USCA1 Opinion

April 25, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 93-1039
UNITED STATES,
Appellee,
v.
WILLIAM RODRIGUEZ,
Defendant - Appellant.
____________________
No. 93-1040
UNITED STATES,
Appellee,
v.
ELVIS MATOS,
Defendant - Appellant.
____________________
No. 93-1225
UNITED STATES,
Appellee,
v.

JOSEPH TORRES,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________

____________________
Before
Torruella, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
_____________________

John C. Doherty, by Appointment of the Court, for appellant

_______________
William Rodr guez.
Eileen M. Donoghue, by Appointment of the Court, for
____________________
appellant Elvis Matos.
George L. Garfinkle, with whom Jeffrey A. Denner, James P.
___________________
__________________ ________
Brady and Perkins, Smith & Cohen, were on brief for appellant
_____
________________________
Joseph Torres.

Geoffrey E. Hobart, Assistant United States Attorney, with

__________________
whom Donald K. Stern, United States Attorney, and George W. Vien,
_______________
______________
Assistant United States Attorney, were on brief for appellee.

____________________
____________________

Per

Curiam.

Appellants

Joseph

Torres,

William

Per
Curiam.
____________
Rodr guez,

and Elvis

conspiring

to possess cocaine with intent

possession

with

Matos

intent

each appeal

to

their convictions

to distribute and for

distribute.

challenge to his conviction is that the

for

Torres'

principal

district court committed

reversible error when it denied his renewed motion for severance.

Torres also argues that he is entitled to a new trial because the

district

court

statements

against him.

evidence was
also

improperly

that the

district
the

also challenge
court erred in

following reasons,

co-conspirator

support their convictions.

district

motion to suppress evidence

appellants

certain

Rodr guez and Matos both claim that the

insufficient to

asserts

admitted

court

Matos

erroneously denied

seized incident to his arrest.

their sentences, contending

its drug quantity

we

affirm

his

All

that the

determinations.

For

appellants' convictions

and

sentences.
BACKGROUND
BACKGROUND
We
favorable

view and

present the

to the government.

evidence in

United States v.
_____________

the light

most

Abreu, 952 F.2d

_____

1458, 1460 (1st Cir.), cert. denied, __ U.S. __, 112 S. Ct. 1695,
____ ______
118
on

L.Ed.2d 406 (1992).

the undercover

Agent Mart nez.

work of

During the

Mart nez purchased

October

The investigation of this case centered

Drug Enforcement

Agency

Task Force

course of this investigation,

four ounces of

cocaine from David

Agent

Thomas on

18, 1991 and November 1, 1991, respectively, and a half-

kilogram

from Thomas

on November

8,

1991.

The investigation

-3-

culminated

on January

17, 1992

when defendant

Abelardo Cuevas

delivered ten kilograms of cocaine to Agent Mart nez.

A.
A.

The January 17, 1992 Transaction

The January 17, 1992 Transaction
________________________________

On the morning of January 17, 1992, Mart nez and Cuevas

spoke
the

on the telephone, and agreed to conduct the transaction in

parking

lot

Massachusetts.
agents

of

8:00

a.m.,

drive away.

restaurant

police

in

several

officers

North

assigned
gate.

Shore

Peabody,

government

areas.

observed

in a brown Cadillac registered

At

appellant

to Thomas,

Approximately 45 minutes later, a state trooper

saw Torres and Cuevas pull up to the access code

of

in

of the transaction,

surveillance

Torres pick up Cuevas

and

Friendly's

In anticipation

established

approximately

Self Storage.

to appellant

William

Torres

used

Rodr guez to

box at the gate

the access

open the

code

security

Torres and Cuevas then entered the storage facility.

Approximately

one minute

later,

the

trooper saw

an

older

blue Toyota station wagon pull

Although the officer observed

Hispanic

males, he

that this car was occupied

was forced

looked directly at him.

up to the access code box.

to look

away when

by two

the two

men

Consequently, Trooper Dern was unable to

identify the men. The driver of this car, however, used Appellant
Rodr guez'

access code to open

storage grounds,

the security gate

and the officials conducting

and enter the

the investigation

concluded that these men were Rodr guez and appellant Matos.
Five
storage

minutes

grounds

later,

in the

brown

Torres

and

Cadillac.

Cuevas

exited

Approximately

the

three

-4-

minutes later,
as well.

the blue Toyota station wagon

Both Torres and

the driver of the

used Rodr guez' access code to

exited the grounds

blue station wagon

open the gate when they left

the

premises.
Ten minutes
enter
few

later, agents observed

the parking lot of a

minutes

vehicle.

The

later, Agent
three men

Torres and

Cuevas

Friendly's restaurant in Peabody.

Mart nez
met

arrived

briefly outside

in his

undercover

the

restaurant.

During this meeting, Cuevas introduced

"socio,"
_____
Torres,

the

literal

Cuevas, and

translation
Mart nez

discussed the mechanics of

stated

Torres to Mart nez as his

of

which

then entered

is

"associate."1

the restaurant

the ten-kilogram transaction.

and

Torres

that he did not like the location and proposed completing

the transaction

in an

apartment, a proposal

Mart nez rejected.

Torres then stated that they had to be careful, because they were
talking

about

discussion,
delivery

ten

kilos,

Torres

to make

not

indicated
later

further conversation

one
that

that day

about the

instructed Torres to retrieve

or
he

in

two.
had

In
a

three

Dorchester.

details of the
the cocaine.

this

same

kilogram

After

some

transfer, Cuevas

Torres then

left in

the brown Cadillac.

