USCA1 Opinion

October 28, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________
No. 91-2298
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN ANTONIO CASILLAS,
Plaintiff, Appellant.
_____________________
No. 92-1493
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE E. BONILLA-MARTINEZ,
Defendant, Appellant.
_____________________
No. 92-1494
UNITED STATES OF AMERICA,
Appellee,
v.
FERNANDO FACIO-LABOY,

Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]

___________________
____________________
Before
Selya, Circuit Judge,
_____________
Aldrich and Coffin, Senior Circuit Judges.
_____________________
____________________

Manfredo E. Lespier-Garcia for appellant John Antonio Casillas.

__________________________
David Rive-Rivera, by Appointment of the Court, for appell
__________________
Fernando Faccio-Laboy.
Carlos R. Noriega, by Appointment of the Court, for appell
___________________
Jose E. Bonilla-Martinez.
Rosa Emilia Rodriguez-Velez, Assistant U.S. Attorney, with w
____________________________
Charles E. Fitzwilliam, United States Attorney, and Jose A. Quil
______________________
_____________
Espinosa, Senior Litigation Counsel, were on brief for appellee.
________
____________________

____________________

COFFIN,

Senior Circuit Judge.

______________________

brought

by defendants

Enrique

Bonilla

Jose

Antonio

Martinez (Bonilla),

These

three

appeals are

Casillas (Casillas),
and

Jose

Fernando Faccio-Laboy

(Faccio), who were adjudged guilty of conspiracy

intent

to

violation

distribute
of 21

multi-kilo

U.S.C.

quantities

846.

One

to possess with
of

cocaine,

defendant, Casillas,

in

was

convicted of using a telephone in facilitating the conspiracy, in

violation of
supervised
following

21

U.S.C.

release
terms

843(b).

and

of

In addition

special

monetary

imprisonment were

to

terms

assessments,

imposed:

Casillas,

of

the

292

months; Bonilla, 264 months; Faccio, 264 months.

Appellants Casillas and Bonilla challenge the sufficiency of

the
also

evidence to support
challenges

the

Sentencing Guideline
that

district

court's

3B1.1, U.S.S.G.

Appellant Casillas

finding,

pursuant

to

3B1.1, that his role was

of manager/supervisor of the conspiracy, and its consequent

increasing of his
court's finding
purchase of
base

their convictions.

offense level.

appellant challenges the

that he was instrumental in

150 kilograms of

offense level

claims that he

Each

of

38.

negotiating for the

cocaine, a finding resulting

More particularly,

had neither the intent nor the

in a

each appellant

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.

-3-

The reverse drug buy undercover operation

_________________________________________
We

set forth

what

we consider

events, as the

jury was warranted

discussion

the

of

legal

a sufficient

narration of

in viewing them, to

issues

make our

comprehensible.

We

have

necessarily excluded much and selected from not always consistent

testimony.
The conspiracy originated
"reverse sting"
posed
Drug

with the government.

was a

operation, in which government undercover agents

as sellers

and set

up deals

Enforcement Administration

Justice worked with

William

This

(DEA)

involve

drug buyers.

special agent

and often through a

Hoercherl, to

importing scheme.

with would-be

appellant

Jefferson

confidential informant,
Casillas

Casillas had participated with

in

drug

Hoercherl in a

prior deal, involving some 102 kilograms, and was thought to be a

suitable target for

DEA activity.

and by June had progressed to the

be a broker for Hoercherl

York and

Miami were

point where Casillas agreed to

to be

sale of 600 kilograms of cocaine.

the locus for

the sale

kilograms and Puerto Rico the locus for 200 kilos.

a kilo was $12,500.

in May, 1990,

and Justice (now posing as Hoercherl's

nephew) in the importation and

New

Contacts began

of 400

The price for

Casillas was to find the customers.

During July there was

continual activity: Casillas

brought

into the venture one Torres,

who was expected to find

New York and Miami; a sampling of

Hilton

Hotel,

but

Casillas

because

his

buyers

cocaine was done at the Caribe

canceled a

distrusted

buyers in

the

scheduled

location;

transaction

and

the

terms

-4-

changed, the

amount of

down payment

required by

the "sellers"

having dropped from $1,000,000 for 200 kilos to $400,000.

