Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

MEMORANDUM^* 

Elias Armenteros Forcelledo ("Forcelledo"), Maria Elene Gonzalez ("Maria Gonzalez"), Jesus Renteria, Eduardo Diaz Renteria ("Eduardo Renteria"), Rosa Savinovich ("Savinovich"), Miguel Angil Gonzalez ("Miguel Gonzalez"), and Timothy Desparois ("Desparois") appeal their convictions and sentences for various drug offenses. All of the defendants complain that the district court improperly admitted evidence obtained via a wiretap. Each defendant also complains that he or she was improperly sentenced under the Sentencing Guidelines. Forcelledo challenges his conviction on several other grounds such as improper evidentiary rulings, improper jury instructions, and juror misconduct. Desparois charges that the district court improperly admitted evidence seized from a car he was driving. Desparois also complains that the district court improperly found that his role in the conspiracy involved approximately six kilograms of cocaine. We affirm.

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

FACTUAL BACKGROUND

In February of 1987, the FBI began investigating Forcelledo because it suspected that he was involved in a cocaine distribution organization. From its initial investigation, the FBI determined that Forcelledo was distributing cocaine and that the other defendants were also involved in the organization. By August 1988, the FBI had obtained telephone records for several of the defendants' residential telephones and pagers. The FBI had also been able to contact five confidential informants and two cooperating witnesses.

From the telephone records, the informants, and the witnesses, the FBI had learned the identities of several members of the distribution organization and had also learned that Forcelledo appeared to head the local organization. The FBI had been told that Forcelledo received his cocaine from a source in Miami and a source in California. The informants and witnesses described numerous drug sales in which they had been involved. Neither the informants nor the witnesses were able to identify the actual source of the organization's cocaine, the manner in which it was transported or all of the identities of the people involved with the organization.

In August of 1988, the FBI applied for authorization for a wiretap. The wiretap was approved as was a thirty-day extension beginning in September of 1988. The wiretap was terminated at the end of September 1988.

During the course of the wiretap, the FBI intercepted a call from a member of the organization, Pedro Perera, to Forcelledo. Perera told Forcelledo he had some cocaine in the garage of his house. Perera told Forcelledo that he might have been followed and that he wanted to move the cocaine from his house. Perera and Forcelledo discussed where to move the cocaine and Perera stated that he would call a guy to come to pick up the cocaine. Approximately fifteen minutes after the FBI intercepted the call, Desparois drove up to Perera's house. Desparois ultimately parked his car near the garage of Perera's house, went inside for a short period and then left. When Desparois had driven several blocks away, he was stopped by uniformed police officers. They handcuffed him and placed him in the police car. The police then searched the automobile and found five kilograms of cocaine in the trunk of the car.

All of the defendants were indicted in March of 1989. Each was charged with one count of conspiracy to possess and distribute cocaine. Eduardo and Jesus Renteria, Desparois and Forcelledo were also charged with one count each of possession of cocaine with intent to distribute. Prior to trial, the defendants challenged the validity of the wiretap authorization. The district court conducted a three-day Franks¹  hearing to resolve the issue and concluded that the wiretap application was valid and the wiretap was properly authorized. The defendants proceeded to trial during which all of these defendants except Forcelledo entered conditional guilty pleas preserving their rights to appeal. Forcelledo was found guilty on both charges in which he was named.

DISCUSSION

I. WIRETAP.

We review de novo the question of whether a wiretap was properly authorized. United States v. Torres, 908 F.2d 1417, 1421 (9th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 272, 112 L. Ed. 2d (1990) and 59 U.S.L.W. 3326 (U.S. Oct. 29, 1990) (No. 90-5767). We review for abuse of discretion the authorizing district court's decision that a wiretap was necessary for the government to adequately investigate a matter. United States v. Echavarria-Olarte, 904 F.2d 1391, 1395 (9th Cir. 1990); Torres, 908 F.2d at 1422. Finally, we independently review the record to determine whether an application for a wiretap contains a material omission or misstatement of fact. United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988).

