United States v. Torres-Amezquita

USCA1 Opinion












June 6, 1994 [NOT FOR PUBLICATION]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 92-2476

UNITED STATES,
Appellee,

v.

KIM DE LOS SANTOS-FERRER,
Defendant, Appellant,
____________________

No. 92-2477

UNITED STATES,
Appellee,

v.

JAIRO ANTONIO TORRES-AMEZQUITA,
Defendant, Appellant,
____________________

No. 93-1060

UNITED STATES,
Appellee,

v.

PEDRO AYALA-ROSARIO,
Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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____________________
Before

Cyr and Stahl, Circuit Judges,
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and Pieras,* Senior District Judge.
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Roxana C. Matienzo Carrion for appellant Kim De Los Santos
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Ferrer.
Luis Rafael Rivera for appellant Jairo Antonio Torres Amezquita.
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Francisco Serrano Walker for appellant Pedro Ayala-Rosario.
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Antonio R. Bazan, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, and Jose A. Quiles Espinosa,
______________ ________________________
Senior Litigation Counsel, were on brief for appellees.

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*Of the District of Puerto Rico, sitting by designation.




















Per Curiam. In this appeal, defendants Kim de los
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Santos Ferrer (Santos), Jairo Antonio Torres Amezquita

(Torres) and Pedro Ayala Rosario (Ayala) challenge various

aspects of their drug convictions and sentences. Finding no

error, we affirm.

I.
I.
__

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
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For purposes of defendants' challenges to the

sufficiency of the evidence, we begin by reciting the facts

in a light most favorable to the government. See United
___ ______

States v. Mena-Robles, 4 F.3d 1026, 1029 (1st Cir. 1993),
______ ___________

cert. denied, 114 S. Ct. 1550 (1994).
_____ ______

Confidential informant Ruben de los Santos (the

CI)1 worked on board the merchant vessel Euro-Colombia, a

ship which routinely travels between Colombia and Puerto

Rico. In December of 1991, the CI was approached in

Cartagena, Colombia, by a Mr. Marcial who asked the CI to

smuggle four kilograms of cocaine on the Euro-Colombia from

Colombia to Puerto Rico. Marcial gave the CI the contraband

and a phone number to call when the ship reached Puerto Rico.

The phone number was later determined to be a cellular phone

number assigned to Ayala.

In early January, the ship arrived in Ponce. The

CI called the number and received no answer. United States


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1. The CI is no relation to defendant Kim de los Santos.

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Customs agents, with whom the CI was cooperating,

photographed the drugs and then allowed the CI to return to

Colombia with the contraband. In Colombia, Marcial asked the

CI to try delivering the drugs again and gave the CI a new

telephone number to call.

In February, the ship arrived at Ponce a second

time. At 3:30 in the morning, the CI called the new number.

The resulting conversation was taped by United States Customs

officials. Santos answered the phone. The CI began by

asking if Santos knew "Mr. Estela," and said that he had a

"present" for Santos. Santos replied that he knew Mr.

Estela. The word cocaine was not mentioned, but a price of

$4000 per kilogram was agreed upon. A time and place for

delivery were set. Santos said that he would arrive at 5:00

a.m. in Ponce and that he would be driving a gold Porsche.

He also mentioned that he needed to raise cash for the

purchase.

A second phone call was made to the same number at

about 4:00 a.m., which was also taped by customs officials.

This time, the CI spoke with Torres. The delivery time was

moved back to 8:00 a.m. Torres stated, among other things,

that he needed the time to raise money.

At 8:00 a.m., Santos and Torres showed up at the

appointed delivery spot. They were riding in a Mitsubishi

Mirage, not a Porsche. Ayala, the third defendant, was also



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with them. Santos signaled to the CI, who replied by asking

what Santos wanted. Santos replied, "The 4 kilos from

Colombia." The CI asked to be paid. Ayala opened the car

door, Santos told the CI to get into the car, and the CI

obliged. All three defendants were arrested shortly

thereafter. In the car, agents discovered a car phone, with

the very phone number that the CI had called, along with

$3970 in cash. Torres was carrying over $500 in cash. In

addition, Santos' key chain had a Porsche emblem on it.

