United States v. Legarda

United States Court of Appeals
For the First Circuit

No. 93-1448

UNITED STATES,

Appellee,

v.

EVER MIGUEL LEGARDA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Stahl, Circuit Judge.

Dominick J. Porco with whom Martin L. Schmukler was on brief for

appellant.
Margaret E. Curran, Assistant United States Attorney, with whom

Edwin J. Gale, United States Attorney, and Gerard B. Sullivan,

Assistant United States Attorney, were on brief for appellee.

March 3, 1994

STAHL, Circuit Judge. In this drug appeal,

defendant Ever Miguel Legarda challenges: 1) trial rulings

made by the district court which excluded certain testimony

on hearsay grounds; 2) the court's computation of the

relevant amount of cocaine for sentencing purposes; and 3)

the court's upward departure from the Guidelines. Finding no

reversible error, we affirm.

I.

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

In July of 1992, defendant traveled from New York

City, where he resided, to his native country of Colombia.

Upon his return to New York, and apparently at the urging of

someone he had met in Colombia, defendant contacted Michael

Teixera, known to defendant as Luis Rodrigues, and arranged a

meeting on a Manhattan street corner. In a subsequent phone

call by defendant to Teixera, the two arranged for Teixera to

leave an automobile for defendant's use on that same

Manhattan street corner where the two had initially met.

Defendant also agreed with Teixera that defendant would drive

the car to a restaurant in Astoria, Queens, where he was to

meet a man named Nunyo, that he would thereafter drive the

car to Providence, Rhode Island, and that he would be paid

several thousand dollars for doing so.

On August 20, 1992, adhering to the plan, defendant

picked up the car in Manhattan, drove to the restaurant in

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Queens, and met Nunyo, who placed a box in the trunk of the

car. The box contained eleven kilograms of cocaine, later

found to be 88% pure. Rather than proceed directly to

Providence, defendant drove to the home of his former

girlfriend and his two sons where he obtained his former

girlfriend's permission to travel to Providence in her car,

rather than in the car he had picked up in Manhattan.

Defendant drove to Providence accompanied by his two sons,

both under the age of thirteen, and one dog.

Upon arriving in Providence, defendant again met

Teixera, who was a government informant. Teixera had

arranged for a controlled drug purchase in which defendant

would sell cocaine to United States Drug Enforcement

Administration ("DEA") Task Force Agent Lawrence Lepore, a

detective in the Providence Police Department. Defendant

followed Teixera to an apartment where Lepore was to make the

purchase. Defendant's two sons entered the apartment, along

with defendant. After discussing the price of the eleven

kilograms with Lepore, as well as possible future sales,

defendant delivered the eleven kilograms to Lepore. During

the consummation of the deal, defendant's two sons were left

in a separate room in the apartment. DEA agents observed the

purchase and arrested defendant.

After his arrest, defendant stated to Lepore that

he had brought his children along in order to lessen the

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likelihood of being stopped on his drive from New York City

to Providence. He also stated that he knew that the box

contained drugs and that he was aware of larger quantities of

drugs being imported from Colombia. At trial, however,

defendant denied such knowledge. He was nonetheless found

guilty of possession with intent to distribute a controlled

substance in violation of 21 U.S.C. 841 (a)(1) and

(b)(1)(A)(ii).

II.

DISCUSSION

As noted above, defendant offers three challenges

on appeal. We address them in turn.

A. The District Court's Hearsay Rulings

At trial, defendant took the stand and attempted to

recount statements that were allegedly made to him by

individuals in Colombia, as well as statements made by Nunyo,

his contact in Astoria, Queens, and by Teixera. In each

case, the district court sustained government objections on

hearsay grounds. See Fed. R. Evid. 802. Defense counsel

repeatedly explained that defendant was not offering these

statements in order to prove the truth of the matter

asserted. Rather, he argued that the significance of these

alleged statements lay solely in the fact that they were made

and that they therefore had an effect on defendant's

behavior. See, e.g., Fed. R. Evid. 801(c) advisory

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committee's note ("If the significance of an offered

statement lies solely in the fact that it was made, no issue

is raised as to the truth of anything asserted, and the

statement is not hearsay."); United States v. Hicks, 848 F.2d

1, 3 (1st Cir. 1988) (quoting same).

On appeal, the government concedes that these

hearsay rulings were erroneous, and we agree that the record

clearly demonstrates error on the part of the trial court.

