United States v. Rodriguez

April 25, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1039

UNITED STATES,

Appellee,

v.

WILLIAM RODRIGUEZ,

Defendant - Appellant.

No. 93-1040

UNITED STATES,

Appellee,

v.

ELVIS MATOS,

Defendant - Appellant.

No. 93-1225

UNITED STATES,

Appellee,

v.

JOSEPH TORRES,

Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

John C. Doherty, by Appointment of the Court, for appellant

William Rodr guez.
Eileen M. Donoghue, by Appointment of the Court, for

appellant Elvis Matos.
George L. Garfinkle, with whom Jeffrey A. Denner, James P.

Brady and Perkins, Smith & Cohen, were on brief for appellant

Joseph Torres.
Geoffrey E. Hobart, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, and George W. Vien,

Assistant United States Attorney, were on brief for appellee.

Per Curiam. Appellants Joseph Torres, William
Per Curiam.

Rodr guez, and Elvis Matos each appeal their convictions for

conspiring to possess cocaine with intent to distribute and for

possession with intent to distribute. Torres' principal

challenge to his conviction is that the district court committed

reversible error when it denied his renewed motion for severance.

Torres also argues that he is entitled to a new trial because the

district court improperly admitted certain co-conspirator

statements against him. Rodr guez and Matos both claim that the

evidence was insufficient to support their convictions. Matos

also asserts that the district court erroneously denied his

motion to suppress evidence seized incident to his arrest. All

appellants also challenge their sentences, contending that the

district court erred in its drug quantity determinations. For

the following reasons, we affirm appellants' convictions and

sentences.

BACKGROUND
BACKGROUND

We view and present the evidence in the light most

favorable to the government. United States v. Abreu, 952 F.2d

1458, 1460 (1st Cir.), cert. denied, U.S. , 112 S. Ct. 1695,

118 L.Ed.2d 406 (1992). The investigation of this case centered

on the undercover work of Drug Enforcement Agency Task Force

Agent Mart nez. During the course of this investigation, Agent

Mart nez purchased four ounces of cocaine from David Thomas on

October 18, 1991 and November 1, 1991, respectively, and a half-

kilogram from Thomas on November 8, 1991. The investigation

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culminated on January 17, 1992 when defendant Abelardo Cuevas

delivered ten kilograms of cocaine to Agent Mart nez.

A. The January 17, 1992 Transaction
A. The January 17, 1992 Transaction

On the morning of January 17, 1992, Mart nez and Cuevas

spoke on the telephone, and agreed to conduct the transaction in

the parking lot of a Friendly's restaurant in Peabody,

Massachusetts. In anticipation of the transaction, government

agents established surveillance in several areas. At

approximately 8:00 a.m., police officers observed appellant

Torres pick up Cuevas in a brown Cadillac registered to Thomas,

and drive away. Approximately 45 minutes later, a state trooper

saw Torres and Cuevas pull up to the access code box at the gate

of North Shore Self Storage. Torres used the access code

assigned to appellant William Rodr guez to open the security

gate. Torres and Cuevas then entered the storage facility.

Approximately one minute later, the trooper saw an

older blue Toyota station wagon pull up to the access code box.

Although the officer observed that this car was occupied by two

Hispanic males, he was forced to look away when the two men

looked directly at him. Consequently, Trooper Dern was unable to

identify the men. The driver of this car, however, used Appellant

Rodr guez' access code to open the security gate and enter the

storage grounds, and the officials conducting the investigation

concluded that these men were Rodr guez and appellant Matos.

Five minutes later, Torres and Cuevas exited the

storage grounds in the brown Cadillac. Approximately three

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minutes later, the blue Toyota station wagon exited the grounds

as well. Both Torres and the driver of the blue station wagon

used Rodr guez' access code to open the gate when they left the

premises.

Ten minutes later, agents observed Torres and Cuevas

enter the parking lot of a Friendly's restaurant in Peabody. A

few minutes later, Agent Mart nez arrived in his undercover

vehicle. The three men met briefly outside the restaurant.

During this meeting, Cuevas introduced Torres to Mart nez as his

"socio," the literal translation of which is "associate."1

Torres, Cuevas, and Mart nez then entered the restaurant and

discussed the mechanics of the ten-kilogram transaction. Torres

stated that he did not like the location and proposed completing

the transaction in an apartment, a proposal Mart nez rejected.

Torres then stated that they had to be careful, because they were

talking about ten kilos, not one or two. In this same

discussion, Torres indicated that he had a three kilogram

delivery to make later that day in Dorchester. After some

further conversation about the details of the transfer, Cuevas

instructed Torres to retrieve the cocaine. Torres then left in

the brown Cadillac.

