United States v. Arocho Gonzalez

USCA1 Opinion












[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
____________________


No. 95-2264

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN AROCHO GONZALEZ,

Defendant, Appellant.

____________________

No. 95-1652

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO AROCHO GONZALEZ,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge] ___________________
___________________

Before

Stahl, Circuit Judge, _____________

Campbell, Senior Circuit Judge, ____________________

and Lynch, Circuit Judge. _____________




















____________________

Raymond Luis Sanchez Maceira for appellant Roberto Arocho ________________________________
Gonzalez.
Peter Diaz-Santiago for appellant Juan Arocho Gonzalez. ___________________
Jeanette Mercado-Rios, Assistant United States Attorney, with ______________________
whom Jose A. Quiles-Espinosa, Senior Litigation Counsel, Edwin O. ________________________ _________
Vazquez, and Nelson Perez-Sosa, Assistant United States Attorneys, and _______ _________________
Guillermo Gil, United States Attorney, were on brief for appellee. _____________

____________________

August 1, 1996
____________________
















































LYNCH, Circuit Judge. Two brothers, Roberto and LYNCH, Circuit Judge. ______________

Juan Arocho Gonzalez, were accused by the government of

running a cocaine sales ring out of an apartment in the

Agustin Stahl Housing Project in Aguadilla, Puerto Rico.

After a jury trial, they were convicted on all counts of an

eleven count indictment charging them with conspiring to

possess cocaine with the intent to distribute it, with

distributing cocaine within 1000 feet of a public school,

with engaging in a Continuing Criminal Enterprise ("CCE"),

and with hiring minors to distribute cocaine. Both brothers

received the mandatory minimum sentence of twenty years.

They appeal, admitting that they sold small quantities of

narcotics, but contending that the evidence was insufficient

to establish the elements of a CCE violation. They also

assert that the trial court committed reversible error in

denying their motions to substitute counsel, in declining to

find Brady error, and in calculating the amount of drugs _____

attributable to them for sentencing purposes. We affirm.

I.

Because the sufficiency of the evidence is at

issue, we describe the facts in the light most favorable to

the government, as the jury could have found them. See ___

United States v. Hahn, 17 F.3d 502, 505 (1st Cir. 1994). _____________ ____

Local police received information that a drug point

was being operated out of the Housing Project. From May



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through November of 1994, federal Drug Enforcement

Administration special agents and local police observed and

videotaped activities conducted from Apartments 165 and 161.

Roberto and Juan1 lived in Apartment 161, which was leased in

their mother's name. The two apartments are about twenty

feet from each other and both are less than eighty feet from

an elementary school.

Visual surveillance established that the drug point

was in operation about eighteen hours a day, seven days a

week. Sales were made by drug peddlers in front of Apartment

161. Cars would pull up in front of the apartment, where the

drivers would exchange money for small plastic bags

containing cocaine. The peddlers making the exchanges would

take the money into Apartment 161 and bring out the plastic

bags containing the cocaine.

Roberto and Juan were observed on various occasions

handing bags to the peddlers, receiving money from them, and

counting that money. The brothers appeared primarily to be

supervising the sales, although at times they made direct

sales themselves. At least ten people were observed peddling

drugs at this drug point, some of whom were minors. In six

controlled buys, agents bought bags whose contents tested

positive for cocaine and heroin.


____________________

1. Because the two defendants share a common last name, we
refer to each by his first name.

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On December 1, 1994, a search of Apartment 161,

pursuant to a search warrant, turned up twenty-three bags of

cocaine (worth no more than $20 each), measuring scales,

plastic baggies, leasing receipts for cars, and empty money

wrappers in denominations of $100, $500, and $1000. The

scales, money wrappers and leasing receipts were found in

Juan's bedroom. In addition, cellular telephone equipment and

a beeper receipt were seized. Roberto and Juan were

arrested. Roberto was carrying a beeper. Although only

$70.66 was found on Roberto, and $2 on Juan, an agent witness

estimated the volume of cocaine transactions over the period

the apartments were under observation to be approximately

eight kilograms, which would have generated an income in the

region of $300,000.

II.

