USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 92-1233
UNITED STATES,
Appellee,
v.
ALFONSO MENA-ROBLES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
___________________
_____________________
No. 92-1299
UNITED STATES,
Appellee,
v.
MIGUEL TORRES-RIVERA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
___________________
____________________
Before
Torruella and Stahl, Circuit Judges and
______________
Burns, * District Judge.
______________

____________________
Olga M. Shepard for appellant Mena-Robles.
_______________
Julio C. Codias for appellant Torres-Rivera.
_______________
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with w
_________________________
Daniel F. Lopez-Romo, United States Attorney and Edwin O. Vazqu
_____________________
_______________
Assistant United States Attorney, were on brief for appellant.
____________________
September 28, 1993
____________________
_____________________
*Of the District of Oregon, sitting by designation

STAHL,

Circuit Judge.
______________

After a

jury

convicted

appellants Miguel Torres Rivera ("Torres Rivera") and Alfonso

Mena
intent
846,
months

Robles ("Mena

Robles") of

to distribute
they were
and

170

defendants claim

cocaine, in violation

sentenced to
months,

that

their

terms of

that the district court

sentences

possess with

of 21

U.S.C.

imprisonment of

respectively.

their motions for acquittal

and

conspiracy to

On

appeal,

both

erroneously denied

made under Fed. R. Crim.

contravened

200

the

P. 29,

Sentencing

Guidelines.

Finding no

reversible

error,

we affirm

the

convictions and sentences.

I.
I.
__
Factual Background
Factual Background
__________________
We recount the relevant

evidence in the light most

favorable to the prosecution.

United States v.
_____________

F.2d 77, 79

petition for cert.

________ ___ _____

(1st Cir. 1993),

U.S.L.W.

Alvarez, 987
_______

(U.S. June 9, 1993) (No. 92-9080).

filed,
_____ ___
The arrest

____
and

indictment

defendants was

of

appellants

the culmination of a

conducted by the Puerto

and

the

("DEA").

United
The

cocaine dealers.
traffickers by
cocaine.

Toward

and their

States

11

original

co-

reverse sting operation

Rico Department of Justice ("PRDOJ")

Drug

Enforcement

Administration

law enforcement

agents posed

as large-scale

Their goal

was to apprehend

arranging a "sale"

of a sizable

genuine drug
quantity of

that end, PRDOJ Agent Eric Munoz ("Munoz"),

-22

posing

as a

cocaine

supplier, held

potential purchasers
March

22,

("Carlos

1990,

interested in

Munoz

("Damaris

Camacho"),

("Frances

Perez"),

negotiations
cocaine

at

negotiations
agreement

his

and

price

Carlos

mother,

Samuel

of

per

took place on April

was reached

After

several phone

1990,

with

Carlos

to

told

Miguel

Camacho

conversations, Munoz

that

and

kilogram.

1, 1990, at

Damaris

brother, Miguel Camacho Valcarcel

Corujo
began

50 kilograms

consummate the

Kortwright,

of

Further

which time an

deal in

mid-May.

met on

April 25,

Camacho,

and

("Miguel Camacho").

the deal

On
Perez

Perez

Sierra,

purchase of

$16,000

deal.

Camacho Valcarcel

Frances

Solis

with

Kortwright

wife, Damaris

for Kortwright's
a

setting up a

met with

Kortwright"), his

several meetings

could

take

her
Munoz

place

in

approximately two weeks.

After further telephone conversations between Munoz
and

the

potential

Kortwright

and

buyers,

Damaris

Munoz

Camacho

met
on

again

with

Carlos

6,

1990.

They

May

discussed more details of the deal, with Munoz reporting that

the ship carrying the
sea.

On May

cocaine to Puerto Rico was

10, 1990,

Damaris

Camacho called

already at
Munoz and

informed him that the money needed for the drug sale had been
gathered.

For closing the

Hotel in Dorado

deal, two rooms

Beach, Puerto

Rico, had been

at the Cerromar
rented.

The

plan was for the sale to take place in one room, while police

-33

would undertake surveillance from the other.

After preparing

the rooms, Munoz phoned Carlos Kortwright and told him he was
ready.

Two hours later,

arrived at the hotel.

Carlos Kortwright and Frances Perez

After hours of phone calls between and

among Munoz, Carlos Kortwright, his brother, Jose, and Samuel

Solis Sierra, it became

apparent that the money was

not, in

fact, ready.
Finally,

the

deal

was

called

off,

with

Munoz

telling Carlos Kortwright that

the cocaine had been sold

other, more ready, purchasers.

He

new

supply of

cocaine might

to

did, however, report that

soon

be available.

After

several telephone contacts, an agreement was arranged to sell

Carlos Kortwright

75 kilograms

The transaction was

rooms

Puerto

partner,

Lt. Ayala,

Perez,

set for May 24, 1990.

were rented, this time

Condado,

of cocaine at

Rico.

Again, two hotel

at the Condado

After

phoned

$14,500 each.

Munoz

and

Plaza Hotel in
his

Carlos Kortwright

undercover
and

Frances

they all met at the hotel, along with Miguel Camacho,

Samuel Solis Sierra and Rolando Solis Sierra.

Miguel Camacho

accompanied Munoz to one of the hotel rooms to sample some of

the cocaine.

All

the buyers except Frances Perez

then left

the hotel, presumably to return later to consummate the deal.

Again, however,

the sale fell through,

as Carlos Kortwright

reported to Munoz that he was having problems with his "money

man."

