U.S. v. Barnes

• Decision Date: 11 January 2001
• Docket Number: No. 00-1203,00-1203
• Citation: 244 F.3d 172
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. REYNALDO BARNES, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 172

244 F.3d 172 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. REYNALDO BARNES, Defendant, Appellant.

No. 00-1203

United States Court of Appeals For the First Circuit

Heard January 11, 2001

Decided March 29, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

[Copyrighted Material Omitted]

Paul F. Markham for appellant.

Jennifer Hay Zacks, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and Heidi E. Brieger, Assistant United States Attorney, were on brief, for appellee.

Before Selya, Circuit Judge, Coffin and Campbell, Senior Circuit Judges.

SELYA, Circuit Judge.

A jury convicted defendant-appellant Reynaldo Barnes on one count of conspiracy to import cocaine, 21 U.S.C. § 963, and two counts of unlawful use of a communication facility in connection with drug-trafficking activities, id. § 843(b). The district court sentenced him to serve 115 months in prison.¹ The appellant challenges his conviction, arguing that the government presented insufficient evidence of his guilt. He also challenges his sentence, principally by invoking the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). We affirm the conviction. We direct a slight modification in the sentence and, as modified, affirm it as well.

I

We present the facts in the light most hospitable to the government's theory of the case, consistent with record support. United States v. Alicea, 205 F.3d 480, 482 (1st Cir.), cert. denied, 121 S. Ct. 256 (2000).

In this instance, the jury supportably could have found that the appellant, in an effort to expand his ongoing trade in illegal narcotics, told one of his quondam customers that his sister, Marla Barnes, could provide the sizable quantities of cocaine that the customer professed to require. The customer, in reality an undercover agent employed by the federal Drug Enforcement Administration (DEA), accepted the invitation. He thereafter met with the Barnes siblings, and Marla Barnes made preliminary arrangements (or so she said) for a large purchase of cocaine through her connections in Panama.

As an initial step in the process, Marla Barnes sold a one kilogram sample of cocaine to the undercover agent. The agent paid the appellant what amounted to a finder's fee ($500). For a variety of reasons, the larger deal never materialized. The Barnes siblings nonetheless were arrested, indicted, tried, and found guilty.²

The appellant's insufficiency challenge posits that he did no more than introduce the undercover agent to his sister. What happened thereafter, he asseverates, was not his doing. We turn to this asseveration.

When a defendant contests the sufficiency of the evidence presented at trial, we must take that evidence in the light most favorable to the government "and decide whether that evidence, including all plausible inferences extractable therefrom, enables a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime." United States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997). In forming its conclusion, a reviewing court "need not believe that no verdict other than a guilty verdict could sensibly be reached, but must only satisfy itself that the guilty verdict finds support in 'a plausible rendition of the record.'" United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993) (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)).

We start with the principal charge: conspiracy to import cocaine. To convict a defendant of conspiracy, the prosecution must "show beyond a reasonable doubt that a conspiracy existed and that a particular defendant agreed to participate in it, intending to commit the underlying substantive offense . . . ." United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). Proof of the requisite agreement requires no particular formalities: "the agreement may be express or tacit and may be proved by direct or circumstantial evidence." Id. Moreover, "[d]ue to the clandestine nature of criminal conspiracies, the law recognizes that . . . a common purpose and plan may be inferred from a development and collocation of circumstances." United States v. Escobar-de Jesus, 187 F.3d 148, 175 (1st Cir. 1999) (quoting United States v. Tejeda, 974 F.2d 210, 212 (1st Cir. 1992)) (omission in original), cert. denied, 52 U.S. 1176 (2000).