Nonetheless, not all improper exclusions of evidence require

reversal. Rather, an appellant must show that an error

"results in actual prejudice because it `had substantial and

injurious effect or influence in determining the jury's

verdict.'" United States v. Lane, 474 U.S. 438, 449 (1985)

(quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)). See also 28 U.S.C. 2111 ("On the hearing of any

appeal . . . in any case, the court shall give judgment after

an examination of the record without regard to errors or

defects which do not affect the substantial rights of the

parties."); Fed. R. Crim. P. 52(a) ("Any error, defect,

irregularity or variance which does not affect substantial

rights shall be disregarded."). Defendant fails to establish

such harm.

Judging from the contexts of the district court's

multiple erroneous hearsay rulings, it appears that defendant

in each instance was prepared to offer exculpatory

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information about each of the conversations, i.e., innocuous

reasons offered to him by each speaker which would prompt

defendant to perform the acts which eventually led to his

arrest. Later in his testimony, however, defendant was

allowed to offer this exculpatory explanation of events.

Defendant testified that in his conversations with Teixera,

Nunyo and others, he was led to believe that the delivery

concerned either "spare parts" or cash. Thus, despite the

erroneous rulings, defendant was eventually allowed to

recount the essential elements of his own version of events.

Notwithstanding his general complaints of unfairness,

defendant does not argue, nor could he on the record before

us, that these errors had a substantial and injurious effect

or influence on the jury's decision to convict him.

In sum, defendant "was allowed to put on a defense,

even if not quite so complete a defense as he might

reasonably have desired." United States v. Hanson, 994 F.2d

403, 407 (7th Cir. 1993). The substance of the excluded

portions of his testimony was eventually allowed into

evidence. Given these errors and no more, we cannot say that

reversal is warranted.

B. Sentencing

1. The Amount of Cocaine and the District Court's Base

Offense Level Determination

The sentencing court determined defendant's base

offense level on the basis of twenty-one kilograms of

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cocaine; eleven kilograms that were actually delivered, and

ten more that defendant purportedly promised to deliver the

following week. Defendant challenges the district court's

inclusion of the latter amount.

We begin by noting that facts supporting a

sentence, such as drug quantity determinations, must be

proven by the government by a preponderance of the evidence.

See United States v. Marino, 936 F.2d 23, 27 (1st Cir. 1991).

Factual findings on such issues are reviewed only for clear

error. Id. Commentary Note 12 to section 2D1.1 of

the United States Sentencing Guidelines provides in relevant

part:

In an offense involving negotiation
to traffic in a controlled substance, the
weight under negotiation in an
uncompleted distribution shall be used to
calculate the applicable amount.
However, where the court finds that the
defendant did not intend to produce and
was not reasonably capable of producing
the negotiated amount, the court shall
exclude from the guideline calculation
the amount that it finds the defendant
did not intend to produce and was not
reasonably capable of producing.

Our case law has followed the language of this Commentary

Note in a rather faithful fashion, requiring a showing of

both intent and ability to deliver in order to allow the

inclusion of negotiated amounts to be delivered at a future

time. See, e.g., United States v. Rotolo, 950 F.2d 70, 72

(1st Cir. 1991); United States v. Moreno, 947 F.2d 7, 9 (1st

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Cir. 1991), United States v. Estrada-Molina, 931 F.2d 964,

966 (1st Cir. 1991); United States v. Bradley, 917 F.2d 601,

604 (1st Cir. 1991). In this case, defendant challenges the

district court's findings that he had both the intent and the

ability to produce ten additional kilograms of cocaine.

Though the case is close, we affirm.

At trial, a tape recording of the drug transaction

in Lepore's apartment was placed in evidence. The taped

conversation spans the period of time during which defendant

purportedly negotiated to deliver the additional ten

kilograms. Audible portions of the tape reveal vague

comments, made exclusively by Lepore rather than by

defendant, about the possibility of future deals. Thus, the

tape itself does not reveal the existence of an agreement to

provide additional drugs.1

1. Compare, e.g., United States v. Cedano-Rojas, 999 F.2d

1175, 1179 (7th Cir. 1993) (finding that defendant had
negotiated purchase of nine additional kilograms of cocaine
where he stated, "`Save them, save them,' and instructed
[government informant who was selling the drugs] `Don't give
them away.'"); United States v. Williams, 994 F.2d 1287, 1293

(8th Cir. 1993) (finding that defendant had negotiated
additional sale where, "[o]nce the [government] agent asked
about the price of a quarter-pound [of cocaine], [defendant]
did offer to try to obtain and sell him this amount"); United

