrial detention and

requested that Victor write a letter to the trial judge

explaining that defendant had no involvement in the counts

charged in the indictment. This letter was solicited as a

quid pro quo, in exchange for which defendant would see to it

that Victor's family was adequately provided for while Victor

was incarcerated. Victor also testified, and the presentence

report states, that co-conspirator Atilio threatened that

Victor would be harmed if he were to provide assistance to

the government. This was clearly an attempted obstruction of

justice. Section 3C1.14 of the guidelines calls for an

enhancement of two levels for such conduct. Such an

enhancement, like that for a leadership role in the offense,

is fact-based and therefore reviewed for clear error. United

States v. Gonzales, 12 F.3d 298, 299 (1st Cir. 1993);

Akitoye, 923 F.2d at 229. There was no error, clear or

4. Section 3C1.1 states: "If the defendant willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the investigation,
prosecution, or sentencing of the instant offense, increase
the offense level by 2 levels."

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otherwise, by the court in applying the obstruction of

justice guideline.

3. Acceptance of Responsibility

Defendant has a threshold problem in attacking the

lower court's determination that he did not qualify for a

downward adjustment for acceptance of responsibility. In

Gonzales, we held that "[o]nly 'extraordinary cases' qualify

for an acceptance of responsibility credit following an

enhancement for obstruction of justice." Gonzales, 12 F.3d at

300, (quoting U.S.S.G. 3E1.1, comment (n.4)). In this

case, there was testimony at trial and at the sentencing

hearing showing that, even after being incarcerated,

defendant actively sought to mislead the trial court in order

to escape responsibility for the charges against him. These

are the same charges for which he now alleges to have

accepted responsibility.

Only at his presentence interview and in his

allocution at the sentencing hearing did defendant accept

responsibility for his actions, and he did so only in a

limited manner. The district judge found that "the defendant

had not" accepted responsibility within the meaning of the

guidelines, and that the acceptance made was not authentic

and was devoid of remorse. Findings as to these factors will

not be reversed absent clear error. United States v. Ocasio-

Rivera, 991 F.2d 1, 4-5 (1st Cir. 1993); United States v.

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Royer, 895 F.2d 28, 29 (1st Cir. 1990) ("Because the

sentencing judge has the unique opportunity of observing the

defendant, hearing his allocution, and evaluating acceptance

of responsibility . . . against the backdrop of the case as a

whole,hisdetermination isentitled toagreat dealof respect.").

Accordingly, we reject defendant's claim that he

was entitled to a two level reduction for acceptance of

responsibility.

The judgment of the district court is

Affirmed.
Affirmed.

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