After Torres left the parking lot, he drove south on a

highway for a short time, then suddenly exited the highway and

reversed his direction. After driving north for a short

1 Appellant Torres contends that in Caribbean Spanish, "socio"
is a colloquial term meaning "buddy" or "cousin."

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distance, he drove into a strip mall, parked the Cadillac and

went to the trunk area of the car for a few seconds. According

to the toll records obtained for the cellular telephones

subscribed to Torres and Cuevas, Torres contacted Cuevas at or

about the time he reversed direction on the highway. After this

contact, Torres returned to the Friendly's restaurant, and met

again with Mart nez and Cuevas inside. Torres and Cuevas

informed Mart nez that they would not complete the transaction

there. After Mart nez complained about the sudden change of

plan, Cuevas agreed to complete the deal in an hour at Weylu's

Restaurant in Saugus, Massachusetts. The three men then left, at

about 10:30 a.m.

After Cuevas and Torres left the parking lot, they

drove to an area near the Northgate Shopping Center in Revere,

Massachusetts. At approximately 10:55 a.m., an agent observed

Torres driving the brown Cadillac, alone, south to Chelsea,

Massachusetts. Torres parked the Cadillac in front of 20

Lawrence Street. At approximately 11:15 a.m., Torres came out of

the residence carrying a white shoulder bag. Agents were unable

to maintain surveillance of Torres after that.

At 11:30 a.m., agents observed a 1977 blue BMW, driven

by appellant Rodr guez, moving slowly down the exit road of the

Weylu's Restaurant. Appellant Matos was seated in the front

passenger seat. After driving down the exit road, Rodr guez and

Matos drove slowly through the lower parking area past several

parked cars, including a DEA surveillance van. As Rodr guez

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drove past the van, both Rodr guez and Matos looked into the van,

and then parked behind it. Rodr guez and Matos remained there

for about five minutes.

At about 11:34 a.m., Rodr guez received a page from

Cuevas. Immediately after Rodr guez received this page, agents

observed Rodr guez and Matos drive away, going north on the

highway. The agents did not follow.

Approximately ten minutes later, Mart nez drove up to

the front entrance of Weylu's. As Mart nez arrived, Cuevas

walked up to his car and got in. Once inside Mart nez' vehicle,

Cuevas indicated that he wanted to leave the area immediately.

Mart nez, however, parked his car near the front entrance of the

restaurant. After Mart nez had parked, Cuevas informed him that

he had noticed two suspicious-looking vans in the lower parking

lot, and explained that, because of his concern about these vans,

he had removed the drugs from the area. As the two men were

walking toward the restaurant entrance, Cuevas explained that the

cocaine had been moved to the Kowloon Restaurant, a short

distance away, and asked Mart nez to drive there to pick it up.

Once inside Weylu's, Mart nez demanded that the

transaction be completed there, and Cuevas agreed. He told

Mart nez that he needed to contact his men to have the cocaine

brought back to Weylu's. After Cuevas said this, Mart nez

observed Cuevas using his cellular telephone to contact these

men. According to the toll records obtained for Cuevas' cellular

phone, Cuevas paged Rodr guez at 11:55 a.m. and again at 12:03

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p.m.

When Rodr guez failed to respond to these pages, Cuevas

returned to Mart nez' table and explained that he was having

difficulty reaching his men. Cuevas then pleaded with Mart nez

to travel to the Kowloon Restaurant to pick up the cocaine.

Mart nez explained that he could not complete the transaction at

the Kowloon because he did not have the purchase money with him.

Mart nez and Cuevas then agreed to pick up the cocaine at the

Kowloon and then return to Weylu's.

At 12:15 p.m., while Mart nez and Cuevas were still

inside Weylu's, Rodr guez and Matos returned to the Weylu's

parking lot in the blue BMW. They drove directly to the upper

parking area adjacent to the restaurant.

At approximately 12:30 p.m., Mart nez and Cuevas left

Weylu's and entered Mart nez' car. Almost immediately after,

Rodr guez and Matos were observed running from the drive-through

area of the restaurant to their car. They got in their car and

drove rather quickly after Mart nez' car. At the bottom of the

exit road, Rodr guez and Matos pulled up behind Mart nez and

Cuevas, and then followed Mart nez' car onto the highway. Once

on the highway, Cuevas adjusted Mart nez' rear-view mirror so

that he, not Mart nez, had a better view of traffic behind them.

When Mart nez and Cuevas entered the parking lot of the Kowloon

Restaurant, Rodr guez and Matos followed them into the lot as

well.

In the parking lot, Cuevas left Mart nez' car, went to

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the blue Toyota station wagon parked there and retrieved a gym

bag containing ten kilograms of cocaine. After retrieving the

cocaine, Cuevas returned to Mart nez' car and the two men

returned to Weylu's. While he was waiting at a table to get paid

for the cocaine, Cuevas was placed under arrest.

