USCA1 Opinion

December 1, 1995

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-1968

UNITED STATES OF AMERICA,

Appellee,

v.

WILFREDO JIMENEZ-RODRIGUEZ,

Defendant, Appellant.

____________________

No. 94-2072

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCISCO REYES-VEJERANO,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

Rafael F. Castro Lang for appellant Francisco Reyes-Vejerano.

_____________________

Rachel Brill with whom

_____________

Carlos V. Garcia Gutierrez

___________________________

was on br

for appellant Wilfredo Jimenez-Rodriguez.

Sidney M. Glazer,
_________________
Department

of

Justice,

Senior Appellate
with

whom

Counsel, Criminal

Guillermo Gil,
______________

Attorney, was on brief for the United States.

____________________

____________________

Divisi

United

Sta

BOUDIN, Circuit Judge.

_____________

jury indicted three men

Reyes Vejerano,

Ochoa.

In January 1994, a federal grand

on drug-related offenses:

Wilfredo Jimenez Rodriguez

Francisco

and Jaime Ocampo

Ocampo pleaded guilty to one count, and his sentence

was subsequently affirmed

by this court in

Ocampo, No. 94-1897, 1st Cir. May 8, 1995.

______

United States v.
_____________

Reyes and Jimenez

pled not guilty and were tried together in April 1994.

Both

were convicted, and they now appeal.

Reyes

and Jimenez

were each

conspiracy charges,

one to

841,

other to

846, and

the

application for a

convicted on

two related

distribute heroin, 21

make

passport, 18

false statements

U.S.C.

1542,

in

an

in order

to

secure a false travel document for a drug courier.

also convicted of

distribute

three counts of possession

heroin,

21

U.S.C.

transactions related to the

841,

conspiracy.

to 188 months' imprisonment and

U.S.C.

for

Reyes was

with intent to

specific

drug

Reyes was sentenced

a $50,000 fine, and

Jimenez

to a 33-month term of imprisonment.

On this appeal,

pages

error.

of briefs,

Most

Reyes and Jimenez

together

have filed over

making several

of these claims involve

dozen claims

100

of

matters largely within

the

scope of the trial court's discretion or claims where no

proper objection was taken.

to those

under

We direct most of our discussion

few issues that seem to us fair ground for argument

the applicable

standards of

review and,

in closing,

-3-3-

illustrate

why

the

balance

of

the claims

do

not

merit

detailed discussion.

1.

brunt

Although the government

of its case rested

Gonzalez who, by her own

of the

conspiracies

and

offered ten witnesses, the

on the testimony

of Carmen Toledo

admission, had participated in both

engaged

transactions and the attempted

in several

of

passport fraud.

the

drug

Her evidence

was bolstered by that of her boyfriend (Jeffrey Martinez) who

also participated in certain of the events.

with some gaps

filled in by

jury to conclude

Their testimony,

other witnesses, permitted

that Reyes and Ocampo were

the

responsible for

several efforts to import heroin into Puerto Rico.

As

to Reyes, the details need not be recounted since he

does not deny that

the evidence against him was

adequate to

convict.

against

trips,

Crediting

Reyes was

one in

1993.

or so

October

individuals for

one.

1992 to

witnesses,

the

Toledo herself

Colombia

and one

to Panama; and she helped

separate trips,

both to

case

made two

in

1993

recruit two

Colombia in

These trips took place after consultation with Reyes,

the

successfully

arrest,

government

a strong

(apparently in June)

other

the

jury

was entitled

imported,

and one

fell

to

one effort

find.

resulted

through because

delivered to the courier.

-4-4-

Some

the

in

drugs

were

an airport

drugs were

not

By contrast, Jimenez--whose role was

far more limited--

argues that the government failed to prove the existence of a

single

conspiracy

indictment

Jimenez

and

to

possess

that in

joined such

heroin

any event

a conspiracy.

it

The

as

charged

failed to

in

the

show that

evidence certainly

permitted the jury to find that Reyes, Ocampo and Toledo were

members of one

drug trafficking conspiracy.

The finding was

supported

by

geographic

similarities

locations, and

in

the

participants,

the like.