In this case, all of the defendants argue that the district court should have suppressed the evidence garnered from the wiretap because the wiretap was not properly authorized, the wiretap was not necessary to the criminal investigation and the government's application for the wiretap contained material omissions.² 

A. Proper Authorization.

Section 2516 of title 18 permits the Attorney General of the United States ("AG") to empower various assistants to authorize a wiretap. 18 U.S.C. § 2516(1). One of those assistants is a Deputy Assistant Attorney General ("Deputy AAG"). The AG need not specifically authorize a Deputy AAG by name, but need only authorize the Deputy AAG by job title. Torres, 908 F.2d at 1421-22.

Here, the AG had specifically empowered the holders of the job title of Deputy AAG as persons who could authorize wiretaps. The wiretap in this case was authorized by a Deputy AAG. Therefore, the wiretap was properly authorized.

B. Necessity of Wiretap.

A wiretap should not be permitted unless the government can show that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3) (c); see also Torres, 908 F.2d at 1422. The government need not show that it has exhausted every other possible investigative technique and the appellate court should take a "practical and common sense approach" to the analysis. Echavarria-Olarte, 904 F.2d at 1396. See Torres, 908 F.2d at 1422; United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986) (" [L]aw enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap.").

In this case, the government sought a wiretap in the hope that it might learn more about the source of the organization's cocaine and the organization's method of operation. The government noted that it was unable to gain any further information from its informants because none of the informants held a position of sufficient trust within the organization. The government presented evidence that the informatns were mainly in the lower echelon of the organization or that they had already left the organization. Similarly, the government presented evidence that surveillance would not be fruitful because the only supplier addresses known to the government were "drop" houses. Since the government wanted to identify the source of the cocaine, it would need to know the address of the source before surveillance would be fruitful. The government presented substantial evidence that other investigative techniques would not have proved fruitful. The district court did not abuse its discretion when it ruled that the government had established that the wiretap was necessary to its investigation.³ 

B. Material Omissions.

The government may not omit material information from a wiretap application. United States v. Ippolito, 774 F.2d 1482, 1485, 1486 n. 1 (9th Cir. 1985). The government must present any information which would be necessary for a court to determine whether a wiretap should be permitted in a particular case. Id. If the government fails to do so, evidence obtained from the wiretap must be suppressed. Id.

Here, the defendants argue that the government omitted several pieces of material information. The defendants' primary complaint is that the government did not disclose certain facts which would have indicated to the court that several of the informants could have successfully penetrated the organization. The defendants contend that the issuing court was given the mistaken impression that use of informants was not a viable investigative technique. The district court concluded that none of the alleged omissions were material. The district court did not err. Given all of the evidence, it was perfectly reasonable for the government to contend that it could not use its informants to gain the information it sought. The defendants have not presented any grounds which support their claim that the wiretap was improper.⁴  Therefore, the district court properly admitted evidence obtained via the wiretap.

II. EXPERT TESTIMONY.

A district court is given a great deal of discretion to determine whether to admit expert testimony. We will not disturb a district court's decision unless it is "manifestly erroneous." United States v. Kinsey, 843 F.2d 383, 388 (9th Cir.), cert. denied, 487 U.S. 1223, 108 S. Ct. 2882, 101 L. Ed. 2d 916 (1988). Generally, expert testimony is permitted when it is related to an issue involving specialized knowledge and the testimony would assist the jury in determining an issue of fact. Fed.R.Evid. 702. In a criminal case, it is appropriate to have an expert witness testify regarding "the methods and techniques employed in an area of criminal activity." United States v. Espinosa, 827 F.2d 604, 612 (9th Cir. 1987), cert. denied, 485 U.S. 968, 108 S. Ct. 1243, 99 L. Ed. 2d 441 (1988). However, an expert witness in a criminal case may not give a direct opinion on a defendant's guilt or innocence. Kinsey, 843 F.2d at 388.

Forcelledo argues that the district court should not have permitted a Portland police officer to testify about the meaning of various code phrases commonly used by drug traffickers. Prior to allowing the testimony, the district court reviewed all of the phrases about which the officer was to testify and ruled whether expert testimony was necessary for the jury to understand the meaning of the phrases. The district court made it clear that the police officer could not give a direct opinion regarding the guilt or innocence of the defendants. During the course of the expert's testimony, he repeatedly indicated that he was expressing his opinion about the meaning of various coded phrases. The expert did not give a direct opinion regarding the guilt or innocence of any of the defendants.