States v. Mahoney, 972 F.2d 139, 143 (7th Cir. 1992) (finding

that defendant had negotiated additional sale where defendant
discussed options for delivery and payment, and stated that
he was "positive" that his supplier could deliver the
additional amount); United States v. Cea, 963 F.2d 1027, 1031

(7th Cir.) (finding that defendant had negotiated additional
purchase where evidence of "very specific negotiations as to
price and amount" showed that defendant was "dead serious
about buying and distributing ten kilograms of cocaine"),

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In addition to the tape, however, Lepore testified

at trial that during that same meeting at which the delivery

took place, defendant had agreed to provide ten kilograms on

a weekly basis. Moreover, the inaudible portions of the tape

do not altogether rule out the possibility that the specific

agreement described by Lepore was made sometime during the

transaction. The district court apparently chose to credit

Lepore's testimony, and we have no basis for concluding that

it was clearly erroneous in doing so. Accordingly, we find

no error in the district court's conclusion that defendant

cert. denied, 113 S. Ct. 281 (1992); United States v.

Burrell, 963 F.2d 976, 995 (7th Cir.) (finding that defendant

had negotiated additional purchase where "the terms of the
sale were negotiated and agreed upon"), cert. denied, 113 S.

Ct. 357 (1992); Rotolo, 950 F.2d at 72 (finding that

defendant had negotiated additional purchase where he, inter

alia, "spoke specifically about taking delivery of an

additional half ton") (emphasis in original); Moreno, 947

F.2d at 9 (finding that defendant had negotiated additional
sale where he told government agents that he could supply
five to ten kilograms at fifteen-day intervals and where

defendant "agreed to supply these amounts, with the first

delivery to be made within a week") (emphasis in original)
with United States v. Reyes, 979 F.2d 1406, 1410 (10th Cir.

1992) (finding that defendant had not negotiated additional

sale because, "[w]hile Defendant did not rule out the
possibility [of future drug transactions], the lack of
specific details concerning an additional transaction
indicates that, at best, Defendant intended to negotiate
later"); United States v. Ruiz, 932 F.2d 1174, 1184 (7th

Cir.) (finding that defendant had not negotiated additional

sale where defendant, having promised two kilograms and
delivered only one, commented, "It doesn't matter. I'll get
you the other kilo. And if you want, even ten more I can
get."), cert. denied, 112 S. Ct. 151 (1991); United States v.

Foley, 906 F.2d 1261, 1264 (8th Cir. 1990) (finding that

defendant had not negotiated additional sale where government

agent had "simply inquired about the cost" of additional
quantities of drugs).

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fully intended to produce the first weekly instalment of

cocaine under the agreement which Lepore described.2

As to defendant's ability to produce the ten

additional kilograms, we find entirely plausible the district

court's conclusion that defendant, having delivered eleven

kilograms of cocaine one week, was capable of delivering ten

kilograms the following week. Accordingly, we find no clear

error in the district court's drug quantity calculation.

2. The Upward Departure

Finally, defendant appeals a two-level upward

departure to his sentence. We review the departure along the

lines set out in United States v. Rivera, 994 F.2d 942, 950-

52 (1st Cir. 1993). Plenary review is applied to determine

whether the allegedly special circumstances underlying the

departure are of the kind that the Guidelines permit the

sentencing court to consider. Id. at 951. Plenary review is

also applied to interpretations of Guideline language. Id.

However, we review the district court's determination that a

case is unusual, and therefore worthy of departure, "with

2. Unlike defendant, we are not troubled by the fact that
the district court might have sentenced defendant on more

than ten additional kilograms based on the weekly nature of
the purported deal, and we express no opinion on the
propriety of a hypothetical maximum base offense level
quantity determination based on these facts. Rather, on the
basis of the evidence before it, the district court was
entitled to find, and it did in fact find, that defendant
agreed to deliver only the first weekly instalment of ten
kilograms.

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full awareness of, and respect for, the trier's superior feel

for the case." Id. at 952 (citations and internal quotation

marks omitted). Similarly deferential is our review of the

sentencing court's findings of fact, as well as the direction

and degree of the departure. Id.

In this case, the district court offered two

reasons for its upward departure: 1) defendant's prominent

role in cocaine dealing as evidenced both by the quantity

involved and its purity; and 2) the involvement of

defendant's minor children. These grounds for departure are

both permissible under the Guidelines and warranted on the

record before us.

a. Defendant's Prominent Role as Evidenced by

Purity and Amount

Defendant argues that the sentencing court erred

when, in deciding to depart upward, it relied upon the purity

and amount of the cocaine involved. Consideration of both

factors was allowable in this case.