After
highway
reversed

Torres left the parking lot, he drove south on a

for a short time,

his

direction.

then suddenly exited

After

driving

north

the highway and

for

short

____________________

1 Appellant Torres contends that in Caribbean Spanish, "socio"

is a colloquial term meaning "buddy" or "cousin."
-5-

distance, he drove

into a

went to the trunk

to

the

toll

strip mall, parked

area of the car for a few

records

subscribed to Torres

obtained

for

and Cuevas, Torres

about the time he reversed direction

contact, Torres
again

with

returned to

Mart nez

informed Mart nez

there.

After

and

seconds.

Cuevas

cellular

telephones

contacted Cuevas at

on the highway.

inside.

Torres

would not complete

Mart nez complained

about the

to complete the deal

Restaurant in Saugus, Massachusetts.

and

According

or

After this

the Friendly's restaurant,

that they

plan, Cuevas agreed

the

the Cadillac

and met

and

Cuevas

the transaction
sudden change

in an hour

of

at Weylu's

The three men then left, at

about 10:30 a.m.

After
drove

Cuevas and

to an area near

Massachusetts.
Torres

driving

Massachusetts.

the brown
Torres

left the

the Northgate Shopping

At approximately

Lawrence Street.
the

Torres

10:55 a.m.,

Cadillac,

parked

the

alone,
Cadillac

parking lot,

they

Center in Revere,
an agent

observed

south to

Chelsea,

in

front

of

20

At approximately 11:15 a.m., Torres came out of

residence carrying a white shoulder bag.

Agents were unable

to maintain surveillance of Torres after that.

At 11:30 a.m., agents observed a 1977 blue
by appellant Rodr guez, moving
Weylu's Restaurant.
passenger

seat.

Matos drove slowly

parked

BMW, driven

slowly down the exit road

Appellant Matos

was seated

in the

of the

front

After driving down the exit road, Rodr guez and

through the lower

cars, including

a DEA

parking area past

surveillance

van.

several

As Rodr guez

-6-

drove past the van, both Rodr guez and Matos looked into the van,
and

then parked behind it.

Rodr guez and

Matos remained there

for about five minutes.

At

about 11:34

a.m., Rodr guez

received a

Cuevas.

Immediately after Rodr guez received

observed

Rodr guez and

highway.

The agents did not follow.

Matos

Approximately ten
the

front entrance

of

drive away,

this page, agents

going

north on

minutes later, Mart nez drove

Weylu's.

As

Mart nez arrived,

walked up to his car and got in.

Once

Cuevas indicated

to leave the

Mart nez,

page from

that he wanted

the

up to

Cuevas

inside Mart nez' vehicle,

area immediately.

however, parked his car near the front entrance of the

restaurant.

After

Mart nez had parked, Cuevas informed him that

he had noticed two suspicious-looking

vans in the lower

parking

lot, and explained that, because of his concern about these vans,
he

had removed

the drugs from

the area.

As the

two men were

walking toward the restaurant entrance, Cuevas explained that the

cocaine

had

been

moved

to the

Kowloon

Restaurant,

short

distance away, and asked Mart nez to drive there to pick it up.
Once
transaction

inside

be completed

Mart nez that he

brought

back

observed
men.

Weylu's,

to

Mart nez

there,

and Cuevas

needed to contact his

Weylu's.

Cuevas using

After

that

the

agreed.

He

told

men to have the

Cuevas

his cellular

demanded

said

telephone to

cocaine

this, Mart nez

contact these

According to the toll records obtained for Cuevas' cellular

phone,

Cuevas paged Rodr guez at

11:55 a.m. and

again at 12:03

-7-

p.m.

When Rodr guez failed to respond to these pages, Cuevas

returned

to Mart nez'

table

difficulty

reaching his men.

to

to the

travel

Mart nez explained

the Kowloon
Mart nez and

and explained

that he

was having

Cuevas then pleaded with Mart nez

Kowloon Restaurant

to

pick up

the cocaine.

that he could not complete the transaction at

because he did not have the purchase money with him.

Cuevas then agreed

to pick

up the cocaine

at the

Kowloon and then return to Weylu's.

At

12:15 p.m.,

while Mart nez

and Cuevas

were still

inside

Weylu's,

parking lot

Rodr guez and

Matos

in the blue BMW.

returned

to the

They drove directly

Weylu's

to the upper

parking area adjacent to the restaurant.

At approximately 12:30 p.m.,
Weylu's

and entered

Mart nez' car.

Rodr guez and Matos were

area of the restaurant to

Rodr guez and

Cuevas, and then followed

on

the highway,

their car.

Matos

Rodr guez and

car.

their car and

At the bottom

of the

behind Mart nez

Mart nez' car onto the highway.

Mart nez' rear-view

that he, not Mart nez, had a better

Restaurant,

immediately after,

They got in

pulled up

Cuevas adjusted

When Mart nez and Cuevas

Almost

left

observed running from the drive-through

drove rather quickly after Mart nez'

exit road,

Mart nez and Cuevas

and

Once

mirror so

view of traffic behind them.

entered the parking lot of

Matos followed

the Kowloon

them into the

lot as

well.
In

the parking lot, Cuevas left Mart nez' car, went to

-8-

the

blue Toyota station wagon

bag containing

ten kilograms of

parked there and

cocaine.

