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June 6, 1994 [NOT FOR PUBLICATION]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,
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No. 92-2477
UNITED STATES,
Appellee,
v.
JAIRO ANTONIO TORRES-AMEZQUITA,
Defendant, Appellant,
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No. 93-1060
UNITED STATES,
Appellee,
v.
PEDRO AYALA-ROSARIO,
Defendant, Appellant.
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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,
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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.
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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
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States v. Mena-Robles, 4 F.3d 1026, 1029 (1st Cir. 1993),
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cert. denied, 114 S. Ct. 1550 (1994).
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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
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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
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establish "an absolute right against being compelled to
speak." Doe v. United States, 487 U.S. 201, 214 n. 12
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(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.
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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
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Cir. 1991), cert. denied, 112 S. Ct. 954 (1992). See also
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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-
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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
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States v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994).
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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
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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'
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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)
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(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
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(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
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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
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("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
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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
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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
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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
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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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