In early
come forward

August, Torres
with property

introduced one
as collateral for

part of

the down

On August

Casillas,

and others, and gave Justice documents concerning four

of real estate:

residence, an
Casillas

urban

a four-unit apartment

lot in

had received

a meeting

to

payment.

pieces

8, Ortiz attended

Ortiz, who was

Dorado Del

automobiles; these he gave to Justice.

giving Justice all

building, Ortiz's

Mar, and

from Ortiz documents

with Justice,

a rural

of title

lot.

to eleven

Then Ortiz signed a note

of the collateral "if the

money for services

[i.e., drugs delivered] is not paid in full."

Ortiz also claimed

to have
route via

nineteen other
barge.

down payment of

vehicles on his

This satisfied the

$400,000.

lot and

thirty-four en

first half of the required

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.

transaction, which would
half

Hoercherl discussed the

require a down payment of $400,000 (one

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
seller

on consignment.

would retain title

Presumably this

until payment was

remaining 100 kilos were to be

meant that the

accomplished.

delivered later in the day.

The

Not

-5-

part

of Hoercherl's

testimony

discussion but

was the understanding

elsewhere

revealed in

that Casillas would

the

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
Hoercherl,
meeting

was

took place

on August 13,

Justice, Faccio, and

not recorded

on

Casillas.
tape,

this

which was
While

attended by

the August 10

one was.

Although

Hoercherl

testified that

arrangements
contains no

to deliver

on August 13
the 150

reference to this

there was

discussion of

kilos on

August 15,

the tape

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

with 25 more" and that "It will pay off for you."
that the transaction
Feria Court Apartments

that way you give

hold of

Quique

Bonilla.
Hoercherl

15 in Faccio's

Faccio preferred

the 14th "Because

Quique."

It was agreed

not take place until August

building.

me all day

that date to

today to get

was elsewhere identified

However, on August

you

as appellant

15, Casillas spoke with Justice and

and postponed the meeting

until the following day, as

he needed more time to secure the money for the deal.

On

August

16,

apartment building.
Bronco,

Justice

and

Hoercherl

At 4:30, Bonilla

came

to

drove up in a

Faccio's

white Ford

talked with Casillas, and entered the building.

Bonilla

came back to the Bronco at 4:45, reentered the building, came out
-6-

again at

4:55, went

to the

Bronco, took

out a

white box

and

reentered the
the

building.

building, then

Faccio

and Bonilla talked in

Bonilla made

bringing back a blue money pouch.

at a fifth story window.
defendant) were seen
was

nervous

occupant.
would

He was then seen shortly after

He and another person (an acquitted co-

this

location,

apartment 305.

the button;

because

of

Faccio went

203; Bonilla
some

the door

to the

opened, revealing

associate with both the white box and the blue

subsequently saw
305, both

Bronco,

adjacent

then talked to Faccio, who told him that the money

be in

pushed

to the

talking together at apartment

about

He

third trip

front of

the white box

with money

Bonilla and
pouch.

and the blue pouch

in them.

When he

there, Casillas replied that it

short."

then said that Bonilla and

an

Hoercherl

in apartment

asked Casillas

$200,000 were all

Casillas

elevator, and

if the

was "a little

his associate must

inspect the delivered drug cargo, for it was "their money."

Casillas

exited the building,

carrying the white

box, and

went to his Volvo, outside the gate to the apartment complex.

this juncture,

Justice, who was

Hoercherl the keys

cocaine.

waiting outside the

to the car which supposedly

Hoercherl walked

toward it,

the

gate, followed by federal

arrest

of

the

appellants

Casillas's Volvo contained

meanwhile telling

to the pouch,

agents in a
followed.

$97,950.

which was now empty.

-7-

gate, gave

was carrying the

government agents what to expect inside the gate.

to the

At

other

He then drove

van, entered, and

The

white

box

in

Bonilla threw away

the key

Keys to apartment

305 were

found

on him.

Faccio possessed

a box containing

many keys to

apartments, including number 305.

A Preliminary Inquiry - Entrapment?
___________________________________
Appellant Casillas
brief

to

asserting

has devoted

that

this

situation described in Sorrells

________
442

(1932),

"when

the

prosecution

was

part of
the

v. United States, 287

_____________

criminal

officials of the Government, and

a substantial

design

originates

kind

his

of

U.S. 435,
with

they implant in the mind of

the

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.

But entrapment (a word

which does not appear

brief) is not

an issue in this

case.

the

court

an

district

Appellant
issue.
gain

refused,

in Casillas's

Appellant requested,

instruction

has not identified this ruling as

He cannot now slide it into the case.

on

and

entrapment.

error or made it an

Nor can appellant

any comfort from the safety valve of "plain error" -- which

in any event he has not

was manifest.

invoked.