After

retrieved a gym

retrieving the

cocaine,

Cuevas

returned

returned to Weylu's.

to

Mart nez'

car

and

the two

men

While he was waiting at a table to get paid

for the cocaine, Cuevas was placed under arrest.

As
Toyota,

Cuevas was

Rodr guez and

Mart nez and Cuevas

Matos

pulled

followed
the

the cocaine

Matos watched

from the

highway and

by agents in the

Rodr guez

of

from the
blue BMW.

left the Kowloon parking lot,

onto the

attention

followed

Rodr guez

and Matos

When

Rodr guez and

them.

same surveillance van

blue

They were

that had drawn

earlier

that

morning.

and Matos drove north for a distance and then reversed

direction.
over to

retrieving

After driving

south a

short distance, they

pulled

the side of the road and allowed the surveillance van to

pass them.
After
driver, pulled
short

the van

passed

the van into a

them, Agent

parking lot and parked

time later, Rodr guez and

looking

at the

van

as they

Geibel, the

Matos drove by

passed.

van's

there.

the lot slowly,

Instead

of

continuing,

however, Rodr guez and Matos pulled into the parking lot of a gas
station,

where

they

Rodr guez and Matos

also pulled out

waited

for

about

five

minutes.

When

exited the station parking lot, Agent Geibel

and followed

them.

Geibel

then followed

them

into the parking lot of a Sears store.

After

parking their car,

Rodr guez and

the Sears store through the front entrance.

-9-

Matos entered

A few minutes later,

they exited the

men

building through the rear entrance.

were walking along the

Matos

again

looked

at

returning to their car,

entrance.
front,

side of the

the

Rodr guez

building, Rodr guez and

surveillance

van.

Rather

they reentered the store through

A few minutes later,

and

As the two

walked

they exited the store

to

nearby

public

than

a side

from the

telephone.

Rodr guez was then arrested.

According to the cellular telephone

records obtained for Torres'

cellular telephone, Torres placed a

page to

Rodr guez at or about the

time that Rodr guez walked to

the payphone.
As Rodr guez
back to the
arrested.
for

the

store.
At the

blue

retrieved the

was being arrested, Matos

After a brief chase,

turned and ran

he was apprehended and

time of the arrest, Matos had the registration

Toyota

station

wagon,

from

cocaine, in his possession.

which

Cuevas

had

Later that afternoon,

Torres was placed under arrest near his home in Chelsea.

B.
B.

The Search of Rodr guez' Storage Unit

The Search of Rodr guez' Storage Unit
_____________________________________

During
January 17,
warrant

1992,

the

early

agents

evening
applied

hours of
for and

that

obtained

same
a

day,

search

to search the storage unit at North Shore Storage rented

by Rodr guez.

Torres had a key to this

the brown Cadillac, in his possession at

Rodr guez also had

unit, along with keys to

the time of his arrest.

a key to this storage unit on his key ring at

the time of his arrest.

The searching agents found a 1988
New York

license plates in

Ford Taurus car with

the storage unit.

Under the

front

-10-

seat of the car, agents found National Car Rental documents dated
January

11, 1992 in Cuevas' name.

the car

revealed

cocaine.

The

search

produced a

triple-beam scale, various packaging

safe.

When

discovered
materials.

the
another

secret

safe

of

A search of the trunk area of

compartment and
Rodr guez'

was opened

kilogram

of

two

kilograms

self-storage

few

cocaine

days
and

unit

of

also

materials and a
later,
more

agents

packaging

-11-

C.
C.

Prior Proceedings
Prior Proceedings
_________________

On January 30, 1992, a grand jury returned a five-count

indictment against Cuevas, Torres, Rodr guez,

Matos, and Thomas.

Count One charged all

possess

six with participating in a

cocaine with intent

to distribute.

conspiracy to

Counts Two through

Five of the indictment contained substantive distribution charges

relating to the

four undercover cocaine

Thomas were named as

purchases.

Cuevas

defendants in Counts Two, Three,

Cuevas, Torres, Rodr guez

and Matos were named

and

and Four.

as defendants in

Count Five, regarding the ten kilogram transaction.

After a trial, a
all defendants on all
sentenced

jury returned guilty verdicts against

counts.

on December

Rodr guez, Matos and

8, 1992.

The

Thomas to 70 months' imprisonment.

in the

ten kilogram transaction

and Matos

each received

district

Based

court sentenced

on their participation

of January 17,

ten-year, mandatory

The district court sentenced

Thomas were

1992, Rodr guez

minimum sentences.

Cuevas to 235 months' imprisonment,

and Torres to 210-months' imprisonment.

ANALYSIS
ANALYSIS
A.
A.

Denial of Torres' Motion for Severance

Denial of Torres' Motion for Severance
______________________________________

Several months
for severance under

prior to

trial, Torres filed

Fed. R. Crim. P.

a motion

14, arguing that his

case

should be severed because "one or more co-defendants has given or

would

give exculpatory

called as a witness at
affidavit

or

testimony or
trial."

other evidence

evidence in his

behalf if

His motion was unaccompanied

of such
-12-

witness.

by

Torres did,

however,

submit

different

an

affidavit

version of the events

Cuevas' affidavit

from

Cuevas

with

of January 17,

markedly

1992.

Although

attempted to exculpate Torres,

affidavit indicated whether he

behalf.

The

district

severance,

holding that

nothing in the

would actually testify on Torres'

court

rejected

Torres

had not

Torres'
met

motion

his burden

for

under

United States v. Drougas, 748 F.2d 8, 19 (1st Cir. 1984).

