USCA1 Opinion
February 10, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2316
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER CARABALLO-CRUZ,
Defendant, Appellant.
____________________
No. 92-2319
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE IVAN MONTA EZ-ANAYA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Boudin, Circuit Judges.
______________
_____________________
Miguel A.A. Nogueras-Castro, Assistant Federal Public
______________________________
Defender, with whom Benicio S nchez-Rivera, Federal Public
_______________________
Defender, was on brief for appellant Walter Caraballo-Cruz.
Francisco M. Dolz-S nchez for appellant Jos Iv n Monta ez-Anaya.
_________________________
Carlos A. P rez-Irizarry, Assistant United States Attorney,
________________________
with whom Charles E. Fitzwilliam, United States Attorney, and
_______________________
Jos A. Quiles-Espinosa, Senior Litigation Counsel, were on brief
_______________________
for appellee.
____________________
____________________
-2-
TORRUELLA, Circuit Judge. Defendants Walter Caraballo-
_____________
Cruz ("Caraballo") and Jos Iv n Monta ez-Anaya ("Monta ez") were
convicted by a jury of conspiracy to possess with the intent to
distribute cocaine in violation of 21 U.S.C. 841(a)(1), 846,
and of aiding and abetting the possession with the intent to
distribute cocaine in violation of 18 U.S.C. 2. Caraballo
challenges the sufficiency of the evidence against him and
Monta ez appeals the district court's refusal to reduce his
sentence for being a minimal or minor participant. We affirm.
I. BACKGROUND
I. BACKGROUND
The alleged conspiracy in this case involved a plan to
smuggle twenty-nine kilograms of cocaine into the continental
United States by concealing the drugs in luggage placed on
commercial flights departing from San Juan, Puerto Rico.
According to the evidence in the record viewed in the light most
favorable to the government, United States v. Echeverri, 982 F.2d
_____________ _________
675, 676 (1st Cir. 1993), the conspiracy proceeded as follows.
On May 4, 1992, Caraballo and Monta ez, along with
their two codefendants, Orlando Enrique Monroy-Pedrosa ("Monroy")
and Jules Delgado-Valencia ("Delgado"),1 and several unindicted
coconspirators, delivered a total of nine separate pieces of
luggage to the American Airlines desk at Luis Mu oz Mar n
International Airport in Isla Verde, Puerto Rico. The defendants
checked in the luggage under a variety of assumed names using a
series of airline tickets purchased at the same time from the
____________________
1 The appeals of Monroy and Delgado have been dismissed.
-3-
same travel agency. In addition, Monta ez purchased two tickets,
also under an assumed name, at the airport.
The operation was first detected when United States
Customs Service Inspector V ctor Ramos observed Monta ez and
Monroy each carrying a suitcase with United States Department of
Agriculture ("USDA") inspection stickers on them despite the fact
that neither had passed through the USDA facility where X-ray
inspections are conducted.2 Monta ez and Monroy proceeded to
the American Airlines counter where Monroy checked the bags onto
a flight to New York under an assumed name.
Upon further surveillance, Inspector Ramos noticed a
woman, Gladys Eliana Marulanda-Mar n ("Marulanda"),3 deliver,
and then check with the airline, two suitcases that were
identical to the luggage delivered by Monroy and Monta ez.
Marulanda also checked in her bags under an assumed name.
Inspector Ramos alerted other Customs Service officials
to this suspicious behavior. The officials then brought in a
canine unit to investigate the suspect luggage. The canine unit
gave a positive alert for narcotics as to each of the four
suitcases. Meanwhile, Customs Inspectors Mar a del Carmen Rabell
and H ctor Cab n, who had also observed Monta ez, Monroy, and
____________________
2 At the Luis Mu oz Mar n airport, all passengers with baggage
to be checked in on flights to the continental United States must
first pass through one of several USDA inspection facilities
located at the entrance to the terminal. After checking each bag
with an X-ray machine, USDA officials affix an inspection sticker
on the bag to indicate that it has passed inspection and may be
accepted for check-in by the airlines.