A. Sufficiency of Evidence __________________________

Defendants' most vigorous challenge is to the

sufficiency of the evidence supporting their convictions for

engaging in a CCE in violation of 21 U.S.C. 848. "In

reviewing a sufficiency of the evidence claim we look at the

evidence in the light most favorable to the verdict." United ______

States v. Cruz-Kuilan, 75 F.3d 59, 61-62 (1st Cir. 1996). In ______ ___________

order to preserve a sufficiency of the evidence challenge for

appeal, a defendant must first move for judgment of acquittal

at trial. See United States v. Concemi, 957 F.2d 942, 950 ___ _____________ _______



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(1st Cir. 1992). Juan did not do so and has therefore waived

his sufficiency challenge. Given waiver, a defendant can

succeed only if he can demonstrate that his conviction was

"clearly and grossly unjust." Id. at 950. We do not find ___

Juan's conviction to be so. We focus therefore on Roberto's

challenge, which was properly preserved.

A CCE conviction requires proof that the defendant:

(i) committed a felony drug offense; (ii) as part of a

continuing series of such violations; (iii) in concert with

five or more persons in relation to whom he acted as a

supervisor, organizer, or manager; and (iv) from which

multiple operations he realized substantial income or other

resources. 21 U.S.C. 848(c); Hahn, 17 F.3d at 506. ____

Roberto claims that the government established neither the

third nor fourth elements of the CCE offense.

(a) Supervisor, Organizer or Manager ____________________________________

Roberto argues that the evidence was insufficient

to show that he was a supervisor, organizer or manager at the

drug point. He asserts that there was no direct evidence of

his giving orders or instructions to anyone. He further

asserts that he was no more than a drug addict working as a

low-level drug peddler in order to support his habit. There

was evidence sufficient for the jury to find to the contrary.

The government need show only that the defendant

occupied some managerial position with respect to five or



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more persons,2 and not that the defendant was the dominant

organizer or manager. See Hahn, 17 F.3d at 506 n.4. There ___ ____

was an abundance of evidence from which the jury could

reasonably have concluded that Roberto performed a

supervisory role with respect to the operation of the drug

point. The operation was run out of Roberto's home. At most

times Roberto appeared to be monitoring the peddlers as the

peddlers executed sales with customers. In an estimated 90%

of the transactions observed, the proceeds of the sales by

the peddlers appeared to have been turned over to Roberto or

Juan. Roberto, specifically, was observed dispensing drugs

to the peddlers, receiving the proceeds, and counting those

proceeds. Roberto points out that the evidence at trial

showed him conducting a few direct sales himself and says

that this shows he was merely a peddler. But the fact that

Roberto conducted a few sales himself does not insulate him

from the evidence demonstrating his supervisory role. There

was ample evidence for the jury to reasonably infer that

Roberto's role was supervisory.

(b) Substantial Income or Resources ___________________________________

Roberto makes two attacks on the sufficiency of the

government's evidence as to substantial income or resources.

First, he says that there was not sufficient evidence for the


____________________

2. It is undisputed that, in addition to Roberto and Juan,
the drug point employed at least ten other people.

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jury to have concluded that a substantial volume of drugs was

sold at the drug point. Second, he asserts that in the

absence of evidence in the nature of bank accounts, material

possessions or an expensive lifestyle, the jury could not

have reasonably concluded that the drug point provided him

with substantial income. Both arguments fail.

First, there was adequate evidence from which the

jury could have reasonably inferred that the volume of drug

transactions at the drug point was large enough to generate

substantial income. Specifically, there was:

(i) testimony from government agents
that, based on their surveillance over a
period of seven months, they estimated
the drug point to operate eighteen hours _______________
a day, seven days a week; ________________________
(ii) videotaped surveillance for
approximately a six hour period between
12:30 p.m. and 6:25 p.m. on a Friday
afternoon that showed twenty-three
separate sales to have been made; and
(iii) testimony from government agents as
to six controlled buys that they had made
from the drug point on two Fridays, where
the average weight of the purchased
amounts of cocaine was .54 grams.

