U.S. v. Alicea-Cardoza, ALICEA-CARDOZ

• Citation: 132 F.3d 1
• Decision Date: 05 November 1997
• Docket Number: ALICEA-CARDOZ,D,No. 97-1139,97-1139
• Parties: 48 Fed. R. Evid. Serv. 519 UNITED STATES of America, Appellee, v. Luis A.efendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1

132 F.3d 1

48 Fed. R. Evid. Serv. 519

UNITED STATES of America, Appellee, v. Luis A. ALICEA-CARDOZA, Defendant, Appellant.

No. 97-1139.

United States Court of Appeals, First Circuit.

Heard Nov. 5, 1997.

Decided Dec. 19, 1997.

Rafael Anglada-Lopez, Hato Rey, PR, for appellant.

Miguel A. Pereira-Castillo, U.S. Department of Justice, with whom Guillermo Gil, United States Attorney, Washington, DC, and Jose A. Quiles-Espinosa, Senior Litigation Counsel, San Juan, PR, were on brief, for appellee.

Before TORRUELLA,Chief Judge , CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

A cocaine distribution conspiracy out of the Virgilio Davila Public Housing Project in Bayamn, Puerto Rico led to the indictment of thirty-six defendants. Twenty-five pled guilty either before trial or shortly after trial started. Eight defendants were tried to verdict, five were acquitted.

Luis Alicea-Cardoza, nicknamed "Burbuja", was one of the three convicted and now appeals. His main contention is that the jury, confronted with a maze of defendants and drug and violence evidence, convicted him when there was precious little evidence, too little, he says, to support a conviction. The little evidence there was, he says, was based on beeper transmissions and this court, which has not previously addressed the question, should find those beeper records erroneously admitted. Although Alicea-Cardoza has ably argued these and ancillary points, we affirm his conviction under 21 U.S.C. § 841 and the drug conspiracy statute, 21 U.S.C. § 846, and his sentence of 27 years imprisonment.

I

Because the defendant attacks the sufficiency of the evidence, we review the evidence in the light most favorable to the verdict, with a view to whether a rational juror could have found guilt beyond a reasonable doubt. See United States v. Cruz, 981 F.2d 613, 615 (1st Cir.1992).

Interception of telephone messages in April 1994 confirmed that Jorge Solano-Moreta was in charge of an organization selling drugs, principally cocaine, at numerous drug points in Bayamn, including a drug point at the Virgilio Davila Housing Project. Alicea-Cardoza had acted as a "runner" (meaning that he managed the business operation by receiving, accounting for, and safeguarding the proceeds of drug sales) for a Virgilio Davila drug point since 1992. Approximately four kilograms of cocaine were sold monthly at that drug point. Alicea-Cardoza was also a runner for another drug point in the Virgilio Davila Housing Project. There, approximately one half of a kilogram of cocaine base was sold monthly.

The evidence implicating Alicea-Cardoza in the conspiracy consisted principally of the testimony of Amiud Alicea-Matas and charts of intercepted beeper messages sent to Solano-Moreta by Alicea-Cardoza. Alicea-Matas testified that he was part of a drug selling organization at the Virgilio Davila Housing Project known as the Virgilio Davila group, which sold cocaine, crack, and heroin. Alicea-Matas said he ran several drug points and was a trigger man for the group. He testified that the members of the group included Luis Rosario-Rodrguez, Richard Rosario-Rodrguez and Edwin Rosario-Rodrguez (three brothers who ran the group), Felipe Garca-Roque, as well as defendant "Luis Alicea, [and] some people who are confined in state institutions." When asked, " ... do you know if Ruiz [sic] Alicea has a nickname or nicknames," Alicea-Matas responded, "Burbuja". When asked whether "Luis Alicea-Cardoza, also known as Burbuja" was seated in the courtroom, Alicea-Matas identified Alicea-Cardoza. And when asked "How many Burbujas worked for this organization or group," Alicea-Matas responded, "Just one Burbuja." "Burbujas" means "Bubbles" and members of the jury, applying their common experience of Puerto Rican society, could reasonably have regarded it as an unusual male nickname. No evidence was presented to suggest that another "Burbuja" may have been involved in this organization.