The district court did not abuse its discretion when it permitted expert testimony on the meaning of coded phrases used by drug traffickers. A jury unfamiliar with the mechanics of the illicit drug trade would find that testimony helpful. Furthermore, the expert witness in this case did not give a direct opinion as to the guilt or innocence of the defendants. His testimony was considerably further from that than were the expressions approved of in Kinsey and the cases discussed in that opinion. The one time that the expert implied that the defendants may have actually taken some cocaine, the district court cured the potential problem by striking the testimony and giving the jury a cautionary instruction. See United States v. Pavon, 561 F.2d 799, 803 (9th Cir. 1977) (jury presumed to follow court's cautionary instructions). Forcelledo has not shown any reversible error.

III. SEVERANCE.

We review for abuse of discretion a district court's decision refusing to sever a defendant's case from those of his co-defendants. United States v. Sherlock, 865 F.2d 1069, 1078 (9th Cir. 1989). In general, a defendant is entitled to a separate trial if he will present a defense that is completely antagonistic to a co-defendant's. Id. at 1081. A defense is completely antagonistic only in those cases where the defenses of the co-defendants are "irreconcilable and mutually exclusive." Id.

A defendant is also entitled to a separate trial if a joint trial would infringe his right of confrontation. Id. at 1079. A joint trial is inappropriate when a " 'facially incriminating confession of a nontestifying codefendant' " will be admitted at trial. Id. (citation omitted). However, a court need not sever a defendant's case if the confession of the nontestifying co-defendant can be redacted to eliminate any reference to the other co-defendant. Id. Finally, the right of confrontation does not include a right to present exculpatory hearsay statements. See, e.g., United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.) (per curiam) (non-testifying defendant does not have right to present hearsay statements that exculpate him; only way to present those statements is to testify), cert. denied, 488 U.S. 832, 109 S. Ct. 89, 102 L. Ed. 2d 65 (1988).

A. Antagonistic Defenses.

Forcelledo argues that his case should have been severed because he presented a defense to one of his charges that was completely antagonistic to the defense of another co-defendant. Forcelledo was charged with one count of possession of five kilograms of cocaine with the intent to distribute it. Forcelledo's defense to the charge was that at the time of the alleged possession, he had withdrawn from the conspiracy and the organization was being managed by one of the co-defendants. Not surprisingly, Forcelledo's co-defendant argued otherwise. Forcelledo claims that if the jury believed his co-defendant's defense, then they would necessarily have to find Forcelledo guilty. Therefore, the defenses were completely antagonistic and Forcelledo was entitled to have his case severed.

We have rejected similar arguments. Sherlock, 865 F.2d at 1081-82. As in Sherlock, Forcelledo and his co-defendant did present somewhat hostile defenses. However, given each defendant's statements, the jury could find that both defendants were managing the conspiracy, that neither defendant was managing or that only one or the other of the defendants was involved. Neither Forcelledo nor his co-defendant presented defenses that were mutually exclusive. Therefore, the hostility between the co-defendants did "not generate the kind of prejudice that mandates severance." Id. at 1081. The district court did not abuse its discretion when it refused to find that Forcelledo was entitled to have his case severed.

B. Right of Confrontation.

Forcelledo also argues that he was entitled to have his case severed because a joint trial would violate his right of confrontation. As noted above, a joint trial is inappropriate if a facially incriminating confession of a nontestifying defendant will be admitted at trial. Sherlock, 865 F.2d at 1079. However, if the government is able to redact the incriminating portions of the confession, a joint trial may be permitted. Id.

Here the government had received confessions from both Forcelledo and another co-defendant. Both defendants confessed to the same FBI agent and each inculpated the other. Before the FBI agent was called to testify, the district court reviewed the scope of the agent's testimony. The government indicated that the agent would not testify about any statements that Forcelledo made about the other defendant nor would he testify about any statements that the other defendant made about Forcelledo. However, the agent was permitted to testify about any exculpatory statements that each defendant made about himself. The agent did testify that Forcelledo said that he had retired from the drug organization some four months earlier. However, the agent was not permitted to testify that Forcelledo also said that the other defendant had taken over the management of the conspiracy. Since the government was able to successfully redact all incriminating references each defendant made about the other, there was no need for the court to order that Forcelledo's case be severed. The fact that the redaction eliminated Forcelledo's statements about the other defendant's management of the organization did not require the court to sever Forcelledo's case. Had Forcelledo desired to have his own exculpatory statements admitted, he was free to take the witness stand and testify. See Fernandez, 839 F.2d at 640.

