Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Darly Fuentes, Defendant-appellant.united States of America, Plaintiff-appellant, v. Darly Fuentes, Defendant-appellee.united States of America, Plaintiff-appellee, v. Guillermo Diaz, Plaintiff-appellant, 924 F.2d 1053 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 924 F.2d 1053 (4th Cir. 1991)

Argued Oct. 4, 1990. Decided Feb. 4, 1991


Appeals from the United States District Court for the District of Maryland, at Baltimore. Frank A. Kaufman, Senior District Judge. (CR-88-365-K)

Gary Stuart Bernstein, William H. Murphy, Jr., & Associates, P.A., Baltimore, Md., for appellant Diaz.

Michael Gayhart Kent, Baltimore, Md., for appellant Fuentes.

John Vincent Geise, Assistant United States Attorney, Baltimore, Md. (Argued), for appellee; Breckinridge L. Willcox, United States Attorney, Baltimore, Md., on brief.

D. Md.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and SAMUEL GRAYSON WILSON, United States District Judge for the Western District of Virginia, sitting by designation.

PER CURIAM:


Fuentes and Diaz appeal their convictions in a joint trial of conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, and Diaz appeals his separate conviction of distribution of in excess of five kilograms of cocaine. Diaz challenges the admissibility of the testimony of a drug code "expert," and Fuentes challenges the sufficiency of the evidence to convict her, and several sentencing rulings of the district court. The government has cross-appealed the district court's refusal to make an upward adjustment in Fuentes' sentence for obstructing justice by committing perjury. We find no reversible error among those assigned by the defendants and affirm their convictions. Because we conclude that the district court failed properly to assess the propriety of an upward adjustment in Fuentes' sentence, we remand for reconsideration of the appropriate sentence.

* Guillermo Diaz and Darly Fuentes participated in a significant drug sales operation based in Montgomery County, Maryland. The operation was centered around two main actors, a married couple, Eybar and Hugo DaVila (or Davilla). Between June and October 1988, the DaVilas sold over 1.5 kilograms of cocaine to an undercover officer. In addition, the DaVilas and the undercover officer negotiated--but never consummated--the purchase of up to twenty additional kilos of cocaine. The two defendants in this case assisted the DaVilas in their business, but did not actually market the cocaine to the undercover officer.

Diaz, Fuentes, and a third co-defendant, Victoria Cepeda, were charged with conspiracy to possess with intent to distribute five kilograms or more of cocaine and with intentional distribution of 500 grams or more of cocaine. The three were tried together. Diaz was convicted of both counts, Fuentes was convicted only of the conspiracy count, and Cepeda was acquitted on both counts.

The government offered evidence showing that Diaz was, at minimum, an essential conduit helping the DaVilas to obtain the cocaine they subsequently sold to the undercover agent. The government presented a phone record, indicating that each time the DaVilas negotiated a drug sale with the undercover officer, they immediately attempted to phone Diaz at his Elizabeth, New Jersey residence. When the initial calls were unsuccessful, these records indicated that the DaVilas would call back again and again until they finally reached Diaz.

In addition, government wire taps intercepted several phone conversations between Diaz and the DaVilas. A government drug code expert testified that these conversations involved negotiations over the quantity and prices of the drugs the DaVilas sought to obtain, as well as discussions of meeting times and locations.

Government witnesses also testified regarding two instances in which the DaVilas apparently visited Diaz in New Jersey. During the first visit, the DaVilas were seen talking to Diaz outside his residence and then proceeding inside. On the second visit, the DaVilas were seen entering this same building and, although Diaz was not seen, his white Toyota was parked outside the building. After each trip to New Jersey, the DaVilas promptly delivered the requested cocaine to the undercover agent.

The government's proof linking Fuentes directly to the acquisition of cocaine was less direct. Her role in the conspiracy was more informational and advisory. During the relevant time period at least, she was never able to obtain cocaine on behalf of the DaVilas. Instead, the government presented recorded phone conversations--again decoded by the government code expert--in which Fuentes and the DaVilas discussed Fuentes' information as to the price, quantity, and quality of cocaine available on the market. Fuentes actually encouraged the DaVilas to look toward alternate drug sources, explaining that her contacts' prices were high and their quality low. Fuentes was also apprised of the agent's request for up to 20 kilograms of cocaine. After this conversation, Fuentes continued to provide information to the DaVilas. In total, the government presented five conversations in which the DaVilas and Fuentes discussed the drug market.

