USCA1 Opinion

February 10, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________
No. 92-2316
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER CARABALLO-CRUZ,
Defendant, Appellant.
____________________
No. 92-2319
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE IVAN MONTA EZ-ANAYA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge]
___________________
____________________

Before
Breyer, Chief Judge,
___________
Torruella and Boudin, Circuit Judges.
______________
_____________________
Miguel A.A.
Nogueras-Castro, Assistant
______________________________
Defender, with whom
Benicio S nchez-Rivera,
_______________________
Defender, was on brief for appellant Walter
Francisco M. Dolz-S nchez for appellant Jos Iv n
_________________________

Federal

Public

Federal

Public

Caraballo-Cruz.
Monta ez-Anaya.

Carlos A. P rez-Irizarry, Assistant United States Attorney,

________________________
with whom Charles E. Fitzwilliam, United States Attorney, and
_______________________
Jos A. Quiles-Espinosa, Senior Litigation Counsel, were on brief
_______________________
for appellee.

____________________
____________________

-2-

TORRUELLA, Circuit Judge.

_____________
Cruz ("Caraballo") and Jos
convicted by

Defendants Walter Caraballo-

Iv n Monta ez-Anaya ("Monta ez") were

a jury of conspiracy to

possess with the intent to

distribute cocaine in violation of

and

of aiding

and abetting

distribute

cocaine in

challenges

the sufficiency

Monta ez

appeals

the

21 U.S.C.

the possession

violation of
of

the

841(a)(1),
with the
2.

evidence

against

refusal

Caraballo

to

sentence for being a minimal or minor participant.

I.
I.

intent to

18 U.S.C.

district court's

him

United

States

commercial

by

flights

According to the

and

reduce his

We affirm.

BACKGROUND
BACKGROUND

The alleged conspiracy in this case involved a

smuggle twenty-nine

846,

kilograms

of cocaine

concealing

the drugs

departing

from

into the
in

San

continental

luggage

Juan,

plan to

placed on

Puerto

Rico.

evidence in the record viewed in the light most

favorable to the government, United States v. Echeverri, 982 F.2d

_____________
_________
675, 676 (1st Cir. 1993), the conspiracy proceeded as follows.
On

May 4,

1992, Caraballo

and

Monta ez, along

with

their two codefendants, Orlando Enrique Monroy-Pedrosa ("Monroy")

and Jules

Delgado-Valencia ("Delgado"),1 and

coconspirators,
luggage

to

the

delivered a
American

total of
Airlines

nine
desk

several unindicted
separate pieces

at Luis

International Airport in Isla Verde, Puerto Rico.

checked in the
series of

luggage under a variety of assumed

airline tickets

purchased at the

Mu oz

names using a

same time

The appeals of Monroy and Delgado have been dismissed.

-3-

Mar n

The defendants

____________________
1

of

from the

same travel agency.

In addition, Monta ez purchased two tickets,

also under an assumed name, at the airport.

The
Customs

operation was

Service

Monroy each

first detected

Inspector V ctor

Ramos

when United

observed

States

Monta ez and

carrying a suitcase with United States Department of

Agriculture ("USDA") inspection stickers on them despite the fact

that neither

had passed

inspections are

through the USDA

conducted.2

facility where

Monta ez and

X-ray

Monroy proceeded

the American Airlines counter where Monroy checked the bags

to

onto

a flight to New York under an assumed name.

Upon further
woman,
and

Gladys

then

Eliana Marulanda-Mar n

check

identical

surveillance, Inspector

to the

with

the

luggage

Ramos noticed

("Marulanda"),3

airline,

two

delivered

by

suitcases
Monroy

and

deliver,
that

were

Monta ez.

Marulanda also checked in her bags under an assumed name.

Inspector Ramos alerted other Customs Service officials

to this

suspicious behavior.

The officials

canine unit to investigate the

gave a

positive

alert for

then brought

suspect luggage.

narcotics

as to

in a

The canine unit

each of

the

four

suitcases.

Meanwhile, Customs Inspectors Mar a del Carmen Rabell

and H ctor

Cab n, who

had also

observed Monta ez, Monroy,

and

____________________

2 At the Luis Mu oz Mar n airport, all passengers with baggage

to be checked in on flights to the continental United States must
first pass through one of several USDA inspection facilities
located at the entrance to the terminal. After checking each bag
with an X-ray machine, USDA officials affix an inspection sticker
on the bag to indicate that it has passed inspection and may be
accepted for check-in by the airlines.
3

The government declined to prosecute Marulanda.