Ayala also had a beeper on his person.

All three defendants were held for several hours by

customs officials without being read their Miranda warnings.

During those hours, all were questioned. United States

Customs Service Agent Radames Sanchez, who had taped the

conversations earlier that morning,2 then listened briefly

to the questions being asked defendants in order to identify

their voices. He determined that Santos' voice was the voice

he heard on the tape of the first phone call, and that

Torres' voice was the one he heard on the tape of the second

call.

Santos and Torres were charged with using a

"communication facility" in carrying out a drug transaction



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2. Santos argues in his brief that Agent Sanchez was not
present when the conversations were recorded. Sanchez
testified that he actually taped the two phone conversations
at issue.

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in violation of 21 U.S.C. 843(b) (Counts I and II).

Santos, Torres and Ayala were all charged with importation,

including aiding and abetting (Count III) and possession with

intent to distribute (Count IV) all in violation of 21 U.S.C.

952(a) and 841 (a)(1) and 18 U.S.C. 2. All pleaded not

guilty. At trial, there was a hearing outside the presence

of the jury to determine the admissibility of the transcripts

of the phone conversations. More specifically defendants

argued that the transcripts should not be admitted because

each transcript identified defendants by their initials ("KS"

for Santos and "JM" for Torres). The district court admitted

the transcripts with the initials. All defendants were

convicted on all counts, except that the third defendant,

Ayala, was acquitted of the importation charge. Each

defendant raises separate issues. We address them in turn.

II.
II.
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DISCUSSION
DISCUSSION
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A. Santos
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1. The Appearance of Santos' Initials on the Transcript
________________________________________________________

Santos argues that the absence of Miranda warnings

at his post-arrest detention renders unconstitutional Agent

Sanchez's identification of his voice as the voice speaking

on the tape. Santos goes on to argue that the appearance of

his initials on the phone transcript, which was submitted to





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the jury, should therefore have been ruled inadmissible. We

disagree.

As the Supreme Court has recently noted, the case

of Miranda v. Arizona, 384 U.S. 436 (1966), does not
_______ _______

establish "an absolute right against being compelled to

speak." Doe v. United States, 487 U.S. 201, 214 n. 12
___ ______________

(1988). Rather, "that understanding is refuted by the

Court's decision in United States v. Dionisio, 410 U.S. 1
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(1973), in which the Court held that a suspect may not invoke

the privilege in refusing to speak for purposes of providing

a voice exemplar." Id.
___

In short, these cases teach that the right to

remain silent does not include the right to refuse giving a

voice exemplar. Thus, even if Santos had been read his

Miranda rights, he had no constitutionally protected interest

in keeping law enforcement officials from hearing his voice.

Without a cognizable constitutional interest, Santos' effort

to suppress the transcript fails.

Santos' non-constitutional challenges to the

admission of the transcripts are equally fruitless. We have

frequently noted that "the use of transcripts to assist the

jury is committed to the sound discretion of the trial

judge." United States v. Font-Ramirez, 944 F.2d 42, 48 (1st
_____________ ____________

Cir. 1991), cert. denied, 112 S. Ct. 954 (1992). See also
_____ ______ ___ ____

United States v. Panzardi-Lespier, 918 F.2d 313, 318-19 (1st
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Cir. 1990); United States v. Carbone, 798 F.2d 21, 26-27 (1st
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Cir. 1986); United States v. Rengifo, 789 F.2d 975, 980 (1st
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Cir. 1986). In this case, the district court listened to the

tapes, interviewed Sanchez, and heard extensive argument from

counsel, all outside the presence of the jury, before ruling

on the use of the transcript. The district court satisfied

itself as to Agent Sanchez's qualifications and ability to

make a voice identification in this case, as well as to the

authenticity and proper chain of custody of the tape and

transcripts. In addition, the district court properly noted

that Santos was free to argue to the jury that Sanchez's

identification of the voice on the tape as that of Santos was

unreliable. Defendant points to no evidence, in the record

or otherwise, to suggest that any of these determinations

constituted an abuse of discretion. Accordingly, we find no

abuse in the district court's decision to allow use of the

transcripts.

