April 19, 1995
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
No. 94-1770
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO CABRERA-GARCIA AND ALEJANDRO CABRERA-GARCIA,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Peter Goldberger with whom Pamela A. Wilk and Alan Ellis were on
brief for appellants.
Philip Urofsky with whom Jo Ann Harris, Assistant Attorney
General, and Theresa M.B. Van Vliet, Chief, Narcotic & Dangerous Drug
Section, were on brief for appellee.
COFFIN, Senior Circuit Judge. Francisco and Alejandro
Cabrera-Garcia were convicted on drug trafficking charges in
connection with an extensive cocaine distribution scheme. They
raise various trial and sentencing errors, none of which we find
meritorious.
I. Background
We shall begin with a brief recounting of the facts, as the
jury could have found them, adding more detail in later sections
as necessary to explain our conclusions.
On the evening of August 16, 1993, several members of a
major cocaine importation and distribution organization led by
"Papo" Rivero met at Rivero's apartment to discuss a delivery of
about 100 kilograms of cocaine that was scheduled for the next
morning. One of those present was Roberto Sierra Rivera
(Sierra), a government informant. Later that evening, Sierra
reported to the FBI details of the planned delivery: a Buick
LeSabre had been given earlier to two Dominicans, who would
return it the next morning loaded with the cocaine; the car was
to be left in the parking lot of a shopping center known as the
Plaza Carolina.
One of the others in Rivero's apartment that night, Ricardo
Vazquez Gonzalez, testified that he and a Colombian drug supplier
named Oscar had transferred the LeSabre and its keys to appellant
Alejandro Cabrera-Garcia, who is Dominican, on the afternoon of
the 16th at the Plaza Carolina shopping mall. Cabrera-Garcia was
with a family, including children, in a red Ford.1
The next morning, August 17th, Sierra and two FBI agents
were at the Plaza Carolina mall and saw appellant Francisco
Cabrera-Garcia park the blue LeSabre in the location described by
Sierra to the FBI the night before. Francisco then went into the
shopping center. About 25 minutes later, Alejandro drove up in a
red Ford Tempo and parked two spaces from the LeSabre.
Francisco, whom no one had seen leave the mall, was in the
passenger seat. The brothers got out of the car and went into
the mall. Vazquez arrived a short time later and was stopped by
the FBI agents when he attempted to leave with the LeSabre. A
search of the car, conducted with Vazquez's consent, revealed 94
brick-shaped parcels containing 96 kilograms of cocaine.
1 Defendants highlight the inconsistency between Vazquez's
testimony that he and Oscar delivered the LeSabre to Alejandro in
Carolina and Sierra's report to the FBI, as described by Agent
Fraticelli at a suppression hearing, that the car had been
delivered to two Dominicans in Rio Grande. Defendants urge us to
reject Vazquez's testimony as self-serving -- designed to gain
favor with the FBI -- and to credit only Sierra's statement,
which did not directly implicate the Cabreras.
For two reasons, however, the difference in testimony gives
us no pause. First, Sierra's information was second-hand,
received from others during the meeting at Rivero's apartment,
and may have rested upon an incorrect assumption about which
Dominican group was involved. Second, the reference to Rio
Grande occurred solely at the suppression hearing. At trial,
Sierra testified only that the car had been delivered to "two
[D]ominicans." Had they viewed the discrepancy in his testimony
as significant, defendants could have questioned Sierra at trial
about where the delivery occurred and the basis for his
knowledge. They did not do so, and may not on appeal remedy
their failure.
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Vazquez was arrested, and several agents then entered the
mall in search of Alejandro and Francisco Cabrera, who were found
in a clothing store. Both were arrested. During processing, a
cellular phone seized from Alejandro's car rang. FBI Agent
Rivera answered the phone, and the person on the other end asked
for Alejandro. After Rivera identified himself as Francisco, the
caller asked, "How come Alejandro is tak[ing] so long in
Carolina," and then the phone went dead. A few minutes later,
the phone rang a second time, the same person again requested
Alejandro, and he then asked whether everything was going okay.