Morrow, 39 F.3d 1228, 1233-34 (1st

______

methods,

See United States v.

___ ______________

Cir. 1994); United States

_____________

v. Cloutier, 966 F.2d 24, 28 (1st Cir. 1992).

________

The

more

participated

difficult

question is

whether

Jimenez, who

in only one of the trips, could fairly be found

to have joined the charged conspiracy, or any drug conspiracy

at all.

The

two issues are significantly different,

address the latter

light

most

one first.

favorable

to

Taking the

the

verdict,

and we

evidence in

the

jury

the

could

reasonably have found that the following occurred:

After

unrelated

Toledo's

incident,

passport was

Reyes

and

seized

Ocampo

by

police in

gave

an

Toledo

identification papers to help her obtain a new passport under

the name

of Sarah

Luz

Toledo

on

another

When

to

persuaded

Jimenez to act as her escort, telling him that she

bring in narcotics and that she

-5-5-

trip,

Martinez

declined

was going to

accompany

Velazquez Santiago.

Toledo

was asking him

to

help.

Before departing, Toledo applied for a passport in

the name of

the

Sarah Luz Velazquez; Jimenez accompanied

passport

office;

identifying Toledo

and

he

there

signed

as Sarah Luz Velazquez.

her to

document

No passport was

obtained, and Toledo changed the destination from Colombia to

Panama.

Jimenez then accompanied

selected because he was

Toledo to Panama.

He had been

a book importer, and it

was thought

that his legitimate business

the scheme.

distance

There

himself

travels would provide cover for

was some evidence that Jimenez

from the

importation

sought to

efforts, but

other

evidence that he requested

(unsuccessfully) a third of "what

was coming" and

the return trip

that, for

to Puerto

Rico,

Jimenez

[trip]

made arrangements

to make

having to do with books."

drugs in Panama and carried them

it "look

like it

was a

Toledo alone collected the

back to Puerto Rico in

the

company of Jimenez.

Jimenez'

open

to him

assistance was

to argue

certainly limited, and

that his

role was

justify conviction.

But

the

Toledo represented

facts were

illegal

as

agreement need

too

equivocal to

the jury was entitled to

not be

them.

it was

find that

Further,

explicit, Ianelli
_______

an

v. United
______

States, 420 U.S. 770, 777 n.10 (1975); United States v. Ruiz,
______
_____________
____

905 F.2d

499, 506 (1st Cir. 1990), and a rational jury could

conclude that Jimenez'

participation was sufficient

to make

-6-6-

out an

the

agreement.

evidence

Jimenez

clearly

was not helped by

showed

his

the fact that

participation

in

the

ancillaryconspiracy tosecurea passportbasedon falsedocuments.

Assuming that

Jimenez

of

the

the evidence allowed the

heroin

whether he joined the

conspiracy,

the

jury to convict

question

remains

overarching conspiracy to import drugs

as charged in

conspiracy

the indictment or

related to

conspirator

can

be

United States,
_____________

Cruz,
____

the specific

part

knowledge of all its

of a

613,

larger

conspiracy

539, 557 (1947);

617 (1st

Still,

not

that

conspiracy,

Jimenez,

Blumenthal v.
__________

Cir. 1992).

there is a reasonable argument

in addition

was at worst knowingly engaged

without

United States
_____________

present facts

resolve)

encompassed

Panama transaction.

details and dimensions.

332 U.S.

981 F.2d

only a smaller

v.

on the

(which we need

to

the

passport

only in a single

narrow conspiracy to import drugs on one occasion.

Nevertheless,

sufficient to

with

intent

the

evidence

(as

already

find that Jimenez conspired

to distribute

in

connection

noted)

was

to possess heroin

with the

Panama

episode;

and the prosecution made clear at trial that he had

not yet joined the

of

importation.

grams of

conspiracy at the time of

Jimenez was sentenced based only on the 250

heroin imported with

trial court

the prior acts

his assistance; in

generously based Jimenez'

fact, the

sentence on one-third

of that amount, in view of the testimony that he had asked to

-7-7-

be given one-third of the drugs Toledo was to procure.

