USCA1 Opinion

June 6, 1994

[NOT FOR PUBLICATION]

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 92-2476
UNITED STATES,
Appellee,
v.
KIM DE LOS SANTOS-FERRER,
Defendant, Appellant,
____________________
No. 92-2477
UNITED STATES,
Appellee,
v.
JAIRO ANTONIO TORRES-AMEZQUITA,
Defendant, Appellant,
____________________
No. 93-1060
UNITED STATES,
Appellee,
v.
PEDRO AYALA-ROSARIO,
Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Cyr and Stahl, Circuit Judges,
______________
and Pieras,* Senior District Judge.
_____________________
____________________

Roxana C. Matienzo Carrion for appellant Kim De Los San

_____________________________
Ferrer.
Luis Rafael Rivera for appellant Jairo Antonio Torres Amezquita
__________________
Francisco Serrano Walker for appellant Pedro Ayala-Rosario.
________________________
Antonio R. Bazan, Assistant United States Attorney, with w
_________________
Guillermo Gil, United States Attorney, and Jose A. Quiles Espino
______________
______________________
Senior Litigation Counsel, were on brief for appellees.
____________________
____________________

_____________________
*Of the District of Puerto Rico, sitting by designation.

Per Curiam.
__________
Santos

Ferrer

In this appeal,

(Santos),

Jairo

defendants Kim de los

Antonio

Torres

Amezquita

(Torres) and

Pedro Ayala Rosario

(Ayala) challenge

aspects of their drug convictions and sentences.

various

Finding

no

error, we affirm.
I.
I.
__
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
________________________________________
For

purposes

of

defendants'

sufficiency of the evidence,

in

a light

States v.
______

most favorable
Mena-Robles, 4
___________

challenges

to

we begin by reciting the

to the

government.

F.3d 1026, 1029

the
facts

See United
___ ______

(1st Cir.

1993),

cert. denied, 114 S. Ct. 1550 (1994).

_____ ______
Confidential
CI)1

worked on

ship

which

Rico.

In

informant

board the

of

Cartagena, Colombia, by
smuggle four
Colombia

merchant vessel

routinely travels
December

Ruben de

1991,
a Mr.

between
the

Santos (the

Euro-Colombia, a

Colombia

CI

was

and Puerto

approached

Marcial who asked

kilograms of cocaine on

to Puerto Rico.

los

the CI

in
to

the Euro-Colombia from

Marcial gave the CI the contraband

and a phone number to call when the ship reached Puerto Rico.
The

phone number was later determined to be a cellular phone

number assigned to Ayala.

In early January,
CI called the number
____________________

the ship arrived in

and received no answer.

Ponce.

The

United States

1.

The CI is no relation to defendant Kim de los Santos.

-3-

Customs

agents,

with

whom

photographed the drugs and

CI

was

cooperating,

then allowed the CI to

Colombia with the contraband.

CI to

the

return to

In Colombia, Marcial asked the

try delivering the drugs

again and gave the

CI a new

telephone number to call.

In
time.

February, the

ship arrived

at Ponce

At 3:30 in the morning, the CI called

a second

the new number.

The resulting conversation was taped by United States Customs

officials.
asking

Santos answered

if Santos knew "Mr.

"present"
Estela.
$4000

for

Santos.

per kilogram

a.m. in Ponce

Santos

also mentioned

replied

Santos said

that

that

began by

that he had a
he knew

Mr.

not mentioned, but a price of

was agreed upon.

and that he

The CI

Estela," and said

The word cocaine was

delivery were set.

He

the phone.

A time

and place for

that he would arrive at 5:00

would be driving a
he needed

to

gold Porsche.

raise cash

for

the

purchase.
A

second phone call was made to the same number at

about 4:00 a.m., which

was also taped by

This time, the CI spoke

moved back to 8:00

with Torres.

a.m.

customs officials.

The delivery time

Torres stated, among

was

other things,

that he needed the time to raise money.

At 8:00

a.m., Santos and

appointed delivery
Mirage,

spot.

not a Porsche.

They

Torres showed up

were riding in

at the

a Mitsubishi

Ayala, the third defendant, was also

-44

with them.
what

Santos signaled to the CI, who

Santos

Colombia."
door,

Santos told
All

thereafter.

addition,

the CI to

three

replied,
be paid.

"The
Ayala

get into

defendants

were

4 kilos

from

opened the car

the car,
arrested

and the CI
shortly

In the car, agents discovered a car phone, with

very phone

$3970 in

Santos

The CI asked to

obliged.

the

wanted.

replied by asking

cash.

number that
Torres was

Santos' key

chain

the CI

had called,

carrying over $500 in

had a

Ayala also had a beeper on his person.