See generally United States

___ _________ _____________

F.2d 256, 259-60 (1st Cir. 1992).

where

we

might

outrageous.

The evidence of predisposition

characterize

v. Panet-Collazo, 960
_____________

And this is not that rare case

the

government's

As we have noted in United States v.

_____________

and Francis Fuentes, No. 90-1393, slip

___________________

conduct

as

Rafael Santana
______________

op. at 6 (1st Cir.

Sept.

-8-

16, 1993), "The

banner of outrageous misconduct

is often raised

but seldom saluted."

Sufficiency
___________
Both Casillas and

Bonilla challenge the sufficiency

evidence

to support

their

standard

of

is

inferences

review

favoring the

rational jury could

United States
_____________
So long as
evidence

convictions

limited.

We

prosecution.

v. Benevides, 985
_________

defendant

conspiracy.

indulge
Our

have found guilt beyond

all

query is

intended

Our

reasonable

whether a

a reasonable doubt.

F.2d 629, 633 (1st

the government has shown by

that

for

of the

Cir. 1993).

direct or circumstantial
to

agree

and to

commit

whatever substantive criminal offense may have been the target of

the conspirators' agreement, it has met its
States
______

v. Cruz, 981 F.2d 613, 616

____

need to show
conspiracy.

that a defendant
Id.,
___

obligations.

(1st Cir. 1992).

took part in

at 617; Benevides, 985

_________

United
______

It does not

all aspects of

F.2d at 633 (proof

the

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)).
The
He

record, insofar as it concerns Casillas, is voluminous.

participated in all the meetings, conducted negotiations, and

sought

buyers, recruiting

Torres

Faccio, who brought in Bonilla.

or delayed meetings,

who

in

Ortiz,

and

He inspected samples, called off

and decided when

He was the

spokesman of the buyer

placed the

money in

his car

brought

a transaction was

group and was the

for exchange

on

ready.

person who

delivery of

the

-9-

cocaine.
sufficient.

The

evidence

of his

participation

was

more

than

Bonilla's main argument

of the many

is that he had not

meetings at which the

appeared at any

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

negotiate the purchase of

was

crucial to the

active
"mere

and visible

an apartment, not drugs.

But that day

conspiracy, and Bonilla proved

to be a most

actor.

presence" claim

"presence"

was at

he was there to

is

In the

first place,

more difficult

the scene

States v. Ortiz, 966 F.2d

______
_____

of

to

a defendant's

sustain when

the transaction.

See
___

707, 712 (1st Cir. 1992)

his

United
______

("Jurors can

be assumed to know that criminals rarely welcome innocent persons

as witnesses
felonies

to serious

before

second place,

crimes and

rarely

larger-than-necessary

seek to

perpetrate

audiences.").

Faccio's expressed satisfaction

In

the

that postponement

of the transaction would give him a day to "get a hold of Quique"

(identified as

Bonilla) could be

the essentiality of his role.

August
Bronco;

16 reveal

his

to indicate

In the third place, the

omnipresence: his

his nervousness at

several

having the transaction

203 and his apparent influence

appearance in

taken by the jury

events of

trips to

the

in apartment

in changing to apartment 305; his

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,

-10-

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.
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
he

had not

extent

of

understanding

hundred thousand dollars to the

known of

the

Ortiz's

contribution

as

to the

total down

payment requirement,
of

remaining

transaction if

collateral,

delivery.

In

the

and

the

short,

the

evidence was sufficient to support the verdict.

Sentencing Issues
_________________
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.

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,
________________
have

was no error.

recruiting efforts,

planning
Agent

From what we

already said about Casillas's participation, it is manifest

that there
his

914 F.2d 20, 24 (1st Cir. 1990).

His acceptance
and his

and delaying meetings

Justice

testified

role in

negotiating,

support the finding.

that

percentage of the sale proceeds

central

of the role of broker,

Casillas

was

to

Moreover,
be

given

plus fifty kilograms of cocaine.

-11-

This record

satisfies most,

characterizing
3B1.1(c).

leadership

if not indeed
role

all, of

specified

in

the factors
U.S.S.G.

See id., comment. (note 3).

___ ___

Intent to Accomplish Sale of 150 Kilograms.

