8 F.

3d 809

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
UNITED STATES of America, Appellee,
v.
John Antonio CASILLAS, Plaintiff, Appellant.
UNITED STATES of America, Appellee,
v.
JOSE E. BONILLA-MARTINEZ, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
FERNANDO FACIO-LABOY, Defendant, Appellant.
Nos. 91-2298, 92-1493, 92-1494.

United States Court of Appeals,

First Circuit.
October 28, 1993

Appeals From The United States District Court For the District of Puerto
Rico
Manfredo E. Lespier-Garcia for appellant John Antonio Casillas.
David Rive-Rivera, by Appointment of the Court, for appellant Fernando
Faccio-Laboy.
Carlos R. Noriega, by Appointment of the Court, for appellant Jose E.
Bonilla-Martinez.
Rosa Emilia Rodriguez-Velez, Assistant U.S. Attorney, with whom
Charles E. Fitzwilliam, United States Attorney, and Jose A. QuilesEspinosa, Senior Litigation Counsel, were on brief for appellee.
D.Puerto Rico
AFFIRMED

Before Selya, Circuit Judge, Aldrich and Coffin, Senior Circuit Judges.
COFFIN, Senior Circuit Judge.

These three appeals are brought by defendants Jose Antonio Casillas (Casillas),
Jose Enrique Bonilla Martinez (Bonilla), and Fernando Faccio-Laboy (Faccio),
who were adjudged guilty of conspiracy to possess with intent to distribute
multi-kilo quantities of cocaine, in violation of 21 U.S.C. 846. One defendant,
Casillas, was convicted of using a telephone in facilitating the conspiracy, in
violation of 21 U.S.C. 843(b). In addition to terms of supervised release and
special monetary assessments, the following terms of imprisonment were
imposed: Casillas, 292 months; Bonilla, 264 months; Faccio, 264 months.

Appellants Casillas and Bonilla challenge the sufficiency of the evidence to

support their convictions. Appellant Casillas also challenges the district court's
finding, pursuant to Sentencing Guideline 3B1.1, U.S.S.G. 3B1.1, that his
role was that of manager/supervisor of the conspiracy, and its consequent
increasing of his offense level. Each appellant challenges the court's finding
that he was instrumental in negotiating for the purchase of 150 kilograms of
cocaine, a finding resulting in a base offense level of 38. More particularly,
each appellant claims that he had neither the intent nor the capacity to bring
about the purchase of such a large quantity of cocaine.

After reviewing the record of events and the evidence of appellants' intent and
capacity, we affirm as to all issues.

The reverse drug buy undercover operation

4

We set forth what we consider a sufficient narration of events, as the jury was
warranted in viewing them, to make our discussion of the legal issues
comprehensible. We have necessarily excluded much and selected from not
always consistent testimony.

The conspiracy originated with the government. This was a "reverse sting"
operation, in which government undercover agents posed as sellers and set up
deals with would-be drug buyers. Drug Enforcement Administration (DEA)
special agent Jefferson Justice worked with and often through a confidential
informant, William Hoercherl, to involve appellant Casillas in a drug importing
scheme. Casillas had participated with Hoercherl in a prior deal, involving
some 102 kilograms, and was thought to be a suitable target for DEA activity.
Contacts began in May, 1990, and by June had progressed to the point where

Casillas agreed to be a broker for Hoercherl and Justice (now posing as

Hoercherl's nephew) in the importation and sale of 600 kilograms of cocaine.
New York and Miami were to be the locus for the sale of 400 kilograms and
Puerto Rico the locus for 200 kilos. The price for a kilo was $12,500. Casillas
was to find the customers.
6

During July there was continual activity: Casillas brought into the venture one
Torres, who was expected to find buyers in New York and Miami; a sampling
of cocaine was done at the Caribe Hilton Hotel, but Casillas canceled a
scheduled transaction because his buyers distrusted the location; and the terms
changed, the amount of down payment required by the "sellers" having dropped
from $1,000,000 for 200 kilos to $400,000.

In early August, Torres introduced one Ortiz, who was to come forward with
property as collateral for part of the down payment. On August 8, Ortiz
attended a meeting with Justice, Casillas, and others, and gave Justice
documents concerning four pieces of real estate: a four-unit apartment building,
Ortiz's residence, an urban lot in Dorado Del Mar, and a rural lot. Casillas had
received from Ortiz documents of title to eleven automobiles; these he gave to
Justice. Then Ortiz signed a note giving Justice all of the collateral "if the
money for services [i.e., drugs delivered] is not paid in full." Ortiz also claimed
to have nineteen other vehicles on his lot and thirty-four en route via barge.
This satisfied the first half of the required down payment of $400,000. Casillas,
however, failed to come up with the second half of the down payment in cash
on that day.