Porsche

along with
cash.

emblem on

In
it.

All three defendants were held for several hours by

customs officials
During
Customs

those

hours, all

Service Agent

conversations

their voices.
on

were

Radames

earlier that

to the questions

he heard

without being read their Miranda warnings.

questioned.

United

Sanchez, who

had taped

morning,2 then

States
the

listened briefly

being asked defendants in order to identify

He determined that Santos' voice was the voice

the tape

of

the first

phone

call, and

Torres' voice was the one he heard on the tape

that

of the second

call.
Santos

and

Torres

"communication facility" in

were

charged

with

carrying out a drug

using

transaction

____________________
2. Santos argues in his brief that Agent Sanchez was not
present when the conversations were recorded.
Sanchez
testified that he actually taped the two phone conversations
at issue.
-55

in

violation

Santos, Torres

of

21 U.S.C.

843(b)

and Ayala were all

(Counts

I and

II).

charged with importation,

including aiding and abetting (Count III) and possession with

intent to distribute (Count IV) all in violation of 21 U.S.C.
952(a) and 841 (a)(1) and 18 U.S.C.
guilty.

At trial,

2.

All pleaded not

there was a hearing outside

the presence

of the jury to determine the admissibility of the transcripts

of

the

phone conversations.

argued that

the transcripts

More

specifically defendants

should not be

admitted because

each transcript identified defendants by their initials ("KS"

for Santos and "JM" for Torres).
the

transcripts

convicted
Ayala,

on all

was

with the

initials.

counts, except

acquitted

of

The district court admitted

the

defendant raises separate issues.

All defendants

that the

were

third defendant,

importation

charge.

Each

We address them in turn.

II.
II.
___
DISCUSSION
DISCUSSION
__________
A. Santos
__________
1. The Appearance of Santos' Initials on the Transcript
________________________________________________________
Santos argues that the
at his

post-arrest detention renders

Sanchez's identification
on the

absence of Miranda warnings

tape.

unconstitutional Agent

of his voice as

the voice speaking

Santos goes on to argue that the appearance of

his initials on the phone transcript, which was

submitted to

-66

the jury, should therefore have been

ruled inadmissible.

We

disagree.
As the
of

Miranda
_______

v.

Supreme Court has recently

Arizona,
_______

establish

"an absolute

speak."

Doe v.
___

(1988).

Rather,

Court's

384
right

U.S.

436

against

United States, 487

______________
"that

(1966),
being

does

not

compelled

U.S. 201,

understanding is

decision in United States v.

______________

noted, the case

214

refuted

Dionisio, 410
________

to

n. 12
by

the

U.S. 1

(1973), in which the Court held that a suspect may not invoke
the privilege in refusing to speak
a voice exemplar."
In

Id.
___

short,

these cases

remain silent does not

voice

exemplar.

for purposes of providing

teach

that

the right

include the right to refuse

Thus,

even if

Santos

had been

to

giving a
read his

Miranda rights, he had no constitutionally protected interest

in keeping law enforcement

officials from hearing his voice.

Without a cognizable constitutional interest,

Santos' effort

to suppress the transcript fails.

Santos'
admission

non-constitutional

is committed

judge."

to

of the transcripts are equally fruitless.

frequently noted that

jury

challenges

"the use of transcripts

to

the

sound

the

We have

to assist the

discretion of

the

trial

United States v. Font-Ramirez, 944 F.2d 42, 48 (1st

_____________
____________

Cir. 1991),

cert. denied, 112 S.

_____ ______

United States v. Panzardi-Lespier,

_____________
________________

Ct. 954 (1992).

See also
___ ____

918 F.2d 313, 318-19 (1st

-77

Cir. 1990); United States v. Carbone, 798 F.2d 21, 26-27 (1st
_____________
_______
Cir.

1986); United States v. Rengifo, 789 F.2d 975, 980 (1st

_____________
_______

Cir. 1986).

In this case, the district court listened to the

tapes, interviewed Sanchez, and heard extensive argument from

counsel, all outside the presence
on the use of
itself as

the transcript.

to Agent

of the jury, before ruling

The district

court satisfied

Sanchez's qualifications and

ability to

make

a voice identification in this case,

authenticity and
transcripts.
that

proper chain

In addition,

Santos was

free to

of custody

as well as to the
of

the tape

and

the district court properly noted

argue to

the jury

that Sanchez's

identification of the voice on the tape as that of Santos was

unreliable.
or

Defendant points to no evidence,

otherwise, to

suggest that

any of

constituted an abuse of discretion.

abuse

in the district court's

in the record

these determinations

Accordingly, we

decision to allow

find no

use of the

transcripts.
2. Sufficiency of Evidence
___________________________
Santos argues that
to

support his

there is insufficient

conviction on

controlled substance.

