United States v. Villalobos

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 96-4439
GERBER NESTALIA VILLALOBOS, a/k/a
Herbert,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 96-4634
HECTOR DAVID PORTILLO, a/k/a
Hector G. Chavez, a/k/a Julio A.
Gonzales, a/k/a Jose Chavez,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-95-227-A)

Submitted: December 31, 1996

Decided: January 28, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael J. Cassidy, Fairfax, Virginia; Suzanne Little, Alexandria,
Virginia, for Appellants. Helen F. Fahey, United States Attorney,
James L. Trump, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Gerber Villalobos and Hector Portillo were convicted by a jury of
one count of conspiracy to distribute and to possess with intent to dis-
tribute five kilograms or more of cocaine in violation of 21 U.S.C.
§ 846 (1994). They raise four issues on appeal. First, they argue that
the evidence was insufficient to convict them of conspiracy. Second,
they contend that the trial court erred by finding that they played more
than a minor role in the offense. Third, Portillo claims that the trial
court improperly determined the amount of drugs attributable to him.
Finally, Villalobos and Portillo argue that the district court abused its
discretion in admitting certain lease records. Finding no reversible
error, we affirm.

From 1989-1993, Enrique Portillo ("Enrique") ran a cocaine distri-
bution conspiracy. Enrique expanded his operation in 1991 when he
met three Colombian suppliers ("the Colombians") operating out of
Miami and New York. The evidence showed that Enrique made trips
to New York or Miami every week to ten days to purchase cocaine
from the Colombians.1 Enrique always took someone with him on
_________________________________________________________________
1 The vast majority of the trips were to New York. The evidence also
showed that Enrique Portillo normally purchased four to six kilograms
of cocaine per trip.

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these trips, and he frequently sent two people on the trips instead of
going himself. Appellants went on several of these trips, where they
either counted money or made the actual purchases. Enrique eventu-
ally was able to work out a credit arrangement with the Colombians.
However, the Colombians always sent their own couriers either to
deliver the drugs to Enrique in Northern Virginia or to follow
Enrique's people as they drove from New York to Northern Virginia.
At one point, Appellant Hector Portillo obtained a Virginia driver's
license for one of the Colombians' couriers, using his (Hector Portil-
lo's) address. Eventually, several members of the conspiracy were
arrested, including the Colombians. Before the conspiracy unravelled,
Enrique took delivery of over $100,000 worth of cocaine and fled the
country.

On direct appeal of a criminal conviction, the "verdict of a jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). We find the evidence more than suffi-
cient to support Appellants' convictions.

Appellants' basic argument is that the Government's witnesses,
who were mostly co-conspirators, were biased and unreliable. Appel-
lants also contend that even if the testimony was sufficient to show
that they were present during drug transactions, it was insufficient to
show that they were part of a conspiracy.

Credibility determinations are solely within the jury's province and
are not subject to appellate review. United States v. Burgos, 94 F.3d
849, 862-63 (4th Cir. 1996); United States v. Lamarr, 75 F.3d 964,
973 (4th Cir. 1996). While the testimony of accomplices should be
viewed with great care, even uncorroborated accomplice testimony
may be sufficient to sustain a conviction. United States v. Manbeck,
744 F.2d 360, 392 (4th Cir. 1984), cert. denied , 469 U.S. 1217
(1985).

We find that the evidence was sufficient to convict Appellants of
conspiracy. This court has held that once it has been proven that "a
conspiracy exists, the evidence need only establish a slight connection
between the defendant and the conspiracy to support a conviction."
United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.), cert. denied,

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505 U.S. 1228 (1992); see also Burgos, 94 F.3d at 862. This evidence
can be circumstantial and may consist of the defendant's "relationship
with other members of the conspiracy, the length of this association,
his attitude, conduct, and the nature of the conspiracy." United States
v. Brown, 856 F.2d 710, 711 (4th Cir. 1988); United States v. Mabry,
953 F.2d 127, 130 (4th Cir.), cert. denied, 504 U.S. 914 (1992).