Jimenez has

possible

conspiracy

not demonstrated

variance

between the

charged

adequately proved.

scope

and narrower

of

drug

result of

the broader

conspiracy that

the

drug

was

United States v. Morrow, 39 F.3d at 1235.

_____________
______

In a different variance

the indictment charged that

have

prejudice as a

Thus,

continued to April

the conspiracies were alleged to

1993 (as to

and until "on or about April

passport conspiracy).

argument, Jimenez protests that

the heroin conspiracy)

1993" [sic] (in the case of the

In reality, the second application for

the passport occurred in

June 1993, and the Jimenez

Panama occurred shortly thereafter.

trip to

But the indictment also

identified as

Toledo

There is no indication that Jimenez was

mistaken reference to his

April.

trip as one

misled by

that occurred in

Again there was no showing of prejudice.

2.

Reyes

enhanced from

argues that

3B1.1(a).

increase, for

defendant

activity

otherwise

that

his sentence

a base level of

district court proposed a

the

false identification of

and said correctly that it occurred "on or about June

7, 1993."

the

an overt act Jimenez'

This

section

provides

. .

36, because the

that

role, should be

organizer

involved five

extensive

32 to one of

four-level increase under U.S.S.G.

an aggravating

was an

was substantially

or

."

or

more

The

leader of

four-level

imposed "[i]f

criminal

participants or

pre-sentence

was

report

-8-8-

recommended that

ground that in

Reyes be

addition to

deemed a leader-organizer

Reyes there were

at least

other participants in the criminal activities, namely,

Ocampo,

Carmen Toledo,

and Wilfredo Jimenez.

Jeffrey Martinez,

on the

five

Jaime

Lourival Quinones

At the

sentencing hearing,

Reyes' counsel

argued that

Reyes and Ocampo had passed polygraph tests showing that they

were not involved in drug trafficking and that other evidence

showed

that

testimony.

Toledo

had

The district

jury verdict,

made

but

on

that

as to

four-level increase.

at

various

points

in

court, although it referred

clear

independent judgment

increase

lied

the

court

was

whether the facts

The court then

slightly

her

to the

making

an

supported the

imposed the four-level

different

grounds

than

those

suggested in the pre-sentence report.

The district judge said although he might treat Martinez

and Jimenez as participants,

that

there

comprised

of

were

still

Reyes,

he was declining to do

the

Ocampo,

necessary

Toledo,

five

so; but

participants

Quinones

and

an

individual referred

to at trial as

"Negro."

Alternatively,

the court concluded that the criminal activity was "otherwise

extensive";

under

which uses the

five

of

the guideline

word "or," criminal enterprise

of fewer than

would still

U.S.S.G.

the explicit

be

the basis

3B1.1.(a)

-9-9-

language

for a

four-level increase.

On appeal,

tests,

and

version of

Reyes continues to argue

other

information

that the polygraph

inconsistent

events, undermines the

with

Toledo's

district court's finding.

The difficulty is that the district court, like the jury, was

entitled

to accept

Toledo's

version.

While

some of

the

information relied on by Reyes to impeach the verdict was not

before

the

jury (e.g.,
____

the

polygraph test),

evidence was considered by the jury and

statements

The

by other

district

participants

court's decision

to

most

of the

much is self-serving

or impeachment

believe

material.

Toledo was

not

clearly erroneous.

A slightly

more troubling

problem is presented

by the

district court's decision to exclude Martinez and Jimenez and

to substitute Negro.

about

Quinones, it says that

the present

as

While Reyes' appeals brief says nothing

Negro "had nothing

indictment" and therefore could

a participant.

The

to do with

not be included

government in response

points us to

statements in the sentencing hearing that suggest that Toledo

had met Negro

transaction

through Reyes;

in which Negro

but it is

played a role

not clear that

the

involved Reyes at

all.

In

objection

any

event, the

to

describing

reaffirm that designation.

Counsel,

still

you

district

Negro

court--faced

as

with Reyes'

a participant--did

Instead, the court said:

have--you

have

the

not
___

"Well,

other--other--the

-10-10-

`otherwise

extensive.'"

