USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-1448
UNITED STATES,
Appellee,
v.
EVER MIGUEL LEGARDA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Dominick J. Porco with whom Martin L. Schmukler was on brief

__________________
___________________
appellant.
Margaret E. Curran, Assistant United States Attorney, with w
___________________
Edwin J. Gale, United States Attorney, and Gerard B. Sulliv
_______________
__________________
Assistant United States Attorney, were on brief for appellee.
____________________
March 3, 1994
____________________

STAHL,

Circuit Judge.
______________

defendant Ever Miguel

In

this

Legarda challenges:

made by the

district court which excluded

on

grounds;

hearsay

relevant

2)

the

amount of cocaine

court's

1)

drug

trial rulings

certain testimony

computation

for sentencing purposes;

the court's upward departure from the Guidelines.

reversible error, we affirm.
I.
I.
__

appeal,

of

the

and 3)

Finding no

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
________________________________________
In July of
City, where

1992, defendant traveled from

he resided, to

his native country

New York

of Colombia.

Upon his return to New York, and apparently at the urging

someone he had

met in Colombia, defendant

of

contacted Michael

Teixera, known to defendant as Luis Rodrigues, and arranged a

meeting on a Manhattan street

corner.

In a subsequent phone

call by defendant to Teixera, the two arranged for Teixera to

leave

an

Manhattan

automobile

for

street corner

defendant's

where the

two

use

on

that

same

had initially

met.

Defendant also agreed with Teixera that defendant would drive

the car

to a restaurant in Astoria,

meet a

man named Nunyo,

car to

Providence, Rhode Island,

Queens, where he was to

that he would thereafter

and that he would

drive the
be paid

several thousand dollars for doing so.

On August 20, 1992, adhering to the plan, defendant
picked up

the car in

Manhattan, drove to the

-22

restaurant in

Queens, and

met Nunyo, who placed a box

car.

The box contained

found

to be

88%

Providence,
girlfriend

eleven kilograms of

pure.

defendant
and his

Rather
drove

two

than

Defendant

in the

to

than
the

sons where

girlfriend's permission to
rather

in the trunk of the

car

cocaine, later

proceed directly
home

of

his

he obtained

had

drove to Providence

picked up

former

his former

travel to Providence in
he

to

in

her car,
Manhattan.

accompanied by his

two sons,

both under the age of thirteen, and one dog.

Upon

arriving in

Teixera,

who

arranged

for a controlled

would

sell

was

cocaine

government

to

Administration ("DEA")
detective

in the

Providence, defendant
informant.

drug purchase in
United

States

Task Force

again met

Teixera

had

which defendant

Drug

Enforcement

Agent Lawrence

Lepore, a

Department.

Defendant

Providence Police

followed Teixera to an apartment where Lepore was to make the

purchase.

Defendant's two sons entered the apartment, along

with defendant.
kilograms

After discussing

with Lepore,

defendant delivered the

as well

the price
as

of the

eleven

possible future

sales,

eleven kilograms to Lepore.

the consummation of the deal, defendant's two sons were

in a separate room in the apartment.

During
left

DEA agents observed the

purchase and arrested defendant.

After
he

had brought

his arrest, defendant

his children

along in

-3-

stated to Lepore that

order to

lessen the

likelihood of being

stopped on his drive from

to Providence.

also stated

He

that he

New York City

knew that the

box

contained drugs and that he was aware of larger quantities of

drugs

being

defendant

imported

from Colombia.

denied such knowledge.

guilty of possession
substance

in

At

He was

trial, however,
nonetheless found

with intent to distribute

violation

of

21

U.S.C.

841

a controlled
(a)(1)

and

(b)(1)(A)(ii).
II.
II.
___
DISCUSSION
DISCUSSION
__________
As noted
on appeal.

above, defendant offers

three challenges

We address them in turn.

A. The District Court's Hearsay Rulings

________________________________________
At trial, defendant took the stand and attempted to
recount

statements

that

were

allegedly

made

to

him

by

individuals in Colombia, as well as statements made by Nunyo,

his

contact in

Astoria, Queens,

and by

Teixera.

In each

case, the

district court sustained

hearsay grounds.

See
___

repeatedly explained
statements

in

asserted.

Fed. R. Evid.