Carlos Kortwright

then told Munoz that he

was "going

-44

to take over everything

[and] be in charge," and

that Munoz

should

next

25,

call

Meanwhile, the

him

the

day,

Friday,

May

law enforcement officials had

1990.

decided to let

the weekend elapse before resuming negotiations.

On May

25,

1990, Munoz told Frances Perez that the deal was on hold.
On
Kortwright and
that day, the

May

28,

1990, Munoz

again

Frances Perez to resume

three, along

Agent Miranda met at a Pizza

contacted

negotiations.

with Lt. Ayala

Hut in Condado.

and DEA

Carlos
Later
Special

They agreed to

carry out the cocaine sale on May 31, 1990, at a police-owned

beach house at Vega Baja, Puerto

at the

beach house, the

plans called

Terraza restaurant in Dorado,

be able to see the
would

style.

Prior to the meeting

for a

meeting at

La

Puerto Rico, where Munoz would

buyers' money.

then phone the beach

there, caravan

Rico.

It was agreed

house, and they

In reality,

telephone was to be the signal for

that Munoz

would all drive

Munoz's picking up

the

other officers to move in

and make arrests.

On May 31, 1990, at approximately 2:00 p.m., Carlos
Kortwright phoned Munoz,
Terraza

at 3:30

and the

that afternoon.

two agreed to
Shortly

meet at

after Munoz

La
and

Ayala seated themselves in the empty restaurant, several cars

arrived simultaneously,

including

a brown

appellant

In total,

Munoz testified to seeing

about

Mena Robles.
dozen people

arrive.

Of

Buick

those

owned

people,

by

Carlos

-55

Kortwright,
Casiano

Alberto

Morales

Colberg

and

joined Munoz and Ayala at one table.

across from each

other at the next table, two

Jose

Francisco

Appellants sat
to three feet

from the others,

The

other

facing in the

dozen

or

so

direction of Munoz's

tables

in

the

table.

restaurant

were

unoccupied.
After
asked Carlos
seated

everyone gathered

Kortwright about

at

the

adjacent

Kortwright told him

the money and
buy drinks

in the

the two men

table.

(the appellants)

Munoz

that "these people

the money is outside."

for the

restaurant, Munoz

testified

are here to

that

protect

Munoz

then offered to

entire group, including

appellants, but

Colberg precluded any acceptance of the offer by insisting on

proceeding with the deal.

Soon after, a waiter brought Munoz

and Ayala drinks they had ordered before the others' arrival.
At

that point,

time, Casiano,
giving his

a beer.

Montanez

Ortiz,

group.

seated between Munoz

and Ayala,

offer.

This

interceded,

Appellant Mena Robles

At about the same time, co-defendant Rafael

who

and shouted

Carlos

had

remained

something

Kortwright left the

with Montanez Ortiz.

to get the

Munoz's drink

approval to Ayala's offer.

ordered

restaurant

Ayala repeated

deal going.

outside,

in the

entered

the

direction of

the

table and spoke

briefly

When he returned,

Colberg again tried

He asked Munoz

whether the 75 kilos

of cocaine were available.

When Munoz replied affirmatively

-66

and

asked Colberg whether he

Carlos

Kortwright

notebook and

went

calculator from

together at an empty
others.

one of

lot,

retrieved

the vehicles,

and sat

table in the restaurant, away

from the

whereupon Colberg told Munoz that he was ready to buy

kilos

immediately, and

evening.
place

the parking

buy, Colberg and

After a short time, they returned to their original

seats,
15

to

was ready to

the

other 60

kilos

later that

Munoz balked, first telling Colberg that he had no

to keep the unsold 60 kilos that Carlos Kortwright had

originally agreed to buy, and then reminding Colberg that he,

Munoz, had yet to see any of the buyers' money.
Colberg and

Carlos Kortwright then

to a blue Volvo in the parking lot.

car, one

of whom, Hector

escorted Munoz

Three men were near

Santana Olmo, was

the

leaning against

the trunk as Munoz arrived.

Munoz was unable to identify the

other two men

with Santana

Olmo.

Santana

showed Munoz

two bags

Olmo

Upon

opening the

of

money.

trunk,

The first

contained packs of five, ten, and twenty dollar bills, which,

Munoz told

Santana Olmo,

the deal.

The second

bag, contained packs

would be insufficient

bag, however, a
of fifty and one

to complete

large plastic

trash

hundred dollar bills.

Santana Olmo told Munoz that there was a total of $500,000 in

the two bags.

Satisfied by the buyers' showing,

them that he would alert his confederates.

Munoz told

On his way to the

telephone, Munoz stopped to talk to Ayala, who was then alone

-77

in

the

restaurant.1

He

apprised

Ayala

of

what

had

transpired outside.
Munoz proceeded
up the

receiver, however, the expected

did not materialize.

that

to the telephone.

many of

When he picked

law enforcement help

He phoned headquarters and was informed

the officers

were caught

in traffic.

Munoz

stalled on the phone, because he had told the buyers that the
drugs

would arrive five

minutes after

he placed

the call.

While speaking with headquarters, Munoz told an officer there

to

inform the arriving officers that the money was in a blue

Volvo.
Colberg

While

still on

the phone, Munoz

and Carlos Kortwright.

He told them

last-minute difficulty with his supplier.

got

was approached

by

he was having

When Munoz finally

off the phone, the three men started walking back toward

the restaurant, stopping in the parking lot, behind the brown

Buick,

which

right-front
Munoz's car.

was then
door open.