-4-

Marulanda

deliver their suitcases, followed Monroy to an airline

gate where they watched him board his plane with Marulanda.
informed of

the positive

alert by the

police dogs,

When

Rabell and

Cab n entered the plane and arrested Monroy and Marulanda.

Following these arrests, the two Inspectors returned to

the American
suitcases

Airlines area

with

USDA

Inspectors looked
the suitcases,
the trunk

of a

where they

inspection

on, Caraballo

observed two

stickers

on

them.

As

and another individual

exited the terminal building, and

car which

unattended

then left

the

grabbed

placed them in

without Caraballo

and his

Rabell and Cab n

observed

companion.
Soon thereafter, Inspectors

Monta ez again enter the terminal and carry two more suitcases to
the

American Airlines

counter.

Monta ez

purchased two

plane

tickets

with cash

later,

the

and checked

Inspectors

in his

luggage.

saw Caraballo,

together

with

carrying three suitcases.

the three suitcases

appeared to

previously

seen Caraballo

trunk of a

car.

three suitcases

According

Rabell did

under assumed

which

gave

Delgado the

Caraballo and

had

place inside

the

companion

carrying.

of the

After checking

names, Caraballo

with Monta ez who was waiting for

Monta ez

ones that she

not, however, specify which

Caraballo was

luggage, again

Delgado,

to Inspector Rabell, two of

be the same

and his

few moments

and Delgado

them in front of a gift

flight jacket

Delgado proceeded

to

their

he was

met

shop.

wearing after

the airline

gate to

board their flight.

-5-

Inspector
after

receiving

Rabell followed

word

that

all

positive alert by the canine

Caraballo and

five

suitcases

found

fragments
Monta ez

in

several

USDA

Caraballo's

were given

unit, arrested them on the airplane

jetway as they attempted to board their plane.

later

Delgado and,

inspection
wallet.

and seized passenger

Government agents

stickers

Inspector

and

Cab n

tickets and boarding

sticker

arrested

passes from

him which corresponded to two

suitcases that were later found to

contain cocaine.
All

nine of

defendants' suitcases

triggered positive

alerts for narcotics when presented to the canine

only five -- Government's Exhibits 1, 2,
contained cocaine.

The first

were the ones carried to

and

Monta ez and

Exhibit

7, was

unit; however,

5, 6, and 7 -- actually

two suitcases, Exhibits 1

and 2,

the American Airlines counter by Monroy

checked

in

carried and

by Monroy.
checked

The last

in by

suitcase,

Monta ez under

the

assumed name of Diego Rivera.

The record contains
to

who

carried and

who

conflicting evidence, however,

checked

in

containing cocaine, Exhibits 5 and 6.

that

these were

the two

the other

suitcases that

originally placed in the trunk

the record

indicates whether, at

also

suitcases

Inspector Rabell testified

individual

contained the cocaine

two

as

Caraballo

and another

of a car.

that point, the

that was later found inside

Nothing in

two suitcases
them.

Rabell

testified that these suitcases, along with a third suitcase

that did not

contain cocaine, were later carried

-6-

to the airline

counter by either Caraballo or Delgado.

According to the airline

records, however, Exhibits 5 and 6 were actually checked in under

the name Mario Arzuaga, one of the aliases used by
Monta ez

purchased

his

airline

tickets

luggage.

The confusion is compounded by

and

Monta ez when

checked

in

his

the fact that the claim

tickets for these two suitcases, Exhibits 5 and 6, were found

Delgado when he was arrested,

on

even though Delgado had checked in

only one bag under a completely different alias.

The government
checked
checks

in Exhibits
for these

jacket.

tried to

5 and

suitcases

suggest that

6 and

then gave

when he

Monta ez really

Delgado the

handed Delgado

his flight

The government never explained, however, the discrepancy

between this version

of events and Inspector

Rabell's testimony

that either Delgado or Caraballo carried Exhibits 5 and 6

airline

claim

counter

after

Monta ez

had

already

checked

to the
in

two

separate pieces of luggage.

At the very least, however, the evidence indicates that

Monta ez carried a
to

total of at least two

the airline counter

least one

(Exhibits 1 or

suitcase with cocaine

possessed an airline

for

Caraballo,

2 and 7),

checked in at

(Exhibit 7), and

purchased and

ticket that corresponded to

suitcases that were found to

As

the suitcase

carrying suitcases

cocaine

at some

two additional

contain cocaine (Exhibits 5 and 6).

checked

Exhibit 10, did not contain cocaine.

seen

suitcases with cocaine

(Exhibits

point, although

in

under

his alias,

Nevertheless, Caraballo was

5

and

6)

which

not necessarily

contained

while he

was

-7-

carrying them, either out of or back into the airport.