Two days later, on August 10, Casillas introduced appellant Faccio to

Hoercherl as the person who would provide the money for the additional down
payment. The amount of drugs to be delivered had dropped from 200 kilos to
150 kilos. Hoercherl discussed the transaction, which would require a down
payment of $400,000 (one half of which was the Ortiz collateral), and would
buy 50 kilos of cocaine, 25 of which would be delivered at once, the remainder
to be delivered on consignment. Presumably this meant that the seller would
retain title until payment was accomplished. The remaining 100 kilos were to
be delivered later in the day. Not part of Hoercherl's discussion but elsewhere
revealed in the testimony was the understanding that Casillas would be charged
with ensuring that the sales proceeds would be collected and paid to the sellers.
In other words, delivery of the 100 kilos was not conditioned on a down
payment.

A meeting took place on August 13, which was attended by Hoercherl, Justice,
Faccio, and Casillas. While the August 10 meeting was not recorded on tape,

this one was. Although Hoercherl testified that on August 13 there was
discussion of arrangements to deliver the 150 kilos on August 15, the tape
contains no reference to this total amount. Faccio, who spoke only Spanish and
to whom the remarks of Justice and Hoercherl had to be translated by Casillas,
was recorded as mentioning "the 25" and being told by Casillas that "those 25
are gonna leave you with 25 more" and that "It will pay off for you." It was
agreed that the transaction not take place until August 15 in Faccio's Feria
Court Apartments building. Faccio preferred that date to the 14th "Because that
way you give me all day today to get a hold of Quique." Quique was elsewhere
identified as appellant Bonilla. However, on August 15, Casillas spoke with
Justice and Hoercherl and postponed the meeting until the following day, as he
needed more time to secure the money for the deal.
10

On August 16, Justice and Hoercherl came to Faccio's apartment building. At

4:30, Bonilla drove up in a white Ford Bronco, talked with Casillas, and entered
the building. Bonilla came back to the Bronco at 4:45, reentered the building,
came out again at 4:55, went to the Bronco, took out a white box and reentered
the building. Faccio and Bonilla talked in front of the building, then Bonilla
made a third trip to the Bronco, bringing back a blue money pouch. He was
then seen shortly after at a fifth story window. He and another person (an
acquitted co-defendant) were seen talking together at apartment 203; Bonilla
was nervous about this location, because of some adjacent occupant. He then
talked to Faccio, who told him that the money would be in apartment 305.
Faccio went to the elevator, and pushed the button; the door opened, revealing
Bonilla and an associate with both the white box and the blue pouch. Hoercherl
subsequently saw the white box and the blue pouch in apartment 305, both with
money in them. When he asked Casillas if the $200,000 were all there, Casillas
replied that it was "a little short." Casillas then said that Bonilla and his
associate must inspect the delivered drug cargo, for it was "their money."

11

Casillas exited the building, carrying the white box, and went to his Volvo,
outside the gate to the apartment complex. At this juncture, Justice, who was
waiting outside the gate, gave Hoercherl the keys to the car which supposedly
was carrying the cocaine. Hoercherl walked toward it, meanwhile telling other
government agents what to expect inside the gate. He then drove to the gate,
followed by federal agents in a van, entered, and the arrest of the appellants
followed. The white box in Casillas's Volvo contained $97,950. Bonilla threw
away the key to the pouch, which was now empty. Keys to apartment 305 were
found on him. Faccio possessed a box containing many keys to apartments,
including number 305.

A Preliminary Inquiry Entrapment?

12

13

Appellant Casillas has devoted a substantial part of his brief to asserting that
this prosecution was the kind of situation described in Sorrells v. United States,
287 U.S. 435, 442 (1932), "when the criminal design originates with the
officials of the Government, and they implant in the mind of an innocent person
the disposition to commit the alleged offense and induce its commission in
order that they may prosecute." Appellant cites as support the governmental
origin of the scheme, the use and instruction of an informant, the uninvited
visits to Casillas, the initiation of telephone calls by the informant or the
undercover agent, and the absence of cocaine.