Sierra testified at trial that Oscar, the Colombian supplier,
told him later that evening that he had spoken to an "animal," a
slang term for an FBI agent, when he called to "make sure if []
everything was good or bad" with the cocaine delivery.
The grand jury subsequently returned an eight-count
indictment against the Cabreras and fourteen others, including
Rivero, Vazquez and Oscar. The Cabreras were named in two
counts: Count 1, charging a conspiracy to possess with intent to
distribute more than 1,000 kilograms of cocaine, and Count 4,
charging possession with intent to distribute the 96 kilograms of
cocaine seized from the LeSabre. All co-defendants, except the
Cabreras and Oscar, who was not apprehended, eventually pled
guilty.
The jury found both Cabreras guilty on the conspiracy count,
but found only Francisco guilty on the possession count.
II. Discussion
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Both defendants claim that the evidence was insufficient to
support their convictions and that the prosecutor committed
reversible error in his closing argument by, inter alia,
referring repeatedly to facts not in evidence. Alejandro
separately raises one additional substantive claim. He asserts
that the district court wrongly concluded that his arrest was
supported by probable cause and, therefore, improperly denied his
motion to suppress papers seized from him at the time of that
arrest. Both defendants also contend that the district court
erred in sentencing them as minor, rather than minimal,
participants in the charged conspiracy. We address each of
these issues in turn.
A. Sufficiency of the evidence. The well-established
standard for evaluating sufficiency claims requires an appellate
court to review the evidence as a whole, including all reasonable
inferences from that evidence, in the light most favorable to the
government. United States v. Echeverri, 982 F.2d 675, 677 (1st
Cir. 1993). If in doing so, the court finds that a rational
trier of fact could find guilt beyond a reasonable doubt, it must
affirm. Id. In making this determination, the court must credit
both direct and circumstantial evidence, without assigning it
relative weights, and must resolve all credibility questions in
favor of the verdict. Id. Applying this standard, we find the
evidence sufficient on each of the three counts of conviction.
Conspiracy. Through the testimony of Sierra and Vazquez,
the government adduced sufficient evidence for a jury to find
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well beyond a reasonable doubt that the delivery of cocaine at
the Plaza Carolina mall was orchestrated by Papo Rivero as part
of the substantial drug trafficking scheme charged in the
indictment. To find the Cabreras guilty of participating in that
conspiracy, the jury need not have found that they knew all of
the details or members of the enterprise, or took part in all of
its objectives. See United States v. Brandon, 17 F.3d 409, 428
(1st Cir. 1994). Rather, because the planned transfer of cocaine
at the shopping mall plainly was part of a larger enterprise, the
Cabreras' conspiracy convictions are unassailable if the jury
could have found beyond a reasonable doubt that they were knowing
and voluntary participants in the illicit events of August 16th
and 17th. See Echeverri, 982 F.2d at 679.
The jury could have found the following facts with respect
to Alejandro's involvement. He received from Vazquez and Oscar
the car in which the cocaine was found, and he reappeared with
his brother the next morning at the specified delivery site. A
notebook seized from him at the time of his arrest contained a
mathematical calculation that the jury reasonably could have
believed represented the value of the cocaine found in the car;
the page showed 94, which was the number of packages, multiplied
by 12, which in thousands was the average street value of a kilo
of cocaine (i.e., $12,000).2 In addition, the two calls to
Alejandro's cellular phone, in which the caller specifically
2 Although the notebook page contained other calculations,
and 94 times 12 was multiplied incorrectly, the salient point is
that the page did show an attempt to multiply those two numbers.
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asked for Alejandro and asked about how things were going,
confirmed the link between Alejandro and the drug enterprise.
This is a far cry from "mere presence," cf. United States v.
Mehtala, 578 F.2d 6, 9-10 (1st Cir. 1978), and is enough to
support Alejandro's conspiracy conviction.