At trial, extrapolating from the number of sales for the six

hour period, the average weight of the individual amounts

purchased, and the evidence that the drug point operated

eighteen hours a day, seven days a week, the government

estimated monthly sales to be in the order of one and a

quarter kilograms. Roberto attacked this estimation at

trial, as he does now, asserting that the government should



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have discounted for the fact that the volume of sales on

Fridays was probably higher than that on the weekdays. But

even if the jury had been instructed to discount the

government's Friday-based estimation, it could still have

readily determined that the drug point transacted a high

volume of drugs.

Roberto further argues that the government produced

no direct evidence of his having accumulated wealth from the

drug operation. But the substantial income or resources

element can be met by circumstantial evidence of the

defendant's role in the operation and the scope of the

operation. See Hahn, 17 F.3d at 507; United States v. Roman, ___ ____ _____________ _____

870 F.2d 65, 75 (2d Cir.), cert. denied, 490 U.S. 1109 _____ ______

(1989). Proof that a large quantity of drugs was sold, in

addition to proof of defendant's position in the

organization, is adequate to produce the inference that

substantial revenue must have been derived. See Hahn, 17 ___ ____

F.3d at 507. Here there was evidence of a high-volume drug

operation, from which the jury could reasonably have inferred

that substantial income resulted for Roberto, a supervisor.

A government witness estimated the income from the operation,

for the approximately seven months it was observed, to be

almost $300,000.

Roberto also points out that he lived in a housing

project where the rent was only $3 per month. However, given



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the evidence of a high-volume drug operation, the jury could

have reasonably discounted the lack of evidence as to

accumulated wealth. Cf. Hahn, 17 F.3d at 507 n.6 (where ___ ____

government presented evidence of a high-volume drug

operation, jury could have reasonably discounted evidence

from defendant's father that defendant lived in a trailer

park and was constantly short of money).

B. Motion to Substitute Counsel _______________________________

Both brothers assert error in the district court's

denial of their last-minute motions to substitute counsel.

They argue that the district court failed its obligation to

make an inquiry into an alleged failure of communication in

the attorney-client relationship. The trial transcript shows

the argument to be without merit.

Denials of motions for substitution of counsel are

reviewed for an abuse of discretion. United States v. Diaz- _____________ _____

Martinez, 71 F.3d 946, 950 (1st Cir. 1995). Within that, we ________

consider the circumstances of the denial, such as the

timeliness of the motions and whether the attorney-client

conflict was so great as to preclude an adequate defense.

United States v. Allen, 789 F.2d 90, 92 (1st Cir.), cert. _____________ _____ _____

denied, 479 U.S. 846 (1986). ______

As to timeliness, the motions were raised on the

first day of trial, after the jury was impaneled, and

allowance of the motion would have delayed the trial.



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Questioning by the district court revealed that neither

brother had substitute counsel ready to step into place.

"[W]hen, as here, the granting of the defendant's request

would almost certainly necessitate a last-minute continuance,

the trial judge's actions are entitled to extraordinary

deference." United States v. Pierce, 60 F.3d 886, 890 (1st ______________ ______

Cir. 1995), cert. denied, __ S. Ct. __, No. 95-6474 (July 1, _____ ______

1996); see also Diaz-Martinez, 71 F.3d at 950; United States ___ ____ _____________ _____________

v. Betancourt-Arretuche, 933 F.2d 89, 94 (1st Cir.) ____________________

("eleventh-hour" requests may interfere with orderly court

procedure and are disfavored), cert. denied, 502 U.S. 959 _____ ______

(1991); United States v. Torres, 793 F.2d 436, 440 (1st ______________ ______

Cir.), cert. denied, 479 U.S. 889 (1986). _____ ______

Defendants argue that there was a total lack of

communication between themselves and their attorneys. This

showed itself, they say, in counsel advising them to plead

when they wanted to go to trial. What defendants point to is

a disagreement, not a lack of communication precluding an ____________

adequate defense. Indeed, it is an attorney's role to

provide a client with his or her independent informed

judgment as to the client's options. That the client

disagrees with the attorney's weighing of options is not,

alone, an adequate basis from which to infer a lack of

communication. See Allen, 789 F.2d at 93 (attorney-client ___ _____

disagreement over whether client's better option was to



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accept plea or go to trial was not, by itself, enough to

create good cause for substitution of counsel).