14

But entrapment (a word which does not appear in Casillas's brief) is not an
issue in this case. Appellant requested, and the district court refused, an
instruction on entrapment. Appellant has not identified this ruling as error or
made it an issue. He cannot now slide it into the case. Nor can appellant gain
any comfort from the safety valve of "plain error"-which in any event he has
not invoked. The evidence of predisposition was manifest. See generally United
States v. Panet-Collazo, 960 F.2d 256, 259-60 (1st Cir. 1992). And this is not
that rare case where we might characterize the government's conduct as
outrageous. As we have noted in United States v. Rafael Santana and Francis
Fuentes, No. 90-1393, slip op. at 6 (1st Cir. Sept. 16, 1993), "The banner of
outrageous misconduct is often raised but seldom saluted."

Sufficiency
15

Both Casillas and Bonilla challenge the sufficiency of the evidence to support
their convictions for conspiracy. Our standard of review is limited. We indulge
all reasonable inferences favoring the prosecution. Our query is whether a
rational jury could have found guilt beyond a reasonable doubt. United States v.
Benevides, 985 F.2d 629, 633 (1st Cir. 1993). So long as the government has
shown by direct or circumstantial evidence that a defendant intended to agree
and to commit whatever substantive criminal offense may have been the target
of the conspirators' agreement, it has met its obligations. United States v. Cruz,
981 F.2d 613, 616 (1st Cir. 1992). It does not need to show that a defendant
took part in all aspects of the conspiracy. Id., at 617; Benevides, 985 F.2d at
633 (proof of the essential nature of the plan, and defendant's connection with it
is enough) (quoting Blumenthal v. United States, 332 U.S. 539 (1947)).

16

The record, insofar as it concerns Casillas, is voluminous. He participated in all

the meetings, conducted negotiations, and sought buyers, recruiting Torres who
brought in Ortiz, and Faccio, who brought in Bonilla. He inspected samples,
called off or delayed meetings, and decided when a transaction was ready. He
was the spokesman of the buyer group and was the person who placed the

money in his car for exchange on delivery of the cocaine. The evidence of his
participation was more than sufficient.
17

Bonilla's main argument is that he had not appeared at any of the many
meetings at which the drug deal was discussed, and that his presence on August
16 at the Feria Court Apartments (the scene of the drug transaction) was
innocent, as he was there to negotiate the purchase of an apartment, not drugs.
But that day was crucial to the conspiracy, and Bonilla proved to be a most
active and visible actor. In the first place, a defendant's "mere presence" claim
is more difficult to sustain when his "presence" was at the scene of the
transaction. See United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992)
("Jurors can be assumed to know that criminals rarely welcome innocent
persons as witnesses to serious crimes and rarely seek to perpetrate felonies
before larger-than-necessary audiences."). In the second place, Faccio's
expressed satisfaction that postponement of the transaction would give him a
day to "get a hold of Quique" (identified as Bonilla) could be taken by the jury
to indicate the essentiality of his role. In the third place, the events of August
16 reveal his omnipresence: his several trips to the Bronco; his nervousness at
having the transaction in apartment 203 and his apparent influence in changing
to apartment 305; his appearance in the elevator with the white box and the
blue money pouch; Casillas's statement that Bonilla and his associate should
inspect the drugs being delivered, for it was "their money;" his attempt to throw
away the key to the pouch; and his possession of the key to apartment 305, the
money room.

18

The jury, of course, was entitled to disbelieve his proffered alibi that he was
there to inspect an apartment that he and his wife might decide to buy.
Moreover, the jury was entitled to draw the inference that Bonilla would not
likely have brought almost a hundred thousand dollars to the transaction if he
had not known of the total down payment requirement, the extent of Ortiz's
contribution of collateral, and the understanding as to the remaining delivery. In
short, the evidence was sufficient to support the verdict.

Sentencing Issues
19

Manager/Supervisor. Appellant Casillas devotes two sentences in his brief to

the claim that the district court erred in increasing his offense level because of
his role as manager or supervisor of the conspiracy. He argues that Justice and
Hoercherl occupied that role.

20

We review this finding only for clear error. United States v. Wright, 873 F.2d
437, 442-44 (1st Cir. 1989); United States v. Vega-Encarnacion, 914 F.2d 20,

24 (1st Cir. 1990). From what we have already said about Casillas's
participation, it is manifest that there was no error. His acceptance of the role of
broker, his recruiting efforts, and his central role in negotiating, planning and
delaying meetings support the finding. Moreover, Agent Justice testified that
Casillas was to be given a percentage of the sale proceeds plus fifty kilograms
of cocaine. This record satisfies most, if not indeed all, of the factors
characterizing a leadership role specified in U.S.S.G. 3B1.1(c). See id.,
comment. (note 3).
21

Intent to Accomplish Sale of 150 Kilograms. All three appellants claim that the
negotiated amount of 150 kilograms should not be used in calculating their
offense levels. Casillas argues that the amount of drugs, "if any," should be
either 50 kilograms (the total he claims that he intended to purchase) or "around
7 kilograms." Bonilla argues that, since the sum seized could have purchased
only 7.7 kilograms (at $12,500 per kilo), this figure should have been used,
resulting in an offense level of 30, not 38. Faccio argues that the only evidence
of his involvement in the enterprise was his tape recorded remarks concerning
his interest in purchasing, at most, 25 kilograms.