_____________
_______
Immediately
Torres filed
severance

prior to

a Supplemental

Torres

advised Torres'

admitted

at

First,

arguing that

he contended, a

spillover."

testimony available
that

Cuevas'

trial,

to him.

attorney

had

Second,

order to

In his

recently

counsel that Cuevas would not testify on Torres'

behalf at a separate trial.

had

for his

separate trial was required in

Cuevas' exculpatory

motion,

grounds.

required due to "prejudicial

Torres contended that a

make

selection

Motion for Severance,

was required on two

severance was

jury

However, according to Torres, Cuevas

personally indicated to him that he would testify for Torres

a separate trial.

Torres again failed,

any affidavits supporting this

assertion.

however, to produce

Torres requested that

the court ask Cuevas directly of his intentions.

Cuevas' counsel

objected to such a
to question

The district court

Cuevas directly,

severance motion
motion.

procedure.

found that

was "entirely

then declined

the basis for

too speculative" and

Torres'

denied the

Torres now challenges the district court's denial of his

motion.
We

have

held

that

"[a]

motion

for

severance

is

-13-

committed

to the

review only for

sound discretion
a manifest

miscarriage of justice."
1210

of the

trial court,

abuse of discretion

resulting in

United States v. Welch, 15

_____________
_____

(1st Cir. 1993), cert.

____

denied sub. nom,

______ ___ ___

and we

F.3d 1202,

Driesse v. United
_______
______

States, 114 S. Ct. 1661 (1994) and Welch v. United States, 114 S.
______
_____
_____________
Ct.
in

1863 (1994).
deciding

judge's

resolution

1993)

trial judge thus has considerable latitude

severance

plainly abused.
Cir.

questions,

of them

only

and we
if

that

will

overturn

wide discretion

United States v. O'Bryant, 998 F.2d 21,

_____________
________

(internal quotations

omitted).

that

is

25 (1st

Reviewing Torres'

challenge under this standard, we find no abuse of discretion.

1.
1.

Severance to allow exculpatory testimony of a

Severance to allow exculpatory testimony of a
_________________________________________________
codefendant
codefendant
___________

Torres'

motion

for

severance

in

order

to

allow

exculpatory testimony by a codefendant is governed by our holding

in Drougas, 748 F.2d at 19.
_______
be

entitled to

testimony,
the

Under the Drougas test, in order to

_______

severance on

the

basis of

the movant must demonstrate

testimony;

2)

the

substance

exculpatory nature and effect;

of

relation to
the

the

impeachment; 3)

testimony;

be

subject

to

its

will

A court reviewing such

examine the significance of the

would

3)

and 4) that the codefendant

the defendant's defense theory;

testimony

codefendant's

1) a bona fide need for

__________

in fact testify if the cases are severed.

a motion should 1)

testimony in

2) consider whether

substantial,

damaging

assess the counterarguments of judicial economy;

and 4) give weight to the timeliness of the motion.

Torres did

not meet

the fourth
-14-

Id. at 19.
__

prong of the

Drougas
_______

test -- i.e., he did not sufficiently establish that Cuevas would

____
indeed testify in a

separate trial.

had repeatedly assured him

yet

Torres

Cuevas',

did not

in

Torres insists

that Cuevas

that he would testify in

his behalf,

submit any

support of

these

Cuevas' attorney told Torres

that

affidavits,
assurances.

More

own or

importantly,

and the district court specifically

Cuevas would not testify.

___

doubt

either his

Torres concedes

now that "some

remained" as to whether Cuevas would actually testify at a

separate trial.
district court

He argues, however,

that given this

should have asked Cuevas

doubt, the

directly over counsel's

objection whether he would testify at a separate trial on Torres'

behalf,

and

that

the

clarifying question"

court's

of Cuevas

failure

to

"crippled"

ask this

"single,

Torres' defense

and

constituted an abuse of discretion.

We have

held that an allegation that a codefendant may

testify, without more, is insufficient to

severance.
1993).

United States v.
_____________
Given the

Nason, 9 F.3d
_____

complete lack

support for Torres' request, it is

court's refusal
reasonable and

to

interrogate

within

its

entitle a defendant to

broad

of

155, 159

either factual

(1st Cir.

or legal

clear to us that the district

Cuevas

directly

discretion.2

was
This

entirely
lack

of

____________________

2 The government suggests that because Cuevas had not waived his
right to counsel, a forced inquiry of Cuevas by the court over

____
rise to a claim by

his attorney's objection may well have given

_________________________
Cuevas that his Sixth Amendment right to effective assistance of
counsel had been compromised.
While we do not opine on this
possibility, such lurking constitutional concerns underscore the
reasonableness of the district court's refusal to question Cuevas
directly.
-15-

evidence

also leads

district

court

us to the

inescapable conclusion

properly applied

the

Drougas
_______

that the

test and

denied

Torres' severance motion on this ground.

2.
2.

Severance to avoid "prejudicial spillover" of

Severance to avoid "prejudicial spillover" of
________________________________________________
evidence
evidence
________

Torres also claims that because he only played a "minor

role"

in the charged conspiracy and much of the evidence adduced

at trial
by the

concerned the codefendants, he

"spillover" of

this evidence.

evidence establishing guilt of

against

another, creates

an

was unfairly prejudiced

"Spillover" occurs

when

one defendant, but not admissible

"atmosphere

clouding

the

jury's

ability to evaluate fairly the guilt or innocence of the latter."