The

by three

people

Buick was still

speaking with Ayala.

parked next to

As Munoz

other law enforcement agents arrived.

arrested

with the

Munoz then entered the restaurant, where Samuel

Solis Sierra was

them,

occupied

Solis Sierra.

other officers.

Munoz

then went

approached

Munoz and Ayala

outside with

Santana Olmo, the two unidentified men

the
with

him, and the blue Volvo in which Munoz had seen the money had
____________________
1. According to Munoz, appellants had remained at the
adjacent table throughout the negotiations. The record is
silent as to when they left it.
-88

already
to

departed.

The men inside the brown Buick turned out

be appellants and Rafael Montanez Ortiz.

Mena Robles, to

whom the car was registered, was in the driver's seat; Torres
Rivera

was

in the

back; Montanez

Ortiz

passenger seat, adjacent to the open door.

was found on
door.

the ground about

five feet

was in

the front

A Magnum revolver
from the open

car

Bullets compatible with the gun were found on Montanez

Ortiz's person.
people

All three men were arrested.

were arrested

at the

In total, nine

restaurant; the

remaining co-

defendants were apprehended later.

On

June 27, 1990, 13

count indictment.

Count I

people were named

in a six-

charged all 13 with participating

in a conspiracy to possess with intent to distribute cocaine.

Appellants

were

appellants,

all

Several pled
pled

to

new

charged

only

defendants

to one

pled

count of

informations

indictment dismissed.

in

in

Count
guilty

I.

for

to

trial.

the indictment, while

others

exchange

prior

Except

for

having

the

II.
II.
___
DISCUSSION
DISCUSSION
__________

A. The Rule 29 Motions2

A. The Rule 29 Motions
_______________________

____________________
2. Pursuant to Fed. R. Crim P. 29, "The court on motion of a
defendant or of its own motion shall order the entry of
judgment of acquittal . . . if the evidence is insufficient
to sustain a conviction . . . ."
-99

Appellants claim that

denying their
Our task is
evidence

to review

and

whole and

respective

the district court erred

Rule 29

motions

the record to

reasonable inferences

in the

light most

for

therefrom,

987

that the defendants were

F.2d at 83.

to examine the

Id.
___

a reasonable

may be premised

part on circumstantial evidence.

are not required

taken as

guilty as charged.

A conviction

the

the prosecution,

would allow a rational jury to determine beyond

doubt

acquittal.3

determine whether

favorable to

in

Alvarez,
_______

in whole or

In addition,

"juries

evidence in isolation,

for

`individual pieces of evidence, insufficient in themselves to

prove a

point, may in

evidentiary

presentation

constituent parts.'"
711 (1st Cir.

may

Bourjaily v.
_________

(1987)).

Finally, it

greater

(1993)

171, 179-80

weigh evidence

Instead, it is the

credibility judgments.

to accept or

its

966 F.2d 707,

483 U.S.

Id.
___

of an

than

Ct. 1005

is not our function to

make credibility determinations.

jury is empowered

be

denied, 113 S.
______

United States,
_____________

jury's responsibility to make

the

well

The sum

United States v. Ortiz,

_____________
_____

1992), cert.
_____

(quoting

or

cumulation prove it.

reject, in

Thus,

whole or in

part, any testimony.

Alvarez, 987 F.2d at 83.

_______

Here, appellants were charged with and convicted of

conspiracy.

"The

`essence' of a conspiracy

is an agreement
_________

____________________
3. Although both appellants appeal the denial of their Rule
29 motions, they assert different grounds.
We therefore
address them individually.
-1010

to
1300

commit a crime."

United States v. Moran, 984 F.2d 1299,

______________
_____

(1st Cir. 1993) (quoting Iannelli v. United States, 420

________
_____________

U.S. 770, 777 (1975)

(emphasis in original)).

defendant of conspiracy, the

To

convict a

government must prove, beyond a

reasonable doubt, that the defendant intended to agree and to

commit the

substantive offense that

agreement.

United States v.
______________

Cir.

1992).

was the

Cruz, 981 F.2d

____

The agreement may be

object of

the

613, 616

(1st

express or tacit, and may

be proven by direct or circumstantial evidence.

Id.
___

(citing

United States v.
_____________
Cir.), cert.
_____
government
agreed

Rivera-Santiago, 872 F.2d 1073,

_______________

denied, 492
______
need not

upon every

required

is to

U.S. 910 (1989)).

establish that
detail of

show the

with it."

F.2d

(1st

1015,

1019

"However,

the defendants

the conspiracy.

essential nature

their connections

All

of the

United States v.
_____________

Cir. 1992)

1079 (1st

(citation

the

knew or
that is
plan and

O'Campo, 973
_______
and

internal

the

evidence

quotations omitted).
1. Mena Robles
1. Mena Robles
______________
Appellant
fails to show
and the

Mena Robles

argues, that

indicate that he played a

Mena Robles

that

the existence of an agreement

other conspirators.

Mena Robles

argues

We disagree.

there

is no

It is true,

as

evidence tending

to

role in arranging the transaction.

also correctly asserts

restaurant on May

between himself

that his actions

in the

31, 1990, are consistent with the behavior

-1111

of

an

innocent

inherently
near

that

is,

inculpatory about sitting

there

is

nothing

at a particular table,

other people, and accepting a beer when offered.

facts

are not dispositive, however.

not actively
not

bystander;

absolved

from

being

conspiracy because

the government

that he

in all

Cruz,
____

took part
981 F.2d

at

617.

As

that

witnesses

criminals

implicated

crimes and

712.