Drug

Enforcement Agency

twenty-nine kilograms of
estimated street

value

found in each suitcase

officials

cocaine in the
of $493,000

found

a total

of

five suitcases with

an

to $841,000.

The

was packaged in the same manner

cocaine

and each

package was elaborately wrapped to avoid detection.

II.
II.

SUFFICIENCY OF THE EVIDENCE

SUFFICIENCY OF THE EVIDENCE
A.

Conspiracy

Caraballo challenges
supporting

his conspiracy

under 21 U.S.C.

the sufficiency

and aiding

and abetting

841(a)(1), 846 and 18 U.S.C.

of the jury verdict, we

of the

evidence

convictions

2.

Upon review

examine the evidence in its

entirety in

the light most favorable to the government to determine whether a

rational trier of fact could have found the essential elements of

the crime
benefit
its case

beyond a

reasonable doubt.

The government

of all legitimate and favorable inferences and can prove

by circumstantial

evidence without

every reasonable hypothesis of innocence.

677;

gets the

United States

v. Akinola,

985 F.2d

having to

exclude

Echeverri, 982 F.2d at

_________
1105, 1109

(1st Cir.

_____________

_______

1993); United States v.

______________

McLaughlin, 957 F.2d

__________

12, 18

(1st Cir.

1992).
In order to prove a
under

21

U.S.C.

846,

reasonable doubt,
participated
defendant

did

the

that the

in an
so

defendant is guilty of
government

with

must show,

defendant knowingly

agreement to

violate the

the intent

to

conspiracy
beyond

and voluntarily
law and

commit

the

that the

underlying

-8-

substantive
slip

op. at

offense.

United States v. Sep lveda,

______________
_________

7 (1st Cir.

1110; United States

_____________

Dec. 20,

No. 92-1362,

1993); Akinola, 985

_______

v. Clifford, 979 F.2d 896,

________

United States
_____________

v. Tejeda,
______

1992).

In this case,

the underlying offense was possession with

government is
about,
only

not

or took part
establish

the

cocaine.

required to

21

prove

in, all aspects of

essential

nature

F.2d 210,

897-98 (1st Cir.

1992);

the intent to distribute

974

F.2d at

U.S.C.
that the

212 (1st

Cir.

841(a)(1).

The

defendant

knew

the conspiracy; it need

of

the

plan

and

the

defendant's connection

to it.

United States v.
_____________

F.2d 629, 633 (1st Cir. 1993); United States

_____________
872

F.2d 1073,

1079

(1st

Cir.), cert.
____

Benevides, 985
_________

v. Rivera-Santiago,
_______________

denied,
______

492 U.S.

910

(1989).
Caraballo argues that

the record contains

no evidence

that he knew about or willfully agreed to participate in the plan

to transport

cocaine.

under an assumed
the exact

same

execution

Caraballo

Caraballo was

name with a plane ticket

time

codefendants who were

the

We disagree.

of

the

and

place

as the

that was purchased at

tickets

found to be transporting
smuggling

travelling

operation

on

used

by

his

cocaine.

During

May

1992,

4,

was continuously in the company of other conspirators.

He carried suitcases and boarded a plane with one conspirator who

possessed claim

checks for

customs inspector

testified that

carried two suitcases

Caraballo also met

suitcases containing
Caraballo and

that were later found to

with another conspirator who

-9-

cocaine.

One

the conspirator

contain cocaine.

had carried and

checked in at least one suitcase with cocaine.

One crucial

aspect of the conspiracy

USDA inspection stickers

on suitcases with

cocaine in order

bypass the agricultural inspection facility.

saw Caraballo carry at least
sticker from inside

to

Customs inspectors

one suitcase with a USDA inspection

the terminal

place it into the trunk of a car.

to contain cocaine.

involved placing

back outside

the airport

That suitcase was

and

later found

More significantly, Caraballo

was carrying

USDA inspection stickers and sticker fragments in his wallet.

From this evidence, the
that

Caraballo

continental

agreed

to

jury could reasonably conclude

help

United States by

smuggle

cocaine

carrying several of

into

the

the suitcases

used in the operation, by assisting in bypassing the agricultural

inspection facility, and
with

his

coconspirators

delivery.

In

inspection
marked

to assist

particular,

stickers

and

such

stickers

with

automobile

by flying to the
in

the

Caraballo's

his act
from

of
the

indicate that Caraballo

cocaine's destination
completion of

possession

removing
terminal

of

the

USDA

luggage already
to

waiting

knowingly executed an agreed

upon plan to avoid detection of the cocaine in the suitcases.