United States v. Perkins, 926

______________
_______
We

have explained,

F.2d 1271, 1281

however, that

(1st Cir. 1991).

where evidence

defendant is independently admissible against a

latter

cannot convincingly

O'Bryant, 998 F.2d at 26.

________
evidence

against

defendant

to

of an

codefendant, the

improper spillover.

Furthermore, the existence of stronger

codefendants

automatic

relatively minor

complain

featuring one

does not

severance,

conspiratorial role

nor

necessarily
does

entitle a

defendant's

normally preclude

a joint

trial

with more prominent codefendants.

Thus,

when multiple defendants are named in a single indictment,

a defendant who

seeks severance

will succeed only

"strong showing of evident prejudice."

Even

where

defendant,

large amounts
or where

conspiracy is far

of

by making

O'Bryant, 998 F.2d at 25.

________

evidence

one defendant's

less than

Welch, 15 F.3d at 1210.

_____

are irrelevant

involvement in

that of others,

to

one

an overall

a reviewing

court

-16-

must be reluctant to second-guess severance denials.

Id. at 26.
__

In support
that

the

government's

conspiracies,
maintains
Thomas

of his

and

trial

not one,

that

the

evidence

as charged

evidence

Cuevas

transactions.

"spillover" claim,

that

produced

He contends

deliver the

Torres

proved

indictment.

one

ten kilograms

two

Torres

conspiracy involving

the

three

early

that the evidence then

second conspiracy involving Cuevas,

to

actually

in the

proved

Torres contends

cocaine

established a

Rodr guez, Matos and himself

of cocaine

on January

17, 1992.

argues that he was unfairly prejudiced by the evidence of

the three

smaller cocaine transactions among

Agent Mart nez and

defendants Thomas and Cuevas.

Torres'

defense

repeatedly

during

instructed

the jury

conspiracies.

counsel

trial,
with

Torres

and

the

respect

did

raised

this

objection

district

court

carefully

to

not object

the
to

issue

of

multiple

this aspect

of

the

district court's jury charge, and does not challenge it here.

In
Torres
now

any

case,

the

evidence

strongly indicates

was much more than a one-day, one-time conspirator, as he

avers.

During

his

conversations

with

Agent

defendant Cuevas repeatedly stated that he needed to

his

"partner."

When introducing

his "socio," or associate.

_____
his

that

meetings

with

Torres, he referred

Mart nez,

confer with

to him as

Immediately before and after

Mart nez

negotiating

one of

multi-kilogram

transaction, Cuevas called Torres on his cellular telephone.

evidence also

shows an

ongoing relationship between

-17-

The

Torres and

Rodr guez, and

that Rodr guez was responding to

the time of his arrest.

Torres' page at

We think that this evidence

all fairly

supports the reasonable inference that Torres was Cuevas' partner

inanongoingdrug
conspiracy,whichincludedthethree
smallertransactions.
Most

importantly,

the

evidence

firmly supports Torres' conviction

In

influential,

fact, the

presumably

discussions

stored;

with

Agent

smaller delivery that day.

evidence

indicates

that

Torres had

to the storage facility where

he

actively

Mart nez,

mechanics of the transaction;

prejudiced

cocaine on January 17,

even leading, role in the conspiracy.

Cuevas in the morning

was

evidence

at trial

for participating in a single

conspiracy to distribute ten kilograms of

1992.

introduced

He went with

the cocaine

participated

suggesting

the

and he stated that he

in

the

place

and

had another

Torres has not indicated how he

by any alleged "spillover,"

and in light

against him, we do not see any prejudice.

an

was

of all the

Accordingly,

we affirm the district court's denial of his motion to sever.

B.
B.

Admission of Co-Conspirator Statements against

Admission of Co-Conspirator Statements against
__________________________________________________

Torres
Torres
______

Torres also maintains that the district court committed

clear error when

it admitted

into evidence

Thomas and Cuevas prior to January

801(d)(2)(E).

In particular,

statements made

by

17, 1992, under Fed. R. Evid.

Torres challenges the admission of

the statements made by Thomas to Agent Mart nez during a recorded

conversation
statement

on

October

18,

1991.

Torres

should have been excluded because

Petrozziello,
____________

548 F.2d

20 (1st

Cir. 1977),

claims

that

the

1) United States v.
_____________
requires

that the

-18-

government

have independent

evidence that

the defendant

was a

member of the conspiracy at the time the co-conspirator statement

was

made; 2) there was no significant evidence linking Torres to

the conspiracy other

than the challenged

statement; and 3)

the

statement prejudiced him by "possibly rais[ing] an inference that

Torres had any knowledge of or connection to the drug trafficking

activities of Thomas and Cuevas before January 17, 1992."

The test for admissibility of a coconspirator statement

under

Fed.

R.

Evid.

801(d)(2)(E)

is

whether,

under

"preponderance of the evidence" standard, it is more likely

not

that

a conspiracy

defendant existed,

embracing

alia,
____

F.3d

the declarant

and that the declarant

during and in furtherance

Sep lveda, 15
_________

both

(1st Cir.

Petrozziello, 548 F.2d at 23).

____________

on the admissibility of

and

the

United States v.
______________

1993) (citing,

inter
_____

A district court's rulings

co-conspirator declarations are reviewed

under the clearly erroneous standard.

We have held

than

uttered the statement

of that conspiracy.

1161, 1180

Id. at 1180.
__

that when a defendant

____

joins a conspiracy

is irrelevant in determining whether a co-conspirator's statement

is admissible under Rule 801(d)(2)(E).
of a

conspiracy, a

acts and comments

Once found to be a member

defendant is subject

to proof of

the prior

of his co-conspirators, even if those comments

were made prior to the defendant's involvement in the conspiracy.