3 The government declined to prosecute Marulanda.
-4-
Marulanda deliver their suitcases, followed Monroy to an airline
gate where they watched him board his plane with Marulanda. When
informed of the positive alert by the police dogs, Rabell and
Cab n entered the plane and arrested Monroy and Marulanda.
Following these arrests, the two Inspectors returned to
the American Airlines area where they observed two unattended
suitcases with USDA inspection stickers on them. As the
Inspectors looked on, Caraballo and another individual grabbed
the suitcases, exited the terminal building, and placed them in
the trunk of a car which then left without Caraballo and his
companion.
Soon thereafter, Inspectors Rabell and Cab n observed
Monta ez again enter the terminal and carry two more suitcases to
the American Airlines counter. Monta ez purchased two plane
tickets with cash and checked in his luggage. A few moments
later, the Inspectors saw Caraballo, together with Delgado,
carrying three suitcases. According to Inspector Rabell, two of
the three suitcases appeared to be the same ones that she had
previously seen Caraballo and his companion place inside the
trunk of a car. Rabell did not, however, specify which of the
three suitcases Caraballo was carrying. After checking their
luggage, again under assumed names, Caraballo and Delgado met
with Monta ez who was waiting for them in front of a gift shop.
Monta ez gave Delgado the flight jacket he was wearing after
which Caraballo and Delgado proceeded to the airline gate to
board their flight.
-5-
Inspector Rabell followed Caraballo and Delgado and,
after receiving word that all five suitcases were given a
positive alert by the canine unit, arrested them on the airplane
jetway as they attempted to board their plane. Government agents
later found several USDA inspection stickers and sticker
fragments in Caraballo's wallet. Inspector Cab n arrested
Monta ez and seized passenger tickets and boarding passes from
him which corresponded to two suitcases that were later found to
contain cocaine.
All nine of defendants' suitcases triggered positive
alerts for narcotics when presented to the canine unit; however,
only five -- Government's Exhibits 1, 2, 5, 6, and 7 -- actually
contained cocaine. The first two suitcases, Exhibits 1 and 2,
were the ones carried to the American Airlines counter by Monroy
and Monta ez and checked in by Monroy. The last suitcase,
Exhibit 7, was carried and checked in by Monta ez under the
assumed name of Diego Rivera.
The record contains conflicting evidence, however, as
to who carried and who checked in the other two suitcases
containing cocaine, Exhibits 5 and 6. Inspector Rabell testified
that these were the two suitcases that Caraballo and another
individual originally placed in the trunk of a car. Nothing in
the record indicates whether, at that point, the two suitcases
contained the cocaine that was later found inside them. Rabell
also testified that these suitcases, along with a third suitcase
that did not contain cocaine, were later carried to the airline
-6-
counter by either Caraballo or Delgado. According to the airline
records, however, Exhibits 5 and 6 were actually checked in under
the name Mario Arzuaga, one of the aliases used by Monta ez when
Monta ez purchased his airline tickets and checked in his
luggage. The confusion is compounded by the fact that the claim
tickets for these two suitcases, Exhibits 5 and 6, were found on
Delgado when he was arrested, even though Delgado had checked in
only one bag under a completely different alias.
The government tried to suggest that Monta ez really
checked in Exhibits 5 and 6 and then gave Delgado the claim
checks for these suitcases when he handed Delgado his flight
jacket. The government never explained, however, the discrepancy
between this version of events and Inspector Rabell's testimony
that either Delgado or Caraballo carried Exhibits 5 and 6 to the
airline counter after Monta ez had already checked in two
separate pieces of luggage.
At the very least, however, the evidence indicates that
Monta ez carried a total of at least two suitcases with cocaine
to the airline counter (Exhibits 1 or 2 and 7), checked in at
least one suitcase with cocaine (Exhibit 7), and purchased and
possessed an airline ticket that corresponded to two additional
suitcases that were found to contain cocaine (Exhibits 5 and 6).
As for Caraballo, the suitcase checked in under his alias,
Exhibit 10, did not contain cocaine. Nevertheless, Caraballo was
seen carrying suitcases (Exhibits 5 and 6) which contained
cocaine at some point, although not necessarily while he was
-7-
carrying them, either out of or back into the airport.