IV. JURY INSTRUCTIONS.

We review jury instructions as a whole to determine whether the instructions were misleading or inadequate to guide the jury in its deliberations. United States v. Marsh, 894 F.2d 1035, 1040 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 1143, 107 L. Ed. 2d 1048 (1990). A district court is given a great deal of freedom to formulate instructions and we will not overturn a conviction unless it is clear that the district court abused its discretion when it chose its instructions. Id. at 1040-41.

Forcelledo argues that the district court improperly instructed the jury that if it should find Forcelledo guilty on the possession charge, it must then determine the amount of drugs that Forcelledo possessed. He claims that the district court's instruction improperly permitted the jury to find him guilty of possession even though he may not have possessed the amount of cocaine listed in the possession charge in the indictment.⁵ 

Forcelledo was charged under 21 U.S.C. § 841(a) (1). That section makes it illegal for a person to "knowingly or intentionally ... possess with intent to manufacture, distribute or dispense, a controlled substance...." 21 U.S.C. § 841(a) (1). Section 841 does not have as one of its elements a particular amount of drugs. See, e.g., United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986).

The amount of drugs is relevant to the level of punishment a defendant may receive if convicted of violating section 841(a). See 21 U.S.C. § 841(b); Normandeau, 800 F.2d at 956. In order for a district court to determine the statutory penalty for a section 841(a) violation, the court must have a factual finding on the amount of drugs involved in the conviction in addition to the finding of guilt or innocence. Here the district court properly instructed the jury that it had to first determine whether Forcelledo had in fact possessed cocaine. The court told the jury that if it found that Forcelledo possessed cocaine, then it should go on to determine the amount of cocaine he possessed. The court did not err when it instructed the jury to first determine guilt or innocence and then, if necessary, determine the amount of drugs involved.

V. JUROR MISCONDUCT.

When a defendant raises a charge of juror misconduct, we independently review the conduct at issue. However, if the district court has conducted an evidentiary hearing on the effects of the alleged juror misconduct, we "accord substantial weight" to the conclusion reached by the district court regarding the claimed effects. United States v. Armstrong, 909 F.2d 1238, 1244 (9th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 191, 112 L. Ed. 2d 129 (1990).

A defendant is entitled to a mistrial only if the juror conduct has deprived the defendant of a fair trial. Id. A defendant does not receive a fair trial if the jury has received extrinsic evidence and there is a reasonable possibility that the extrinsic evidence affected the verdict. United States v. Bagley, 641 F.2d 1235, 1240 (9th Cir.), cert. denied, 454 U.S. 942, 102 S. Ct. 480, 70 L. Ed. 2d 251 (1981). However, it is not the case that a defendant is automatically entitled to a mistrial merely because the jury has received extrinsic evidence. United States v. Smith, 790 F.2d 789, 795 (9th Cir. 1986) (no prejudice to defendant when four jurors admitted that they had read newspaper headline about trial); United States v. Weisman, 736 F.2d 421, 423-25 (7th Cir.) (four jurors read newspaper article about case, but each said that article had not affected ability to render fair verdict), cert. denied, 469 U.S. 983, 105 S. Ct. 390, 83 L. Ed. 2d 324 (1984).

In this case, one of the jurors cut out two articles about the trial that appeared in a local paper. After each article appeared, the district court questioned the jury to determine whether any of its members had read the article. One juror indicated that she had read the headline of each article, but that she had not read the content of the articles. She also stated that she had mentioned to the jury foreperson that the articles were in the paper. None of the other jurors read the articles or the headlines. The district court also instructed the jurors after each article appeared that they were not to read any articles about the trial nor were they to follow any other media coverage of the trial. Finally, after the verdict was announced, the court permitted counsel to question the jurors on whether they had read any of the articles. The jurors repeatedly indicated that they had not read the content of the articles. The juror who had read the headlines of the articles stated that she did not believe she was influenced by the headlines and believed that she had given the defendants a fair trial. The district court concluded that there was no reasonable possibility that the jurors' conduct had any effect on the verdict. The district court's conclusion was not flawed. As in Smith, the mere fact that a juror may have been exposed to extrinsic evidence is insufficient to warrant a mistrial.