As Cuevas was retrieving the cocaine from the blue

Toyota, Rodr guez and Matos watched from the blue BMW. When

Mart nez and Cuevas left the Kowloon parking lot, Rodr guez and

Matos pulled onto the highway and followed them. They were

followed by agents in the same surveillance van that had drawn

the attention of Rodr guez and Matos earlier that morning.

Rodr guez and Matos drove north for a distance and then reversed

direction. After driving south a short distance, they pulled

over to the side of the road and allowed the surveillance van to

pass them.

After the van passed them, Agent Geibel, the van's

driver, pulled the van into a parking lot and parked there. A

short time later, Rodr guez and Matos drove by the lot slowly,

looking at the van as they passed. Instead of continuing,

however, Rodr guez and Matos pulled into the parking lot of a gas

station, where they waited for about five minutes. When

Rodr guez and Matos exited the station parking lot, Agent Geibel

also pulled out and followed them. Geibel then followed them

into the parking lot of a Sears store.

After parking their car, Rodr guez and Matos entered

the Sears store through the front entrance. A few minutes later,

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they exited the building through the rear entrance. As the two

men were walking along the side of the building, Rodr guez and

Matos again looked at the surveillance van. Rather than

returning to their car, they reentered the store through a side

entrance. A few minutes later, they exited the store from the

front, and Rodr guez walked to a nearby public telephone.

Rodr guez was then arrested. According to the cellular telephone

records obtained for Torres' cellular telephone, Torres placed a

page to Rodr guez at or about the time that Rodr guez walked to

the payphone.

As Rodr guez was being arrested, Matos turned and ran

back to the store. After a brief chase, he was apprehended and

arrested. At the time of the arrest, Matos had the registration

for the blue Toyota station wagon, from which Cuevas had

retrieved the cocaine, in his possession. Later that afternoon,

Torres was placed under arrest near his home in Chelsea.

B. The Search of Rodr guez' Storage Unit
B. The Search of Rodr guez' Storage Unit

During the early evening hours of that same day,

January 17, 1992, agents applied for and obtained a search

warrant to search the storage unit at North Shore Storage rented

by Rodr guez. Torres had a key to this unit, along with keys to

the brown Cadillac, in his possession at the time of his arrest.

Rodr guez also had a key to this storage unit on his key ring at

the time of his arrest.

The searching agents found a 1988 Ford Taurus car with

New York license plates in the storage unit. Under the front

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seat of the car, agents found National Car Rental documents dated

January 11, 1992 in Cuevas' name. A search of the trunk area of

the car revealed a secret compartment and two kilograms of

cocaine. The search of Rodr guez' self-storage unit also

produced a triple-beam scale, various packaging materials and a

safe. When the safe was opened a few days later, agents

discovered another kilogram of cocaine and more packaging

materials.

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C. Prior Proceedings
C. Prior Proceedings

On January 30, 1992, a grand jury returned a five-count

indictment against Cuevas, Torres, Rodr guez, Matos, and Thomas.

Count One charged all six with participating in a conspiracy to

possess cocaine with intent to distribute. Counts Two through

Five of the indictment contained substantive distribution charges

relating to the four undercover cocaine purchases. Cuevas and

Thomas were named as defendants in Counts Two, Three, and Four.

Cuevas, Torres, Rodr guez and Matos were named as defendants in

Count Five, regarding the ten kilogram transaction.

After a trial, a jury returned guilty verdicts against

all defendants on all counts. Rodr guez, Matos and Thomas were

sentenced on December 8, 1992. The district court sentenced

Thomas to 70 months' imprisonment. Based on their participation

in the ten kilogram transaction of January 17, 1992, Rodr guez

and Matos each received ten-year, mandatory minimum sentences.

The district court sentenced Cuevas to 235 months' imprisonment,

and Torres to 210-months' imprisonment.

ANALYSIS
ANALYSIS

A. Denial of Torres' Motion for Severance
A. Denial of Torres' Motion for Severance

Several months prior to trial, Torres filed a motion

for severance under Fed. R. Crim. P. 14, arguing that his case

should be severed because "one or more co-defendants has given or

would give exculpatory testimony or evidence in his behalf if

called as a witness at trial." His motion was unaccompanied by

affidavit or other evidence of such a witness. Torres did,

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however, submit an affidavit from Cuevas with a markedly

different version of the events of January 17, 1992. Although

Cuevas' affidavit attempted to exculpate Torres, nothing in the

affidavit indicated whether he would actually testify on Torres'

behalf. The district court rejected Torres' motion for

severance, holding that Torres had not met his burden under

United States v. Drougas, 748 F.2d 8, 19 (1st Cir. 1984).