Commentary Note 9 of U.S.S.G. 2D1.1 states

specifically that "[t]rafficking in controlled substances,

compounds, or mixtures of unusually high purity may warrant

an upward departure." Note 9 goes on to state that purity

"may be relevant in the sentencing process because it is

probative of the defendant's role or position in the chain of

distribution." Id. (emphasis supplied). Thus, upward

departures which are based on a defendant's position in the

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chain of drug distribution and which are evidenced by drug

purity are clearly contemplated under the sentencing

guidelines. Cf. United States v. Iguaran-Palmar, 926 F.2d 7,

9 (1st Cir. 1991) (stating that "the sentencing court may

consider the drug's purity in making an upward departure from

the applicable guideline range") (emphasis in original).

As defendant points out, Note 9 also provides, "As

large quantities are normally associated with high purities,

this factor is particularly relevant where smaller quantities

are involved." (emphasis supplied). We agree with the

Seventh Circuit, however, that "although the note states that

purity is especially relevant in the case of smaller

quantities of controlled substances, it does not thereby

render purity irrelevant where larger quantities are

involved. Rather, the correct reading of the note is that

purity is relevant without regard to the quantity of

controlled substances, but is particularly relevant where the

quantities involved are small." United States v. Connor, 992

F.2d 1459, 1463 (7th Cir. 1993) (emphasis supplied). In sum,

the district court did not err in taking into account the

purity of the drugs at issue in its decision to depart

upward.

Equally futile is defendant's insistence that the

sentencing court erred in considering the amount of cocaine

at issue in enhancing defendant's guideline range. It is

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true, as defendant argues, that an upward departure based

upon amount alone may unfairly duplicate a base offense level

determination. See, e.g., United States v. Fuller, 897 F.2d

1217, 1221-22 (1st Cir. 1990). Here, however, the departure

was not based solely upon the amount involved. Rather

defendant's role in the drug distribution chain served as the

partial basis for the departure, and the amount involved,

much like the purity of the cocaine, was merely indicative of

defendant's role. Thus, we find no error in the court's

finding that the amount and purity of the cocaine were

significant indicators of defendant's prominent role in the

drug distribution chain.

As to the factual findings of high purity and large

amounts of cocaine, as well as the "unusualness" of these

factors, see, e.g., Rivera, 994 F.2d at 952, we find no error

in the district court's determination that eleven kilograms

of 88% pure cocaine serves, in part, as a valid basis for

departure.

b. Involvement of Children

Defendant also argues that the district court erred

in basing its upward departure in part on the use of his

children in the offense. Defendant essentially concedes that

the involvement of children in drug trafficking activity is

an accepted ground for upward departure and challenges only

the existence of factual circumstances in this case that

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warrant a departure on that basis. He argues that the

involvement of his own children is significantly less serious

than the involvement of children in other cases in which

departures were found warranted. See, e.g., United States v.

Rodriguez-Cardona, 924 F.2d 1148, 1155 (1st Cir.) (affirming

upward departure where defendant had, inter alia, "used a

minor, a nine or ten year old boy, as a messenger in his drug

business"), cert. denied, 112 S. Ct. 54 (1991); United States

v. Diaz-Villafane, 874 F.2d 43, 50 (1st Cir.) (affirming

upward departure where defendant had, inter alia, used

children to deliver drugs), cert. denied, 493 U.S. 862

(1989).

In essence, we are asked to make a judgment "about

whether the given circumstances, as seen from the district

court's unique vantage point, are usual or unusual, ordinary

or not ordinary, and to what extent." Rivera, 994 F.2d at

951. Given the deferential standard of review dictated for

such determinations by Rivera, id. at 951-52, and given 1)

the well-known relation between drugs and violence; 2)

defendant's own statement that he brought his children to

avoid being stopped by the police; and 3) the fact that the

children were present in the apartment at the time of the

drug deal, we find no error in the district court's

determination that the presence of children was relevant to

its decision to depart upward.

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c. The Reasonableness of the Departure

As we have noted previously in examinations of the

reasonableness of departures, "`the district court's leeway

is substantial.'" Rodriguez-Cardona, 924 F.2d at 1156

(quoting United States v. Aguilar-Pena, 887 F.2d 347, 350

(1st Cir. 1990)). In this case, given the various factors

supporting upward departure, we find no error in the district

court's two-level enhancement.

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III.

CONCLUSION

For the foregoing reasons, defendant's conviction

and his sentence are both

Affirmed.

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