VI. DISCOVERY REQUESTS.

In general, we review for abuse of discretion a district court's rulings on discovery. United States v. Iglesias, 881 F.2d 1519, 1523 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 1154, 107 L. Ed. 2d 1057 (1990). If a defendant claims that the government failed to release Brady⁶  material and the district court has reviewed the contested material, we review the district court's decision that the material was or was not covered by Brady for clear error. See, e.g., United States v. Strifler, 851 F.2d 1197, 1201-02 (9th Cir. 1988) (appellate review for clear error when district court conducted in camera inspection of probation file to determine if it contained any Brady material), cert. denied, 489 U.S. 1032, 109 S. Ct. 1170, 103 L. Ed. 2d 228 (1989). Finally, a district court's decision that the government need not disclose the identity of an informant is also reviewed for abuse of discretion. United States v. Sai Keung Wong, 886 F.2d 252, 255 (9th Cir. 1989).

Forcelledo argues that the district court erred when it refused to order the government to produce copies of certain FBI investigation reports. The court conducted an in camera review of the reports and concluded that they did not contain any Brady material. Forcelledo also argues that the district court erred when it did not order the government to disclose the identity of some of the FBI informants. Finally, Forcelledo argues that the district court erred when it did not order the government to produce two witnesses at the Franks hearing regarding the wiretap.

A. Brady Material.

A defendant is entitled to receive all evidence that the government has that is material to the defendant's case. United States v. Tham, 884 F.2d 1262, 1266 (9th Cir. 1989) (citing Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). Material evidence covers only that information that would be reasonably likely to affect the result of the proceeding. Tham, 884 F.2d at 1266. It must also be favorable to the defendant. United States v. Bagley, 473 U.S. 667, 674-76, 105 S. Ct. 3375, 3379-80, 87 L. Ed. 2d 481 (1985).

Forcelledo claims that the various FBI reports were material because they would have enabled him to effectively challenge the government's contention that its wiretap application was proper. Forcelledo claims that he could have used the FBI reports to show that the government's wiretap application contained material omissions.

If the FBI reports contained information that helped to establish that the government's affiant had misled the court when the affiant submitted the wiretap application, that information would have been material to the proceeding. Under Brady, Forcelledo would have been entitled to the reports. The district court reviewed the FBI reports in camera and determined that none of them contained material information. Our review of them satisfies us that the court did not abuse its discretion.

B. Informant Identities.

A defendant is entitled to discover the identity of an informant when the informant's identity "is relevant and helpful to the defense of an accused, or is essential to a fair determination" of the case. Sai Keung Wong, 886 F.2d at 255. A defendant may not seek the identity of an informant if the defendant's sole purpose is to challenge whether the government had shown probable cause for its actions. United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir. 1986) (defendant not entitled to informant's identity in order to challenge whether police had probable cause to arrest him). Moreover, the defendant's need for the identity of the informant must be balanced with the government's interest in protecting the safety of the informant. Sai Keung Wong, 886 F.2d at 255-56. That standard applies to hearings on motions to suppress evidence. United States v. Buffington, 815 F.2d 1292, 1298-99 (9th Cir. 1987). Finally, the defendant bears the burden of showing that he is entitled to know the informant's identity. Sai Keung Wong, 886 F.2d at 256.

Forcelledo argues that he was entitled to know the identity of various informants because that information was relevant to whether or not the wiretap was necessary. Presumably, Forcelledo wanted to know the identities of the informants so that he could argue that some of the informants could have been used by the government to infiltrate the drug organization. The district court ruled that Forcelledo was not entitled to discover the identities because Forcelledo had already identified several of the informants and contacted and interviewed them. The court also noted that some of the informants claimed to have been threatened by the defendant. By the time of the wiretap hearing, Forcelledo knew the identities of the relevant informants and was able to adequately present his argument that the government should have used those informants to infiltrate the organization before it received a wiretap. The district court did not abuse its discretion when it ruled that Forcelledo was not entitled to discover any other informant identities.