In

presence itself

addition, "`there are

companion

stands

by

as

to perpetrate
Ortiz, 966
_____

circumstances where

implies participation--as where

bruiser stands silently

"innocent

persons

felonies before larger-than-necessary audiences."

F.2d at

See
___

assumed to

innocent

rarely seek

the

to prove

Robles's

that "jurors can be

welcome

in

the conspiracy.

for Mena

rarely

to serious

negotiation, he is

is not required

aspects of

bystander" argument, we note

know

Even if Mena Robles did

participate until the final

necessarily

Those

a 250-pound

by during an extortion attempt, or a

during

a robbery,

warning or give other aid if required.'"

712 (quoting United States v.
______________

ready

to

sound a

Ortiz, 966 F.2d

_____

Martinez, 479
________

F.2d 824,

at
829

(1st Cir. 1973)).

Thus, the

jury could

have inferred,

for example,

that Montanez Ortiz's decision to shout to Carlos Kortwright,

within

earshot

of

the

negotiators,

was

done

with

the

knowledge that appellants were not "innocent bystanders," but

instead were

participants

in

the scheme.

Based

on

our

-1212

reading of the record, a reasonable

that

appellants:

with the

arrived

at the

jury could also conclude

restaurant simultaneously

other putative conspirators; parked

their car near

to those of the others; sat at an adjacent table,

feet from

the main

rest

the

of

restaurant

negotiators for the

first

declined,

offers,

codefendant

was

empty;

the fact
faced

that the

toward

the

entire time they were in the restaurant;

and

apparently

codefendants

"protect

negotiators, despite

only a few

Colberg

then
in

accepted,
response

and

Carlos Kortwright

the money;"4

to

Casiano;
as

and were

the

officers'

drink

instructions

from

were

being with
arrested

identified

by

the group

to

in a

car

with

codefendant Montanez Ortiz.

While these
ones

the jury

reasonable.

could

factual conclusions
have reached,

are not

we find

the only

them eminently

See e.g., United States v. Nueva, 979 F.2d 880,

___ ____
883 (1st Cir.

_____________

1992), cert.
_____

_____

denied, 113 S.
______

Ct. 1615

(1993)

("prosecution need not exclude every reasonable hypothesis of

innocence, so long as the total evidence permits a conclusion
of guilty beyond a reasonable doubt.").

Accordingly, we find

____________________
4. Mena Robles urges us, for a variety of reasons, to reject
Munoz's
testimony
regarding
Carlos
Kortwright's
identification.
All of the suggested bases for rejection,
however, depend on an evaluation of Carlos Kortwright's
credibility, which, as we have already noted, is the province
of the jury.
-1313

the evidence sufficient

to support Mena Robles's

conspiracy

conviction.
2. Torres Rivera
2. Torres Rivera
________________
As
Rivera asks

his

first enumerated

"Whether there

this Appellant

issue,

appellant Torres

was sufficient evidence

guilty of the charged

to find

conspiracy and whether

the

Appellant received

ineffective assistance

The ensuing section of the brief, however,

entirely

to

a claim

indictment,
evidence,

which
which,

"several"

of

prejudicial

alleged

according

conspiracies.

single
to

We

is devoted almost

variance between

the

conspiracy,

the

Torres
will

of counsel."

and

Rivera,

address

revealed

these

claims

individually.

a. Sufficiency of the Evidence

a. Sufficiency of the Evidence
_______________________________
Torres
Robles,

that

Rivera
he

was

essentially
an

argues,

innocent

negotiations, rather than a participant.

as

bystander

did

Mena

to

the

For the reasons set

forth in our disposition of Mena

Robles's similar claim, see

___

supra
_____

Torres

sec.

II.A.1,

we

find

meritless.
b. Prejudicial Variance
b. Prejudicial Variance
________________________

-1414

Rivera's

argument

Torres
availing.5

Rivera's

Essentially,

"first" conspiracy
deal apparently

variance

Torres Rivera

ended on May

collapsed because

the "second"

Carlos

Kortwright

contends

of

Morales

Santana Olmo and Montanez Ortiz.

more

that

the

the cocaine

Appellant

was formed

with

no

problems with

Camacho.

conspiracy
teamed

is

29, 1990, when

Kortwright's "money man," Miguel

that

argument

Carlos
argues

thereafter, when
Colberg,

Casiano,

Appellant claims that

the

evidence introduced relative to the "first" conspiracy caused

him substantial prejudice, as

he could conceivably have been

part of the "second" conspiracy only.

Whether

there

is

a single

conspiracy,

multiple

conspiracies, or no conspiracy at all is ordinarily a factual

matter

for the jury to

940 F.2d

determine.

United States v. David,

______________
_____

722, 732 (1st Cir. 1991),

cert. denied, 112 S. Ct.

_____ ______

2301 (1992).
jury

Where, as here, there

instructions, we

review

is no challenge

the jury's

to the

conclusion as

to

whether one or more conspiracies existed only for evidentiary

sufficiency.

Id.
___

conspiracy,

the jury

showing

that each

To conclude
need

not be

coconspirator

that there

was

a single

presented with

evidence

knew every

detail of

the

____________________
5. At oral argument, the government suggested that Torres
Rivera failed to preserve this argument because he did not
raise it below.
Upon review of the record, it appears that
appellant put forth the variance argument in an unsuccessful
pretrial motion for severance. We will therefore assume, for
purposes of this appeal, that the pretrial motion preserved
the issue.
-1515

conspiracy, or

even that

coconspirator.
223

each conspirator knew

United States v. Garcia-Rosa,

_____________
___________

every other
876 F.2d 209,

(1st Cir. 1989), cert. denied, 493 U.S. 1030, vacated on

_____ ______
_______ __

other grounds sub nom. Rivera-Feliciano v. United States, 498

_____ _______ ___ ____ ________________
_____________
U.S. 954 (1990).
there

has

Indeed, a single conspiracy may exist where

been

participants.

no

direct

that

among

some

of

the

United States v. Giry, 818 F.2d 120, 127 (1st

_____________
____

Cir.), cert. denied, 484 U.S.