In addition, another government witness testified that he witnessed a conversation between Fuentes and the DaVilas in which Fuentes expressed concern that the undercover agent might indeed be a police officer. Worried that they might be subject to police surveillance, Fuentes encouraged the DaVilas to use code when discussing drugs with her. Specifically, she recommended using the word "apartment," or describing a street location, in order to indicate the price of cocaine.

At sentencing, Fuentes contended that she was entitled to a sentence reduction for acceptance of responsibility, and to a four-level reduction for her "minimal" role in the offense, and that her status as an illegal alien who had the misfortune of immediately meeting illegal drug dealers justified a downward departure from the sentencing guidelines. The judge denied all three requests, granting instead a one-level reduction for her role in the offense. In the course of denying Fuentes' plea for a reduction based on acceptance of responsibility, the district court stated that it was convinced that Fuentes had perjured herself at trial. The court also expressed its belief that Cepeda, who was ultimately acquitted, had perjured herself. The court then rejected a government request that Fuentes be given a two-level increase for obstruction of justice, resulting from her perjury, finding such an enhancement unfair in light of the fact that Cepeda had been acquitted by virtue of her perjurious testimony.

These appeals followed.

II

Diaz argues, on several grounds, that the district court erred in allowing a drug code expert--Mario Perez--to testify to his interpretation of several phone conversations between Diaz and the DaVilas. First, he contends that Perez's testimony should have been excluded because it relied on inadmissible background information. The government responds that an expert may review materials which might otherwise be inadmissible at trial.

Prior to decoding the conversations, Perez was provided with background information about the case. In particular, he reviewed various affidavits used to obtain authorization for the wire tap as well as to obtain search warrants. He also spoke with agents regarding their undercover work in the case. We assume, for the purposes of this appeal, that some of the material Perez reviewed prior to his testimony would have been inadmissible at trial.

The Federal Rules of Evidence explicitly state that an expert may rely on material not admissible into evidence in delivering his expert opinion. Fed.R.Evid. 703. This rule has been specifically applied to allow drug code experts to testify, relying on inadmissible background information regarding the transactions. See United States v. Theodoropoulos, 866 F.2d 587, 590 (3d Cir. 1989); United States v. Rollins, 862 F.2d 1282, 1293-94 (7th Cir. 1988).

Like any code expert, a drug code expert must receive information about the players and merchandise involved in the particular transactions in order to crack the codes. It is true that, to some degree, reliance on background materials can be a substitute for the exercise of expertise. To the extent that Perez was told that the transactions involved cocaine, he may have relied on this information to conclude that the product under discussion was indeed cocaine. The defendant, however, may cross-examine the expert about his conclusion in order to question its reliability. Here, for tactical reasons, Diaz chose not to question Perez about this background information. He was therefore unable to learn much about the accuracy or reliability of the information upon which Perez relied. Admittedly, such cross-examination might have brought prejudicial information before the jury. Nonetheless, this was a tactical decision that the Federal Rules of Evidence plainly leave to defense counsel. This might be a different case if Diaz could prove the background evidence so unreliable that allowing its use would offend constitutional due process guarantees. Here, however, Diaz has made no such claim. Because the evidence was clearly admissible under the rules of evidence, the district court did not abuse its discretion in allowing Perez to testify and defendant's claim must fail.

Diaz next argues that the testimony of a code expert was unnecessary because the conversations were plainly understandable without the assistance of an expert. This contention also fails. Some evidence is so understandable, on its face, that the commentary of an expert is unhelpful to a jury and merely serves to duplicate evidence already before the court. Sometimes seemingly plain statements do not carry their plain meaning, however. In United States v. Hoffman, 832 F.2d 1299, 1300 (1st Cir. 1987), the First Circuit upheld the trial court's admission of expert testimony to explain the meaning of the phrase "six cases of wine." This seemingly plain statement, when read through the eyes of a drug code expert, was redefined to mean "six kilos of cocaine."

Compared to Hoffman, the conversations between Diaz and the DaVilas are as clear as mud. Unlike Hoffman 's plain discussion of wine, much of the recorded conversation in this case was odd and obscure.1  In addition, the conversations were peppered with phrases like "you understand," suggesting that the apparent meaning of the words--if one could even deduce an apparent meaning--was not their intended meaning. Further, a government witness specifically stated that Fuentes and the DaVilas discussed using codes in their conversations about drugs. While only the conversations between the DaVilas and Diaz are at issue on appeal, this testimony only buttresses the district court's determination that the recorded conversations might be in code and that a code expert could provide helpful information to the jury. The district court retains the discretion to determine what testimony will be helpful to a jury and it reasonably concluded that the recorded conversations needed additional explanation and that the testimony of a code expert would be helpful to the jury.