C. Other Discovery Decisions.

Forcelledo argues that the court should have ordered the government to produce two witnesses during the wiretap hearing. In fact, the government did produce one of the witnesses, but Forcelledo failed to call him to testify. As for the other witness, the district court found that he could not be located at the time of the hearing.⁷  Forcelledo claims that the district court improperly failed to order that various other information be discovered. Forcelledo fails to discuss how the district court abused its discretion on any of those discovery decisions. Therefore, Forcelledo has failed to show that any of his other discovery claims have merit.

VII. SEARCH OF AUTOMOBILE.

We review de novo the question of whether a search was legal. United States v. Alvarez, 899 F.2d 833, 836 (9th Cir. 1990), petition for cert. filed, (U.S. Sept. 5, 1990) (No. 90-420). The police are entitled to search an automobile without first obtaining a warrant in those cases where the police "have probable cause to believe that an automobile contains evidence of a crime...." Id. at 839. The police may search the interior of the vehicle, the trunk and all containers in which there is probable cause to believe evidence is concealed. Id.; see also United States v. Miller, 812 F.2d 1206, 1208 (9th Cir. 1987) (warrantless search of automobile based on probable cause is justified given need to preserve evidence). Finally, the police may conduct a search even if they have not formally arrested the driver for some criminal activity. See, e.g., United States v. Rodriguez, 869 F.2d 479, 483-84 (9th Cir. 1989) (search incident to lawful arrest found even though no formal arrest occurred).

Desparois argues that the police did not have probable cause to search his automobile. The district court found otherwise. Prior to the search, the FBI had intercepted a phone call from a member of the drug organization, Pedro Perera, to Forcelledo. Perera told Forcelledo that he (Perera) had received the cocaine and had moved it to the garage of his house. Perera stated that he was worried that he had been followed and he wanted to remove the cocaine from his house. Perera and Forcelledo discussed various places to move the cocaine and Perera said that he would call a friend. Immediately after the telephone call, Perera moved his vehicle out of his driveway and onto the street. About fifteen minutes later, Desparois arrived at Perera's house and parked his car on the street behind Perera's car. Desparois went into Perera's house and came out five minutes later and moved his car up the driveway and next to the garage. About ten minutes later Desparois drove his car away from the garage and was stopped by the police. The police ordered Desparois out of the automobile, frisked him and found a pager on him, handcuffed him and placed him in the police car. The police also took the car keys from Desparois. They did not initially find a trunk key on the ring, but soon found it underneath the car near where Desparois had been.

Based on the information from the telephone intercept, the police had probable cause to believe that Desparois had come to pick up some cocaine from Perera. Desparois arrived at Perea's house soon after the telephone call and parked his car near where the cocaine was hidden. From those actions, it was reasonable to believe that Desparois had placed the cocaine in his automobile. Therefore, the police were justified in stopping the vehicle and searching it as it was likely to contain evidence of a crime. Had they not done so they would have been exceedingly insouciant. There was no need for the police to formally arrest Desparois before they conducted the search. The district court did not err when it refused to suppress the evidence seized from Desparois' automobile.

VIII. SENTENCING GUIDELINES.

We review de novo constitutional challenges to the Guidelines. United States v. Belgard, 894 F.2d 1092, 1095 (9th Cir. 1990), cert. denied, --- U.S. ----, 111 S. Ct. 164, 112 L. Ed. 2d 129 (1990). We similarly review the way in which a district court applied the Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). However, we review for clear error a district court's findings of fact under the Guidelines. Id.; 18 U.S.C. § 3742(e).

A. Constitutionality.

The defendants claim that the Guidelines violate their rights to due process because the Guidelines do not require proof of facts beyond a reasonable doubt and do not permit a court to individually sentence a defendant. Those claims are without merit as the Guidelines have repeatedly withstood such constitutional challenges. United States v. Wilson, 900 F.2d 1350 (9th Cir. 1990) (Guidelines do not violate defendant's due process rights); Belgard, 894 F.2d at 1100 (Constitution does not require individualized sentencing and Guidelines do not abandon individualized sentencing); Howard, 894 F.2d at 1090 (sentencing facts need only be established by a preponderance of the evidence); United States v. Hoyt, 879 F.2d 505, 512 (mandatory sentences do not violate due process) amended, 888 F.2d 1257 (9th Cir. 1989); United States v. Vizcaino, 870 F.2d 52 (2d Cir. 1989) (no due process right to discretionay individualized sentencing). The district court correctly ruled that the Guidelines do not violate the defendants' constitutional rights.