_____ ______
fact

contact

every

defendant

transaction necessary

855 (1987).
did not

Moreover,

participate

to fulfill the aim

in

"[t]he
every

of their agreement

does

not

transform

conspiracies."
Cir. 1984).
the

continuing

plan

into

multiple

United States v. Drougas, 748 F.2d 8, 17 (1st

_____________
_______
Instead, a jury may find a single conspiracy if

evidence

alleged

sufficiently

demonstrates "that

coconspirators directed

their

all

of

the

efforts towards

the

accomplishment of a common goal or overall plan."

Id.
___

In this case, the "common goal" was the purchase of

a large
made

amount of cocaine.

Two unsuccessful

to the consummate the sale, before the final attempt at

the

restaurant on

May 31,

1990.

Kortwright, Jose Kortwright, Samuel

Solis

In each

attempt, Carlos

Solis Sierra and Rolando

Sierra appeared to be the main actors.

cast, however,
as

attempts were

Colberg,

appellants

changed somewhat prior to

Casiano,

replaced

Santana-Olmo,

Damaris

Camacho,

The supporting

the final attempt,

Montanez
Miguel

Ortiz

and

Camacho

and

-1616

Frances

Perez.

In

our

view,

the

evidence

conclusion that these events constituted a

supports

single conspiracy

to purchase cocaine.

As we

stated above, it is of no moment

that all the conspirators did not participate in all attempts

to

further the plan spearheaded

by the main

players.

e.g., United States v. Aponte-Suarez, 905 F.2d 483,

____ _____________
_____________
Cir.), cert. denied, 498
_____ ______
evidence to support

purchase

cocaine).

488 (1st

U.S. 990 (1990) (finding sufficient

single conspiracy where appellants

involved in only one of

See,
___

three attempts by a major dealer

Therefore,

appellant

Torres

were
to

Rivera's

variance argument must fail.6

c. Ineffective Assistance of Counsel
c. Ineffective Assistance of Counsel
_____________________________________
Torres Rivera's claim of constitutionally defective
counsel rises and falls

with his variance claim.

He argues

that trial counsel was ineffective because of his

failure to

object to

evidence that

Torres Rivera alleges

was relevant

only to the "first" conspiracy, and that he was prejudiced by

the introduction of such evidence.
It is well settled
trial counsel's
by Strickland v.
__________
to Strickland,
__________

that we measure the

performance under the two-part

Washington, 466 U.S. 668
__________
a defendant must show

quality of
standard set

(1984).

Pursuant

that counsel performed

____________________
6.

Because

the jury

could reasonably

have found

a single

conspiracy, we do not address whether

prejudiced by the alleged "variance."

Torres Rivera

was

-1717

unreasonably and that prejudice resulted therefrom.

Id.; see
___ ___

also United States v. Walters, 904 F.2d 765 (1st Cir. 1990).
____ _____________
_______

argument

As

noted

is

without

above,

the

merit.

single/multiple
Moreover,

conspiracy

according

to

the

record, the district court rejected the same argument made by

several
were

other defendants,

part of

the "second

prior rulings,

who, according
conspiracy."

counsel's failure

to rehash the
ineffective

Rivera
of these

same failed

cannot

counsel.

See United States v. Andiarena, 823 F.2d

___ ______________
_________

1987).

considered

In light

argument

Cir.

be

to Torres

assistance

of

673 (1st

Accordingly, we reject Torres Rivera's claim of

ineffective assistance of counsel.

B. Sentencing Issues
B. Sentencing Issues
____________________
Appellants
respective sentences.

aim a

barrage

of

arguments at

We address them seriatim.

their

Torres Rivera first argues that the

erroneously

calculated

Pursuant to U.S.S.G.

his

base

2D1.1(c)

offense

district court
level

and 2D1.47, the

("BOL").
BOL for

conspiracy conviction such as this depends on the quantity of

contraband attributable to the defendant.
concluded that appellants were to

The district court

be held accountable for 15

____________________
7. Although section 2D1.4 has since been repealed, it was
part of the 1991 Guidelines Manual, applicable to this case
by virtue of the fact that sentencing took place in February
1992. See, e.g., United States v. Pineda, 981 F.2d 569, 571
___ ____ _____________
______
n.1 (1st Cir. 1992) (appropriate guidelines are those in
effect at time of sentencing). Accordingly, all guideline
citations herein refer to the 1991 manual.
-1818

kilograms of
2D1.1(c).
of
held

cocaine,8

and set

the BOL at 34.

U.S.S.G.

Torres Rivera claims that the district court's use

the 15 kilogram amount

was erroneous; that

responsible for less than

therefore should be 24.

U.S.S.G.

500 grams; and

he should be
that his BOL

We disagree.

1B1.3(a)(2) provides

that the BOL shall

be

determined

on

the

basis

of

"all

acts

or

omissions

committed or aided and abetted by the defendant, or for which

the

defendant would be

during the commission

otherwise accountable, that occurred

of the

offense of

conviction."