The evidence against Francisco was equally suggestive of
guilt. Of greatest significance is that he brought the car,
which witnesses described as obviously heavily loaded, to the
designated delivery site. Although he argues in his brief that
there was no evidence that he knew the car contained illegal
drugs, the jury reasonably could infer in the context of this
carefully monitored drug trafficking enterprise that $1 million
worth of cocaine would not have been left in the hands of an
unknowing person.
In addition, the complementary involvement of the two
brothers3 -- one receiving the car, the other returning it --
and their later joint appearance at the parking lot permits an
inference that both were privy to the same information about the
project at hand. Alejandro's notebook calculation therefore is
probative of Francisco's guilt as well. Indeed, Alejandro's use
of the number 94 in his calculation, reflecting the number of
bricks in the car rather than the actual number of kilos (96)
contained in the bricks, suggests a visual inspection of the
3 Defendants argue that the prosecutor impermissibly urged
the jury to consider the fact that the Cabreras were brothers
when no evidence of their relationship was offered. Twice,
however, testimony referring to the pair as brothers was
introduced without objection. See Tr. at 174, 189.
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trunk. It could reasonably be assumed that, as the driver of the
loaded car, Francisco was present for that viewing.
Finally, even if much of this evidence is equally consistent
with Alejandro's having involved his brother unwittingly in the
scheme, the jury could have found telling the evidence of
substantial expenditures by Francisco in the weeks immediately
preceding his arrest, despite his unemployment. We previously
have recognized the relevance of unexplained sums of money in
evaluating a defendant's involvement in narcotics trafficking.
See United States v. Ford, 22 F.3d 374, 383 (1st Cir. 1994). The
combined effect of all of this evidence is adequate to support
Francisco's conviction on the conspiracy count.
Possession. Francisco's sufficiency argument respecting the
possession count is answered essentially by the same evidence
that undermines his claim on the conspiracy count. It is again
of great significance that he, alone, brought the car loaded with
cocaine to the designated pick-up spot at the shopping mall.
Although there is no direct evidence that he looked in the trunk
or knew its contents, the relationship with his brother, the
unexplained spending in the weeks preceding this delivery, and
the commonsense inference that the leaders of a sophisticated
drug operation would not entrust a valuable load to a bystander
all support the jury's finding. Whether other conclusions also
could be drawn from these facts is not our inquiry; "we require
only that a jury's verdict be supportable, not that it be
inevitable," Echeverri, 982 F.2d at 678.
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B. Probable Cause. Alejandro argues that the district
court erred in finding that, at the time he was arrested, the FBI
agents had probable cause to believe that he was involved in the
cocaine delivery. He asserts that the court therefore improperly
denied his motion to suppress the notebook containing the
calculation that appeared to represent the value of the cocaine.
The district court held an evidentiary hearing and concluded that
the totality of the circumstances supported the agents' action.
We affirm the district court's decision on this point.
Establishing probable cause requires only "`a reasonable ground
for belief of guilt,'" not "`evidence which would justify
condemnation or conviction,'" United States v. Diallo, 29 F.3d
23, 25 (1st Cir. 1994) (quoting Brinegar v. United States, 338
U.S. 160, 175 (1949)). That confined standard was met here.
The agents conducting the surveillance at Plaza Carolina on
the morning of August 17th had been given precise details about
the planned delivery of a large quantity of cocaine from a
reliable informant. The minutiae of the informant's report
quickly were confirmed as a blue LeSabre with the forecasted
license plate number arrived at the lot and was parked in the
predicted location. The car reportedly had been given the day
before to two Dominicans, and it was driven to the shopping
center by an individual, Francisco, who appeared to meet that
ethnic description. A short time later, a second apparently
Dominican man, Alejandro, arrived at the parking lot with
Francisco and parked near the LeSabre. Vazquez also appeared and
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attempted to pick up the car, as the informant had reported would
happen. Finally, the car did, in fact, contain a large load of
cocaine.