B. Individual Sentencing Challenges.

1. Appropriate Sentence for Grouped Counts.

Forcelledo argues that the conspiracy charge and the possession charge against him should be grouped for sentencing under the Guidelines. Forcelledo also claims that the maximum sentence for the charges should be the lesser penalty of the statutory penalties set for his crimes. Both parties agree with the Presentence Report that the statutory maximum penalty for the conspiracy charge is less than the statutory maximum penalty for the possession charge.

The district court did group Forcelledo's two charges for sentencing purposes. There is no merit to Forcelledo's argument that the maximum sentence he could receive was the statutory maximum penalty for conspiracy. When grouped charges are involved in a case, the Guidelines require the sentencing court to determine the offense levels for each charge and then use the highest offense level from those charges to set the sentencing range for the entire group of charges. U.S.S.G. Sec. 3D1.3. Therefore, the statutory penalty cap that would be used for the sentence would be the cap that corresponds to the charge used as a basis for the offense level. Furthermore, when counts are grouped on the basis of the quantity of a substance involved, the offense level is determined by the aggregate amount of the substance involved. U.S.S.G. Sec. 3D1.3(b). The statutory cap would be set by the aggregated amount used to set the offense level. Forcelledo presents no support for his claim that the district court erred when it set his offense level for the grouped charges or when the court imposed sentence. The court correctly applied the Guidelines for grouped charges.

2. Amount of Cocaine Charged to Defendants.

A conspirator may be liable for conduct of other co-conspirators if the conspirator should have reasonably foreseen that the conduct would occur. U.S.S.G. Sec. 1B1.3; United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990); United States v. Willis, 899 F.2d 873, 875 (9th Cir. 1990). A district court's finding that a conspirator should have reasonably foreseen a coconspirator's actions is a question of fact which is reviewed for clear error. Garcia, 909 F.2d at 1349.

In this case, the district court found that defendants Jesus Renteria, Eduardo Renteria, Miguel Gonzalez, Maria Gonzalez and Savinovich should have reasonably foreseen that the drug organization was involved with at least fifty kilograms of cocaine during the time that they were members of the organization. The district court made specific factual findings for each defendant. The court noted that each of the above defendants had been in contact with members of the conspiracy, had been involved in several drug sales and had often delivered cocaine for the organization. The district court took great care to detail its findings for each defendant and it does not appear that the court clearly erred in its findings. The district court properly found that each of the above defendants should have reasonably foreseen that the organization involved at least fifty kilograms of cocaine.

Desparois also complains that the district court incorrectly found that he was responsible for six kilograms of cocaine. The court determined that amount by aggregating one kilogram of cocaine that Desparois purchased on September 20, 1988 and five kilograms of cocaine that were found in the trunk of Desparois' automobile. Desparois does not deny that he purchased one kilogram of cocaine. He does claim that he should not be liable for the five kilograms because he did not know the exact amount of cocaine that was in his automobile. He does not say how much of the cocaine in the trunk he should be held responsible for, but it seems that his claim is that it should be little or none. However, that claim is disingenuous given the fact that Desparois admitted when he entered his guilty plea that he had five kilograms of cocaine in the trunk of his car. The district court did not clearly err when it found that Desparois was responsible for six kilograms of cocaine.

3. Downward Departure.

A defendant is not entitled to appeal a district court's discretionary decision not to depart downward from the Guideline range. United States v. Morales, 898 F.2d 99, 102-03 (9th Cir. 1990). However, a district court's decision that it may not depart downward as a matter of law is reviewable. Id. at 102 n. 2.

In this case, the district court discretionally refused to depart downward. The court noted that none of the defendants had presented sufficient facts to warrant downward departures. The defendants are not entitled to appeal that refusal. The district court also stated that, as a matter of law, it could not depart downward based on the fact that a defendant might be subject to deportation. The defendants are entitled to appeal that decision, but the challenge is without merit. The risk of deportation is not a basis for departures. United States v. Alvarez-Cardenas, 902 F.2d 734, 736-37 (9th Cir. 1990). The district court did not err when it refused to depart downward in this case.

CONCLUSION

The convictions and sentences of all of the defendants are AFFIRMED.