2. Sufficiency of Evidence
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Santos argues that there is insufficient evidence

to support his conviction on Count III, importation of a

controlled substance. As noted above, for the purpose of

challenges to the sufficiency of the evidence, we review the

evidence in a light most favorable to the government, drawing

all inferences in favor of the verdict. See, e.g., Mena-
___ ____ _____

Robles, 4 F.3d at 1031. Moreover, the evidence may be
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entirely circumstantial and need not exclude every reasonable

hypothesis of innocence; that is, the factfinder may decide

among reasonable interpretations of the evidence. See United
___ ______

States v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994).
______ ________________

When so viewed, the evidence in this case clearly

supports Santos' conviction for importation. To begin with,

Marcial gave Santos' number to the CI in Colombia. Santos,

without more, picked up a phone call late at night, responded

to code words about a delivery from "Mr. Estela," and

appeared at the scene of delivery requesting "the 4 kilos

from Colombia." Thus, the evidence shows an intimate

knowledge of the importation scheme and a willingness to

participate therein. In sum, we find this evidence

sufficient to support a conviction for importation.

3. Sentencing
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Santos claims that he should be sentenced based on

one kilogram of cocaine, rather than four, because $3970, the

amount found in the car, could not buy four kilograms at

current market rates. (In fact, $3970 will not even buy one

kilogram, which the district court found to cost $15,000 and

which may, in fact, cost considerably more).

We begin by noting that the facts supporting drug

quantity determinations for sentencing purposes must be

proven by the government by a preponderance of the evidence.

United States v. Legarda, 17 F.3d 496, 499 (1st Cir. 1994).
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A district court's factual findings on such an issue are

reviewed for clear error only. Id. We find no error in the
___

district court's determination that Santos intended to

purchase four kilograms. Marcial, the seller in Colombia,

gave the CI four kilograms and promised that a buyer in

Puerto Rico would purchase that amount. Santos met that

expectation, specifically mentioning four kilograms to the CI

just prior to his arrest, and the CI was ushered into Santos'

car carrying the four kilograms. As to the low sum of money,

the record does not rule out the possibility that the $3970

was merely payment to the CI for his role in the importation,

and that more money would be owing to the seller through

alternate means. In sum, we find no basis in the record

before us for concluding that the district court's quantity

determination was clear error.3


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3. Santos also argues that, because the cash on hand could
not purchase four kilograms of cocaine at current rates, he
should have been charged with the "lesser included offense"
of attempting to import just one kilogram of cocaine. A
lesser included offense is one which is "composed of some,
but not all elements of a greater offense and which does not
have any element not included in [the] greater offense."
Black's Law Dictionary, 902 (6th ed. 1990). For example, a
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lesser included offense of possession with intent to
distribute would be simple possession. A mere lower amount
of drugs, however, does not amount to a "lesser included
offense."
In this case, the district court, upon being
requested to instruct on a lesser included offense, asked
Santos if he was requesting an instruction on simple
possession. Santos replied in the negative. Accordingly, we
deem this issue waived. Moreover, we see no error in the
district court's refusal to instruct on a lesser included
offense based solely on a lower amount of drugs.

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B. Torres
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1. Sufficiency
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Torres also challenges the sufficiency of the

evidence supporting his convictions. Our standard of review

is set out, supra. Like Santos' challenge, we find Torres'
_____

sufficiency challenge unavailing.

Torres answered the second phone call. He

displayed intimate knowledge of the plan to meet the CI,

which had been discussed in the earlier call to Santos.

Torres' own participation included an attempt to raise cash.

Finally, Torres appeared at the purchase carrying more than

$500 in cash. Based on these facts, a reasonable jury could

conclude beyond a reasonable doubt that Torres was guilty of

both aiding and abetting the importation of cocaine and

possession with intent to distribute.