Confronted with the actual unfolding of events as they had
been told to expect them, the agents reasonably could have
suspected that the Cabreras were the two Dominicans to whom the
LeSabre had been entrusted the night before.4 In addition, the
agents knew from Sierra that some factions of the Rivero
organization monitored others' actions. It therefore was
plausible for the agents to believe that the two men returned to
the parking lot and parked virtually beside the LeSabre -- which
visibly contained a heavy load -- as part of that oversight.5
In sum, we believe that "the cumulative effect of the facts
in the totality of circumstances," United States v. Wiseman, 814
F.2d 826, 828 (1st Cir. 1987) (quoting United States v.
Baldacchino, 762 F.2d 170, 175 (1st Cir. 1985)), warranted a
reasonable suspicion on the part of the FBI agents at Plaza
Carolina that Alejandro was a participant in the Rivero
conspiracy. We therefore affirm the district court's denial of
his motion to suppress.
4 According to Vazquez, of course, only Alejandro picked up
the car the night before. The officers, however, knew neither
that he was the one who received the vehicle nor that the pickup
was accomplished by only one Dominican.
5 To be sure, if their responsibility was to observe the
next stage of the delivery, the Cabreras were less than
conscientious, since they went into the mall to shop after
parking their car. The agents, however, reasonably could have
believed that the two men were simply remaining in the vicinity
until the car had been picked up.
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C. Closing Argument. Defendants identify five allegedly
improper statements in the prosecutor's closing and rebuttal
arguments that either relied improperly on facts not in evidence
or unfairly disparaged defense counsel. We have considered each
of the assertedly offending utterances and are satisfied that
none requires reversal of the convictions. See United States v.
Ovalle-Marquez, 36 F.3d 212, 220 (1st Cir. 1994) ("To warrant
reversal of a conviction on the grounds of a prosecutor's
improper jury argument, a court must find that the prosecutor's
remarks were both inappropriate and harmful."). Indeed, three of
them drew no objection at trial, and can support reversal only if
"a `miscarriage of justice would otherwise result,'" United
States v. Neal, 36 F.3d 1190, 1208 (1st Cir. 1994) (quoting
United States v. Morales-Cartagena, 987 F.2d 849, 854 (1st Cir.
1993)).
Only one statement warrants specific attention. The
prosecutor in rebuttal accused defense counsel of attempting to
confuse the jury by shifting the focus of the case to the FBI's
conduct.
[T]his is a technique [] that the defense always uses
to try to confuse you as you make your decision[.]
[Y]ou see they want to shift the blame, the blame is on
this table[;] they want to move it towards this table,
so that now you think that we are the bad guys, and
that's why I get a second chance[,] ladies and
gentlemen, that's why I get a second chance so I can
help you see through th[ese] defense techniques that
they try to confuse you with . . . .
We previously have noted a prosecutor's obligation to focus on
"the merits of the defendants' arguments rather than their
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source," United States v. Whiting, 28 F.3d 1296, 1302 (1st Cir.
1994), and again wish to emphasize that comments attributing
deceptive motives to defense counsel are inappropriate and
unnecessary. In our view, however, they would not have had a
significant impact on the jury in this case, and therefore do not
amount to plain error. See id. at 1302-03; United States v.
Linn, 31 F.3d 987, 993 (10th Cir. 1994).
D. Sentencing. The defendants argue that the district court
should have granted four-level reductions in their offense levels
in recognition of their "minimal" roles in the conspiracy, rather
than adopt the two-level reductions for "minor" participation
recommended in their pre-sentence reports. The court rested its
determination primarily on the amount and purity of the drugs,
and the likelihood that that quantity of cocaine would not have
been entrusted by the Rivero organization to someone who was
otherwise unaffiliated with the conspiracy.
As defendants recognize, the line between minor and minimal
participation is thin, see United States v. Vega-Encarnacion, 914
F.2d 20, 25 (1st Cir. 1990), and the district court's factfinding
on sentencing is reviewed only for clear error, see United States
v. DeMasi, 40 F.3d 1306, 1322 (1st Cir. 1994). In light of that
deferential standard, we find no basis upon which to disturb the
court's judgment.
Accordingly, the judgments of conviction and the sentences
imposed are affirmed.
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