Alicea-Matas testified that the Virgilio Davila group and Solano-Moreta "established a solid relationship" during 1992 and 1993 to help each other fight "wars" against competing groups for control of the local drug trade. Solano-Moreta and the Virgilio Davila group would meet to discuss drug points and plan attacks against enemies of both groups, pooling their resources "in order to be strong." They also did business with each other: Solano-Moreta sold kilos of drugs to the Virgilio Davila group, which in turn sold the drugs throughout the Virgilio Davila Housing Project. In addition, the Virgilio Davila group collected money for Solano-Moreta at drug points owned by him and took the money to him. They even committed murders with Solano-Moreta to enforce their control over the drug trade. The two groups developed a "frequent and close friendship" and "[met] on many occasions." When asked who attended these meetings, Alicea-Matas responded:

Richard Rosario-Rodrguez, Edwin Rosario-Rodrguez, I, Willy Nariz, [Jorge] Solano Moreta, Perla. When [Jorge] would come down to the Virgilio Davila Housing Project, Luis Rosario-Rodrguez was there. Luis Rosario-Rodrguez [sic], alias Burbuja, and several other people who are jailed at the state institution. ¹

(emphasis added).

In addition to this testimony, Alicea-Cardoza was implicated by charts the government prepared of beeper messages. These charts recorded the content of approximately four thousand messages received between April 26, 1995 and June 5, 1995 by Solano-Moreta on his beepers. The messages were intercepted by federal agents pursuant to court authorization. Special Agent Gilberto Vazquez, who directed the investigation, testified that the charts transcribing the messages sent to Solano-Moreta were produced by a pen register, which intercepted the messages sent to Solano-Moreta's beeper and printed them out. Vazquez also testified that he tested the pen register system for accuracy by checking its results against the messages received by a clone beeper, an exact replica of Solano's beeper. He testified that the pen register and clone beeper received exactly the same messages received by Solano-Moreta.

Several hundred of the messages to Solano-Moreta recorded in the beeper charts were from "Burbuja". Typical were messages asking Solano-Moreta to call "Burbuja" at a certain phone number or messages leaving a phone number accompanied by "Burbuja, Urgente." Some messages referred to obtaining "work". Vazquez testified that, in his considerable experience investigating drug gangs, these and other messages received by Solano-Moreta involved the drug trade.

Of the five members of the Virgilio Davila group who originally went to trial, only Alicea-Cardoza was convicted.

II

Alicea-Cardoza claims the district court admitted the beeper charts without proper authentication under Fed.R.Evid. 901, that the evidence was insufficient to support his conviction, and that he was subject to a constructive amendment to the indictment.

A. Beeper Charts

Under Fed.R.Evid. 901(a), "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). To establish authenticity, the proponent need not rule out "all possibilities inconsistent with authenticity, or ... prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood." United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994). Generally, if the district court is satisfied that the evidence is sufficient to allow a reasonable person to believe the evidence is what it purports to be, Rule 901(a) is satisfied and the jury may decide what weight it will give the evidence. See id. at 167. Because authentication rulings are necessarily fact specific, we review such rulings only for mistake of law or abuse of discretion. See id.

The district court did not abuse its discretion in admitting the beeper charts as a record of the messages sent to Solano-Moreta's beeper. Vazquez adequately explained the means by which the pen register intercepted and recorded the beeper messages, and how the clone beeper confirmed the accuracy of that system. Asked by the prosecution how the beeper charts had been produced, Vazquez responded, "It is a machine known as a pen register. As the message comes in the pen register just annotates or writes exactly what comes out on the beeper." Vazquez explained clone beepers. "A clone is an exact replica of a beeper. If I was going to have a clone to my beeper and you had it, you would receive exactly the same message that I get." Vazquez testified that he carried a clone of Solano-Moreta's beeper for about a week during the intercept period. Asked whether Vazquez found any difference between the written messages produced by the pen register and those received by the clone beeper, Vazquez responded, "No difference." This testimony was not contradicted or challenged by the defense.

Alicea-Cardoza's argument is that the charts of these phone calls were not properly authenticated because there was no evidence that Alicea-Cardoza was in fact the person who left the messages. Defendant relies on the general rule that self-identification by a speaker alone is not sufficient authentication. See United States v. Puerta Restrepo, 814 F.2d 1236, 1239 (7th Cir.1987); United States v. Pool, 660 F.2d 547, 560 (5th Cir. Unit B Nov. 1981). We agree that, under Puerta Restrepo and Pool, the beeper charts could not be authenticated under Rule 901 were they being offered for the sole purpose of identifying Alicea-Cardoza as the "Burbuja" who sent the messages.

Here, however, the government's evidence only showed the beeper messages that Solano-Moreta himself had received, not who specifically had sent them. This is not a case of...