U.S. v. Hernandez, s. 91-2034

• Citation: 995 F.2d 307
• Decision Date: 07 December 1992
• Docket Number: Nos. 91-2034,s. 91-2034
• Parties: UNITED STATES of America, Appellee, v. Jose HERNANDEZ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Aguilino Jose SANCHEZ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jorge L. SOSTRE, Defendant, Appellant. to 91-2036. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 307

995 F.2d 307

UNITED STATES of America, Appellee, v. Jose HERNANDEZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Aguilino Jose SANCHEZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Jorge L. SOSTRE, Defendant, Appellant.

Nos. 91-2034 to 91-2036.

United States Court of Appeals,First Circuit.

Heard Dec. 7, 1992.

Decided May 12, 1993.

Robert R. Anderson, East Providence, RI, for appellant Hernandez.

Ernest Barone, North Providence, RI, for appellant Sanchez.

Joel D. Landry, Providence, RI, for appellant Sostre.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., James H. Leavey, Asst. U.S. Atty., and Kenneth P. Madden, Asst. U.S. Atty., Providence, RI, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Following trial, defendants Jose Hernandez, Aguilino Jose Sanchez, and Jorge Luis Sostre (hereinafter, collectively: "appellants") were convicted and sentenced on various charges arising out of an undercover cocaine transaction in Providence, Rhode Island. Finding no error, we affirm.

I BACKGROUND

In February 1991, Rodrigo Sostre ("Rodrigo"), through an intermediary, offered to sell a kilogram of cocaine to Frdy Vegas, a paid DEA informant. While consulting with his usual cocaine source, one Luis Guillermo Santiago-Martinez, Rodrigo repeatedly spoke by telephone with Vegas between February 15 and February 19, finally arranging for the drug transaction to take place at Rodrigo's apartment on the afternoon of February 19.

At 2:00 p.m. on February 19, Rodrigo and his brother Jorge Luis Sostre ("Jorge") met Vegas and an undercover DEA agent, Anthony Roberto, on the front porch of Rodrigo's apartment building. Agent Roberto asked Rodrigo if "everything [was] ready," and Rodrigo responded that "the people were on their way." Rodrigo went upstairs to his second floor apartment to phone his "source." When he returned to the porch, Rodrigo stated that the cocaine was of good quality, and that his neighborhood was a much safer place for a drug transaction because there was "less police activity." Jorge agreed with his brother's assessment.

At 2:15 the cocaine had not yet arrived, and Rodrigo returned to his apartment to make another phone call. Jorge, who remained on the front porch with Vegas and Agent Roberto, stated: "I don't blame you guys to leave [sic], you've got a lot of money and that's a lot of merchandise to be waiting around for." Rodrigo returned, informing Vegas and Agent Roberto: "they [are] on their way." After a third unsuccessful phone call by Rodrigo, Vegas told the Sostre brothers that he would wait at a nearby store until notified by beeper that the cocaine had arrived.

In the meantime, DEA agents observed appellants Sanchez and Hernandez as they arrived by car at the residence of Santiago-Martinez, Rodrigo's usual drug supplier. Santiago-Martinez entered the back seat of the car, which then proceeded to Rodrigo's apartment, arriving at approximately 2:54. At approximately the same time, Vegas's beeper was activated, and he returned with Agent Roberto to Rodrigo's apartment house, where the Sostre brothers met them on the front porch. Rodrigo brought them upstairs, while Jorge remained on the porch. Once inside the upstairs apartment, Rodrigo locked the door. Sanchez, Santiago-Martinez, and Hernandez were inside the apartment as well, standing around a table upon which lay a one-kilogram package of cocaine which later tested 94% pure. Agent Roberto inquired in Spanish: "Why do you need three people?" Sanchez responded in Spanish: "That's the way I do business." After inspecting the cocaine, Agent Roberto went out to his car, ostensibly to get the $28,000 purchase money, and signalled for the waiting DEA agents to raid the apartment. Just after the raid commenced, DEA agents saw Jorge walk off the front porch "in a rapid manner," then "start casually slowing down and walking up the sidewalk." Jorge was arrested, as were Rodrigo, Santiago- Martinez,

                Sanchez, and Hernandez.   Hernandez had a loaded semi-automatic in his possession at the time of his arrest.   The five-count indictment followed, and Hernandez, Sanchez, and Jorge Sostre were convicted on all charges. 1
                

II DISCUSSION

A. Hernandez' Appeal.

Hernandez challenges the district court's refusal to instruct the jury that he could not be convicted on Count 3 (using or carrying a firearm during and in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1)) for "mere possession" of a firearm, but that the government was required to prove that the firearm was an "integral part" of the offense, or that his possession of it was made known to others present during the drug transaction. ² These arguments are without merit.

