USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1534
UNITED STATES,
Appellee,
v.
NANCY ESPERANZA MATIZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Rosenn,* Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Theodore L. Craft, by Appointment of the Court, for
__________________
Nancy Esperanza Matiz.
Geoffrey E. Hobart, Assistant United States Attorney,
___________________

appell

with w

A. John Pappalardo, United States Attorney, and Jeffrey A. Loc

____________________
_______________
Assistant United States Attorney, were on brief for appellee.
____________________
January 4, 1994
____________________

_____________________
*Of the Third Circuit, sitting by designation.

ROSENN,
Esperanza Matiz
United

Senior Circuit Judge.

______________________
was tried

States

Massachusetts

District
for

distribute five or
of

21 U.S.C.

conviction and
against her was

to a jury
Court

conspiracy

Appellant

and convicted

for

the

to possess

with

more kilograms of cocaine,

841(a)(1)

argues that:

and 846.
(1)

in the

District

of

intent

to

in violation

Matiz appeals

the evidence

insufficient to support the

returned by the jury, (2) her

Nancy

her

introduced

guilty verdict

conviction should be reversed

on the grounds that the Government's conduct was outrageous,

and (3) the

district court erred in

enhancing her sentence

for obstruction of justice pursuant to

States Sentencing Guidelines.

3C1.1 of the United

We affirm.1
I.

This case arose out of a large scale investigation

conducted by
States

and

various
Colombia,

distribution activities

government

agencies

South

America

of a

number of

into

in

the
the

United
cocaine

individuals.

The

United States Government (the Government) had the assistance

of Pedro Alvarez, a defendant in another criminal matter.

____________________
1The district court possessed subject matter jurisdiction
pursuant to 18 U.S.C.
3231. This court has jurisdiction
pursuant to 28 U.S.C.
1291 and 18 U.S.C.
3742 (a)(2).
-22

Alvarez, at the behest of the Government, posed as

a purchaser and
Colombia.

contacted a number of
Negotiations

pertaining to the
In

the

informed

early

difficulties
States.
to
the

in

over

several

purchase of large quantities

part

Alvarez

ensued

cocaine suppliers in

of

1991,

that

they

smuggling

the

the

of cocaine.

suppliers in

were

Colombia

experiencing

cocaine

months

into

temporary
the

United

In light of these difficulties, they asked Alvarez

assist them in transporting the shipment.

suppliers asked

Alvarez to

store

Additionally,

and distribute

the

cocaine to their associates.

The Government told Alvarez to request an up-front
payment

of

$30,000

for

his

troubles

and

Reluctantly, the suppliers agreed and informed

the payment

would be made

associates,

"La

Negra,"

suppliers gave Alvarez

Alvarez that

by one of

their New

code

for

name

expenses.

York based

Matiz.

"La Negra's" beeper number

The

and code

phrase for communication with her.

Alvarez and
for May

23, 1991, for

Matiz ultimately scheduled

Matiz to hand

a meeting

over the money

to an

associate of Alvarez, actually Special Agent Dominick Lopez,

at a Burger

King restaurant

scheduled hour, Matiz,

in Queens, New

York.

along with an associate

-33

At

the

named Diaz,

drove to

the meeting place

in a Nissan Pathfinder.

After

Lopez entered the vehicle, Matiz

instructed Diaz to get the

money.

from under the seat of the

Diaz retrieved the money

automobile and passed it to Matiz who then gave it to Lopez.

The

sum,

however,

promised to make

amounted

to

only

an additional payment

day, explaining that

$20,000

and

Matiz

of $5,000 the

she had been told that

next

the amount due

was $25,000.
After
contact with
personally
cocaine

this

Alvarez.

She

expecting

shipment

Colombia

exchange,

to

upon

confirmed this

Matiz

informed

receive a
its

remained
him

that

large

arrival.

close

she

portion

The

information both

in

was

of the

suppliers

in

in conversations

with Alvarez and in facsimile messages sent to him.

shipment

finally

consisting of

arrived in the
1991,

615

kilograms of

United States on June

the suppliers

sent Alvarez

facsimile from

Colombia regarding

cocaine.

instructions

The

cocaine

4, 1991.

written

On

June 5,

instructions by

the distribution

directed

that, among

of the
others,

Matiz should receive 51 1/2 kilograms of the cocaine.

Alvarez telephoned Matiz on

numerous occasions to

discuss

the details

cocaine.

During

of the

pickup of

her portion

these conversations, Matiz

of the

expressed her

-44

desire

to obtain

as soon

as

interest

in

purchasing some of the cocaine that Alvarez had received

as

possible.

his

her portion

Initially,

she

of

the cocaine

also

voiced

fee for transporting the cocaine.

an

Ultimately, however,

she decided against it because of financial constraints.

Finally, Alvarez informed Matiz that

she would be

able to pick up her portion of the cocaine on June 12, 1991.