United States
_____________
the

v. Masse, 816 F.2d

_____

instant case,

hearing at

the district

the close of

805, 811 (1st Cir.

court conducted

all the evidence,

-19-

1987).

In

a Petrozziello
____________

and concluded, by

preponderance of
and that Torres

the evidence, that a

was a

participant.

under our precedents to

Thomas

Nothing

more was

required

render the statements of co-conspirators

and Cuevas admissible under

of the ample

single conspiracy existed

evidence, discussed

Rule 801(d)(2)(E).
above, of the

In light

existence of

conspiracy and Torres' influential participation in it, we cannot

say that

the district court's Petrozziello

____________

erroneous.

We therefore affirm Torres' conviction.

C.
C.

Denial of Matos' Motion to Suppress

Denial of Matos' Motion to Suppress
___________________________________

On
seized
that

March 17,

1992, Matos

by the government incident

his

arrest

was

17, 1992

was

based

suspicion by the arresting

conducting

In a

court

Matos'

denied

but

motion,

probable

on

mere

hunch

or

for

cause.

store on

subjective

were

Cuevas'

cocaine

order, the

district

concluding that

his

arrest

The district court reviewed

arrest, and noted that "[t]he

adds weight to

is not necessary to

on the grounds

agents that Matos and Rodr guez

supported by probable cause.

Matos fled

without

written memorandum and

activities prior to his

suppress evidence

his arrest at the Sears

"counter-surveillance"

transaction.

moved to

to his arrest

conducted

Essentially, Matos claims that

January

rulings were clearly

the determination of
that determination."

was

Matos'

fact that

probable cause,

Matos now claims

that

we

must

find that

the

district

court's

denial of

his

suppression motion constituted reversible error.

A

district

suppress are

court's findings

reviewable

only for

of fact

clear

on a

error as

motion to

to

probable

-20-

cause, and questions

United States
______________
Regardless
believe

of law

v. Zapata,
______

remain subject to
18 F.3d

971,

de novo
__ ____

975 (1st

review.

Cir. 1994).3

of the degree of deference in our review, however, we

that

the district

court

was correct

in

finding that

Matos' arrest was supported by probable cause.

It

is

elementary

that

warrantless arrest depends upon

was made,
________

information
believing

constitutionality

of

whether, at the time the arrest

_______________________

the officers had probable cause to make it -- that is,

whether at that
knowledge

the

and
were

moment the facts and

of

which

they

sufficient

to

had

circumstances within their

reasonably

warrant a

that the defendant had committed

prudent

trustworthy
person

in

or was committing an

offense.
1992).

United States
_____________

v. Morris, 977 F.2d

______

677, 684 (1st

Cir.

Probable cause is determined under an objective standard,

and the government need

to convict.

not show the quantum of

Id. Probability, and

__

proof necessary

not a prima facie

criminal activity, is the standard of probable cause.

We have held that probable

showing of
Id.
__

cause must be determined in

light of the collective knowledge of the law enforcement officers

involved in an investigation.
23, 25-26 (1st Cir. 1994).

United States v. Diallo,

_____________
______

Accordingly, an

and expertise as a police officer may

the probable cause determination.

19 F.3d

officer's experience

also be crucial factors in

United States
_____________

v. Maguire, 918
_______

____________________

3
Here, the district court ruled on Matos' motion without a
hearing and did not make specific findings of fact. It is clear,
however, that the court implicitly adopted the government's
version of the facts.
-21-

F.2d 254, 258 (1st

Cir. 1990), cert. denied sub.

nom. Kavanaugh

____

______ ____

____ _________

v. United States, 501 U.S. 1234 (1991).

_____________
Applying these principles here,
an

objective

view of

the

finding of probable cause

facts support

unit that Cuevas and

January

17, 1992,

also

had a

Rodr guez
and
of

district court's
It

was Rodr guez'

Torres accessed on

the morning of

fact that

surveillance of Matos

the

for Matos' arrest.

storage

we think it clear that

the

agents knew

during

and Rodr guez that afternoon.

reasonable

suspicion that

in the blue Toyota

it

and

Rodr guez

that afternoon

Matos

and

met with Torres

Cuevas at the storage facility that morning.

Matos

The agents

had been

station wagon who

their

The activities

support

reasonable

inference

that they were closely involved in the delivery of ten

kilograms

of cocaine

behavior

and carefully

the

agents'

theory

surveillance for

to Mart nez

on January

17, 1992.

synchronized movements

that

they

were

the transaction.

in

Their

strongly support

charge

We therefore

of

counter-

find that

the

district court correctly denied Matos' motion to suppress.

E.
E.
of
of
___

Denial of Matos' and Rodr guez' Motions for Entry

Denial of Matos' and Rodr guez' Motions for Entry
__________________________________________________
Judgments of Acquittal
Judgments of Acquittal
______________________

Both Matos and Rodr guez challenge the district court's

denial of

their

motions

for judgments

of

acquittal.

Matos

contends that

his "mere presence" at the scene of a crime is the

only evidence

of his membership in the conspiracy, and therefore

that his

conviction cannot

stand.

Rodr guez

likewise contends

that no evidence of

his membership in the conspiracy

exists, or

-22-

that he violated any laws, and that the government's case against
him is based solely on conjecture and speculative inference.
When

reviewing the denial of a

acquittal, we assess the

in

the light

most

guilty

beyond a

sufficiency of the evidence as

favorable to

whether a rational trier

motion for judgment of

the verdict,

with

of fact could have found

reasonable

doubt.