Caraballo attempts to characterize the evidence against

him as

sufficient only to

scene of the crime.

in did not

establish his "mere presence"

He emphasizes that the suitcase

contain any drugs,

that he carried cocaine at

in his wallet

the government never

at the

he checked

established

any time, and the inspection stickers

were a different color

-10-

than the ones used

on the

suitcases.

Because of

this evidence,

Caraballo contends,

his

behavior can only be interpreted as a series of "innocent acts".

Although a defendant's
crime

is not

alone

mere presence at the scene of a

sufficient

to prove

conspiracy, United States v. Ocampo,

______________
______

his

membership in

964 F.2d 80, 82

(1st Cir.

1992); United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992),
_____________
_____

cert. denied, 113 S. Ct. 1005 (1993), the circumstantial evidence

____ ______

or simply the attendant circumstances can be enough to convince a

rational jury that "the 'mere'

is lacking."

Echeverri, 982 F.2d

_________

at 678; Tejeda, 974 F.2d at 213; Ortiz, 966 at 711-12.

______
_____

evidence

In Caraballo's

case,

and

circumstances

attendant

there

are
to

both

circumstantial

support

the

jury's

conclusion that Caraballo was participating in the conspiracy and

not merely present
to the States.
an
were

purpose of travelling

Caraballo's actions on May

effort to evade
found

in the airport for the

inspection of certain

to contain

cocaine.

The

4, 1993, demonstrate

suitcases which later

jury could

infer

that

Caraballo removed suitcases from the terminal after they had been

inspected precisely because

be

used

to transport

Caraballo's

tickets

he knew those suitcases

cocaine.
were

In

would later

addition, the

purchased

together

with

fact

that

the

other

conspirators, and the fact that Caraballo checked in his bags and
boarded

his

flight

with

another

conspirator

indicates

he

willfully associated himself with the venture.

That
wallet

were

the
a

inspection

different

stickers

color

found

in

than the

ones

jury

believe

Caraballo's

found

on

the

-11-

suitcases

does

explanation that
collected.

not

compel

the

the stickers

Instead,

the jury

to

were merely
could infer

Caraballo's

"souvenirs" that
that

he

Caraballo had

prepared several alternative methods to evade the USDA inspection

before choosing

the one

he actually

implemented.

reliance on the

lack of proof that he

Caraballo's

ever possessed cocaine or

carried a suitcase with cocaine is of little help to him

case.

No such

show that

proof is required if

he participated in

accomplish its unlawful

the evidence can otherwise

the conspiracy with the

objective.

in this

See, e.g.,
___ ____

intent to

United States v.
_____________

De La Cruz, 996 F.2d 1307, 1311-12 (1st Cir.),

__________
S. Ct.

356 (1993); Akinola, 985

_______

cert. denied, 114

____ ______

F.2d at 1110;

Clifford, 979 F.2d 896, 898 (1st

________

United States v.
_____________

Cir. 1992); Tejeda, 974 F.2d at

______

213.
B.

Aiding and Abetting

Caraballo also challenges his conviction for aiding and

abetting under 18
government

U.S.C.

2.

"For the conviction to stand, the

must prove that defendant associated himself with the

underlying venture, participated in it

bring

about, and

sought by

his

Clifford, 979 F.2d at 899 (citing

________
336 U.S.

613, 619

Caraballo, using an

flight

using

conspirators,
other

actions to

ticket

purchased

carried suitcases and

conspirators,

and

make it

succeed."

Nye & Nissen v. United States,

____________
_____________

(1949)); Ortiz,
_____

evidence that

as something he wished to

966 F.2d

at 711

n.1.

assumed name, checked

together

with

remained in the

took actions

designed

to

the

The

onto a

other

company of

avoid USDA

-12-

inspection

of suitcases

containing cocaine

amply

supports the

jury's conclusion
to associate

that Caraballo knowingly and

himself with the

willfully agreed

plan to smuggle cocaine

into the

continental United States and sought to bring about its success.

-13-

III.
III.
At his

sentencing, Monta ez

his offense level

by two to

3B1.2(a)

for

or

conspiracy.

