U.S. v. Mena-Robles

• Citation: 4 F.3d 1026
• Decision Date: 05 April 1993
• Docket Number: D,92-1299,MENA-ROBLE,TORRES-RIVER,Nos. 92-1233,s. 92-1233
• Parties: UNITED STATES, Appellee, v. Alfonsoefendant, Appellant. UNITED STATES, Appellee, v. Miguelefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1026

4 F.3d 1026

UNITED STATES, Appellee, v. Alfonso MENA-ROBLES, Defendant, Appellant.

UNITED STATES, Appellee, v. Miguel TORRES-RIVERA, Defendant, Appellant.

Nos. 92-1233, 92-1299.

United States Court of Appeals First Circuit.

Heard April 5, 1993.

Decided Sept. 28, 1993.

Olga M. Shepard, for appellant Mena-Robles.

Julio C. Codias, for appellant Torres-Rivera.

Jose A. Quiles-Espinosa, Sr. Litigation Counsel, with whom Daniel F. Lopez-Romo, U.S. Atty. and Edwin O. Vazquez, Asst. U.S. Atty., were on brief, for appellant.

Before TORRUELLA and STAHL, Circuit Judges and BURNS, ^* District Judge.

STAHL, Circuit Judge.

After a jury convicted appellants Miguel Torres Rivera ("Torres Rivera") and Alfonso Mena Robles ("Mena Robles") of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846, they were sentenced to terms of imprisonment of 200 months and 170 months, respectively. On appeal, both defendants claim that the district court erroneously denied their motions for acquittal made under Fed.R.Crim.P. 29, and that their sentences contravened the Sentencing Guidelines. Finding no reversible error, we affirm the convictions and sentences.

I. Factual Background

We recount the relevant evidence in the light most favorable to the prosecution. United States v. Alvarez, 987 F.2d 77, 79 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 147, --- L.Ed.2d ---- (1993). The arrest and indictment of appellants and their 11 original co-defendants was the culmination of a reverse sting operation conducted by the Puerto Rico Department of Justice ("PRDOJ") and the United States Drug Enforcement Administration ("DEA"). The law enforcement agents posed as large-scale cocaine dealers. Their goal was to apprehend genuine drug traffickers by arranging a "sale" of a sizable quantity of cocaine. Toward that end, PRDOJ Agent Eric Munoz ("Munoz"), posing as a cocaine supplier, held several meetings with potential purchasers interested in setting up a deal. On March 22, 1990, Munoz met with Carlos Kortwright Perez ("Carlos Kortwright"), his wife, Damaris Camacho Valcarcel ("Damaris Camacho"), his mother, Frances Perez Corujo ("Frances Perez"), and Samuel Solis Sierra, and began negotiations for Kortwright's purchase of 50 kilograms of cocaine at a price of $16,000 per kilogram. Further negotiations took place on April 1, 1990, at which time an agreement was reached to consummate the deal in mid-May. After several phone conversations, Munoz met on April 25, 1990, with Carlos Kortwright, Damaris Camacho, and her brother, Miguel Camacho Valcarcel ("Miguel Camacho"). Munoz told Miguel Camacho that the deal could take place in approximately two weeks.

After further telephone conversations between Munoz and the potential buyers, Munoz met again with Carlos Kortwright and Damaris Camacho on May 6, 1990. They discussed more details of the deal, with Munoz reporting that the ship carrying the cocaine to Puerto Rico was already at sea. On May 10, 1990, Damaris Camacho called Munoz and informed him that the money needed for the drug sale had been gathered. For closing the deal, two rooms at the Cerromar Hotel in Dorado Beach, Puerto Rico, had been rented. The plan was for the sale to take place in one room, while police would undertake surveillance from the other. After preparing the rooms, Munoz phoned Carlos Kortwright and told him he was ready. Two hours later, Carlos Kortwright and Frances Perez arrived at the hotel. After hours of phone calls between and among Munoz, Carlos Kortwright, his brother, Jose, and Samuel Solis Sierra, it became apparent that the money was not, in fact, ready.

Finally, the deal was called off, with Munoz telling Carlos Kortwright that the cocaine had been sold to other, more ready, purchasers. He did, however, report that a new supply of cocaine might soon be available. After several telephone contacts, an agreement was arranged to sell Carlos Kortwright 75 kilograms of cocaine at $14,500 each. The transaction was set for May 24, 1990. Again, two hotel rooms were rented, this time at the Condado Plaza Hotel in Condado, Puerto Rico. After Munoz and his undercover partner, Lt. Ayala, phoned Carlos Kortwright and Frances Perez, they all met at the hotel, along with Miguel Camacho, Samuel Solis Sierra and Rolando Solis Sierra. Miguel Camacho accompanied Munoz to one of the hotel rooms to sample some of the cocaine. All the buyers except Frances Perez then left the hotel, presumably to return later to consummate the deal. Again, however, the sale fell through, as Carlos Kortwright reported to Munoz that he was having problems with his "money man." Carlos Kortwright then told Munoz that he was "going to take over everything [and] be in charge," and that Munoz should call him the next day, Friday, May 25, 1990. Meanwhile, the law enforcement officials had decided to let the weekend elapse before resuming negotiations. On May 25, 1990, Munoz told Frances Perez that the deal was on hold.