Immediately prior to jury selection for his trial,

Torres filed a Supplemental Motion for Severance, arguing that

severance was required on two grounds. First, he contended, a

severance was required due to "prejudicial spillover." Second,

Torres contended that a separate trial was required in order to

make Cuevas' exculpatory testimony available to him. In his

motion, Torres admitted that Cuevas' attorney had recently

advised Torres' counsel that Cuevas would not testify on Torres'

behalf at a separate trial. However, according to Torres, Cuevas

had personally indicated to him that he would testify for Torres

at a separate trial. Torres again failed, however, to produce

any affidavits supporting this assertion. Torres requested that

the court ask Cuevas directly of his intentions. Cuevas' counsel

objected to such a procedure. The district court then declined

to question Cuevas directly, found that the basis for Torres'

severance motion was "entirely too speculative" and denied the

motion. Torres now challenges the district court's denial of his

motion.

We have held that "[a] motion for severance is

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committed to the sound discretion of the trial court, and we

review only for a manifest abuse of discretion resulting in a

miscarriage of justice." United States v. Welch, 15 F.3d 1202,

1210 (1st Cir. 1993), cert. denied sub. nom, Driesse v. United

States, 114 S. Ct. 1661 (1994) and Welch v. United States, 114 S.

Ct. 1863 (1994). A trial judge thus has considerable latitude

in deciding severance questions, and we will overturn that

judge's resolution of them only if that wide discretion is

plainly abused. United States v. O'Bryant, 998 F.2d 21, 25 (1st

Cir. 1993) (internal quotations omitted). Reviewing Torres'

challenge under this standard, we find no abuse of discretion.

1. Severance to allow exculpatory testimony of a
1. Severance to allow exculpatory testimony of a

codefendant
codefendant

Torres' motion for severance in order to allow

exculpatory testimony by a codefendant is governed by our holding

in Drougas, 748 F.2d at 19. Under the Drougas test, in order to

be entitled to a severance on the basis of a codefendant's

testimony, the movant must demonstrate 1) a bona fide need for

the testimony; 2) the substance of the testimony; 3) its

exculpatory nature and effect; and 4) that the codefendant will

in fact testify if the cases are severed. A court reviewing such

a motion should 1) examine the significance of the testimony in

relation to the defendant's defense theory; 2) consider whether

the testimony would be subject to substantial, damaging

impeachment; 3) assess the counterarguments of judicial economy;

and 4) give weight to the timeliness of the motion. Id. at 19.

Torres did not meet the fourth prong of the Drougas

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test -- i.e., he did not sufficiently establish that Cuevas would

indeed testify in a separate trial. Torres insists that Cuevas

had repeatedly assured him that he would testify in his behalf,

yet Torres did not submit any affidavits, either his own or

Cuevas', in support of these assurances. More importantly,

Cuevas' attorney told Torres and the district court specifically

that Cuevas would not testify. Torres concedes now that "some

doubt remained" as to whether Cuevas would actually testify at a

separate trial. He argues, however, that given this doubt, the

district court should have asked Cuevas directly over counsel's

objection whether he would testify at a separate trial on Torres'

behalf, and that the court's failure to ask this "single,

clarifying question" of Cuevas "crippled" Torres' defense and

constituted an abuse of discretion.

We have held that an allegation that a codefendant may

testify, without more, is insufficient to entitle a defendant to

severance. United States v. Nason, 9 F.3d 155, 159 (1st Cir.

1993). Given the complete lack of either factual or legal

support for Torres' request, it is clear to us that the district

court's refusal to interrogate Cuevas directly was entirely

reasonable and within its broad discretion.2 This lack of

2 The government suggests that because Cuevas had not waived his
right to counsel, a forced inquiry of Cuevas by the court over

his attorney's objection may well have given rise to a claim by

Cuevas that his Sixth Amendment right to effective assistance of
counsel had been compromised. While we do not opine on this
possibility, such lurking constitutional concerns underscore the
reasonableness of the district court's refusal to question Cuevas
directly.

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evidence also leads us to the inescapable conclusion that the

district court properly applied the Drougas test and denied

Torres' severance motion on this ground.

2. Severance to avoid "prejudicial spillover" of
2. Severance to avoid "prejudicial spillover" of

evidence
evidence

Torres also claims that because he only played a "minor

role" in the charged conspiracy and much of the evidence adduced

at trial concerned the codefendants, he was unfairly prejudiced

by the "spillover" of this evidence. "Spillover" occurs when

evidence establishing guilt of one defendant, but not admissible

against another, creates an "atmosphere clouding the jury's

ability to evaluate fairly the guilt or innocence of the latter."