22

In addressing these contentions, we are directed by two guidelines. U.S.S.G.

1B1.3(a)(1)(B) provides that a conspirator is responsible for all criminal acts in
furtherance of the conspiracy and they are includible in the defendant's offense
level to the extent that they are either within the scope of the criminal activity
embraced by the defendant's agreement or "reasonably foreseeable in
connection with the criminal activity the defendant agreed to jointly
undertake." See id., comment. (note 2). In addition, in connection with then
applicable U.S.S.G. 2D1.4, comment. (note 1) (1991), the amount of drugs
sought or under negotiation in a conspiracy should be used if the amount seized
is less and defendant intended to produce and was "reasonably capable" of
producing the larger amount. This instruction applies to buyers as well as
sellers and includes those who negotiate purchases from undercover agents.
United States v. Frazier, 985 F.2d 1001, 1002-3 (9th Cir. 1993).

23

There can be no question that appellant Casillas was properly charged with the
intent to bring about the purchase of 150 kilograms. He was in the center of
developments from the very beginning, when the total amount contemplated
was 600 kilograms, and privy to every subsequent change of plans.

24

With reference to Bonilla the district court found that he was "fully aware of the
total amount negotiated and he produced a substantial amount of money
towards the purchase of the 150 kilograms of cocaine. [He] played an
instrumental role in the conspiracy as a financier, an essential part of the

conspiratorial scheme."
25

With reference to Faccio, the court found that he "was aware of the total
amount negotiated and he negotiated to produce the monies for the purchase of
150 kilograms of cocaine. As one of the financier[s] his role in the conspiracy
was instr[u]mental." The court filed supplemental findings, after reviewing its
notes and the arguments of the parties, that Faccio had "negotiated the amount
of 150 kilograms of cocaine, that the amount of money corresponding to
quantity and the condition [sic] for the delivery were also a part of the
discussions."

26

We review a trial court's determination of the amount of drugs included in the

offense for sentencing purposes under the strict "clearly erroneous" standard.
United States v. Panet-Collazo, 960 F.2d at 261. Can we say that the court was
clearly wrong in finding that Bonilla and Faccio, called in to provide the second
half of the required down payment, could reasonably foresee the wider reaches
of the scheme? Whether or not Faccio was to receive substantial amounts of
cocaine as extra compensation, as some testimony indicated, we cannot believe
that it was irrational to find that Bonilla, who contributed nearly $100,000, and
Faccio, who, according to the taped record of the August 13 meeting, was
willing to give a deed to his property, knew of the extent of the underlying
agreement. Specifically, the court cannot be faulted for concluding that Faccio
and Bonilla knew that the cash contribution Bonilla would make would
complete the $400,000 down payment required to transfer the title to 25
kilograms, obtain the delivery of another 25 kilograms on consignment, and
pave the way, if the money count was satisfactory, to the delivery later in the
day of 100 kilograms which could be sold before payment was made to the
sellers.

27

In short, even though Faccio and Bonilla came in at the last chapter, it was a
chapter that reflected all that had gone before. The roles of both men were far
more significant than that of a guard for a "money man" where, in United States
v. Alfonso Mena-Robles and Miguel Torres-Rivera, Nos. 92-1233, 1299, slip
op. at 21 (1st Cir. Sept. 28, 1993), we held, "his general knowledge of the size
of the cocaine deal is inferable." We therefore hold that the court's findings of
the appellants' knowledge and intent were not clearly erroneous.

28

Capacity to Finance the 150 Kilogram Purchase. Faccio is the only appellant
who clearly raises a challenge to the district court's 150-kilogram finding by
arguing that the government failed to carry its burden of showing, by a
preponderance of the evidence, that he was reasonably capable of buying that
much cocaine from the government agents. He relies on our statements in

United States v. Estrada-Molina, 931 F.2d 964, 966 (1st Cir. 1991) and United
States v. Bradley, 917 F.2d 601, 604-05 (1st Cir. 1990), where we said that the
government had the burden of proving capability as well as intent to produce
the quantity proposed to be used for determining the offense level.
29

Neither the government below nor the district court responded to this argument.
In reviewing the record we can understand why. The thrust of Faccio's
objections to his pre-sentence report was that, not understanding English, he did
not know the extent of the planning, and his own intended purchase was limited
to 25 kilograms. He invoked U.S.S.G. 2D1.4, comment. (note 1) (now
consolidated as part of U.S.S.G. 2D1.1, comment. (note 12)), recognizing the
inappropriateness of considering the total amount negotiated when the court
finds the defendant "did not intend to produce and was not reasonably capable
of producing the negotiated amount." He also cited Estrada-Molina.