On May 28, 1990, Munoz again contacted Carlos Kortwright and Frances Perez to resume negotiations. Later that day, the three, along with Lt. Ayala and DEA Special Agent Miranda met at a Pizza Hut in Condado. They agreed to carry out the cocaine sale on May 31, 1990, at a police-owned beach house at Vega Baja, Puerto Rico. Prior to the meeting at the beach house, the plans called for a meeting at La Terraza restaurant in Dorado, Puerto Rico, where Munoz would On May 31, 1990, at approximately 2:00 p.m., Carlos Kortwright phoned Munoz, and the two agreed to meet at La Terraza at 3:30 that afternoon. Shortly after Munoz and Ayala seated themselves in the empty restaurant, several cars arrived simultaneously, including a brown Buick owned by appellant Mena Robles. In total, Munoz testified to seeing about a dozen people arrive. Of those people, Carlos Kortwright, Alberto Morales Colberg and Jose Francisco Casiano joined Munoz and Ayala at one table. Appellants sat across from each other at the next table, two to three feet from the others, facing in the direction of Munoz's table. The other dozen or so tables in the restaurant were unoccupied.

be able to see the buyers' money. It was agreed that Munoz would then phone the beach house, and they would all drive there, caravan style. In reality, Munoz's picking up the telephone was to be the signal for other officers to move in and make arrests.

After everyone gathered in the restaurant, Munoz asked Carlos Kortwright about the two men (the appellants) seated at the adjacent table. Munoz testified that Kortwright told him that "these people are here to protect the money and the money is outside." Munoz then offered to buy drinks for the entire group, including appellants, but Colberg precluded any acceptance of the offer by insisting on proceeding with the deal. Soon after, a waiter brought Munoz and Ayala drinks they had ordered before the others' arrival. At that point, Ayala repeated Munoz's drink offer. This time, Casiano, seated between Munoz and Ayala, interceded, giving his approval to Ayala's offer. Appellant Mena Robles ordered a beer. At about the same time, co-defendant Rafael Montanez Ortiz, who had remained outside, entered the restaurant and shouted something in the direction of the group. Carlos Kortwright left the table and spoke briefly with Montanez Ortiz. When he returned, Colberg again tried to get the deal going. He asked Munoz whether the 75 kilos of cocaine were available. When Munoz replied affirmatively and asked Colberg whether he was ready to buy, Colberg and Carlos Kortwright went to the parking lot, retrieved a notebook and calculator from one of the vehicles, and sat together at an empty table in the restaurant, away from the others. After a short time, they returned to their original seats, whereupon Colberg told Munoz that he was ready to buy 15 kilos immediately, and the other 60 kilos later that evening. Munoz balked, first telling Colberg that he had no place to keep the unsold 60 kilos that Carlos Kortwright had originally agreed to buy, and then reminding Colberg that he, Munoz, had yet to see any of the buyers' money.

Colberg and Carlos Kortwright then escorted Munoz to a blue Volvo in the parking lot. Three men were near the car, one of whom, Hector Santana Olmo, was leaning against the trunk as Munoz arrived. Munoz was unable to identify the other two men with Santana Olmo. Upon opening the trunk, Santana Olmo showed Munoz two bags of money. The first contained packs of five, ten, and twenty dollar bills, which, Munoz told Santana Olmo, would be insufficient to complete the deal. The second bag, however, a large plastic trash bag, contained packs of fifty and one hundred dollar bills. Santana Olmo told Munoz that there was a total of $500,000 in the two bags. Satisfied by the buyers' showing, Munoz told them that he would alert his confederates. On his way to the telephone, Munoz stopped to talk to Ayala, who was then alone in the restaurant. ¹ He apprised Ayala of what had transpired outside.

Munoz proceeded to the telephone. When he picked up the receiver, however, the expected law enforcement help did not materialize. He phoned headquarters and was informed that many of the officers were caught in traffic. Munoz stalled on the phone, because he had told the buyers that the drugs would arrive five minutes after he placed the call. While speaking with headquarters, Munoz told an officer there to inform the arriving officers that the money was in a blue Volvo. While still on the phone, Munoz was On June 27, 1990, 13 people were named in a six-count indictment. Count I charged all 13 with participating in a conspiracy to possess with intent to distribute cocaine. Appellants were charged only in Count I. Except for appellants, all defendants pled guilty prior to trial. Several pled to one count of the indictment, while others pled to new informations in exchange for having the indictment...