205 F.3d 436 (1st Cir. 2000), 98-1749, United States v. Falu-Gonzalez

Docket Nº:98-1749
Citation:205 F.3d 436
Party Name:UNITED STATES, Appellee, v. CONFESOR FALU-GONZALEZ, A/K/A PEPO, Defendant, Appellant.
Case Date:February 17, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 436

205 F.3d 436 (1st Cir. 2000)

UNITED STATES, Appellee,

v.

CONFESOR FALU-GONZALEZ, A/K/A PEPO, Defendant, Appellant.

No. 98-1749

United States Court of Appeals, First Circuit

February 17, 2000

Heard November 5, 1999

Page 437

Rafael F. Castro-Lang for appellant.

Miguel A. Pereira, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Chief Criminal Division, Nelson Perez-Sosa and Michelle Morales, Assistant United States Attorneys were on brief, for appellee.

Before Torruella, Chief Judge, Campbell and Wallace,[*] Senior Circuit Judges.

WALLACE, Senior Circuit Judge.

Confesor Falu-Gonzalez was tried and convicted of conspiracy to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841, 846. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. He timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Page 438

I.

In 1995, the government indicted thirty-seven persons for involvement in a drug conspiracy allegedly led by Wes Solano-Moreta. All but eight pled guilty shortly before or shortly after trial began. The jury acquitted five defendants and convicted three. We have affirmed the convictions of two, United States v. Alicea-Cardoza, 132 F.3d 1 (1st Cir. 1997), and United States v. Hernandez-Garc¡a, No. 98-1750 (unpublished) (1st Cir. 2000). This case considers the final convicted defendant's appeal.

In Alicea-Cardoza, we described the Solano-Moreta organization as "a major drug distribution network buying and selling hundreds of kilograms of cocaine and cocaine base through various drug points." 132 F.3d at 6. At his trial, witnesses testified that Falu-Gonzalez supplied "kilos" of cocaine to the organization; that they saw him sell cocaine to Solano-Moreta; and that he spoke on the telephone with Solano-Moreta about the organization's activities.

II.

Falu-Gonzalez first argues that the district court erred in admitting, pursuant to Federal Rule of Evidence 801(d)(2)(E), the statement of a coconspirator that Solano-Moreta "purchased kilos" from Falu-Gonzalez because the government failed to lay a proper foundation for the evidence. Rule 801(d)(2)(E) establishes that statements offered against a party are not hearsay if they are made "by a coconspirator of a party during the course and in furtherance of the conspiracy." The rule requires the district court to "find[] it 'more likely than not that the declarant and the defendant were members of a conspiracy . . . and that the statement was in furtherance of the conspiracy.'" United States v. Portela, 167 F.3d 687, 702 (1st Cir. 1999), quoting United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). This finding, known in this circuit as a Petrozziello determination, is typically made "'at the close of all the evidence' and 'out of the hearing of the jury.'" Portela, 167 F.3d at 702-03, quoting United States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir. 1980). "Hearsay evidence may be admitted provisionally, subject to the trial court's final Petrozziello determination . . . ." Portela, 167 F.3d at 702.

Amuid Alicea-Mat¡as, one of several coconspirators who appeared on behalf of the government, testified that Solano-Moreta, the leader of the alleged drug organization, "purchased kilos" of cocaine from Falu-Gonzalez. On cross-examination, Alicea-Mat¡as admitted that he did not personally see Falu-Gonzalez sell kilos to Solano-Moreta, but that Solano-Moreta told him so. At that point, Falu-Gonzalez objected on the basis of lack of personal knowledge and moved to strike Alicea-Mat¡as' testimony. The government argued that Rule 801(d)(2)(E) applied and that the testimony should be allowed. Falu-Gonzalez did not object on foundational grounds. The district court allowed the evidence pursuant to Rule 801(d)(2)(E), subject to the Petrozziello determination it would make at the end of the trial.

After all evidence was presented, the district court held a Petrozziello hearing and allowed all counsel to discuss whether, based on the entire evidence, the numerous coconspirator statements provisionally admitted during trial should stand or be stricken from the record. Falu-Gonzalez's counsel successfully objected to another coconspirator statement that was provisionally admitted against Falu-Gonzalez, but did not object to the above statement of Alicea-Mat¡as. The district court issued a broad ruling that all coconspirator statements provisionally admitted pursuant to Rule 801(d)(2)(E), with one exception not applicable here, met the Petrozziello test:

Specifically, with respect to each such statement, the Court finds by a preponderance of the available evidence that (1), a conspiracy existed as alleged by the government.

(2), that the declarant and the defendants against whom the statement has

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been admitted . . . were members of the conspiracy at the time that the statement was made.

(3), that the statement was made during the course of and in furtherance of that conspiracy.

Typically, we uphold a district court's ruling on the applicability of Rule 801(d)(2)(E) "unless it is clearly erroneous." Portela, 167 F.3d at 703, citing Earle v. Benoit, 850 F.2d 836, 842 (1st Cir. 1988). Both parties submit that this is the appropriate standard of review.

Falu-Gonzalez has not shown clear error in the admission of Alicea-Mat¡as' testimony. Falu-Gonzalez merely asserts that there "is absolutely nothing in the record to establish that the statements were made in furtherance of the conspiracy." Obviously, the district court found otherwise, and Falu-Gonzalez's conclusory statements are insufficient to show error or clear error.

III.

Falu-Gonzalez next challenges the district court's sentencing finding that he was responsible for trafficking fifteen to fifty kilos of cocaine and two kilos of heroin, arguing it is unclear "how he arrived at that amount."

At sentencing, Falu-Gonzalez objected to the amount of drugs for which the presentence report recommended he be found responsible: 1.5 kilograms of crack cocaine. The district court focused upon this factual issue at some depth, questioning the government about the types (including cocaine, crack cocaine, and heroin) and amounts of drugs (over 200 kilograms of cocaine, over 500 grams of heroin) trafficked in the conspiracy and what amounts of these drugs should be attributed to Falu-Gonzalez based on his role in the conspiracy. The government's theory was that, in light of Falu-Gonzalez's role as a supplier of cocaine and heroin to the Solano-Moreta organization, the large amounts of drugs that organization trafficked, and the testimony that Falu-Gonzalez sold "kilos" of cocaine to Solano-Moreta, that the cocaine was probably made into crack cocaine, it was reasonable to conclude that Falu-Gonzalez distributed at least 1.5 kilograms of crack cocaine, corresponding to a base offense level of 38.

The district court did not adopt the government's theory. Rather, after taking the matter under advisement for a short time, the district court found that

the evidence at trial shows that the defendant was a drug supplier of cocaine and heroin to the...

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