United States v. Perkins, 926 F.2d 1271, 1281 (1st Cir. 1991).

We have explained, however, that where evidence featuring one

defendant is independently admissible against a codefendant, the

latter cannot convincingly complain of an improper spillover.

O'Bryant, 998 F.2d at 26. Furthermore, the existence of stronger

evidence against codefendants does not necessarily entitle a

defendant to automatic severance, nor does a defendant's

relatively minor conspiratorial role normally preclude a joint

trial with more prominent codefendants. Welch, 15 F.3d at 1210.

Thus, when multiple defendants are named in a single indictment,

a defendant who seeks severance will succeed only by making a

"strong showing of evident prejudice." O'Bryant, 998 F.2d at 25.

Even where large amounts of evidence are irrelevant to one

defendant, or where one defendant's involvement in an overall

conspiracy is far less than that of others, a reviewing court

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must be reluctant to second-guess severance denials. Id. at 26.

In support of his "spillover" claim, Torres contends

that the government's trial evidence actually proved two

conspiracies, not one, as charged in the indictment. Torres

maintains that the evidence proved one conspiracy involving

Thomas and Cuevas that produced the three early cocaine

transactions. He contends that the evidence then established a

second conspiracy involving Cuevas, Rodr guez, Matos and himself

to deliver the ten kilograms of cocaine on January 17, 1992.

Torres argues that he was unfairly prejudiced by the evidence of

the three smaller cocaine transactions among Agent Mart nez and

defendants Thomas and Cuevas.

Torres' defense counsel raised this objection

repeatedly during trial, and the district court carefully

instructed the jury with respect to the issue of multiple

conspiracies. Torres did not object to this aspect of the

district court's jury charge, and does not challenge it here.

In any case, the evidence strongly indicates that

Torres was much more than a one-day, one-time conspirator, as he

now avers. During his conversations with Agent Mart nez,

defendant Cuevas repeatedly stated that he needed to confer with

his "partner." When introducing Torres, he referred to him as

his "socio," or associate. Immediately before and after one of

his meetings with Mart nez negotiating a multi-kilogram

transaction, Cuevas called Torres on his cellular telephone. The

evidence also shows an ongoing relationship between Torres and

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Rodr guez, and that Rodr guez was responding to Torres' page at

the time of his arrest. We think that this evidence all fairly

supports the reasonable inference that Torres was Cuevas' partner

inanongoingdrug
conspiracy,whichincludedthethree
smallertransactions.

Most importantly, the evidence introduced at trial

firmly supports Torres' conviction for participating in a single

conspiracy to distribute ten kilograms of cocaine on January 17,

1992. In fact, the evidence indicates that Torres had an

influential, even leading, role in the conspiracy. He went with

Cuevas in the morning to the storage facility where the cocaine

was presumably stored; he actively participated in the

discussions with Agent Mart nez, suggesting the place and

mechanics of the transaction; and he stated that he had another

smaller delivery that day. Torres has not indicated how he was

prejudiced by any alleged "spillover," and in light of all the

evidence against him, we do not see any prejudice. Accordingly,

we affirm the district court's denial of his motion to sever.

B. Admission of Co-Conspirator Statements against
B. Admission of Co-Conspirator Statements against

Torres
Torres

Torres also maintains that the district court committed

clear error when it admitted into evidence statements made by

Thomas and Cuevas prior to January 17, 1992, under Fed. R. Evid.

801(d)(2)(E). In particular, Torres challenges the admission of

the statements made by Thomas to Agent Mart nez during a recorded

conversation on October 18, 1991. Torres claims that the

statement should have been excluded because 1) United States v.

Petrozziello, 548 F.2d 20 (1st Cir. 1977), requires that the

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government have independent evidence that the defendant was a

member of the conspiracy at the time the co-conspirator statement

was made; 2) there was no significant evidence linking Torres to

the conspiracy other than the challenged statement; and 3) the

statement prejudiced him by "possibly rais[ing] an inference that

Torres had any knowledge of or connection to the drug trafficking

activities of Thomas and Cuevas before January 17, 1992."

The test for admissibility of a coconspirator statement

under Fed. R. Evid. 801(d)(2)(E) is whether, under a

"preponderance of the evidence" standard, it is more likely than

not that a conspiracy embracing both the declarant and the

defendant existed, and that the declarant uttered the statement

during and in furtherance of that conspiracy. United States v.

Sep lveda, 15 F.3d 1161, 1180 (1st Cir. 1993) (citing, inter

alia, Petrozziello, 548 F.2d at 23). A district court's rulings

on the admissibility of co-conspirator declarations are reviewed

under the clearly erroneous standard. Id. at 1180.