As

Count

evidence

III, importation

noted above,

for the

of a

purpose of

challenges to the sufficiency of the evidence, we review

the

evidence in a light most favorable to the government, drawing

all inferences in
Robles,
______

4 F.3d

favor of
at

1031.

the verdict.
Moreover,

-88

See, e.g.,
___ ____

the evidence

Mena_____
may

be

entirely circumstantial and need not exclude every reasonable

hypothesis of

innocence; that is, the

factfinder may decide

among reasonable interpretations of the evidence.

See United
___ ______

States v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994).

______
________________
When so

viewed, the evidence in

supports Santos' conviction for

Marcial gave Santos' number

this case clearly

importation.

To begin with,

to the CI in Colombia.

Santos,

without more, picked up a phone call late at night, responded

to

code words

about

appeared at the
from

of the

participate

delivery

scene of

Colombia."

knowledge

Thus,

"Mr.

delivery requesting
the

evidence

importation

therein.

from

In

shows

scheme and
sum,

we

Estela,"
"the 4
an

and
kilos

intimate

a willingness

find

this

to

evidence

sufficient to support a conviction for importation.

3. Sentencing
______________
Santos claims that he

should be sentenced based on

one kilogram of cocaine, rather than four, because $3970, the

amount

found in

the car,

current market rates.

kilogram,

could not

buy four

kilograms at

(In fact, $3970 will not even buy one

which the district court found to cost $15,000 and

which may, in fact, cost considerably more).

We begin
quantity

by noting that the

determinations

for

facts supporting drug

sentencing

purposes

must

be

proven by the government by a preponderance of

United States v. Legarda,
_____________
_______

the evidence.

17 F.3d 496, 499 (1st

Cir. 1994).

-99

district

court's factual

findings on

reviewed for clear error only.

district

court's

purchase four
gave

the

Puerto

determination

kilograms.

CI four

Rico would

Id.
___

such an

We find no error in the

that

Santos

Marcial, the seller

kilograms and
purchase

issue are

promised

that amount.

intended

to

in Colombia,

that a

buyer in

Santos

met that

expectation, specifically mentioning four kilograms to the CI

just prior to his arrest, and the CI was ushered into Santos'
car carrying the four kilograms.
the record does not

As to the low sum of money,

rule out the possibility that

the $3970

was merely payment to the CI for his role in the importation,

and

that more

alternate means.
before us

money would
In

be owing

sum, we

find no basis

for concluding that the

determination was clear error.3

to the

seller through
in the

record

district court's quantity

____________________
3. Santos also argues that, because the cash on hand could
not purchase four kilograms of cocaine at current rates, he
should have been charged with the "lesser included offense"
of attempting to import just one kilogram of cocaine.
A
lesser included offense is one which is "composed of some,
but not all elements of a greater offense and which does not
have any element not included in [the] greater offense."
Black's Law Dictionary, 902 (6th ed. 1990). For example, a
______________________
lesser
included offense of
possession with intent to
distribute would be simple possession.
A mere lower amount
of drugs, however, does not amount to a "lesser included
offense."
In this case, the district court, upon being
requested to instruct on a lesser included offense, asked
Santos if he was
requesting an instruction on simple
possession. Santos replied in the negative. Accordingly, we
deem this issue waived. Moreover, we see no error in the
district court's refusal to instruct on a lesser included
offense based solely on a lower amount of drugs.
-1010

B. Torres
__________
1. Sufficiency
_______________
Torres

also

challenges

evidence supporting his convictions.

is set out, supra.
_____

the

sufficiency

of

the

Our standard of review

Like Santos' challenge, we

find Torres'

sufficiency challenge unavailing.

Torres

answered

displayed intimate
which

had been

the

knowledge

discussed

second

of the

in the

$500 in cash.

plan to

earlier

Torres' own participation included

Finally, Torres

phone

call.

He

meet the

CI,

call to

Santos.

an attempt to raise cash.

appeared at the purchase

Based on these facts, a

carrying more than

reasonable jury could

conclude beyond a reasonable doubt that Torres was guilty

both

aiding

and abetting

the

importation

of cocaine

of
and

possession with intent to distribute.

2. Sentencing
______________
Torres

argues

departures based on his

minimal

participation.

that

he

is

entitled

to downward

acceptance of responsibility and his

"Whether a

defendant

has accepted

personal responsibility is a `fact-dominated issue.'"