The district court made a detailed inquiry as to

each brother's reasons for wanting a substitution of counsel.

The questioning revealed that counsel for each defendant met

with his client on a number of occasions to discuss the case.

It further revealed that at least in Roberto's case the real

cause of his dissatisfaction was that counsel had not been

able to obtain for him as favorable a plea bargain offer as

some of his former co-defendants had obtained. But

defendant's counsel does not control either what the

prosecution charges or is willing to offer. The district

court was well within its discretion in denying the motions

for substitution of counsel.

C. Brady Violation ___ __________

Defendants argue that there was prejudicial error

in the prosecution's failure to turn over to the defense

certain computer records in violation of the rule established

in Brady v. Maryland, 373 U.S. 83 (1963). The computer _____ ________

reports contained the identities of the owners of four cars

that government witnesses testified were under the control

and in the possession of the defendants. Defendants assert

that the information as to the owners' identities would have

brought into question the credibility of the government

witnesses on the question of the scope of the drug operation



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and the allegedly substantial income that it generated. They

hypothesize that if the owners' identities had been known,

they could have been called to testify that the vehicles had

not been under the control of the defendants. The district

court found no Brady violation, reasoning that since the _____

government witnesses testified only as to the defendants

having control and possession of the vehicles, not ownership,

the computer reports were not exculpatory. We agree.

"To show a Brady violation, the defendant must show _____

(among other factors) that the withheld `evidence was

exculpatory, as measured by its materiality.'" United States _____________

v. Watson, 76 F.3d 4, 7 (1st Cir.) (quoting United States v. ______ _____________

Hemmer, 729 F.2d 10, 14 (1st Cir.), cert denied, 467 U.S. ______ ____ ______

1218 (1984)), cert. denied, 116 S. Ct. 1889 (1996). _____ ______

"Evidence is material if there is a reasonable probability

that the outcome of the proceeding would have been different

had the evidence been disclosed." See id. (citing United ___ ___ ______

States v. Bagley, 473 U.S. 667, 682 (1985)). ______ ______

In the face of this, defendants have not

demonstrated why the information as to ownership of the cars

was material. Further, defendants did know who owned the

cars they used, as counsel admitted at oral argument. Had

the evidence had any exculpatory value, defendants had the

ability to present it.

III.



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Defendants appear to challenge their convictions

under 21 U.S.C. 841(a)(1) & 846 on the ground that there

was insufficient evidence to support a finding that they

distributed in excess of five kilograms of cocaine. The

challenge is unavailing.

The government was not required to prove any

particular quantity of drugs before the jury in order to gain

convictions under 21 U.S.C. 841 and 846. See United ___ ______

States v. Barnes, 890 F.2d 545, 551-52 & n.6 (1st Cir. 1989), ______ ______

cert. denied, 494 U.S. 1019 (1990). The evidence relating to _____ ______

drug quantity in excess of five kilograms was relevant only

at the sentencing phase, and specifically, to whether the

defendants were subject to the mandatory minimum sentence of

ten years imposed by section 841.3 However, any challenge by ___

the defendants on this sentencing point would be of no

practical significance, because their ten-year sentences

under Section 841 were imposed concurrently to the twenty- ____________ ______

year mandatory sentences required for their CCE convictions.4

Therefore, we need not address it. See Vanetzian v. Hall, ___ _________ ____

562 F.2d 88, 90 (1st Cir. 1977) (declining to entertain


____________________

3. A mandatory minimum sentence of ten years is triggered if
the offense involves five kilograms or more of a mixture
containing a detectable amount of cocaine. See 21 U.S.C. ___
841(b)(1)(A)(ii)(II); see also United States v. Muniz, 49 ___ ____ _____________ _____
F.3d 36, 38 (1st Cir. 1995).

4. The five-kilogram determination does not directly affect
the defendants' CCE sentences.

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challenge to sentence where validity of longer, concurrent

sentence was not in question).


Affirmed. ________














































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