We have held that when a defendant joins a conspiracy

is irrelevant in determining whether a co-conspirator's statement

is admissible under Rule 801(d)(2)(E). Once found to be a member

of a conspiracy, a defendant is subject to proof of the prior

acts and comments of his co-conspirators, even if those comments

were made prior to the defendant's involvement in the conspiracy.

United States v. Masse, 816 F.2d 805, 811 (1st Cir. 1987). In

the instant case, the district court conducted a Petrozziello

hearing at the close of all the evidence, and concluded, by a

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preponderance of the evidence, that a single conspiracy existed

and that Torres was a participant. Nothing more was required

under our precedents to render the statements of co-conspirators

Thomas and Cuevas admissible under Rule 801(d)(2)(E). In light

of the ample evidence, discussed above, of the existence of a

conspiracy and Torres' influential participation in it, we cannot

say that the district court's Petrozziello rulings were clearly

erroneous. We therefore affirm Torres' conviction.

C. Denial of Matos' Motion to Suppress
C. Denial of Matos' Motion to Suppress

On March 17, 1992, Matos moved to suppress evidence

seized by the government incident to his arrest on the grounds

that his arrest was conducted without probable cause.

Essentially, Matos claims that his arrest at the Sears store on

January 17, 1992 was based on a mere hunch or subjective

suspicion by the arresting agents that Matos and Rodr guez were

conducting "counter-surveillance" for Cuevas' cocaine

transaction. In a written memorandum and order, the district

court denied Matos' motion, concluding that his arrest was

supported by probable cause. The district court reviewed Matos'

activities prior to his arrest, and noted that "[t]he fact that

Matos fled adds weight to the determination of probable cause,

but is not necessary to that determination." Matos now claims

that we must find that the district court's denial of his

suppression motion constituted reversible error.

A district court's findings of fact on a motion to

suppress are reviewable only for clear error as to probable

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cause, and questions of law remain subject to de novo review.

United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).3

Regardless of the degree of deference in our review, however, we

believe that the district court was correct in finding that

Matos' arrest was supported by probable cause.

It is elementary that the constitutionality of a

warrantless arrest depends upon whether, at the time the arrest

was made, the officers had probable cause to make it -- that is,

whether at that moment the facts and circumstances within their

knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent person in

believing that the defendant had committed or was committing an

offense. United States v. Morris, 977 F.2d 677, 684 (1st Cir.

1992). Probable cause is determined under an objective standard,

and the government need not show the quantum of proof necessary

to convict. Id. Probability, and not a prima facie showing of

criminal activity, is the standard of probable cause. Id.

We have held that probable cause must be determined in

light of the collective knowledge of the law enforcement officers

involved in an investigation. United States v. Diallo, 19 F.3d

23, 25-26 (1st Cir. 1994). Accordingly, an officer's experience

and expertise as a police officer may also be crucial factors in

the probable cause determination. United States v. Maguire, 918

3 Here, the district court ruled on Matos' motion without a
hearing and did not make specific findings of fact. It is clear,
however, that the court implicitly adopted the government's
version of the facts.

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F.2d 254, 258 (1st Cir. 1990), cert. denied sub. nom. Kavanaugh

v. United States, 501 U.S. 1234 (1991).

Applying these principles here, we think it clear that

an objective view of the facts support the district court's

finding of probable cause for Matos' arrest. It was Rodr guez'

storage unit that Cuevas and Torres accessed on the morning of

January 17, 1992, a fact that the agents knew during their

surveillance of Matos and Rodr guez that afternoon. The agents

also had a reasonable suspicion that it had been Matos and

Rodr guez in the blue Toyota station wagon who met with Torres

and Cuevas at the storage facility that morning. The activities

of Matos and Rodr guez that afternoon support a reasonable

inference that they were closely involved in the delivery of ten

kilograms of cocaine to Mart nez on January 17, 1992. Their

behavior and carefully synchronized movements strongly support

the agents' theory that they were in charge of counter-

surveillance for the transaction. We therefore find that the

district court correctly denied Matos' motion to suppress.

E. Denial of Matos' and Rodr guez' Motions for Entry
E. Denial of Matos' and Rodr guez' Motions for Entry

of Judgments of Acquittal
of Judgments of Acquittal

Both Matos and Rodr guez challenge the district court's

denial of their motions for judgments of acquittal. Matos

contends that his "mere presence" at the scene of a crime is the

only evidence of his membership in the conspiracy, and therefore

that his conviction cannot stand. Rodr guez likewise contends

that no evidence of his membership in the conspiracy exists, or

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that he violated any laws, and that the government's case against

him is based solely on conjecture and speculative inference.