______________________________________________
appellants

claim that

the negotiated

amount

of 150

should not be used in calculating their offense levels.

argues that the amount
kilograms (the total
"around 7 kilograms."
could have

of drugs, "if any,"

purchased only 7.7

three

kilograms

Casillas

should be either

he claims that he intended

Bonilla

All

50

to purchase) or

argues that, since the sum seized

kilograms (at $12,500

per kilo),

this figure should have been

of 30,

not 38.

involvement

Faccio

in

the

used, resulting in an offense level

argues that

enterprise was

the only
his

evidence of

tape

his

recorded remarks

concerning his interest in purchasing, at most, 25 kilograms.

In

addressing these

guidelines.

contentions, we

U.S.S.G.

1B1.3(a)(1)(B)

conspirator is responsible
of the

conspiracy and

are

directed by
provides

for all criminal acts

they

are includible

that

two

in furtherance

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

(note

2).

U.S.S.G.

to jointly undertake."

In addition,
2D1.4,

in

connection

See id., comment.

___ ___
with

then applicable

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

-12-

"reasonably

capable" of

instruction applies
those who

producing

to buyers as

negotiate purchases

the
well as

larger

amount.

sellers and

from undercover

agents.

This

includes

United

______
States v. Frazier, 985 F.2d 1001, 1002-3 (9th Cir. 1993).
______
_______
There

can

be

no

properly charged with

150 kilograms.
very

question

that

appellant

the intent to bring about

He was

beginning, when

in the center
the

total

Casillas

the purchase of

of developments from

amount

was

contemplated

was

the

600

kilograms, and privy to every subsequent change of plans.

With reference to

Bonilla the district court

found that he

was "fully aware of the total amount negotiated and he produced a

substantial

amount

kilograms of
conspiracy

of money

cocaine.
as

[He]

towards

the purchase

of

the 150

played an instrumental role

financier,

an

essential

part

in the
of

the

conspiratorial scheme."

With reference to Faccio, the court found that he "was aware

of the total

amount negotiated and he negotiated

monies for the purchase

to produce the

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

corresponding

kilograms of
to

quantity

cocaine, that
and

the

the amount

condition

[sic]

of money
for

the

delivery were also a part of the discussions."

We review

a trial

drugs included in

court's determination of

the offense for sentencing

-13-

the amount

of

purposes under the

strict "clearly

erroneous" standard.

Collazo,
_______

960 F.2d at 261.

wrong in

finding that Bonilla

the

second half of

to

receive

Panet______

Can we say that the court was clearly

and Faccio, called in

the required down

foresee the wider reaches

was

United States v.
______________

payment, could reasonably

of the scheme?

substantial

to provide

amounts

Whether or
of

cocaine

not Faccio
as

extra

compensation, as some testimony indicated, we cannot believe that

it was

irrational to find

$100,000, and Faccio,

August 13
knew of
the court

that Bonilla, who

who, according to the taped

meeting, was willing to

the extent of
cannot

contributed nearly

be

record of the

give a deed to

his property,

the underlying agreement.

faulted for

concluding

Specifically,

that

Bonilla knew that the cash contribution Bonilla

Faccio

and

would make would

complete the $400,000 down payment required to transfer the title

to 25 kilograms,
consignment,

obtain the delivery of another

and

pave

satisfactory, to the

the

way,

if

the

25 kilograms on
money

delivery later in the day

count

was

of 100 kilograms

which could be sold before payment was made to the sellers.

In short, even though Faccio and Bonilla came in at the last

chapter,

it was

chapter

before.

The roles of

that reflected

both men

all

were far more

that had

gone

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
knowledge

(1st Cir. Sept. 28, 1993), we

of the

size of the

cocaine deal

held, "his general

is inferable."

We

-14-

therefore

hold

that

the court's

findings

of

the appellants'

knowledge and intent were not clearly erroneous.

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

evidence,

that he

was reasonably

cocaine from the government agents.

in United States
_____________
1991) and
Cir.

capable

of buying

v. Bradley, 917
_______

1990), where we said that

that much

He relies on our statements

v. Estrada-Molina, 931 F.2d 964,

______________

United States
_____________

the

F.2d 601,

966 (1st Cir.

604-05 (1st

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.

Neither
responded

the
to

government

this argument.

understand why.

The thrust

sentence report was

know the
was

25

In

(note

the

district

reviewing the record

of Faccio's objections to

planning, and his own

kilograms.

He

comment. (note 1) (now consolidated

comment.

nor

that, not understanding English,

extent of the

limited to

below

12)),

capable

"did not
of

intend

producing the

he did not

U.S.S.G.