He

reserved

hotel

room

for

Matiz

in

Middleboro,

Massachusetts near the site for the transfer of the cocaine.

Matiz

and Diaz

continued effort

arrived at

the

hotel on

June 10.

to conceal their identities,

In a

they checked

into the hotel using fictitious names and addresses.

The following

evening, Alvarez and

Special Agent

Dillon

met

arrangements

Matiz
for

assistants, who

at

the

the

hotel

pickup.

to
A

review
number

of

final
Matiz's

had arrived at the hotel on the same day as

Matiz, were designated to collect the cocaine.

this

the

meeting, Agent Dillon

gave Matiz a

Also, during

facsimile message

from the suppliers that they sent to Alvarez instructing her

to deposit
accounts

the purchase
in branches

price for

of the Chase

the cocaine

in various

Manhattan Bank

and the

Central Bank in Miami.

-55

At

the

assistants followed
where the
at

the

time

car was loaded.

hotel with

the

an undercover
Matiz,

another

accompany her to a meeting

decided

of

pickup,

one

agent

to the

of

warehouse

however, remained behind

undercover

agent who

with Alvarez.

On the

to purchase a bottle

Matiz's

was

to

way, they

of champagne to celebrate the

deal.

Upon arriving at the

liquor store, an agent placed

Matiz under arrest.

II.
A.
Matiz

Sufficiency of the Evidence

first

disingenuously

contends

that

the

evidence produced at trial does not show that she knew of or

participated in the conspiracy.
"recklessly made
claim

of

insufficiency

evidence as
from

a whole,

that evidence,

government."
1303

a loan

(1st

to her friend."
of the

including
in

Rather, she claims that she

evidence,

In
we

all reasonable

the light

most

circumstantial

1993).

In

addition,

"review the
inferences

favorable to

United States v. Argencourt, 996

____________________________
Cir.

evaluating a

both

F.2d 1300,
direct

evidence must be credited on appeal.

States v. Echeverri, 982

____________________

F.2d

675, 677

the

(1st Cir.

and

United
______
1993).

Thus, as long as a jury could rationally find guilt beyond a

-66

reasonable doubt, we

must affirm.

Argencourt, 996
__________

F.2d at

1303.
Matiz
that a claim
There

is

is unable to overcome the very heavy burden

of insufficiency of evidence

an

abundance of

participated

in

the

evidence

conspiracy

to

that

places upon her.

Matiz knowingly

distribute

cocaine.

Granted, Matiz's role initially was to supply Alvarez with a

payment

of money.

That payment, however, was intrinsically

linked to the drug conspiracy to

the United States.
transportation

smuggle illicit drugs into

The advance payment would facilitate the

of the cocaine.

In addition, the Government

presented evidence at trial that Matiz spoke to Alvarez over

thirty times, in
cocaine.
Colombia

code, with respect to the

Moreover, the

facsimile from

noted that Matiz was

shipment of the
the suppliers

in

an intended recipient of the

cocaine.
Finally, Matiz

organized and directed

operation in Massachusetts.
down to load the cocaine, she
do

the task.

The

conspiracy.

Although she herself did not go

sent an assistant of hers

jury simply

incredible story concerning

the pickup

did

not believe

her lack of involvement

to

Matiz's
in the

Because of the abundance of evidence supporting

the jury's verdict, this challenge is rejected.

-77

B.
Matiz

Outrageous Government Misconduct

next contends that her conviction should be

overturned because the

course

of

misconduct

the

Government's conduct throughout

investigation

in violation

claim essentially rests

of

constituted

her Due

on the

into

the country, and

outrageous

Process rights.

Her

Government's initiation

the transaction, the arranged transportation of

its delivery to

the

of

the cocaine

various individuals

including herself.
Law
Process

Clause

enforcement
of

the Fifth

"fundamental fairness,
justice."

conduct

runs afoul

Amendment

shocking to

when

of

it violates

the universal

United States v. Russell,

__________________________

411

the Due

sense of

U.S. 423,

432

(1973) (quoting Kinsella v. United States ex rel. Singleton,

___________________________________________
361

U.S. 234,

246 (1960)).

See also

Hampton v.

United

___ ____
States,
______

425

concurring);

U.S.
id.
__

at

484,

491-95

495-500

__________________

(1976)

(Brennan,

(Powell,

J.,

J.,

dissenting);

United States v. Twigg, 588 F.2d 373, 381 (3d Cir. 1978).
______________________
This court
the

one advanced here

has reviewed

and has consistently

See, e.g., United States v. Santana,

___ ____ _________________________
345746 (1st Cir.
546,

560 (1st

many claims

similar to

rejected them.
F.3d

___

1993 WL
__

1993); United States v. Barnett, 989 F.2d

_________________________
Cir.),

cert. denied,
____________

114 S.Ct

148 (1993);

-88

United States v. Marino, 936 F.2d 23, 26-27 (1st Cir. 1991);
_______________________
United States v. Panitz, 907
________________________
1990).