Finally, Diaz argues that the expert impermissibly testified to ultimate conclusions. We disagree. The Federal Rules of Evidence make it clear that an expert may give his opinion even if it embraces an ultimate issue to be decided by the trier of fact. Fed.R.Evid. 704(a). The only exception to this rule is that an expert may not testify as to whether or not a defendant had a particular mental state constituting an element of the crime charged. Fed.R.Evid. 704(b). In United States v. Theodoropoulos, supra, the Third Circuit noted that the point of Rule 704 is "to abandon the restriction precluding witnesses from expressing opinions, even on the ultimate issue, as long as the opinions meet the helpfulness requirement." Id. at 591; accord, United States v. Angiulo, 897 F.2d 1169, 1189 (1st Cir. 1990); see also United States v. Lamattina, 889 F.2d 1191, 1193-94 (1st Cir. 1989) (court affirms admission of expert testimony that a particular recorded conversation pertained to a loansharking transaction).

The task of a code expert is to translate the coded conversations into their real meanings. In the course of that translation, Perez interpreted a conversation to involve specific quantities of specific drugs. He did not express an opinion on the specific questions of whether the defendants were guilty or innocent, or whether they had the requisite mens rea for the crimes. Nonetheless, his translation of the code contained information embracing ultimate facts such as the quantity and nature of the products discussed via telephone. His testimony was helpful to the jury, however, and thus fell within the scope of Rule 704(a).

III

* Fuentes' assignments of error begin with the claim that her conviction was based on insufficient evidence. Fuentes' conviction was sought on two lines of evidence. First, the government offered five phone conversations in which Fuentes discussed the price, quality, and availability of cocaine, as well as the DaVilas' new customer--the undercover officer--who sought to purchase twenty kilos of cocaine. Second, it offered testimony regarding a conversation between Fuentes and the DaVilas, in which Fuentes expressed her fear that the undercover agent was indeed a police officer and told the DaVilas to use code when discussing drugs.

Fuentes complains that this evidence is insufficient to support a conspiracy conviction. First, she argues that the testimony offered to show she proposed using drug codes was incredible. She notes that the DaVilas were using drug codes long before the witness testified that he heard her suggesting their use to the DaVilas. She also points out other inconsistencies between the witnesses' testimony, and other evidence offered at trial. Second, Fuentes contends that the recorded conversations between her and the DaVilas were adequate to show her awareness of the conspiracy, but inadequate to prove an agreement to participate in it. She points out that she never actually connected the DaVilas with any drug sellers, and she contends that her constant discussion of the high price and low quality of cocaine "could indicate a stalling tactic so as not to break a friendship but not to get involved either."

Fuentes' arguments are arguments for a jury. At its core, she is claiming that her testimony was more reliable, credible, and consistent than the words of her recorded phone conversations and the testimony of various government witnesses. When we consider a sufficiency claim, however, we ask whether, when viewing the evidence "in the light most favorable to the Government, any rational trier of facts could have found the defendant guilty beyond a reasonable doubt." United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989), quoting United States v. MacDougall, 790 F.2d 1135, 1151 (4th Cir. 1986). Determination of the credibility of witnesses, in particular, is a task for the jury. Cf. Herold v. Hajoca Corp., 864 F.2d 317, 320-21 (4th Cir. 1988) (upholding denial of JNOV in ADEA dispute). In this case the jury considered the various evidentiary contradictions and, as it was entitled to do, concluded that the government's version of the facts was correct.

On balance, therefore, we conclude that the evidence, assessed under the proper test, was sufficient to convict Fuentes on the conspiracy count. There was evidence indicating that Fuentes was a knowing participant in this drug conspiracy by providing important and helpful information about the availability of drugs to the DaVilas. This evidence was sufficient to support a finding that Fuentes was a participant, not a passive onlooker, in this conspiracy. Apparently, the jury chose to disbelieve Fuentes' own exculpatory testimony. The district court's finding that Fuentes perjured herself at trial only underscores the jury's reasonableness in accepting the government's, rather than the defense's, version of events.

B

Fuentes next claims that the district court erroneously denied her a two-level sentence reduction for acceptance of responsibility. She claims that because of difficulties in translation between Spanish and English she misunderstood the purpose of her Parole and Probation interview, as well as the specific questions she was asked, and thus inadvertently failed to accept responsibility for her conduct at that time.