30

But even these passing references to capability disappeared at the subsequent

hearing on objections to the presentence report. Faccio repeatedly stated his
position that the evidence did not support a finding that he knew or had
anything to do with facilitating the purchase of more than 25, or at most 50,
kilograms. The issue of Faccio's capability to produce sufficient funds was
never presented to the district court.

31

Since, however, the leveraging effect of considering negotiated but undelivered

amounts is so enormous, we look at the record. Our conclusion is that, though
harsh, it supports the higher offense level of 38. We first point out that the
planned purchase of 150 kilograms (about which Faccio was told at the August
10, untaped meeting, notwithstanding the fact that the August 13 meeting made
no mention of this amount), was not to be made wholly in cash. The
requirements had been narrowed to a down payment of $400,000. This would
trigger the immediate delivery of complete title to 25 kilograms and delivery,
on consignment, of another 25 kilograms, followed by a delivery for sale and
later repayment of 100 kilograms. The first half of the down payment had been
supplied by the Ortiz collateral. And what was actually delivered by Bonilla
was approximately half of the remaining $200,000. So the focus must be:
would the district court have been clearly in error in finding Faccio capable of
providing the remaining $100,000?

32

What we find in the record are unrebutted intimations of Faccio's capacity to do

so. On August 13, Faccio was recorded saying that he could give a deed to his
property and that "I have there over $83,000 that are mine." This is followed by
a statement by Casillas that Faccio had property worth $800,000, and by
Hoercherl's comment that the amount was a million. Then there is the evidence

that Bonilla and his wife were prepared to pay $103,000 for one of Faccio's
apartments. We do not know the size of the apartment building, but the record
discloses that there were five floors, that perhaps half had been sold (occupied
by professional people), with half yet to be sold. Perhaps most compelling is
the statement in Faccio's pre-sentence report, unobjected to, that the
government had confiscated properties valued at over two million dollars. All
this may not be conclusive, for mortgage indebtedness is not revealed. But the
district court was surely entitled to accept these figures, absent any indication
that they were misleading. All of these indicia meet if not exceed those we
found sufficient to prove capacity in United States v. Bradley, 917 F.2d 601 (1st
Cir. 1990).
33

In objecting to his pre-sentence report, Bonilla merely stated that he had been
able to come up with only the money seized (nearly $98,000), not $200,000. He
did not specifically argue incapacity in either his appellate brief or at oral
argument. Even were we to consider such an argument now, we should have to
treat Bonilla as accountable for the reasonable capacity of his co-conspirators.
As the Sixth Circuit held in United States v. Snelling, 961 F.2d 93, 96 (1991),

34

Since the negotiated amount in this reverse buy was three kilograms and the codefendants had sufficient funds at the time of arrest to purchase three kilograms
of cocaine, the district court was correct in utilizing a base level of 28.

35

As we said of a defendant making a similar argument in Mena-Robles,

appellant's "personal financial ability is inapposite to the matter at hand." Nos.
92-1233, 1299, slip op. at 19 (1st Cir. Sept. 28, 1993) (emphasis in original).

36

Casillas advanced an incapacity argument only conclusorily and obliquely. But,

again, spurred by the dramatic impact of the total amount negotiated on his
prison sentence, we have reviewed the record. Here, unlike with Faccio and
Bonilla, we are not concerned with Casillas's own ability to finance the
purchases. Casillas's role was that of finder, facilitator, recruiter. That he
performed this role with considerable effectiveness was shown by his track
record in this case. Being a middleman, his own inability to pay is not
controlling. United States v. Fowler, 990 F.2d 1005, 1006-08 (7th Cir. 1993).
He supplied the financiers with most of the down payment; it is likely that any
shortfall could have been remedied; he would be free to sell the cocaine
delivered on consignment and have the remaining 100 kilos delivered without
down payment.

37

We therefore reject the arguments asserting lack of proof of the defendants'

ability to finance the down payment for the planned 150 kilogram transaction.
38

AFFIRMED.