We

F.2d 1267, 1272-73

have recognized that in these

(1st Cir.

modern times with

advanced

technology and

transportation facilities

available to criminals, drug

international

character,

penetrate

therefore

and

readily

conspiracies, especially of an
are

extremely

enforcement

difficult

ingenuity

to

must

be

encouraged and greater government involvement allowed.

See
___

Barnett, 989 F.2d

_______

The

extent

of

at 560;

government

Panitz,
______

involvement

transaction and transporting and

no more
upheld

excessive than
in other

907 F.2d at 1273.

here,

initiating

the

delivering the cocaine, is

government actions

that have

been

See Panitz,
___ ______

907

F.2d at

1273;

conduct

does

cases.

Marino, 936 F.2d at 27.

______
Law

enforcement

not

violate

fundamental fairness when government officials do not foment

crime,

cf.
___

penetrate

Twigg,
_____

588

an existing

participation
infiltration

in
is

value that

drug

their
a

at
ring

the drug

381,

but

and

engage

unlawful

recognized

investigation; if that
of

F.2d

and

permissible

ring requires

limited
"Such
means

of

of some item

must, as

Russell, 411 U.S.

_______
-99

in

practices.

be so, then the supply

rule, also be permissible."

resourcefully

a general

at 432.

The

record demonstrates that Matiz was an important figure in an

organized

conspiracy

to smuggle

country and distribute

needed

money

to

them.

When the

facilitate

country, they turned to her.

illicit

the

drugs into

this

Colombian suppliers

transportation

in

this

The suppliers' instructions to

their associates in this country also filtered through her.

The
and

Government did not

distribute

cocaine.

arrangement with

her

sought a substantial

suppliers

her.

The

already
in

to purchase

had

Colombia

share of the smuggled drug

it reached this country.

out; the Colombian

She

entice Matiz

existing

and

eagerly

load after

Government agents never sought her

suppliers arranged to have

Government,

an

at the

request

Alvarez meet

of the

suppliers,

merely facilitated the transportation of the drugs into this

country

and Matiz freely joined

acquiring

share

of

Government

did not take

the

in the arrangements and in

contraband.

Moreover,

part in processing,

labelling any of the 615 kilograms of cocaine.

they delivered

the cocaine to individuals

the

packaging, or
Furthermore,

predetermined by

the suppliers.

We do not believe

that the conduct of

agents employing guile, deception, and clever

stratagems in

infiltrating the Colombian drug ring and communicating

Matiz at the direction of

the

with

the suppliers to obtain funds for

-1010

the

transportation of the drugs to this country constituted

outrageous

and impermissible conduct.

See Panitz, 907 F.2d

___ ______

at 1273.
As an
based

on

the

alternative to vacating
Government's violation

rights, Matiz requests

power to reverse

of justice, federal courts

specifically required

of

that this court use

her conviction.

their supervisory power

Matiz's conviction

Guided

her

Due Process

its supervisory
by considerations

may exercise on a limited

to "formulate procedural

basis

rules not

by the Constitution or the Congress."

United States v. Hasting,

_________________________

461 U.S. 499,

505 (1983).

The

Supreme Court has recognized

for

the

implement

exercise

of

a remedy for

only three legitimate purposes

court's

violation of recognized

preserve judicial integrity, . .

designed

to deter future

omitted).
to

the

Neither of
case

Government's

supervisory

power:

"To

rights, to

. and finally, as a remedy

illegal conduct.

Id. (citations
___

these three bases

are applicable

sub judice.
__________

As

discussed previously,

the

conduct was not outrageous, and Matiz fails to

show any specific violation of a statutory or constitutional

right.

Moreover preserving

basis for a court to

its

own

affairs,

judicial integrity

is only

use its supervisory power to supervise

not

the

affairs

of

other

government

-1111

branches.

The court's supervisory power does not "justify a

chancellor's foot veto

over activities of

coequal branches

of government."

Id. at 1089 (citations omitted).

___

conduct alleged by
the

courtroom,

Matiz to be outrageous

judicial

therefore cannot

integrity

be used as a

is

power.

no past illegal

conduct on the part of

deter

it from

See id.
___ ___

Thus,

engaging in

the

use

not

at

risk

and

to invoke

Finally, since there was

the Government with

not use our supervisory power to

future,
______

United States v. Simpson, 927

__________________________
1991).

occurred outside

basis for a court

its supervisory

respect to Matiz, we could

Since the

illegal conduct.

F.2d 1088,

of our

See
___

1091 (9th

supervisory

Cir.

power is

not

warranted under the present facts.

C.