States
______

v.

Donovan, 996
_______

F.2d

1343,

(quoting

United States v. Royer,

_____________
_____

1990)).

A downward adjustment for

similarly

fact-dominated and

is

-1111

1346 (1st

895 F.2d 28,

Cir.

United
______
1993)

29 (1st Cir.

minimal participation is
reviewed for

clear

error

only.

See United States

___ _____________

v. Rosado-Sierra, 938
_____________

F.2d 1, 1-2

(1st Cir. 1991).

Torres'
not

presentence report

demonstrate

genuine

acceptance

of

responsibility.

buttressed

by

the fact

merits of his case.

Note

1(h)

acceptance

of

of

recognition
This

that Torres

or

went

affirmative

to trial

defendant's conduct
and
___

is

on the

3E1.1, Application

sentencing courts

responsibility.");

he did

characterization

See, e.g., U.S.S.G.

___ ____

(stating that

"the timeliness

concluded that

should consider

in manifesting
Application

the

Note

("This adjustment is not intended to apply to a defendant who

puts

the government

denying

the

convicted,

to

its burden

essential
and

remorse.").4

only

factual
then

of

proof at

elements

admits

In this case, we find

guilt

of
and

trial

by

guilt,

is

expresses

no error in the court's

factual determination that Torres did not sufficiently accept

responsibility

to

warrant

do we

find

downward

departure

in

his

the determination

that

sentence.
Nor
Torres was not

a minimal

conversation, Torres

error in

participant.

revealed an

In

the taped

intimate knowledge

phone
of and

interest

in the

purchase.

purchase

with over $500

Moreover,

in cash.

he arrived

Thus, we

at

the

find no clear

____________________
4. Even now, Torres argues that there is insufficient
evidence to support his convictions, while he also claims
that he has accepted responsibility.
-1212

error in the

sentencing court's

determination that

Torres'

participation was not minimal.

C. Ayala
_________
In essence, Ayala challenges the sufficiency of the
evidence against
more
was

him by arguing

than "mere presence" at

no

more

than an

that

Ayala's challenge

the pick-up point

observer

relevant standard of review

that the evidence

at this

drug

is set out, supra.

_____

to the

sufficiency of

shows no

and that he
crime.

The

We conclude
the evidence

meets the same fate as those of his codefendants.

As we
fairly

have noted

infer . . . that

elsewhere,

"the factfinder

may

it runs counter to human experience

to suppose that criminal

conspirators would welcome innocent

nonparticipants as witnesses to their crimes."

v.

Batista-Polanco,
_______________

Moreover,

F.2d

"the culpability of

upon whether

the

involvement.
argument

927

18

circumstances fairly

fail

in

(1st

Cir.

1991).

a defendant's presence hinges

In other words, a

will

lacking."

14,

United States
_____________

imply

participatory

defendant's `mere presence'

situations

where

the

`mere'

is

United States v. Echeverri, 982 F.2d 675, 678 (1st

_____________
_________

Cir. 1993).

Viewed through

this lens, the

record in

this

case clearly supports Ayala's conviction.

To begin with, Ayala's phone number was first given
to the CI in January.
by phone

on that

Though he was never

trip, Ayala

did show

directly reached

up at

the February

-1313

purchase.

These facts

inference that

Ayala was

involved with this drug scheme from the beginning.

Moreover,

Ayala, like his

allow an

codefendants, lives in the

Carolina area of

Puerto

Rico,

which is

over an

hour

from Ponce,

where he

appeared early on the morning of the purchase.

In
trade

addition, Ayala

item, on

records

his

had a

person when

beeper, a

he

was arrested.

show that a call was placed

Though there is apparently no record

call

that night, Ayala

Phone

from Santos' phone to a

beeper service at 4:30 a.m. on the morning

paged

typical drug

of the drug deal.

evidence that Ayala was

conceded at oral

argument that the

from Santos' phone went to the very beeper service that

Ayala used.
door to
cocaine.
conclude
aiding

Finally, once at the scene, Ayala opened the car

allow the CI to enter the car with four kilograms of

Based

on all

of

this

beyond a reasonable doubt

and abetting

possession

evidence,

a jury

could

that Ayala was guilty of

with intent

to

distribute

cocaine.
We have carefully considered

all other aspects

of

defendants' arguments and find them to be without merit.

III.
III.
____
CONCLUSION
CONCLUSION
__________
For

the

foregoing

reasons,

sentences of all defendants are

Affirmed.
________

-1414

the

convictions and