802.

that defendant

order

Rather,

government objections on

to

prove

Defense counsel

was not offering

the

truth

he argued that the

of

the

these
matter

significance of these

alleged statements lay solely in the fact that they were made
and

that

they

behavior.

therefore

See,
___

e.g.,
____

had
Fed.

an
R.

effect
Evid.

on

defendant's

801(c)

advisory

-44

committee's

note

("If

statement lies solely in

is

raised as

to the

the

significance

of

an

offered

the fact that it was made, no issue

truth

of anything

asserted, and

the

statement is not hearsay."); United States v. Hicks, 848 F.2d

_____________
_____
1, 3 (1st Cir. 1988) (quoting same).
On

appeal,

the

government

concedes

hearsay rulings were erroneous, and we agree

clearly demonstrates

error on the

that

these

that the record

part of the

trial court.

Nonetheless, not all improper exclusions

reversal.
"results

Rather,

an appellant

must

of evidence require
show that

an

error

in actual prejudice because it `had substantial and

injurious effect
verdict.'"

or

influence

in

determining

United States v. Lane, 474 U.S.

______________
____

(quoting

Kotteakos v.
_________

(1946)).

See also
___ ____

United States,
______________

28 U.S.C.

328

2111 ("On the

the

jury's

438, 449 (1985)

U.S.

750,

776

hearing of any

appeal . . . in any case, the court shall give judgment after

an examination

of the

defects which do
parties.");

not affect

Fed.

irregularity or

record without

R.

regard

the substantial

Crim. P.

variance which

rights shall be disregarded.").

52(a)

("Any

to errors
rights of

or
the

error, defect,

does not affect

substantial

Defendant fails to establish

such harm.
Judging from the

contexts of the district

court's

multiple erroneous hearsay rulings, it appears that defendant

in

each

instance

was

prepared

-55

to

offer

exculpatory

information about each of

reasons offered

to him

defendant

to perform

arrest.

Later

allowed

to

the conversations, i.e., innocuous

by each

the acts which

in his

offer this

testimony,

others, he

concerned either
erroneous
recount

was led to

defendant

to his

defendant was

explanation of

his conversations with

believe that

"spare parts" or

rulings,

would prompt

eventually led
however,

exculpatory

Defendant testified that in

Nunyo and

speaker which

cash.

was

events.
Teixera,

the delivery

Thus,

despite the

eventually

allowed

to

the essential elements of his own version of events.

Notwithstanding

his

defendant does not

general

complaints

argue, nor could he on

us, that these errors had

of

unfairness,

the record before

a substantial and injurious effect

or influence on the jury's decision to convict him.

In sum, defendant "was allowed to put on a defense,
even

if

not

reasonably have
403,

407 (7th

quite

so

complete

desired."

defense

as

he

might

United States v. Hanson, 994 F.2d

_____________
______

Cir. 1993).
his

testimony

The
was

substance of
eventually

the excluded

portions

of

allowed

into

evidence.

Given these errors and no more, we cannot say that

reversal is warranted.
B. Sentencing
______________
1. The Amount of Cocaine and the District Court's Base
________________________________________________________
Offense Level Determination
___________________________

The
offense

sentencing court

level

on

the

basis

determined defendant's
of

twenty-one

base

kilograms

of

-66

cocaine; eleven
ten more that
following

kilograms that were actually

delivered, and

defendant purportedly promised to

week.

Defendant

challenges the

deliver the

district court's

inclusion of the latter amount.

We
sentence,

begin

such as

by
drug

noting

that

quantity

facts

supporting

determinations,

proven by the government by a preponderance

must

a
be

of the evidence.

See United States v. Marino, 936 F.2d 23, 27 (1st Cir. 1991).
___ _____________
______
Factual findings on such
error.

Id.
___

issues are reviewed only

Commentary

Note 12

for clear

to section

2D1.1 of

the United States Sentencing Guidelines provides in

relevant

part:
In an offense involving negotiation
to traffic in a controlled substance, the
weight
under
negotiation
in
an
uncompleted distribution shall be used to
calculate
the
applicable
amount.
However, where the court finds that the

defendant did not intend to produce and

was not reasonably capable of producing
the negotiated amount, the court shall
exclude from the guideline calculation
the amount that it finds the defendant
did not intend to produce and was not
reasonably capable of producing.
Our case

law has

Note

in a

both

intent and

inclusion
time.

followed the

language of

rather faithful fashion,

ability to

See, e.g.,
___ ____

requiring a

deliver in

of negotiated amounts to be

this Commentary
showing of

order to

allow the

delivered at a future

United States v. Rotolo,

_____________
______

950 F.2d 70,

(1st Cir. 1991); United States v. Moreno, 947

_____________
______

72

F.2d 7, 9 (1st

-77

Cir.