(b)
He

as

argued that

a courier,

although

reduction in

was

the

in

the

the offense

was

tags to Delgado

and

role in

least culpable

that the presentence

asserting

that

U.S.S.G.

minor participation

and handing claim

he

participant, identified

or

his only

Monta ez further pointed out

report,

requested a

four points pursuant to

minimal

carrying three suitcases

thus,

SENTENCING
SENTENCING

Monta ez

participant.

investigation

was

not

Delgado as the "leader/organizer

minor

of the

overall criminal activity," identified Monroy as the "second most

culpable defendant," and concluded that the "remaining defendants

are

viewed

Monta ez'

as

less

culpable."

request because

player" in the

it

conspiracy.

The

district

found him

to

court

be a

The court sentenced

denied

"substantial

Monta ez to 172

months in prison and Monta ez appealed.

A

reduction in a defendant's offense level for minimal

participation under
who

are plainly

U.S.S.G.

3B1.2(a) "is intended to

among the

3B1.2(a)

comment

least culpable
note

1.

cover defendants

of those

involved."

reduction for

minor

participation under

3B1.2(b) applies to "any participant who is

less culpable than most other participants."

comment note

3.

It is

well established that

automatically

entitled

participant,

even if the

than

her codefendants

his or

U.S.S.G.

to a

reduction

as a

no defendant
minimal

defendant happens to
and even

3B1.2(b)

is

or minor

be less culpable

if the court

found the

-14-

defendant was
F.2d 1124,

only a courier.

1131 (1st

United States v.
_____________

Cir.), cert. dismissed,

____ _________

cert. denied, 113 S. Ct. 484 (1992);

____ ______
Lucena, 925 F.2d 506, 514 (1st
______

(1990).

The

sentencing

determining whether this

we

112 S.

United States
_____________

Ct. 2959,

v. Valencia_________

Cir. 1991); United States v.

_____________

Uribe, 891 F.2d 396, 399 (1st Cir.

_____
951

L pez-Gil, 965
_________

Paz
___

1989), cert. denied, 495 U.S.

____ ______

court has

broad

downward adjustment is

discretion

in

appropriate and

will reverse only if the evidence overwhelmingly demonstrates

that

the defendant

less

culpable

offense such

played a part

that makes

the average

participant

than
that the

court's decision

him substantially
in

the convicted

was clearly

erroneous.

L pez-Gil, 965 F.2d at 1131;

_________

United States v. Gregorio, 956 F.2d

_____________
________

341, 344 (1st Cir. 1992); United States v. Ocasio, 914 F.2d 330,
______________
______
333 (1st Cir. 1990).
The
finding

still a "substantial

minimal, participant.

suitcases containing cocaine

in at

well within its

discretion in

that, even though less culpable than Delgado and Monroy,

Monta ez was
alone

district court was

least one such

Monta ez

purchased, in

player" and not a

Monta ez

at

least

to the airline counter

suitcase with the

cash, two

airline.

tickets

which corresponded to three pieces

contain cocaine.

carried

minor, let

two

and checked
In

addition,

under assumed

names

of luggage that were found to

Monta ez also accompanied Monroy

while Monroy

was carrying still another suitcase with cocaine and while Monroy
checked

in

Monta ez was

two suitcases

that

connected in some

contained

cocaine.

way with every piece

In

fact,

of luggage

-15-

used to transport cocaine.

Furthermore, Monta ez
and

met with

coconspirators Delgado

Caraballo immediately after checking

in his luggage and the

evidence supports the inference that he handed

Delgado the claim

checks for two of the suitcases which were later found to contain
cocaine.
a
the

These activities demonstrate significant involvement in

large smuggling operation

coordinated

actions

that depended for

of

several

its success upon

individuals,

including

Monta ez.4
Even if Monta ez was the
defendants, it
offense.

does not mean

he performed a

United States v. Daniel,

_____________
______

1992).

In our view,

least culpable of the charged

962 F.2d 100,

Monta ez' role in the

can best be described as

average.

sentencing judge,

facts of

the case, found

cannot,

on

Consequently,
Monta ez'

these

who is better

we uphold the

offense for

103 (1st Cir.

smuggling operation

along some claim checks.

situated to

Monta ez' actions more than

facts,

convincingly

find

district court's refusal

playing a

in the

He carried several suitcases,

purchased two plane tickets, and passed

If the

minor role

minimal or

assess the

minor, we

otherwise.

to adjust

minor role

in the

conspiracy.
Affirmed.
________
____________________

4
The considerably large amount of cocaine transported by
Monta ez, who carried or controlled at one point a large portion
of the twenty-nine
kilograms of cocaine involved
in the
conspiracy, also
militates strongly
against any
downward
adjustment. See United States v. Rodr guez Cort s, 949 F.2d 532,
___ _____________
________________
547 (1st Cir. 1991).
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