The

relevant application note provides:

In
the
case
of criminal
activity
undertaken
in
concert with
others,
whether or not charged as a conspiracy,
the conduct for which
the defendant
"would be otherwise accountable" also
includes conduct of others in furtherance
of
the
execution
of the
jointlyundertaken criminal activity that was
reasonably foreseeable by the defendant.
U.S.S.G.
puzzle
offense

1B1.3,

comment. (n.1).

provides that
involving

substance,

if

a "defendant

negotiation

the weight

The final
is

to traffic

under negotiation

piece of

convicted of

the
an

in

a controlled

in an

uncompleted

____________________
8. This amount, to which the government stipulated, agrees
both with the quantity that Colberg told Munoz that he would
be able to immediately purchase, and with the money that was
shown to Munoz in the Volvo in the restaurant parking lot.
According to the record, the negotiated price for the cocaine
was $16,000 per kilogram; the $500,000 that Santana Olmo
claimed was in the Volvo would, therefore, have been more
than sufficient to make the purchase.
-1919

distribution
guideline
also
____

shall

be

amount."

used

to

U.S.S.G.

United States v. Gerante,

_____________
_______

calculate

the

applicable

2D1.4, comment.

(n.1); see
___

891 F.2d 364,

1989) (affirming estimation of

369 (1st Cir.

drug quantity based on amount

of money found in defendant's possession).

The thrust of Torres
he had no ability

Rivera's BOL argument is that

to produce any money to

purchase cocaine.

This argument is rooted in the following statement, contained

in Application Note 1 to section 2D1.4:
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.
In referring
ignored the

to this

statement, however, Torres

very next sentence

defendant is convicted of
to

in the same

Note:

"If

the

conspiracy, see Application Note 1

___

1B1.3 (Relevant Conduct)."

section calls

Rivera has

And, as we noted above, that

for consideration

of the foreseeable

coconspirators in determining the BOL.

acts of

Thus, as the district

court correctly concluded, Torres Rivera's personal financial

________
ability is inapposite to the matter at hand.
The

remainder

of

Torres

Rivera's

BOL-related

argument is directed at the fact that much of the negotiating

in

this case

took place

prior

Therefore, he argues, those

to his

active involvement.

negotiations could not have been

-2020

"reasonably foreseeable" to

him, and he

should not be

held

responsible for any drugs involved with earlier stages of the

case.

This argument, however, overlooks the events that took

place

on May 31, 1990, when he, as a guard, took part in the

final

negotiations.

responsible

for

Thus,

he

drugs negotiated

is

in

while

fact
he

being

was an

held
active

participant in the conspiracy.

Finally, a recent

decision of

undermines Torres Rivera's theory.

Cruz,
____

No. 92-1279, (1st Cir.

foreseeability argument
in a

drug conspiracy had

this court

further

In United States v. De La
_____________
_____

June 24, 1993),

we rejected a

made by a defendant

whose only role

been as a driver.

At sentencing,

and on appeal, the defendant claimed that he had no knowledge

of the amount of cocaine he was transporting.

We first noted

that

was part

the defendant

must have known

that he

of a

large-scale deal

due to

present at the warehouse

slip op. at 17-18.
____ ___

the number

of people and

vehicles

where the drugs were stored.

Id.,
___

We then stated:

A defendant who conspires to transport

for distribution a large quantity of
drugs, but happens not to
know the
precise amount, pretty much takes his
chances that the amount actually involved
will be quite large.
On De La Cruz'
theory, no amount at all could properly
be assigned to him if, as may well be the
case, he never had a specific quantity in
mind.
The danger actually posed by the
conspiracy was the distribution of 240
kilograms, De La Cruz knew that a large
quantity
was
involved,
and--absent

-2121

special
enough.
Id. at 18.
___
that

of

circumstances--we think

that is

In our view, Torres Rivera's role is analogous to

De

La

Cruz.

Given

his

presence

at

the final

negotiations and his role as a guard for the "money man," his
general

knowledge of the size of the cocaine deal is readily

inferable.

And,

like De

La Cruz, Torres

Rivera "took

his

chances" as to the specific quantity.

In
error

light of

in either

the foregoing, we

the district

can find

no clear

court's determination

of the

quantity of cocaine attributable

to appellant Torres Rivera,

or

of 34.

its resulting

States v.
______

use of

Figueroa,
________

cert. denied,
_____ ______
standard to

a BOL

976 F.2d

113 S. Ct.

See,
___

1446, 1461

e.g., United
____ ______

(1st Cir.

1346 (1993) (applying

appellate review of drug

1992),

clear error

quantity attributed to

conspiracy defendant).
Torres

Rivera next

argues that

his sentence

was

disproportionately severe when compared with the sentences of

similarly situated
dwells on the
greater

codefendants.

fact that

than those

To support

his 200 month

received

including those referred to

by all

that

Torres

First,

Rivera

prison sentence
other

coconspirators,

We reject this sentencing

our review of the

was

was

in the indictment as organizers,

leaders, managers and negotiators.

disparity claim.

this claim, he

treated

codefendants who pled guilty to

-2222

record indicates

similarly

to

those

the same conspiracy count of

which he was convicted.9

kilogram conspiracy.
that has

to do

All began with a BOL

While

with the

Criminal History Category

based on a 15

some sentences varied,

fact that Torres

III, and that

Rivera was

he and Mena

were the only recipients of a firearm enhancement.

despite

Torres Rivera's

claim to

much of

the contrary,

in a
Robles

Moreover,
the record

reveals no downward sentencing departures having been granted

to any

codefendant.

held that

And, as a final matter, we have firmly

"a perceived need to

for similarly
permit a

situated codefendants, without

departure

from

sentencing range."
1448

(1st

Cir.),

Accordingly,

equalize sentencing outcomes

properly

United States
_____________
cert.
_____

denied,
______

we reject Torres

more, will not

calculated

v. Wogan, 938
_____
112

S.

guideline
F.2d 1446,

Ct.