A defendant may receive up to a two-level reduction in sentence if she "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for [her] criminal conduct." U.S.S.G. Sec. 3E1.1(a) (1989). The commentary to section 3E1.1 states that "the timeliness of the defendant's conduct in manifesting the acceptance of responsibility" and the willful obstruction of justice are two factors that are appropriately considered in determining whether a defendant is entitled to a sentence level reduction under this section. U.S.S.G. Sec. 3E1.1, application notes 1(g), 4. The standard of appellate review on this matter is also particularly high.

The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.

U.S.S.G. Sec. 3E1.1, application note 5.

The district judge had the opportunity to observe Fuentes at trial. He observed her testimony, concluding that she committed perjury. While perjury does not necessarily preclude a finding of acceptance of responsibility, the guidelines suggest that the two findings are ordinarily incompatible. See U.S.S.G. Sec. 3E1.1, application note 4. The court also considered and rejected Fuentes' last ditch efforts to claim responsibility for the criminal acts which, until late, she denied ever committing. The judge's findings that Fuentes did not accept responsibility for her crime certainly are not without foundation.

Even were we convinced that, but for a translator's error, Fuentes would have stated her acceptance of responsibility several weeks before her sentencing hearing, we would nonetheless affirm the court's judgment. The district court was justifiably troubled by Fuentes' perjury at trial. On this basis alone, the court acted within its discretion in denying Fuentes a sentence reduction for acceptance of responsibility.

Fuentes next contends that, because her role in the offense was minimal, she was entitled to a reduction greater than the one level provided by the trial court. Guideline Sec. 3B1.2 provides sentencing reductions for individuals with limited roles in a given offense. A minor participant is entitled to a two-level sentencing reduction. A minimal participant is entitled to a four-level reduction. The commentary to this section of the guidelines states that

It is intended that the downward adjustment for a minimal participant will be used infrequently. It would be appropriate, for example, for someone who played no other role in a very large smuggling operation than to offload a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.

U.S.S.G. Sec. 3B1.2, application note 2 (1989).

Fuentes offers essentially two arguments that her role was miscalculated. First, she asserts that the evidence will not support a finding that she was anything more than a minimal participant in the conspiracy. Second, she argues that because several co-defendants of equal role in the conspiracy received more minimal sentences than she, her role must have been miscalculated by the court.

The district court entertained extensive arguments from both sides and concluded that Fuentes deserved only a one-level reduction.2  Among the facts it relied upon were Fuentes' close, ongoing relationship with the DaVilas, her discussion of the importance of using codes, and her fairly long-term involvement in the enterprise. The court spent considerable time, at sentencing, evaluating the relative involvement of all of the individuals in this conspiracy. The judge stated, for instance, that he did not believe any of the participants in this conspiracy to have had a minor role. He was particularly concerned about Fuentes' long-term involvement in this conspiracy and that her role involved not only searching the market for cocaine, but also providing advice to the DaVilas.

In sum, he concluded that of the twelve individuals involved in the conspiracy, three were more culpable than Fuentes, six less culpable, and two were of a similar level of involvement. Having presided over the extended trial, and having heard the competing arguments from counsel, the court was in a good position to determine the relative involvement of the various parties. His decision to grant a one-level reduction for role in the offense was well reasoned, plainly based on the evidence at trial, and was not clearly erroneous.

Fuentes lastly argues that her own personal difficulties should have been considered in sentencing. She points to the difficulty of being an illegal alien, attempting to survive in a foreign land, supporting a child in Colombia and receiving no governmental assistance. Fuentes cannot point to any guideline section which provides a sentencing reduction on this basis. Presumably, she wishes that the district court had departed from the sentencing guidelines. The district court, however, chose not to depart from the guidelines on the basis of Fuentes' personal difficulties. A district court's decision not to depart from the guidelines is non-reviewable, United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990), and must therefore be affirmed.

IV

The government contends that the district court erred in failing to provide Fuentes with a two-level upward adjustment for obstruction of justice under guideline Sec. 3C1.1. The government points to the district court's explicit finding that Fuentes committed perjury in her trial testimony. Counsel for Fuentes did not address this question in his brief and failed to file a reply brief addressing the government's cross-appeal on this issue.

Section 3C1.1 of the sentencing guidelines in effect at the time of sentencing states:

If the defendant willfully impeded, or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels.