The challenged instruction recited the corresponding principles that a conviction under section 924(c) would not be warranted for "mere possession," and that the jury must find that the firearm "facilitated" the crime. ³ As the district court suggested, the "facilitation" element of section 924(c) would depend on whether Hernandez' intent was reasonably inferable from the totality of the circumstances, which is "a matter for a [trier of fact] applying common sense theories of human nature and causation." United States v. Plummer, 964 F.2d 1251, 1255 (1st Cir.) (quoting United States v. Wilkinson, 926 F.2d 22, 26 (1st Cir.1991)), cert. denied, --- U.S. ----, 113 S.Ct. 350, 121 L.Ed.2d 265 (1992). Given the $28,000 in cash being exchanged for the kilogram of cocaine, as well as Hernandez' proximity to the cocaine during the exchange and the fact that there was a bullet in the chamber of the gun, the challenged instruction provided adequate guidance on "facilitation."

As to Hernandez' second contention, it is simply not a correct statement of the law that the presence of a firearm used to "facilitate" a drug trafficking offense need be made known to other participants in the transaction. See United States v. Abreu, 952 F.2d 1458, 1466 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1695, 118 L.Ed.2d 406 (1992); United States v. Hadfield, 918 F.2d 987, 997 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2062, 114 L.Ed.2d 466 (1991); see also United States v. Jones, 965 F.2d 1507, 1514-15 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 346, 121 L.Ed.2d 261 (1992); United States v. Contreras, 950 F.2d 232, 241 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2276, 119 L.Ed.2d 202 (1992); United States v. Torres-Medina, 935 F.2d 1047, 1049 (9th Cir.1991); United States v Paz, 927 F.2d 176, 179 (4th Cir.1991); United States v. Torres, 901 F.2d 205, 217 (2d Cir.1990); United States v. McKinnell, 888 F.2d 669, 674-75 (10th Cir.1989); United States v. Acosta-Cazares, 878 F.2d 945, 951 (6th Cir.), cert. denied, 493 U.S. 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989). The challenged instruction provided the jury with an accurate statement of the law.

B. Sanchez' Appeal.

Sanchez advances four claims on appeal, which we consider in turn.

1. Sufficiency of Evidence of Conspiracy and Possession.

Sanchez contends that the government did not introduce enough evidence to support his conviction under Count 1 (conspiracy to distribute and to possess with intent to distribute, 21 U.S.C. § 846) and Count 2 (possession of cocaine with intent to distribute, id. §§ 841(a)(1), (b)(1)(B); 18 U.S.C. § 2), but that the evidence instead proved "mere presence" at the site of the crime, and that he was therefore entitled to judgments of acquittal. On review of a district court ruling under Fed.R.Crim.P. 29, we evaluate the evidence, draw all reasonable inferences, and resolve all credibility determinations in the light most favorable to the government. United States v. Yefsky, 994 F.2d 885, 890 (1st Cir.1993); United States v. Wight, 968 F.2d 1393, 1395 (1st Cir.1992).

Our review satisfies us that the jury supportably could have found, beyond a reasonable doubt, that Sanchez was the individual who transported the cocaine to Rodrigo's apartment on February 19, 1991. Vegas and Agent Roberto had asked to be summoned by beeper as soon as the cocaine arrived. They were summoned at approximately the same time Sanchez arrived at the apartment, giving rise to a reasonable inference that Sanchez was the "source," or that a person "in charge" of the transaction had finally arrived. ⁴ Moreover, inside the apartment, it was Sanchez who advised Agent Roberto: "That's the way I do business." In the circumstances revealed by the evidence, this admission would support a jury determination that Sanchez not only participated in the transaction but was in charge of supplying the cocaine to Rodrigo for sale to Roberto. ⁵

In an effort to negate the latter evidence, Sanchez contends that, without his alleged incriminatory statement to Agent Roberto, the government would not have had sufficient evidence to convict. Citing two allegedly erroneous evidentiary rulings, Sanchez argues that the district court improperly restricted his defense, by which he sought to establish that Agent Roberto was less than fluent in Spanish and may have mistranslated Sanchez' Spanish statement into English during direct examination at trial. ⁶

The trial court has broad discretion over the scope and extent of cross-examination. United States v. Figueroa, 976 F.2d 1446, 1457 (1st Cir.1992); United States v. Berrio-Londono, 946 F.2d 158, 160 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1223, 117 L.Ed.2d 459 (1992). Sanchez contends that the district court cut short his cross-examination of Agent Roberto concerning his proficiency with the Spanish language. We do not agree. Out of the hearing of the jury, the district court merely questioned the relevancy of defense counsel's line of questioning, which had become mired in minute detail concerning the identity of Agent Roberto's neighbors while he was...