After

further colloquy

continued:

[E]ven if

you take Negro

picture, take it off the

the

picture

and

that

through

went

this

the

picture--out of

still there

extensive,'

away from

are `otherwise

was a

conspiracy

Panama,

Colombia,

the court

Puerto Rico and

Republic .

sometimes the

. . .

So that's

Dominican
my ruling.

Let's move on.

We

conclude

affirmed

branch

of section 3B1.1.

as to Reyes

of trips,

amount of heroin.

United States
______________

four-level

on

the

adjustment

"otherwise

can

be

extensive"

The district court was entitled to

there were

multiple participants,

broad geographic

scope and

Under the precedents,

See United States v.

___ _____________

1990).

the

without difficulty

find that

number

that

a substantial

this is sufficient.

Dietz, 950 F.2d 50, 53 (1st Cir. 1991);

_____

v. Morphew,
_______

Reyes challenges

909

F.2d 1143,

other aspects of

including the determination that

1145

(8th Cir.

the sentencing--

he played a leadership role

and could properly be sentenced to a fine of $50,000--but the

remaining arguments are not substantial.

3.

As we noted at

of additional claims

the outset, there are a large number

of error.

that a continuance sought only

have

argues

six days before trial

should

been granted, a matter that is largely within the trial

court's

discretion

present here.

487

Reyes, for example,

absent

extraordinary circumstances

not

United States v. Soldevila-Lopez, 17 F.3d 480,

_____________
_______________

(1st Cir. 1994).

Reyes also asserts that his conviction

-11-11-

was

only

based upon

the

kinds

perjured testimony

of

conflicts

or

but the

record reflects

discrepancies

that

are

testimony

was

commonly left to juries.

Both Reyes

and

Jimenez

complain

that

admitted concerning extraneous criminal acts, including other

drug transactions

involving Toledo,

was

(as

inadmissible

prejudicial, or both.

all

of the

irrelevant

or

as

the testimony

hearsay),

highly

On examination, it appears that almost

evidence in

were relevant (e.g.,

____

and that

question related to

to explain

incidents that

how Toledo came

to need

false

passport) or not made the subject of a contemporaneous

objection

or both.

None of

these

claims needs

separate

discussion.

Reyes objects now to

three alleged misstatements by the

prosecutor in closing arguments.

trial

The only one objected to at

was a reasonable inference

only actual misstatement (that

was actually used) was

could

by the prosecutor; and the

the passport sought by Toledo

the kind of

slip of the tongue

that

easily have been corrected at the time if an objection

had been

made;

and the

evidence

passport had been sought based

issued.

plainly showed

that

the

on false statements but never

The jury instructions challenged on appeal were

not

objected to at the time and are not remotely plain error.

Both Reyes and Jimenez

argue that the government failed

to disclose to the defense material that might have been used

-12-12-

to impeach Toledo

Reyes'

The

government stated

in

sentencing hearing and again in its brief that it did

not have

been

and Martinez.

the information

disclosed, and

that appellants argue

appellants

bring to

should have

our attention

no

substantial

evidence

information.

that

The government

information it does not

15 F.3d

1161, 1179

Maryland,
________

the

373

diligence requirement.

did

has no obligation

have

the

to disclose

possess, United States v. Sepulveda,

_____________
_________

(1st Cir.

U.S.

prosecution

83

1993); the

(1963),

rule of Brady
_____

imposes

United States v.
_____________

no

general

v.

due

Moore, 25 F.3d 563,

_____

569 (7th Cir. 1994).

Finally,

assistance of

Reyes

says

that must be

he

was

counsel based on a parade

by counsel to investigate

have Reyes

that

These

effective

of alleged failures

or object and also the

testify at trial.

presented to

denied

failure to

are fact-based

the district court

in the

claims

first

instance and we therefore

v.

do not reach them.

United States
_____________

Natanel, 938 F.2d 302, 309 (1st Cir. 1991), cert. denied,
_______
____________

112 S. Ct. 986 (1992).

Affirmed.
________

-13-13-