When reviewing the denial of a motion for judgment of

acquittal, we assess the sufficiency of the evidence as a whole

in the light most favorable to the verdict, with a view to

whether a rational trier of fact could have found the defendant

guilty beyond a reasonable doubt. We do not weigh witness

credibility, but resolve all credibility issues in favor of the

verdict. United States v. Hahn, 17 F.3d 502, 506 (1st Cir.

1994). The evidence may be entirely circumstantial, and need not

exclude every reasonable hypothesis of innocence. In other

words, the factfinder may decide among reasonable interpretations

of the evidence. Id.

Viewing the evidence according to these principles, we

think it clear that the convictions of both Matos and Rodr guez

were amply supported by the evidence. Both of these appellants'

challenges rest on the testimony offered by Rodr guez at trial.

Rodr guez testified at trial that he had rented a storage unit at

North Shore Self Storage with Cuevas for the purpose of repairing

a car. According to Rodr guez, he returned his keys and

paperwork to Cuevas and did not return to the storage unit after

December 19, 1991. Rodr guez also denied driving to the storage

unit on the morning of January 17, 1992, denied returning to the

Weylu's parking lot, denied running from the restaurant to his

BMW with Matos, and denied following Mart nez and Cuevas to the

Kowloon restaurant. Rodr guez claimed that his only contact with

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Cuevas on that day was to drive him to Weylu's, after which he

and Matos proceeded to Sears to go shopping. Rodr guez also

denied that he was responding to a page from Torres when he was

arrested, despite the records indicating that just moments before

his arrest he had been paged by Torres.

Clearly, the jury rejected Rodr guez' testimony, no

doubt in light of the evidence to the contrary. As discussed

above, the government proved through strong circumstantial

evidence that Rodr guez and Matos were closely involved with

Cuevas in the ten kilogram transaction. The jury was entitled to

draw reasonable inferences from this evidence, and to reject

Rodr guez' testimony in whole or in part. We therefore find that

the evidence adduced at trial supports the jury's guilty verdict,

and that the district court properly denied the defendants'

motions for judgments of acquittal.

F. The Sentences of Torres, Matos & Rodr guez
F. The Sentences of Torres, Matos & Rodr guez

All of the appellants challenge their sentences.

Torres, Rodr guez and Matos each challenge the drug quantity

determinations made by the district court during sentencing.

Torres claims that the district court committed clear error by

attributing to him two kilograms of cocaine discovered in a

second storage unit at North Shore Self Storage. Consequently,

Torres argues, his Base Offense Level under the Sentencing

Guidelines should have been 32 (5-15 kilograms of cocaine) rather

than level 34 (15-50 kilograms of cocaine), as determined by the

district court.

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Rodr guez and Matos also claim that the district court

committed clear error in finding that a drug quantity of at least

five kilograms of cocaine was reasonably foreseeable to them as a

consequence of their participation in the ten kilogram

transaction of January 17, 1992. Accordingly, Rodr guez and

Matos both claim that their ten-year mandatory minimum sentences

must be vacated.

It is well settled that "[a] narcotics conspirator is

responsible not only for the drugs he actually handled or saw but

also for the full quantity of drugs that he reasonably could have

foreseen to be embraced by the conspiracy he joined." United

States v. De La Cruz, 996 F.2d 1307, 1313 (1st Cir.), cert.

denied, 114 S. Ct. 356 (1993). Moreover, the district court's

finding as to the quantity embraced by the conspiracy and

reasonably foreseen by the defendant is a factual one and will

not be disturbed unless it is clearly erroneous. Id. In

reviewing drug quantity determinations made by district courts,

we have held that the sentencing court has broad discretion to

determine what data is or is not sufficiently dependable to be

used in imposing sentences. United States v. Whiting, 28 F.3d

1296, 1304 (1st Cir. 1994) (internal quotations omitted). We

also defer to the sentencing court's credibility determinations.

Id.

1. The district court's drug quantity determination
1. The district court's drug quantity determination

as to Torres
as to Torres

The district court found Torres responsible for the ten

kilograms involved in the January 17, 1992 transaction; three

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kilograms found in Rodr guez' storage unit; and two kilograms

found in another storage unit belonging to Mariquesa Cuevas.4

The district court based its sentencing determinations on its

factual finding that Torres was "very much involved" in "what was

going on out at the storage location," and that the evidence

regarding his participation in the cocaine distribution scheme

with Cuevas was compelling. The district court concluded, based

on these findings, that Torres was "involved and accountable" for

the five kilograms found in the two units at North Shore Self

Storage. Torres now argues that no evidence links him to

Mariquesa Cuevas' storage unit or to the two kilograms of cocaine

found therein. He contends that the sentencing court had to

engage in speculative and impermissible leaps of logic in order

to attribute these two kilograms to him, and his sentence must

therefore be vacated.