Drug Enforcement Agency officials found a total of
twenty-nine kilograms of cocaine in the five suitcases with an
estimated street value of $493,000 to $841,000. The cocaine
found in each suitcase was packaged in the same manner and each
package was elaborately wrapped to avoid detection.
II. SUFFICIENCY OF THE EVIDENCE
II. SUFFICIENCY OF THE EVIDENCE
A. Conspiracy
Caraballo challenges the sufficiency of the evidence
supporting his conspiracy and aiding and abetting convictions
under 21 U.S.C. 841(a)(1), 846 and 18 U.S.C. 2. Upon review
of the jury verdict, we examine the evidence in its entirety in
the light most favorable to the government to determine whether a
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. The government gets the
benefit of all legitimate and favorable inferences and can prove
its case by circumstantial evidence without having to exclude
every reasonable hypothesis of innocence. Echeverri, 982 F.2d at
_________
677; United States v. Akinola, 985 F.2d 1105, 1109 (1st Cir.
_____________ _______
1993); United States v. McLaughlin, 957 F.2d 12, 18 (1st Cir.
______________ __________
1992).
In order to prove a defendant is guilty of conspiracy
under 21 U.S.C. 846, the government must show, beyond a
reasonable doubt, that the defendant knowingly and voluntarily
participated in an agreement to violate the law and that the
defendant did so with the intent to commit the underlying
-8-
substantive offense. United States v. Sep lveda, No. 92-1362,
______________ _________
slip op. at 7 (1st Cir. Dec. 20, 1993); Akinola, 985 F.2d at
_______
1110; United States v. Clifford, 979 F.2d 896, 897-98 (1st Cir.
_____________ ________
1992); United States v. Tejeda, 974 F.2d 210, 212 (1st Cir.
_____________ ______
1992). In this case, the underlying offense was possession with
the intent to distribute cocaine. 21 U.S.C. 841(a)(1). The
government is not required to prove that the defendant knew
about, or took part in, all aspects of the conspiracy; it need
only establish the essential nature of the plan and the
defendant's connection to it. United States v. Benevides, 985
_____________ _________
F.2d 629, 633 (1st Cir. 1993); United States v. Rivera-Santiago,
_____________ _______________
872 F.2d 1073, 1079 (1st Cir.), cert. denied, 492 U.S. 910
____ ______
(1989).
Caraballo argues that the record contains no evidence
that he knew about or willfully agreed to participate in the plan
to transport cocaine. We disagree. Caraballo was travelling
under an assumed name with a plane ticket that was purchased at
the exact same time and place as the tickets used by his
codefendants who were found to be transporting cocaine. During
the execution of the smuggling operation on May 4, 1992,
Caraballo was continuously in the company of other conspirators.
He carried suitcases and boarded a plane with one conspirator who
possessed claim checks for suitcases containing cocaine. One
customs inspector testified that Caraballo and the conspirator
carried two suitcases that were later found to contain cocaine.
Caraballo also met with another conspirator who had carried and
-9-
checked in at least one suitcase with cocaine.
One crucial aspect of the conspiracy involved placing
USDA inspection stickers on suitcases with cocaine in order to
bypass the agricultural inspection facility. Customs inspectors
saw Caraballo carry at least one suitcase with a USDA inspection
sticker from inside the terminal back outside the airport and
place it into the trunk of a car. That suitcase was later found
to contain cocaine. More significantly, Caraballo was carrying
USDA inspection stickers and sticker fragments in his wallet.
From this evidence, the jury could reasonably conclude
that Caraballo agreed to help smuggle cocaine into the
continental United States by carrying several of the suitcases
used in the operation, by assisting in bypassing the agricultural
inspection facility, and by flying to the cocaine's destination
with his coconspirators to assist in the completion of the
delivery. In particular, Caraballo's possession of USDA
inspection stickers and his act of removing luggage already
marked with such stickers from the terminal to a waiting
automobile indicate that Caraballo knowingly executed an agreed
upon plan to avoid detection of the cocaine in the suitcases.