Enhancement for Obstruction of Justice

Finally,

Matiz

presents

two

challenges to

the

district court's enhancement of her sentence for obstruction

of

justice

pursuant

to

U.S.S.G.

3C1.1.

Her

first

challenge is that the district court failed to make specific

findings necessary to establish perjury.
Section

3C1.1

requires

sentencing

court

to

enhance a defendant's sentence level by two points "[i]f the

defendant willfully

obstructed or impeded,

or attempted to

obstruct or impede, the administration of justice during the

-1212

. .

. prosecution

commentary to
example

of the

instant offense."

The

3C1.1 provides that committing perjury is an

of the

type of conduct

applies. U.S.S.G.
Court

. .

this enhancement

3C1.1, comment (n. 3(b)).

has stated

that

commits perjury if
material matter

to which

witness

testifying

"she gives false testimony

with the

The Supreme

willful intent

under

oath

concerning a

to provide

false

testimony, rather than as a result of confusion, mistake, or

faulty memory."
1116 (1993).
sufficiently
finding
a

United States v. Dunnigan, 113 S. Ct. 1111,

_________________________
An enhancement for

supported where

obstruction of justice is
sentencing

court makes

"that encompasses all of the factual predicates for

finding of perjury".

Id. at 1117.
__

At Matiz's sentencing

the court made the following finding:

I don't need to address the issue of
Ramirez.2 I do not wish to imply that
a defendant does not have a right to
testify.
I make
an
independent
determination here that I simply did not
credit Ms. Matiz' testimony when she did
testify. It's my determination that I
do not believe her. I believe that she
knowingly told
a false
story and,

accordingly,

will

overrule

the

____________________
2The court's reference to
"Ramirez" concerns evidence
presented at trial that Matiz used an alias, Maria Ramirez.
On cross-examination, Matiz denied using the alias, even
though a social security card and an apartment lease bearing
that name were found in her diary.
Additionally, her
landlord identified her as the woman he knew as Ramirez.
-1313

objection. It's appropriate to have an

upward adjustment for obstruction of
justice in this case.
The

court

also stated

that

it "finds

the

defendant did

commit perjury."
The findings encompass all the elements of perjury
--

falsity,

materiality, and willfulness.

about which the court was

testimony was material.
required to address
and clear finding.

The only matter

not explicit was whether

Matiz's

A sentencing court, however, is not

each element of
See id.
______

perjury in a

In fact, the Court

separate

in Dunnigan
________

affirmed a

district court's

term willful.3
sentencing

Id. at 1113.
___

court's

finding that
Dunnigan
________

findings encompass

did not

use the

only requires that a

all of

the factual

predicates for a finding of perjury.

____________________
33The finding at issue in Dunnigan stated:
________
The court finds that the defendant was
untruthful at trial with respect to
material matters in this case.
[B]y
virtue of her failure to give truthful
testimony on material matters that were
designed to substantially affect the
outcome of the case, the court concludes
that the
false testimony
at trial
warrants an upward adjustment by two
levels.
Dunnigan, 113 S.Ct. at 1117.
________
-1414

Moreover, the record

demonstrates that Matiz's

false

testimony denying

the conspiracy was

material.

have acquitted her.

materiality on
court.

See
___

knowledge of and

Thus,

our own

If

participation in

believed, the jury

would

we can make the determination of

without remanding

to the

district

United States v. Arias-Villanueva, 998

___________________________________

F.2d

1491, 1513 (9th Cir.), cert. denied, 114 S. Ct. 359 (1993).
_____________
Therefore,

the challenge to the district court's failure to

make specific findings is rejected.

Matiz

also

contends

that

the

district

court

erroneously found that she committed perjury inasmuch as the

record

contains no

evidence

of

material

untruths.

In

reviewing a court's application of the sentencing guidelines

to facts of

a case, we use a

"clearly erroneous" standard.

See United States v. Wright, 873 F.2d 437

___ ________________________
We perceive

no

clear error;

on the

(1st Cir. 1989).

contrary, the

record

overwhelmingly supports the district court's finding.

Throughout her
merely loaned money
unconnected
however,
through

to

to a friend and that

the

rebutted

testimony, Matiz

drug
her

conspiracy.

explanation

and

argued that

she

she was otherwise

The

Government,

proved

at

trial

the use of recordings and testimony from Government

agents that

she

was

intimately
-1515

connected

to

the

drug

conspiracy.

Thus, we

cannot say that

the district

court

committed error in finding that Matiz perjured herself.

III.
In
introduced

sum, we
against

guilty verdict

conclude
Matiz

returned by

err

in

enhancing

her

(1)

was sufficient
the jury,

conduct was not outrageous, and

not

that:

the

to

(2) the

support

sentence

for

obstruction

The judgment of the district court is

the

Goverment's

(3) the district court

justice.

Affirmed.
_________

evidence

did
of

-1616