2. Sentencing
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Torres argues that he is entitled to downward

departures based on his acceptance of responsibility and his

minimal participation. "Whether a defendant has accepted

personal responsibility is a `fact-dominated issue.'" United
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States v. Donovan, 996 F.2d 1343, 1346 (1st Cir. 1993)
______ _______

(quoting United States v. Royer, 895 F.2d 28, 29 (1st Cir.
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1990)). A downward adjustment for minimal participation is

similarly fact-dominated and is reviewed for clear error





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only. See United States v. Rosado-Sierra, 938 F.2d 1, 1-2
___ _____________ _____________

(1st Cir. 1991).

Torres' presentence report concluded that he did

not demonstrate a genuine recognition or affirmative

acceptance of responsibility. This characterization is

buttressed by the fact that Torres went to trial on the

merits of his case. See, e.g., U.S.S.G. 3E1.1, Application
___ ____

Note 1(h) (stating that sentencing courts should consider

"the timeliness of defendant's conduct in manifesting the

acceptance of responsibility."); and Application Note 2
___

("This adjustment is not intended to apply to a defendant who

puts the government to its burden of proof at trial by

denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses

remorse.").4 In this case, we find no error in the court's

factual determination that Torres did not sufficiently accept

responsibility to warrant a downward departure in his

sentence.

Nor do we find error in the determination that

Torres was not a minimal participant. In the taped phone

conversation, Torres revealed an intimate knowledge of and

interest in the purchase. Moreover, he arrived at the

purchase with over $500 in cash. Thus, we find no clear


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4. Even now, Torres argues that there is insufficient
evidence to support his convictions, while he also claims
that he has accepted responsibility.

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error in the sentencing court's determination that Torres'

participation was not minimal.

C. Ayala
_________

In essence, Ayala challenges the sufficiency of the

evidence against him by arguing that the evidence shows no

more than "mere presence" at the pick-up point and that he

was no more than an observer at this drug crime. The

relevant standard of review is set out, supra. We conclude
_____

that Ayala's challenge to the sufficiency of the evidence

meets the same fate as those of his codefendants.

As we have noted elsewhere, "the factfinder may

fairly infer . . . that it runs counter to human experience

to suppose that criminal conspirators would welcome innocent

nonparticipants as witnesses to their crimes." United States
_____________

v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991).
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Moreover, "the culpability of a defendant's presence hinges

upon whether the circumstances fairly imply participatory

involvement. In other words, a defendant's `mere presence'

argument will fail in situations where the `mere' is

lacking." United States v. Echeverri, 982 F.2d 675, 678 (1st
_____________ _________

Cir. 1993). Viewed through this lens, the record in this

case clearly supports Ayala's conviction.

To begin with, Ayala's phone number was first given

to the CI in January. Though he was never directly reached

by phone on that trip, Ayala did show up at the February



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purchase. These facts allow an inference that Ayala was

involved with this drug scheme from the beginning. Moreover,

Ayala, like his codefendants, lives in the Carolina area of

Puerto Rico, which is over an hour from Ponce, where he

appeared early on the morning of the purchase.

In addition, Ayala had a beeper, a typical drug

trade item, on his person when he was arrested. Phone

records show that a call was placed from Santos' phone to a

beeper service at 4:30 a.m. on the morning of the drug deal.

Though there is apparently no record evidence that Ayala was

paged that night, Ayala conceded at oral argument that the

call from Santos' phone went to the very beeper service that

Ayala used. Finally, once at the scene, Ayala opened the car

door to allow the CI to enter the car with four kilograms of

cocaine. Based on all of this evidence, a jury could

conclude beyond a reasonable doubt that Ayala was guilty of

aiding and abetting possession with intent to distribute

cocaine.

We have carefully considered all other aspects of

defendants' arguments and find them to be without merit.

III.
III.
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CONCLUSION
CONCLUSION
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For the foregoing reasons, the convictions and

sentences of all defendants are

Affirmed.
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