In this case, perscrutation of the record persuades us, without serious question, that the government provided ample evidence that the appellant intended to enter into an agreement to import cocaine and knowingly assumed conspiratorial responsibility. The jury, taking the proof favorably to the government, rationally could have found that while the appellant was actively engaged in selling narcotics to the undercover DEA agent, he suggested that he could help his buyer to obtain larger quantities of cocaine through a family contact; and that, when the agent asked him to arrange a meeting to advance this prospect, the appellant not only complied but also attended the tete-a-tete and took an active part in the discussion of how drugs could be smuggled into the United States from Panama. The jury also rationally could have found that, as a direct result of this confabulation, the appellant's sister laid the groundwork for a substantial drug purchase in Panama, with a view toward importing the contraband into the United States. Perhaps most damning, the prosecution offered credible evidence that, after the bargain had been struck, the protagonists executed a one kilogram "sample" sale, following which the appellant accepted a $500 cash payment for bringing the protagonists together.

To be sure, the appellant attempts to minimize his role by claiming that he merely arranged a meeting as an accommodation -- nothing more -- and that the payment was a mere gratuity. Here, however, reasonable jurors surely could have rejected the appellant's spin on what had transpired and concluded -- as these jurors apparently did -- that the appellant was part and parcel of the conspiracy. In examining evidence and drawing inferences from it, "criminal juries are not expected to ignore what is perfectly obvious." Echeverri, 982 F.2d at 679.

Nor is it any defense that the appellant was not a prime mover in the conspiracy. After all, a conspiracy is a continuum. Once a participant knowingly helps to initiate the agreement and set it in motion, he assumes conspirator's responsibility for the foreseeable actions of his confederates within the scope of the conspiratorial agreement,³ whether or not he is aware of precisely what steps they plan to take to accomplish the agreed goals. E.g., United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989). On this basis, the government presented more than enough evidence to ground the appellant's conviction on the conspiracy count.

The remaining two counts of the indictment charge unlawful use of a communications facility in connection with drug-trafficking activities. Apart from his assault on the sufficiency of the evidence vis-a-vis his conspiracy conviction, the appellant makes no independent attempt to argue against the sufficiency of the evidence presented on these charges. Any such argument is, therefore, foreclosed. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that arguments not developed on appeal are deemed abandoned). We add, moreover, that the record does not lend the slightest support to such a challenge; the proof seems unassailable that critical aspects of the conspiracy were facilitated by telephonic means.

For these reasons, we uphold the finding of guilt as to each and all of the counts of conviction.

II

The appellant's misgivings about his sentence have more bite. The lower court imposed an incarcerative term variously characterized as 115 or 168 months, see supra note 1, together with a five-year term of supervised release. Adopting arguments made by Marla Barnes, the appellant attacks this sentence on three grounds.

A.

The appellant contends that the district court clearly erred in its drug-quantity finding.⁴ We do not linger over this contention. Generally, when a narcotics transaction is unconsummated, the sentencing court may base its drug-quantity finding on the negotiated amount of contraband.⁵ See USSG §2D1.1, cmt. (n.12). The court may, however, use a lower figure if the defendant proves that he "did not intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance." Id. The defendant has the burden of persuading the court that he lacked intent or capacity.⁶ See id. We apply these principles here.

For sentencing purposes, the district court attributed twenty to fifty kilograms of cocaine to the appellant. The appellant asserts that this figure lacked any evidentiary foundation. But the jury supportably found the appellant to be complicit in the charged conspiracy, and the uncontradicted evidence was that the conspirators aspired to import 110 kilograms of cocaine into the United States. The appellant failed to offer any evidence that the conspirators did not intend, or were unable to procure and arrange for, the importation of this amount of contraband. Thus, the only credible argument against holding the appellant responsible for twenty to fifty kilograms of cocaine is that the quantity should have been considerably higher. Any error was, therefore, harmless. See United States v. Hernandez, 218 F.3d 58, 71 (1st Cir. 2000) (finding determination of drug quantity harmless, even if erroneous, since it did not affect the defendant's sentence); United States v. Ortiz, 23 F.3d 21, 28 (1st Cir. 1994) (similar).

B.

In Apprendi, 120 S. Ct. at 2362-63, the Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the...