Caraballo attempts to characterize the evidence against
him as sufficient only to establish his "mere presence" at the
scene of the crime. He emphasizes that the suitcase he checked
in did not contain any drugs, the government never established
that he carried cocaine at any time, and the inspection stickers
in his wallet were a different color than the ones used on the
-10-
suitcases. Because of this evidence, Caraballo contends, his
behavior can only be interpreted as a series of "innocent acts".
Although a defendant's mere presence at the scene of a
crime is not alone sufficient to prove his membership in a
conspiracy, United States v. Ocampo, 964 F.2d 80, 82 (1st Cir.
______________ ______
1992); United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992),
_____________ _____
cert. denied, 113 S. Ct. 1005 (1993), the circumstantial evidence
____ ______
or simply the attendant circumstances can be enough to convince a
rational jury that "the 'mere' is lacking." Echeverri, 982 F.2d
_________
at 678; Tejeda, 974 F.2d at 213; Ortiz, 966 at 711-12.
______ _____
In Caraballo's case, there are both circumstantial
evidence and attendant circumstances to support the jury's
conclusion that Caraballo was participating in the conspiracy and
not merely present in the airport for the purpose of travelling
to the States. Caraballo's actions on May 4, 1993, demonstrate
an effort to evade inspection of certain suitcases which later
were found to contain cocaine. The jury could infer that
Caraballo removed suitcases from the terminal after they had been
inspected precisely because he knew those suitcases would later
be used to transport cocaine. In addition, the fact that
Caraballo's tickets were purchased together with the other
conspirators, and the fact that Caraballo checked in his bags and
boarded his flight with another conspirator indicates he
willfully associated himself with the venture.
That the inspection stickers found in Caraballo's
wallet were a different color than the ones found on the
-11-
suitcases does not compel the jury to believe Caraballo's
explanation that the stickers were merely "souvenirs" that he
collected. Instead, the jury could infer that Caraballo had
prepared several alternative methods to evade the USDA inspection
before choosing the one he actually implemented. Caraballo's
reliance on the lack of proof that he ever possessed cocaine or
carried a suitcase with cocaine is of little help to him in this
case. No such proof is required if the evidence can otherwise
show that he participated in the conspiracy with the intent to
accomplish its unlawful objective. See, e.g., United States v.
___ ____ _____________
De La Cruz, 996 F.2d 1307, 1311-12 (1st Cir.), cert. denied, 114
__________ ____ ______
S. Ct. 356 (1993); Akinola, 985 F.2d at 1110; United States v.
_______ _____________
Clifford, 979 F.2d 896, 898 (1st Cir. 1992); Tejeda, 974 F.2d at
________ ______
213.
B. Aiding and Abetting
Caraballo also challenges his conviction for aiding and
abetting under 18 U.S.C. 2. "For the conviction to stand, the
government must prove that defendant associated himself with the
underlying venture, participated in it as something he wished to
bring about, and sought by his actions to make it succeed."
Clifford, 979 F.2d at 899 (citing Nye & Nissen v. United States,
________ ____________ _____________
336 U.S. 613, 619 (1949)); Ortiz, 966 F.2d at 711 n.1. The
_____
evidence that Caraballo, using an assumed name, checked onto a
flight using a ticket purchased together with the other
conspirators, carried suitcases and remained in the company of
other conspirators, and took actions designed to avoid USDA
-12-
inspection of suitcases containing cocaine amply supports the
jury's conclusion that Caraballo knowingly and willfully agreed
to associate himself with the plan to smuggle cocaine into the
continental United States and sought to bring about its success.
-13-
III. SENTENCING
III. SENTENCING
At his sentencing, Monta ez requested a reduction in
his offense level by two to four points pursuant to U.S.S.G.
3B1.2(a) or (b) for minimal or minor participation in the
conspiracy. He argued that his only role in the offense was
carrying three suitcases and handing claim tags to Delgado and
thus, as a courier, he was the least culpable participant.