441 (1991).

Rivera's sentencing disparity

argument.10
Next,
court's

both

two-point

appellants

offense-level

challenge
enhancement,

the

district

pursuant

to

____________________
9. Several other coconspirators
pled guilty to lesser
charges contained in superseding informations in exchange for
dismissal of their
indictments.
Those
coconspirators
therefore received, comparatively, the shortest sentences.
We reject, however, Torres Rivera's reliance on the sentences

meted out to this group as support for his disproportionality

claim. See, e.g., United States v. Butt, 955 F.2d 77, 90
___
____ ______________
____
(1st Cir. 1992) (where codefendants are charged and convicted
of different offenses, they are not "similarly situated").
10. We have reviewed Torres Rivera's
other
complaints and find them to be without merit.

sentencing

-2323

U.S.S.G.
during the

2D1.1(b)(1),11
offense.

This

for

possession

circuit

calls for

of

firearm

the

firearm

enhancement "whenever a codefendant's possession of a firearm

in furtherance

of [] joint criminal

foreseeable to the defendant."

F.2d

910, 912

(1st

United States v. Bianco, 922

_____________
______

Cir. 1991)

reviewing a district court's

activity was reasonably

(citations omitted).12

In

use of the firearm enhancement,

we accord due deference to the application of the enhancement

to the facts of the case.
728, 731 (1st

Cir. 1992).

sentencing need only

United States v. Sostre, 967 F.2d

_____________
______
Factual

conclusions related

be supported by a preponderance

evidence and will be set aside only for clear error.

Appellants essentially argue

to

of the
Id.
___

that the evidence

is

not sufficient
not agree.
found

to support the

As noted above, coconspirator Montanez

in possession of five

retrieved

from

appellants

two-level adjustment.

just

We do

Ortiz was

bullets compatible with the gun

outside

were seated at the

the

car

in

time of their

this, the court could properly infer

which

he

arrests.

and
From

that Montanez Ortiz had

____________________
11. In relevant part, section 2D1.1(b)(1) provides for a two
level BOL increase "[i]f a dangerous weapon (including a
firearm) was possessed during commission of the offense . . .
."
12. We note with particular emphasis
standard because appellants rely on a
other circuits.

the First Circuit

host of cases from

-2424

the gun

on his person

Appellants
Robles's
evidence,

assert
car

that

with
is

foreseeability.

prior to ejecting it
neither

Montanez

sufficient

their

Ortiz, nor
to

infer

from the car.13

presence
any

in

other
the

However, as we stated in Bianco:

Mena
record

requisite

_______
[W]e often observe that firearms are
common tools of the drug trade. Absent
evidence of exceptional circumstances, we
think
it
fairly
inferable that
a
codefendant's possession of a dangerous
weapon is foreseeable to a defendant with
reason
to
believe
that
their
collaborative criminal venture includes
an exchange of controlled substances for
a large amount of cash.
Id. at 912 (citations omitted).
___
731-32

(enhancement

physically

possessed

See also Sostre, 967 F.2d at

___ ____ ______

affirmed

where

gun,

defendant

but

only

codefendant
was

part

of

"protection" team employed by

drug seller); United States v.

_____________

Bello-Perez,
___________

673 (1st

enhancement
possession

977

F.2d

664,

affirmed where
of firearm,

Cir.

only codefendant

but both

1992)

(weapon

was in

actual

defendant and

codefendant

served as "muscle" for drug-debt collections).

Here, given the
appellants were
and

the lack of

jury's supportable conclusion that

involved in

the drug transaction

any evidence

to contradict

at issue,

the reasonable

foreseeability of Montanez Ortiz's possession of a gun at the

____________________
13. Indeed, Montanez Ortiz pled guilty, in exchange for
dismissal of the indictment, to an information charging him
with carrying a firearm during the commission of a drug
related felony in violation of 18 U.S.C.
924(c).
-2525

scene of a
error in

large-scale cocaine
the district

deal, we can

find no

court's application of

clear

the two-level

weapon enhancement.14
Next, Mena Robles contends that the gun enhancement
was the product of
district judge.
that only

vindictive sentencing on the part

This

assertion is based solely on

these appellants

and they alone received the

those codefendants

exercised their right

of the
the fact

to trial,

sentencing enhancement, although

who pled guilty to

the conspiracy charge

were situated similarly with respect to the firearm at issue.

We do not agree.
In North Carolina v. Pearce, 395
_______________
______
the

Supreme Court

faced a situation

successfully appealed
on retrial and
judge.

The

where a

defendant who

his conviction was again

given a
Court,

U.S. 711 (1969),

harsher sentence by

concerned with

the

found guilty

the same

possibility

trial
of

vindictive response to the exercise of a constitutional right

to

appeal, held

that

explained in the record.

____________________

such an

increased

Id. at 726.
___

sentence must

Later,

be

the Court held

14. Appellants also argue that the district court failed to

make the specific findings mandated by 18 U.S.C.
3553(c).
See United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir.
___ _____________
________
1990).
This assertion is based primarily on the fact that
the sentencing judge did not, as he said he would, issue
written findings "summarizing his reasons for . . . a two
level increase . . . ." While it is apparently true that no
such written summary has been issued, our review of the
sentencing transcript shows clearly that the district court
made factual
findings sufficient both
to support the
enhancement and to adequately frame the appeal.
-2626

that a "presumption of vindictiveness"

the

same judge

imposes

United States v.
_____________

Goodwin, 457
_______

presumption may be
in

a stiffer

is triggered whenever

sentence after

U.S. 368, 374

overcome only when

retrial.