1991), United States

_____________

v. Estrada-Molina, 931
______________

F.2d 964,

966 (1st Cir. 1991); United States v. Bradley, 917 F.2d 601,
______________
_______
604 (1st Cir. 1991).

In this case, defendant challenges the

district court's findings that he had both the intent and the
ability to

produce

ten

additional

Though the case is close, we affirm.

kilograms

of

cocaine.

At
in Lepore's

trial, a tape recording of the drug transaction

apartment was

placed in

evidence.

The

taped

conversation

spans the period of time during which defendant

purportedly

negotiated

kilograms.

Audible

comments,

made

to

deliver

portions

of

exclusively

by

defendant, about the possibility of

tape itself does not reveal

the

the
Lepore

additional

tape

reveal

rather

future deals.

ten
vague

than

by

Thus, the

the existence of an agreement to

provide additional drugs.1

____________________
1.

Compare, e.g., United States v. Cedano-Rojas, 999 F.2d

_______
____ ______________
____________
1175, 1179 (7th Cir. 1993) (finding that defendant had
negotiated purchase of nine additional kilograms of cocaine
where he stated, "`Save them, save them,' and instructed
[government informant who was selling the drugs] `Don't give
them away.'"); United States v. Williams, 994 F.2d 1287, 1293
_____________
________
(8th Cir. 1993) (finding that defendant had negotiated
additional sale where, "[o]nce the [government] agent asked
about the price of a quarter-pound [of cocaine], [defendant]
did offer to try to obtain and sell him this amount"); United
______
States v. Mahoney, 972 F.2d 139, 143 (7th Cir. 1992) (finding
______
_______
that defendant had negotiated additional sale where defendant
discussed options for delivery and payment, and stated that
he was "positive" that his supplier could deliver the
additional amount); United States v. Cea, 963 F.2d 1027, 1031
_____________
___
(7th Cir.) (finding that defendant had negotiated additional
purchase where evidence of "very specific negotiations as to
price and amount" showed that defendant was "dead serious
about buying and distributing ten kilograms of cocaine"),
-88

In addition to the
at trial that during that

tape, however, Lepore testified

same meeting at which the delivery

took place, defendant had agreed to provide ten kilograms

a weekly basis.

Moreover, the inaudible portions of the tape

do not altogether rule out the possibility that

agreement

described by Lepore

transaction.

The

no

error in the

the specific

was made sometime

district court apparently chose

Lepore's testimony,
it was clearly

on

during the
to credit

and we have no basis for concluding that

erroneous in doing so.

Accordingly, we find

district court's conclusion

that defendant

____________________
cert. denied, 113 S. Ct. 281 (1992); United States v.
_____ ______
______________
Burrell, 963 F.2d 976, 995 (7th Cir.) (finding that defendant
_______
had negotiated additional purchase where "the terms of the
sale were negotiated and agreed upon"), cert. denied, 113 S.
_____ ______
Ct. 357 (1992); Rotolo, 950 F.2d at 72 (finding that
______
defendant had negotiated additional purchase where he, inter
_____
alia, "spoke specifically about taking delivery
of an
____
additional half ton") (emphasis in original); Moreno, 947
__________
______
F.2d at 9 (finding that defendant had negotiated additional
sale where he told government agents that he could supply
five to ten kilograms at fifteen-day intervals and where
___
defendant "agreed to supply these amounts, with the first
______

delivery to be made within a week") (emphasis in original)