2D1.4,

to produce
negotiated

2D1.1,

inappropriateness

considering the total amount negotiated when the

defendant

his pre-

as part of U.S.S.G.
the

we can

intended purchase

invoked

recognizing

court

and

court finds the

was not

amount."

of

He

reasonably

also cited

Estrada-Molina.
______________

-15-

But even
at

these passing references to capability disappeared

the subsequent

report.

Faccio

hearing

on

objections

to

the

presentence

repeatedly stated his position that the evidence

did not support a finding that he knew or had anything to do with

facilitating

the

kilograms.

The

purchase of
issue

of

more

than

Faccio's

25,

or at

capability

most
to

50,

produce

sufficient funds was never presented to the district court.

Since,

however,

the

leveraging

effect

of

considering

negotiated but undelivered amounts is so enormous, we look at the

record.

Our conclusion is

higher offense level

of 38.

purchase of

150 kilograms

August 10,

untaped meeting,

August 13 meeting
made wholly
down payment
delivery

supports the

We first point out that the planned

(about which Faccio

was told

notwithstanding the

at the

fact that

The requirements

$400,000.

of complete

title

This

had been narrowed

would trigger

to 25

kilograms

the

sale and later repayment of 100 kilograms.

and delivery,

remaining $200,000.
court have

So

been clearly

on

for

The first half of the

down payment had been supplied by the Ortiz collateral.

actually delivered by Bonilla

to a

immediate

consignment, of another 25 kilograms, followed by a delivery

was

the

made no mention of this amount), was not to be

in cash.
of

that, though harsh, it

And what

was approximately half of the

the focus must

in error in

be: would

finding Faccio

the district

capable of

providing the remaining $100,000?

What we

find in

Faccio's capacity to

the record are

do so.

On

unrebutted intimations

August 13, Faccio

-16-

of

was recorded

saying that

he could give a

have there over

statement

deed to his

$83,000 that are mine."

by Casillas that

property and that

This is followed

Faccio had property

and by Hoercherl's comment that the

worth $800,000,

Then

his wife were prepared to

pay $103,000 for one of Faccio's apartments.

the apartment

by a

amount was a million.

there is the evidence that Bonilla and

size of

"I

building, but the

We do not know the

record discloses

that

there were five floors, that perhaps half had been sold (occupied
by

professional people), with half yet to be sold.

compelling

is the

unobjected

to,

valued

over

at

statement

that the
two

in

Faccio's pre-sentence

government had

million dollars.

court

absent any

surely entitled

indication that they

indicia meet
capacity

was

if not

this

may not

not revealed.
accept

were misleading.

exceed those we

in United States v.
______________

to

report,

confiscated properties
All

conclusive, for mortgage indebtedness is

district

Perhaps most

But

be

the

these figures,
All

of these

found sufficient

to prove

Bradley, 917
_______

F.2d 601

(1st Cir.

1990).
In objecting
stated that
seized
argue

to

he had

his pre-sentence
been able

to come

(nearly $98,000), not $200,000.

incapacity

argument.

in

Even were

either
we to

his

report,

Bonilla

merely

up with

only the

money

He did not specifically

appellate

consider such an

brief or

at

argument now,

oral

we

should have to
capacity of

treat Bonilla as

accountable for the

his co-conspirators.

reasonable

As the Sixth Circuit

held in

United States v. Snelling, 961 F.2d 93, 96 (1991),

_____________
________
-17-

Since the negotiated amount in this reverse buy was three

kilograms and the co-defendants 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.
As

we said

of a

defendant making a

Robles, appellant's
______
the

matter at hand."

similar argument

in Mena_____

"personal financial ability is inapposite to

________
Nos. 92-1233,

1299, slip op.

at 19 (1st

Cir. Sept. 28, 1993) (emphasis in original).

Casillas advanced an
and obliquely.

incapacity argument only

conclusorily

But, again, spurred by the dramatic impact of the

total amount

negotiated on his prison sentence, we have reviewed

the record.

Here, unlike with

concerned with Casillas's

Faccio and

Bonilla, we are

own ability to finance

not

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
990

F.2d

pay is not

1005,

controlling.

1006-08

(7th

financiers with most of the

United States
_____________

Cir. 1993).

He

v. Fowler,
______

supplied

down payment; it is likely

shortfall could have been remedied; he

the

that any

would be free to sell the

cocaine delivered on consignment and have the remaining 100 kilos

delivered without down payment.

We therefore reject the arguments asserting lack of proof of

the

defendants'

ability to

finance

planned 150 kilogram transaction.

AFFIRMED.

-18-

the down

payment

for the