(1982).

This

objective information

the record justifies the increased sentence.

Id. at 372___

384; Johnson v. Vose, 927 F.2d 10, 11 (1st Cir. 1991).

_______
____
We
situations
bargain

have

applied

where, as

here,

in favor of

Crocker, 788 F.2d

the

Pearce
______

defendant has

a trial.

802 (1st Cir.

See, e.g.,
___ ____

presumption
rejected a

to
plea

United States v.
_____________

1986); Longval v.

Meachum,

_______
693

F.2d 236

(1983).

(1st Cir.

1982) cert.
_____

_______

_______

denied, 460
______

U.S. 1098

As we have pointed out, however, "not every instance

of an enhanced sentence following a defendant's exercise of a

legal right triggers the presumption."

Vose, 927 F.2d at 11.

____

"The

principle established by Pearce and

______

that

enlarged sentences

sentences

may

Therefore,

not

we have

"[t]he presumption
there

is

are forbidden,

be

fueled

but only

[] arises only in

reasonable

likelihood

the

Id.
___

holding that

circumstances in which
that

the

increase

in

actual vindictiveness on the part

sentencing authority."

reasonable likelihood,

that such

vindictiveness."

qualified the presumption,

sentence is the product of

of the

by

its progeny is not

Id.
___

In the absence

defendant bears

proving actual vindictiveness.

the

of such

burden

of

Id., citing Alabama v. Smith,

___
_______
_____

490 U.S. 794 (1989).

-2727

As

we stated

nothing in the

above,

Mena Robles

record to support a claim

has pointed

of vindictiveness,

other than the fact of the gun enhancement itself.

not suffice.
made

In

Both Longval and Crocker, the

_______
_______

mid-trial

comments

which

to

"explicitly

This will

trial judges
linked harsher

sentences to the defendants' refusal to cut short their right

to a

jury trial."

determined,
likelihood
devoid

Vose, 927 F.2d

____

were

sufficient

to

of vindictiveness.

of similar

presumption

evidence

or

at 12.

establish

Id.15
___

Here, the

that would

demonstrate

These remarks, we
reasonable
record is

trigger the

actual

Pearce
______

vindictiveness.

Accordingly, Mena Robles's vindictiveness argument fails.16

Appellant
implementation
guilt

beyond

process.

of the
a

Torres

Rivera

also

gun enhancement

reasonable

doubt

is

argues

without a
a

that

the

finding a

violation of

due

This contention has been soundly rejected, and thus

we need not address it further.

See United States v. Pineda,

___ _____________
______

981 F.2d 569, 574 (1st Cir. 1992).

____________________
15.

In addition, we

noted in Crocker and Longval that the

_______
_______
trial judges' comments could be construed as retaliation for
pursuing trials in cases the judges considered "unworthy of

[their] time and effort."

Crocker, 788 F.2d at 809.

Here,
_______
where the sentencing judge did not preside at trial, no such
sentiment is likely.
16. Indeed we must question, but need not here decide,
whether such a presumption can ever result where, as here,
the sentencing judge was not the trial judge.
-2828

As a final matter, we address Torres Rivera's claim

that
his

he should have

been granted a

BOL for playing only a "minimal" role in the conspiracy.

The district court

"minor"
district
error.
1991).

awarded him a

participant.
court's

mitigating

United States
_____________
According

least culpable

group."

While that

Rivera,

further

two-level adjustment as

See U.S.S.G.
___

to

"minimal" participant
the

four-point reduction in

3B1.2.

We review the

role determination

for

clear

v. Dietz, 950
_____

F.2d 50, 52

(1st Cir.

the relevant

application

notes,

is a

defendant who is

of those

involved in

"plainly among

the conduct

of a

description may superficially fit Torres

light is

adjustment by means of

shed

on

the parameters

of

the

these illustrative examples: "someone

who

played

operation

no other
than

to

role in
offload

very large

part

of

drug smuggling

single

marihuana

shipment, or in a case where an individual was recruited as a

courier for a single
amount

of

drugs."

Moreover

the

participant"
believe
should
guard

smuggling transaction involving a small

same

U.S.S.G.
note

adjustment will

the district

court

3B1.2,

indicates
be

used

correctly

that

the

integral to
testified

the

money,

Torres Rivera

completion

that Carlos

of

the

(n.2).
"minimal

"infrequently."
concluded that

not be one of those infrequencies.

for

comment.

We
this

In his role as a

occupied

the deal.

Kortwright said that

position

Indeed,

Munoz

such protection

-2929

was
prior

necessary because "the money

transactions.

In the

end,

man"

had

we accept

"lost money" in
the following

reasoning on the part of the district court:

The Court finds, however, that since the
amount of drugs involved was quite large
and since defendant acted as a bodyguard,
a
role
which
entailed
providing
protection to the principal actors during

their negotiations and

may result in
acts of violence, that it cannot in good
conscience assign any such actor the
label of minimal participant.
Based on

the foregoing, we

reject Torres Rivera's

claim of

minimal participant status.

We
find

them

have reviewed appellants'

without

merit.

other arguments, and

Appellants'

sentences are therefore affirmed.

affirmed.
_________

-3030

convictions

and