with United States v. Reyes, 979 F.2d 1406, 1410 (10th Cir.
____ _____________
_____
1992) (finding that defendant had not negotiated additional
___
sale because, "[w]hile Defendant did not rule out the
possibility [of future drug transactions], the lack of
specific
details concerning
an additional
transaction
indicates that, at best, Defendant intended to negotiate
later"); United States v. Ruiz, 932 F.2d 1174, 1184 (7th
______________
____
Cir.) (finding that defendant had not negotiated additional
___
sale where defendant, having promised two kilograms and
delivered only one, commented, "It doesn't matter. I'll get
you the other kilo.
And if you want, even ten more I can
get."), cert. denied, 112 S. Ct. 151 (1991); United States v.
_____ ______
_____________
Foley, 906 F.2d 1261, 1264 (8th Cir. 1990) (finding that
_____
defendant had not negotiated additional sale where government
___
agent had "simply inquired about the cost" of additional
quantities of drugs).
-99

fully

intended to

produce the

first

weekly instalment

of

cocaine under the agreement which Lepore described.2

As

to

defendant's

ability
_______

to

produce

the

ten

additional kilograms, we find entirely plausible the district

court's conclusion
kilograms of cocaine

that defendant,

having delivered

eleven

one week, was capable of delivering ten

kilograms the following week.

Accordingly, we

find no clear

error in the district court's drug quantity calculation.

2. The Upward Departure
________________________
Finally,

defendant

departure to his sentence.

appeals

two-level

upward

We review the departure along the

lines set out in United States v. Rivera, 994 F.2d 942,

_____________
______
52 (1st Cir.
whether the
departure

1993).

Plenary review is

allegedly special
are of

the kind

sentencing court to consider.

also applied to
However,
case is

applied to determine

circumstances underlying

that the

950-

Guidelines

Id. at 951.
___

the

permit the

Plenary review is

interpretations of Guideline language.

Id.
___

we review the district court's determination that a

unusual, and

therefore worthy

of departure,

"with

____________________
2. Unlike defendant, we are not troubled by the fact that
the district court might have sentenced defendant on more
____
than ten additional kilograms based on the weekly nature of
the purported deal, and we express no opinion on the
propriety of a hypothetical maximum base offense level
quantity determination based on these facts. Rather, on the
basis of the evidence before it, the district court was
entitled to find, and it did in fact find, that defendant
agreed to deliver only the first weekly instalment of ten
kilograms.
-1010

full awareness of, and respect for, the trier's superior feel
for the case."

Id.
___

marks omitted).

at 952 (citations and internal quotation

Similarly deferential is our

review of the

sentencing court's findings of fact, as well as the direction

and degree of the departure.
In

this

reasons for its

role

and

defendant's
both

the

district

upward departure:

in cocaine

involved

case,

Id.
___

dealing as
its

1)

court

and

minor children.

2)

two

defendant's prominent

evidenced both by

purity;

offered

the

the quantity

involvement

of

These grounds for departure are

permissible under the

Guidelines and warranted

on the

record before us.

a.
Defendant's Prominent Role as Evidenced by
___________________________________________________
Purity and Amount
_________________
Defendant

argues that

the sentencing

court erred

when, in deciding to depart upward, it relied upon the purity

and amount of

the cocaine involved.

Consideration of

both

factors was allowable in this case.

Commentary
specifically

Note

of

that "[t]rafficking

compounds, or mixtures

U.S.S.G.

2D1.1

states

in controlled

substances,

of unusually high purity

may warrant

an upward
"may

be

departure."
relevant in

Note 9

goes on to state

the sentencing

that purity

process because

it is

probative of the defendant's role or position in the chain of

____ __ ________ __ ___ _____ __
distribution."
____________

Id.
___

(emphasis

supplied).

departures which

are based on a defendant's

Thus,

upward

position in the

-1111

chain

of drug distribution

purity

are

guidelines.
9 (1st

clearly

and which are

contemplated

under

evidenced by drug
the

sentencing

Cf. United States v. Iguaran-Palmar, 926 F.2d 7,

___ _____________
______________

Cir. 1991)

(stating that

"the sentencing

court may

consider the drug's purity in making an upward departure from

__ ______ _________
the applicable guideline range") (emphasis in original).
As

defendant points out, Note 9 also provides, "As

large quantities are normally

associated with high purities,

this factor is particularly relevant where smaller quantities

____________ ________
are

involved." (emphasis

supplied).

