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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