We

do not

a whole

a view

the defendant
weigh

witness

credibility, but resolve

all credibility issues in favor

verdict.

v.

1994).

United States
_____________

Hahn, 17
____

F.3d 502,

to

506 (1st

of the

Cir.

The evidence may be entirely circumstantial, and need not

exclude

every

reasonable hypothesis

of

innocence.

In

other

words, the factfinder may decide among reasonable interpretations

of the evidence.

Id.
__

Viewing the
think it clear that
were

evidence according to these principles, we

the convictions of both Matos

amply supported by the evidence.

and Rodr guez

Both of these appellants'

challenges rest on

the testimony offered by Rodr guez

at trial.

Rodr guez testified at trial that he had rented a storage unit at

North Shore Self Storage with Cuevas for the purpose of repairing
a

car.

According

to

Rodr guez,

he

returned

his

keys

and

paperwork to Cuevas

and did not return to the storage unit after

December

Rodr guez also denied driving to the storage

19, 1991.

unit on the morning of January 17, 1992, denied returning to

Weylu's parking

lot, denied running

the

from the restaurant

to his

BMW with Matos, and

denied following Mart nez and Cuevas

to the

Kowloon restaurant.

Rodr guez claimed that his only contact with

-23-

Cuevas on
and

that day was to

Matos proceeded

denied that he

drive him to Weylu's,

to Sears

to go

shopping.

was responding to a page from

after which he

Rodr guez also

Torres when he was

arrested, despite the records indicating that just moments before

his arrest he had been paged by Torres.
Clearly,
doubt
above,

in light
the

the jury

rejected

of the evidence

government

proved

Rodr guez' testimony,

to the contrary.
through

strong

no

As discussed

circumstantial

evidence

that Rodr guez

and

Matos were

Cuevas in the ten kilogram transaction.

draw

reasonable inferences

from

closely involved

with

The jury was entitled to

this evidence,

Rodr guez' testimony in whole or in part.

and to

reject

We therefore find that

the evidence adduced at trial supports the jury's guilty verdict,

and

that

the district

court

properly

denied the

defendants'

motions for judgments of acquittal.

Torres,

F.
F.

The Sentences of Torres, Matos & Rodr guez

The Sentences of Torres, Matos & Rodr guez
__________________________________________

All

of

the

appellants

Rodr guez and

determinations
Torres claims
attributing

Matos

made by

the

two

district court

storage unit at North

Torres

argues,

his

Base

sentences.

the drug
during

cocaine

under

error by

discovered in

Shore Self Storage.

Offense Level

quantity

sentencing.

court committed clear

kilograms of

second

their

each challenge

that the district

to him

challenge

Consequently,
the

Sentencing

Guidelines should have been 32 (5-15 kilograms of cocaine) rather

than

level 34 (15-50 kilograms of cocaine), as determined by the

district court.
-24-

Rodr guez and Matos also

claim that the district court

committed clear error in finding that a drug quantity of at least

five kilograms of cocaine was reasonably foreseeable to them as a

consequence

of

their

transaction

of January

Matos both claim that

participation
17,

1992.

in

the

ten

kilogram

Accordingly, Rodr guez

and

their ten-year mandatory minimum sentences

must be vacated.
It is

well settled that "[a]

narcotics conspirator is

responsible not only for the drugs he actually handled or saw but

also for the full quantity of drugs that he reasonably could have
foreseen to be

embraced by

States
______

v. De La Cruz,
___________

denied,
______

114 S. Ct. 356

finding

as

reasonably
not

to

the

used

it

1313 (1st

Moreover,
embraced

joined."

the district court's

by the

conspiracy

is a factual

is clearly

(1st Cir. 1994)

and

one and will

erroneous.

sentencing court has

in imposing sentences.

United
______

Cir.), cert.
____

determinations made by district

what data is or

also defer to the

Id.
__

(1993).

unless

have held that the

1296, 1304

F.2d 1307,

foreseen by the defendant

be disturbed

determine

996

quantity

reviewing drug quantity

we

the conspiracy he

Id.
__

In

courts,

broad discretion to

is not sufficiently

dependable to be

United States v.
_____________

Whiting, 28 F.3d
_______

(internal quotations

omitted).

We

sentencing court's credibility determinations.

1.
1.

The district court's drug quantity determination

The district court's drug quantity determination
________________________________________________
as to Torres
as to Torres
____________

The district court found Torres responsible for the ten

kilograms

involved in

the January

17, 1992

transaction; three

-25-

kilograms
found
The

found in

Rodr guez' storage

in another

storage unit

district court

based its

unit; and

belonging to

two kilograms

Mariquesa Cuevas.4

sentencing determinations

on its

factual finding that Torres was "very much involved" in "what was
going

on out

regarding

at the

storage location,"

his participation

with Cuevas was compelling.

and that

in the cocaine
The

the evidence

distribution scheme

district court concluded, based

on these findings, that Torres was "involved and accountable" for

the five kilograms

found in the

Storage.

now argues

Torres

two units at
that

no

North Shore

evidence

Self

links him

to

Mariquesa Cuevas' storage unit or to the two kilograms of cocaine

found
engage

therein.