We

agree

with

the

Seventh Circuit, however, that "although the note states that

purity

is

quantities
render

of

purity

involved.
purity

especially
__________

relevant

controlled
irrelevant

the

case

of

substances, it

does

not thereby

where

Rather, the correct

is

relevant

in

without

larger

smaller

quantities

reading of the note

regard

to

the

are

is that

quantity

of

controlled substances, but is particularly relevant where the

____________ ________
quantities involved are small."

United States v. Connor, 992

_____________
______

F.2d 1459, 1463 (7th Cir. 1993) (emphasis supplied).

the district
purity

of the

court did
drugs

not err in
at

issue in

taking into
its

In sum,

account the

decision to

depart

upward.
Equally futile

is defendant's insistence

sentencing court erred

in considering the amount

at

defendant's guideline

issue in enhancing

that the
of cocaine

range.

It is

-1212

true, as

defendant argues,

that an

upward departure

based

upon amount alone may unfairly duplicate a base offense level

_____
determination.

See, e.g., United States v. Fuller, 897

___ ____ _____________
______

1217, 1221-22 (1st Cir. 1990).

was not

based

solely

upon

F.2d

Here, however, the departure

the amount

involved.

Rather

defendant's role in the drug distribution chain served as the

partial basis

for the

departure, and

the amount

involved,

much like the purity of the cocaine, was merely indicative of

defendant's
finding

role.

that

Thus, we

the amount

significant indicators

find no

and

error in

purity

of

the court's

the cocaine

of defendant's prominent

were

role in the

drug distribution chain.

As to the factual findings of high purity and large
amounts of

cocaine, as well

as the

"unusualness" of

these

factors, see, e.g., Rivera, 994 F.2d at 952, we find no error

___ ____ ______
in the district
of 88%

court's determination that eleven

pure cocaine serves,

in part, as

a valid

kilograms
basis for

departure.
b. Involvement of Children
___________________________
Defendant also argues that the district court erred
in

basing its

upward departure

children in the offense.

in part

on the use

Defendant essentially concedes that

the involvement of

children in drug trafficking

an accepted ground

for upward departure and

the

existence of

of his

factual circumstances

in

activity is

challenges only
this case

that

-1313

warrant

a departure

on

that

basis.

He

argues that

the

involvement of his own children is significantly less serious

than the

involvement of

children

departures were found warranted.

Rodriguez-Cardona,
_________________
upward departure

in other

cases in

which

See, e.g., United States v.

___ ____ _____________

924 F.2d 1148, 1155 (1st Cir.) (affirming

where defendant

had, inter
_____

alia, "used
____

minor, a nine or ten year old boy, as a messenger in his drug

business"), cert. denied, 112 S. Ct. 54 (1991); United States
_____ ______
_____________
v.

Diaz-Villafane, 874
______________

upward
children

departure

where

to deliver

F.2d 43,

50

defendant

drugs),

(1st Cir.)
had,

cert.
_____

(affirming

inter
_____

denied,
______

alia,
____

493

U.S.

used
862

(1989).
In essence, we are asked

to make a judgment "about

whether

the given circumstances,

as seen from

the district

court's

unique vantage point, are usual or unusual, ordinary

or not
951.

ordinary, and to what

Given the

well-known

defendant's own

Rivera, id. at
______ ___

relation

between

drug

deal,

statement that

present in
we

F.2d at

find

determination that the

no

951-52, and given

drugs

and

he brought

avoid being stopped by the police;

children were

Rivera, 994
______

deferential standard of review dictated

such determinations by
the

extent."

error

in

the

1)

violence;

2)

his children

to

and 3) the fact that

the apartment at

for

the time
district

presence of children was

the

of the
court's

relevant to

its decision to depart upward.

-1414

c. The Reasonableness of the Departure

_______________________________________
As

we have noted previously in examinations of the

reasonableness of departures,
is

substantial.'"

"`the district court's

Rodriguez-Cardona,
_________________

(quoting United States v.

______________

924

Aguilar-Pena, 887
____________

F.2d

leeway
at

F.2d 347,

1156
350

(1st Cir.

1990)).

In

this case, given the

various factors

supporting upward departure, we find no error in the district

court's two-level enhancement.

-1515

III.
III.
____
CONCLUSION
CONCLUSION
__________
For the

foregoing reasons,

and his sentence are both

Affirmed.
________

defendant's conviction

-1616