USCA1 Opinion
November 13, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1434
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JOSE VENTURA-RAMOS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
Damon M. D'Ambrosio with whom Martin D. Harris was on brief for
___________________ ________________
appellant.
Margaret E. Curran, Assistant United States Attorney, with whom
__________________
Lincoln C. Almond, United States Attorney, and Lawrence D.
___________________ ____________
Gaynor, Assistant United States Attorney, were on brief for
______
appellee.
____________________
____________________
Per Curiam. This is an appeal from a conviction of
___________
conspiracy to distribute and to possess with intent to distribute
cocaine (Count I, 21 U.S.C. 846) and of either possession with
intent to distribute the drug or aiding and abetting such
possession (Count II, 21 U.S.C. 841(a)(1), (b)(1)(C), and 18
U.S.C. 2).
Defendant challenges the admissibility of the audiotape and
transcript of a recorded conversation in which defendant, two co-
defendants, and a government informant took part. The transcript
was stipulated to be an accurate representation of the tape. At
trial, defendant contested the transcript's attribution of voices
to individuals, but the informant testified that he recognized
defendant's voice and confirmed the attribution of statements to
defendant. Based on the informant's authentication, the tape was
admitted without objection. Defendant now advances the arguments
that the tape was too inaudible to be helpful and that the
prejudicial impact outweighed its probative value. We shall not
consider these arguments because they are raised only on appeal.
Nor do we find any indication of plain error.
The tape and resulting transcript having been submitted
properly to the jury, we have no difficulty in rejecting the
challenge to the sufficiency of evidence to support the
conviction for Count I. Defendant baldly asserts in his brief
that "[t]here is little or nothing in the record from which it
can be inferred that [he] acted in concert with the two co-
defendants to forward or further an illegal act." Yet the
transcript is replete with defendant's contributions to the
discussion of a cocaine sale. These contributions include a
resistance by him and his associate to conducting the transaction
on the street; they insisted on doing the deal in defendant's
home. When the prospective buyers expressed apprehension of
encountering guns if they entered the house, defendant said that
he "can't do one bad thing to anybody." He further said, "[W]e
are doing big business. They send it to me from New York."
After conversation relating to quality and packaging, defendant
took the informant to reconnoitre defendant's house, showing the
informant through almost every room. Further, an associate was
approaching defendant's apartment with the cocaine to close the
deal when arrested, and defendant immediately attempted to flee.
Defendant's own words and actions belie his claim of "mere
presence." This evidence and more were sufficient to support the
conspiracy conviction.
Defendant's challenge to Count II was based on the absence
of any evidence that he possessed the cocaine at any time. At
trial, the district judge expressed his uncertainty whether
statements and an act of possession of a co-conspirator compelled
a finding of possession by another co-conspirator. He ruled
instead that the jury had enough evidence from which to find
that, even though an associate was carrying the cocaine,
defendant had sufficient power and intent to exercise the
dominion necessary for constructive possession.
-3-
We prefer to uphold this ruling on the undoubted application
of Pinkerton v. United States, 328 U.S. 640, 647 (1946), to the
_________ _____________
"acts or declarations" of fellow conspirators. We applied this
doctrine specifically to a possession case in United States v.
_____________
Rengifo, 858 F.2d 800, 807 (1st Cir. 1988), where we said:
_______
No evidence was presented that any of the
defendants arrested in room 106 ever possessed the
cocaine. We note as a preliminary matter, however, that
a coconspirator is responsible for the substantive
offenses committed in furtherance of the conspiracy
regardless of whether he participates in, or even has
knowledge of, those offenses.
We therefore find sufficient evidence to support conviction under
the substantive count.
Finally, defendant protests receipt of the maximum sentence
allowable under the applicable guidelines. As we held in United
______
States v. Panet-Collazo, 960 F.2d 256, 261 (1992),
______ _____________
[W]e have no appellate jurisdiction to review a
sentence within the applicable sentencing guidelines
range if that range was correctly determined, as it was
here.
Affirmed.
________
-4-