In the present case, the evidence established more than a "slight
connection" between Appellants and the conspiracy. There is no dis-
pute that Enrique was the leader of the conspiracy. There was ample
testimony from the other co-conspirators to the effect that Appellants
were frequently seen counting money and transporting the drugs and
that Appellants were actively involved in numerous transactions.
Finally, the evidence showed that Appellant Portillo helped one of the
couriers obtain a Virginia driver's license. All of this conduct, taken
together in a light most favorable to the Government, adequately sup-
ports Appellants' convictions.

Appellants further contend that the district court should have given
them a mitigating role adjustment to their base offense level pursuant
to USSG § 3B1.2.2 Appellants base this contention on their belief that
they were merely couriers who played a minor role in the conspiracy.

Appellants bear the burden of showing that they are entitled to a
reduction in their base offense level. United States v. Campbell, 935
F.2d 39, 46 (4th Cir.), cert. denied, 502 U.S. 929 (1991). The district
court's factual determination concerning Appellants' role in the
offense will only be reversed if it was clearly erroneous. Campbell,
935 F.2d at 46.

Appellants failed to satisfy this burden. Appellants dealt directly
with the suppliers and handled large amounts of cash and cocaine.
While the district court found that Enrique and the Colombians were
the most culpable, it also found that there were several others who
were far less culpable than Appellants. Since "mitigating role adjust-
ments are proper only for a defendant who is `substantially less culpa-
_________________________________________________________________
2 United States Sentencing Commission, Guidelines Manual (Nov.
1995).

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ble than the average participant,'" the district court did not err by
refusing to grant the adjustments. Campbell, 935 F.2d at 46.

The district court accepted the recommendation in the presentence
report that Appellant Portillo was responsible for between fifteen and
fifty kilograms of cocaine. Portillo argues that this finding is errone-
ous and that he should only be accountable for twelve kilograms of
cocaine, which would reduce his base offense level.

The district court's factual determination concerning the amount of
drugs attributable to Portillo will be upheld absent clear error. See
Lamarr, 75 F.3d at 972. We find the evidence supports the district
court's decision. Portillo bases his argument on his belief that the evi-
dence only showed that he made four to five trips to New York to
obtain a total of twelve kilograms of cocaine.3 Even if Portillo's belief
were correct, the district court's determination that he was account-
able for more cocaine is supported by the record. As a member of the
conspiracy, Portillo was accountable for all of the drugs reasonably
foreseeable to him. United States v. Irvin, 2 F.3d 72, 78 (4th Cir.
1993), cert. denied, 510 U.S. 1125 (1994); United States v. Gilliam,
987 F.2d 1009, 1012-13 (4th Cir. 1993). Given the district court's
finding that Portillo was aware of the scope of the conspiracy and that
he obtained a driver's license for one of the couriers, we find it rea-
sonable to attribute to Portillo the amount of cocaine delivered by the
courier. The evidence showed that the courier made several trips to
Northern Virginia to deliver cocaine and that on one occasion seven
kilograms of cocaine were seized from the courier's vehicle by law
enforcement officers. Given the average amount of cocaine purchased
per trip, the district court's estimate that Portillo was responsible for
fifteen to fifty kilograms of cocaine was not clearly erroneous.

After the close of its case-in-chief, the Government moved for the
admission of lease records for the apartment shared by Appellant Por-
tillo and members of his family, including Enrique. The Government
argued that these records were important to show that the Portillos
lived at that address, that the family moved out of the apartment at
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3 Contrary to Portillo's argument, the district court found that he made
more than four or five trips to New York and that the amount purchased
averaged four to six kilograms per trip.

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the same time Enrique stole the cocaine from the Colombians, and
that a $55,000 cash bond allegedly raised by the family in 1991 must
have come from illegal drug money. The district court admitted the
lease records over defense objection.

A district court's evidentiary decisions are reviewed for abuse of
discretion, and we find no such abuse. United States v. Hassan El, 5
F.3d 726, 731 (4th Cir. 1993), cert. denied, 114 S. Ct. 1374 (1994).
The district court conducted a proper Fed. R. Evid. 401/403 balancing
test and concluded that the evidence was probative to the issues
argued by the Government and that the prejudice to Appellant Portillo
was minimal. Moreover, Portillo fails to show any prejudice from the
admission of the lease records. Therefore, any error in admitting the
evidence was harmless beyond a reasonable doubt. Arizona v.
Fulminante, 499 U.S. 279 (1991).

We therefore affirm the findings and sentences of the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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