He contends

that the

in speculative and impermissible

sentencing court

had to

leaps of logic in order

to

attribute these two kilograms

to him, and

his sentence must

therefore be vacated.
The relevant
during sentencing but
as

follows.

facts relied

upon by the

district court

not introduced into evidence at

During the

afternoon of

January 17,

trial are

1992, after

Cuevas had been arrested, his sister Mariquesa attempted to enter

North Shore Self

Storage.

She was driving

Accord, a car that Cuevas had

Agent

she

could

enter

Honda

driven to one of his meetings with

Mart nez. Mariquesa Cuevas was

before

Cuevas' gold

stopped by a state trooper

the storage

facility

premises.

The

____________________

4 Mariquesa Cuevas, the sister of defendant Abelardo Cuevas, did

not appear for trial and is a fugitive from justice.
The two
kilograms of cocaine found in her storage unit on January 17,
1992 were therefore not introduced at trial.
-26-

officer

observed a large amount of cash

Honda.

When asked about

she knew

nothing

brother.

The car,

on the back seat of the

the money, Mariquesa

about it,

and that

the car

Cuevas said that

belonged to

the money (approximately $7,000) and

her

the car

keys were then seized.

Later

that

evening, agents

obtained

and executed

search warrant for a storage unit leased in the name of Mariquesa

Cuevas,

as well

as the

unit leased

kilograms of cocaine were

Agents later determined

in Rodr guez'

name.

Two

recovered from Mariquesa Cuevas' unit.

that one of the keys on the gold Honda's

key ring fit the lock to Mariquesa Cuevas' storage unit.

The district
at sentencing

for

court evidently found

these

circumstantial evidence
with Cuevas, and the
storage

unit

of

his close,

protestations at

that use of
part of

its discretion

findings,

that Torres

additional

of cocaine

at North Shore

were found.

faced a

-27-

was

if Torres

two kilograms in

Mariquesa

in concluding,

in the

Self Storage

and

Therefore, even

district court acted

could have

cocaine found

key to Rodr guez'

that Torres exerted a significant,

specifically about the

bounds of

ample

association

sentencing, the court

the conspiracy's mechanics.

storage unit, the

the

cocaine distribution conspiracy,

the storage units

did not know

Cuevas'

role in a

of

influential

three kilograms

sizeable quantity of evidence

even a leading,

because

fact that Torres had the

in which

Despite Torres'

two kilograms

Torres responsible

based

well within the

on its

reasonably foreseen
storage

unit would

factual

that any

be deemed

"embraced" by the
any

overall conspiracy. Torres

competent evidence

that

contradicts

fails to point

the district

court's

findings and conclusions, other than his own testimony.

the district court was
and because we

to

Because

entitled to disbelieve Torres' testimony,

cannot say that the court's findings

conclusions were clearly

erroneous, we reject

of fact and

Torres' challenge

and affirm his sentence.

2.
2.

The district court's drug quantity calculations

The district court's drug quantity calculations
________________________________________________
as to Rodr guez and Matos
as to Rodr guez and Matos
_________________________

Rodr guez and

Matos also argue that

the ten kilograms

of cocaine delivered to Agent Mart nez on January 17, 1992 should

not

have been

government

failed

knowledge

of

conspiracy.
minimum

attributed
to

the

to

establish

the

amount

Accordingly,

penalty

applicable to

them.

They

that they
of

prescribed

by

had

cocaine

they argue,
21

the

U.S.C.

conspiracies involving

contend

that

the

requisite

involved
ten-year

the

in

the

mandatory

841(b)(1)(A)(ii),

five or more

kilograms of

cocaine, does not apply to them.

In
that

the

district
Rodr guez

rejecting this

ten-year
court

mandatory

found by

argument at
minimum

sentencing and
did

a preponderance

and Matos joined Cuevas

indeed
of the

and Torres in

ruling

apply,

the

evidence that

the morning of

January 17, 1992 to pick up the ten kilograms of cocaine from the
storage facility to sell to Agent Mart nez.
at

trial, moreover,

Matos who,

also indicates

at Cuevas' instruction,

cocaine from

The evidence adduced

that it

was Rodr guez

moved the

Weylu's restaurant to the

ten kilograms

and

of

Kowloon restaurant later

-28-

that

day.

When

Rodr guez'

storage

unit

was

searched that

evening, a car with

a secret compartment and three

cocaine were found.

Rodr guez had a key to this unit at the time

of

his

arrest.

In

light

of all

of

this

kilograms of

evidence and

reasonable inferences that can be drawn therefrom,

we cannot say

that the district court

committed clear error in finding

drug

least

quantity

of

at

five

kilograms

the

was

that a

reasonably

foreseeable to both Rodr guez and Matos.

We have
conspires
drugs,
takes

to

previously explained

transport for

but happens not to

that "[a]

distribution

know the precise

defendant who

large quantity

of

amount, pretty much

his chances that the amount involved will be quite large."

De La Cruz,
___________

996 F.2d

at 1314.

We

see no

reason or

special

circumstances here to justify a departure from

Accordingly, we reject Rodr guez'
ten-year

minimum mandatory

our prior ruling.

and Matos' challenges to their

sentences, and

affirm the

district

court's ruling.5
CONCLUSION
CONCLUSION
For
sentences

of

the

foregoing

appellants

reasons,

Torres,

the

Rodr guez,

convictions

and

and

are

Matos

affirmed.
________

____________________

5
Rodr guez and Matos also contend that the district court
erroneously refused to consider their requests for downward
departures.
Because we have affirmed the district court as to
their ten-year mandatory minimum sentences, their arguments
regarding downward departures are moot, and we therefore need not
address them.
-29-