Monta ez further pointed out that the presentence investigation
report, although asserting that Monta ez was not a minor
participant, identified Delgado as the "leader/organizer of the
overall criminal activity," identified Monroy as the "second most
culpable defendant," and concluded that the "remaining defendants
are viewed as less culpable." The district court denied
Monta ez' request because it found him to be a "substantial
player" in the conspiracy. The court sentenced Monta ez to 172
months in prison and Monta ez appealed.
A reduction in a defendant's offense level for minimal
participation under 3B1.2(a) "is intended to cover defendants
who are plainly among the least culpable of those involved."
U.S.S.G. 3B1.2(a) comment note 1. A reduction for minor
participation under 3B1.2(b) applies to "any participant who is
less culpable than most other participants." U.S.S.G. 3B1.2(b)
comment note 3. It is well established that no defendant is
automatically entitled to a reduction as a minimal or minor
participant, even if the defendant happens to be less culpable
than his or her codefendants and even if the court found the
-14-
defendant was only a courier. United States v. L pez-Gil, 965
_____________ _________
F.2d 1124, 1131 (1st Cir.), cert. dismissed, 112 S. Ct. 2959,
____ _________
cert. denied, 113 S. Ct. 484 (1992); United States v. Valencia-
____ ______ _____________ _________
Lucena, 925 F.2d 506, 514 (1st Cir. 1991); United States v. Paz
______ _____________ ___
Uribe, 891 F.2d 396, 399 (1st Cir. 1989), cert. denied, 495 U.S.
_____ ____ ______
951 (1990). The sentencing court has broad discretion in
determining whether this downward adjustment is appropriate and
we will reverse only if the evidence overwhelmingly demonstrates
that the defendant played a part that makes him substantially
less culpable than the average participant in the convicted
offense such that the court's decision was clearly erroneous.
L pez-Gil, 965 F.2d at 1131; United States v. Gregorio, 956 F.2d
_________ _____________ ________
341, 344 (1st Cir. 1992); United States v. Ocasio, 914 F.2d 330,
______________ ______
333 (1st Cir. 1990).
The district court was well within its discretion in
finding that, even though less culpable than Delgado and Monroy,
Monta ez was still a "substantial player" and not a minor, let
alone minimal, participant. Monta ez carried at least two
suitcases containing cocaine to the airline counter and checked
in at least one such suitcase with the airline. In addition,
Monta ez purchased, in cash, two tickets under assumed names
which corresponded to three pieces of luggage that were found to
contain cocaine. Monta ez also accompanied Monroy while Monroy
was carrying still another suitcase with cocaine and while Monroy
checked in two suitcases that contained cocaine. In fact,
Monta ez was connected in some way with every piece of luggage
-15-
used to transport cocaine.
Furthermore, Monta ez met with coconspirators Delgado
and Caraballo immediately after checking in his luggage and the
evidence supports the inference that he handed Delgado the claim
checks for two of the suitcases which were later found to contain
cocaine. These activities demonstrate significant involvement in
a large smuggling operation that depended for its success upon
the coordinated actions of several individuals, including
Monta ez.4
Even if Monta ez was the least culpable of the charged
defendants, it does not mean he performed a minor role in the
offense. United States v. Daniel, 962 F.2d 100, 103 (1st Cir.
_____________ ______
1992). In our view, Monta ez' role in the smuggling operation
can best be described as average. He carried several suitcases,
purchased two plane tickets, and passed along some claim checks.
If the sentencing judge, who is better situated to assess the
facts of the case, found Monta ez' actions more than minor, we
cannot, on these facts, convincingly find otherwise.
Consequently, we uphold the district court's refusal to adjust
Monta ez' offense for playing a minimal or minor role in the
conspiracy.
Affirmed.
________
____________________
4 The considerably large amount of cocaine transported by
Monta ez, who carried or controlled at one point a large portion
of the twenty-nine kilograms of cocaine involved in the
conspiracy, also militates strongly against any downward
adjustment. See United States v. Rodr guez Cort s, 949 F.2d 532,
___ _____________ ________________
547 (1st Cir. 1991).
-16-