The relevant facts relied upon by the district court

during sentencing but not introduced into evidence at trial are

as follows. During the afternoon of January 17, 1992, after

Cuevas had been arrested, his sister Mariquesa attempted to enter

North Shore Self Storage. She was driving Cuevas' gold Honda

Accord, a car that Cuevas had driven to one of his meetings with

Agent Mart nez. Mariquesa Cuevas was stopped by a state trooper

before she could enter the storage facility premises. The

4 Mariquesa Cuevas, the sister of defendant Abelardo Cuevas, did
not appear for trial and is a fugitive from justice. The two
kilograms of cocaine found in her storage unit on January 17,
1992 were therefore not introduced at trial.

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officer observed a large amount of cash on the back seat of the

Honda. When asked about the money, Mariquesa Cuevas said that

she knew nothing about it, and that the car belonged to her

brother. The car, the money (approximately $7,000) and the car

keys were then seized.

Later that evening, agents obtained and executed a

search warrant for a storage unit leased in the name of Mariquesa

Cuevas, as well as the unit leased in Rodr guez' name. Two

kilograms of cocaine were recovered from Mariquesa Cuevas' unit.

Agents later determined that one of the keys on the gold Honda's

key ring fit the lock to Mariquesa Cuevas' storage unit.

The district court evidently found Torres responsible

at sentencing for these two kilograms because of the ample

circumstantial evidence of his close, influential association

with Cuevas, and the fact that Torres had the key to Rodr guez'

storage unit in which three kilograms of cocaine were found.

Despite Torres' protestations at sentencing, the court faced a

sizeable quantity of evidence that Torres exerted a significant,

even a leading, role in a cocaine distribution conspiracy, and

that use of the storage units at North Shore Self Storage was

part of the conspiracy's mechanics. Therefore, even if Torres

did not know specifically about the two kilograms in Mariquesa

Cuevas' storage unit, the district court acted well within the

bounds of its discretion in concluding, based on its factual

findings, that Torres could have reasonably foreseen that any

additional cocaine found in the storage unit would be deemed

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"embraced" by the overall conspiracy. Torres fails to point to

any competent evidence that contradicts the district court's

findings and conclusions, other than his own testimony. Because

the district court was entitled to disbelieve Torres' testimony,

and because we cannot say that the court's findings of fact and

conclusions were clearly erroneous, we reject Torres' challenge

and affirm his sentence.

2. The district court's drug quantity calculations
2. The district court's drug quantity calculations

as to Rodr guez and Matos
as to Rodr guez and Matos

Rodr guez and Matos also argue that the ten kilograms

of cocaine delivered to Agent Mart nez on January 17, 1992 should

not have been attributed to them. They contend that the

government failed to establish that they had the requisite

knowledge of the the amount of cocaine involved in the

conspiracy. Accordingly, they argue, the ten-year mandatory

minimum penalty prescribed by 21 U.S.C. 841(b)(1)(A)(ii),

applicable to conspiracies involving five or more kilograms of

cocaine, does not apply to them.

In rejecting this argument at sentencing and ruling

that the ten-year mandatory minimum did indeed apply, the

district court found by a preponderance of the evidence that

Rodr guez and Matos joined Cuevas and Torres in the morning of

January 17, 1992 to pick up the ten kilograms of cocaine from the

storage facility to sell to Agent Mart nez. The evidence adduced

at trial, moreover, also indicates that it was Rodr guez and

Matos who, at Cuevas' instruction, moved the ten kilograms of

cocaine from Weylu's restaurant to the Kowloon restaurant later

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that day. When Rodr guez' storage unit was searched that

evening, a car with a secret compartment and three kilograms of

cocaine were found. Rodr guez had a key to this unit at the time

of his arrest. In light of all of this evidence and the

reasonable inferences that can be drawn therefrom, we cannot say

that the district court committed clear error in finding that a

drug quantity of at least five kilograms was reasonably

foreseeable to both Rodr guez and Matos.

We have previously explained that "[a] defendant who

conspires to transport for distribution a large quantity of

drugs, but happens not to know the precise amount, pretty much

takes his chances that the amount involved will be quite large."

De La Cruz, 996 F.2d at 1314. We see no reason or special

circumstances here to justify a departure from our prior ruling.

Accordingly, we reject Rodr guez' and Matos' challenges to their

ten-year minimum mandatory sentences, and affirm the district

court's ruling.5

CONCLUSION
CONCLUSION

For the foregoing reasons, the convictions and

sentences of appellants Torres, Rodr guez, and Matos are

affirmed.

5 Rodr guez and Matos also contend that the district court
erroneously refused to consider their requests for downward
departures. Because we have affirmed the district court as to
their ten-year mandatory minimum sentences, their arguments
regarding downward departures are moot, and we therefore need not
address them.

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