U.S.S.G. Sec. 3C1.1 (1989). The guidelines appear to provide a mandatory two-level enhancement in cases where the district court makes the factual determination that a defendant willfully impeded or obstructed the administration of justice. What is not plain, from the text of the guidelines, is what behavior constitutes an obstruction of justice. The commentary following section 3C1.1 offers some additional explanation:

The following conduct, while not exclusive, may provide a basis for applying this adjustment ... (c) testifying untruthfully or suborning untruthful testimony concerning a material fact, or producing or attempting to produce an altered, forged, or counterfeit document or record during a preliminary or grand jury proceeding, trial, sentencing proceeding, or any other judicial proceeding.

U.S.S.G. Sec. 3C1.1 (1989), application note 1(c) (emphasis added). The commentary thus offers a non-exclusive list of possible bases for a finding of obstruction of justice. The commentary explicitly states that these sorts of behavior may evidence obstruction of justice. Several courts have found that perjury at trial constitutes such an obstruction of justice. See, e.g., United States v. Barbosa, 906 F.2d 1366, 1369-70 (9th Cir. 1990); United States v. Wallace, 904 F.2d 603, 605 (11th Cir. 1990). The decision of whether particular perjury actually constitutes obstruction of justice, however, is left to the discretion of the trial court judge.3 

The fact that the guidelines allow a trial court discretion to decide whether perjury constitutes obstruction of justice of course implies that there may be cases where perjury properly may be found not to constitute an obstruction of justice. Presumably, the culpability of a defendant who perjures herself will depend on the specific facts and circumstances of any given case. As of now, the determination of when perjury properly may be found to constitute or not to constitute obstruction of justice has not been explored by the courts.

In this case, the district court chose not to provide a two-level enhancement despite finding that Fuentes committed perjury. The basis for not providing an enhancement for obstruction of justice in the face of a finding of perjury seems to have been some notion of fairness. The court stated that it believed that both Fuentes and her co-defendant, Victoria Cepeda, perjured themselves. Cepeda was acquitted, however. Feeling it was unfair to enhance Fuentes' sentence for the very behavior which exonerated Cepeda, the court framed its decision not to provide a section 3C1.1 enhancement this way:

I find beyond a reasonable doubt that Mrs. Fuentes took the stand in the trial of this case and committed perjury and knowingly did so ... I didn't believe Ms. Cepeda either. I would not have found her not guilty. But I take into account that the jury found her not guilty. And there were at least some similarities in the approach taken to the case by Ms. Cepeda as by Mrs. Fuentes. And therefore, on a balancing basis, I'm not prepared to go along and adjust upwards as the Government has requested under 3C, but that doesn't mean for one minute that I have any question in my mind, but that Ms. Fuentes committed perjury.

(Emphasis added.)

While under the guidelines applicable to this case there may be situations where a defendant who commits perjury may be considered not sufficiently culpable in doing so to warrant an upward adjustment for obstruction of justice, we believe that the desire to balance the sentences of co-defendants does not constitute a basis for finding that perjury did not amount to obstruction of justice. The fact that the court believed Cepeda to have been wrongly acquitted does not bear on the question of whether Fuentes' perjury should be deemed an obstruction of justice. We do not know, however, whether the enhancement might have been inappropriate for some other reason. We therefore vacate Fuentes' sentence and remand for the narrow purpose of reconsidering this issue in accordance with this opinion. On remand, the court may exercise its discretion in deciding whether, independently considered, the facts and circumstances surrounding Fuentes' perjury suggest that it should not be deemed an obstruction of justice.

V

In conclusion, we affirm the convictions of both Diaz and Fuentes. We vacate Fuentes' sentence and remand for reconsideration of the issue whether her perjury should be considered to have constituted an obstruction of justice, under sentencing guidelines Sec. 3C1.1, and for resentencing based upon the court's resolution of that issue.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

 1

One piece of conversation suggests the difficulty a jury would have in comprehending the meaning of the parties:

Diaz: She's been living on the 15th and 5th in Cartago.

Eybar: Oh, OK OK.

Diaz: She's living over there on the 15th and 5th, you understand me?

Eybar: Um huh, hey listen, are you, at 9:00 are you going to be there?

Diaz: Yes, but look I wanted to know if you were going to that address so that I would take it, because otherwise I'd have to get up early, you understand?

Eybar: No.

Diaz: Its if its for sure.

Eybar: Yes, yes, we'll go with you.

Diaz: Yes, yes, yes, I have to go to that address first so if I know, what I would like to do is call the lady, right?

 2

Although the guidelines do not explicitly call for a one-level reduction, neither party here contests the judge's power to reduce her sentence by only one level

 3

We note, without any need to conclude here, that a recent 1990 change in the guidelines commentary to section 3C1.1 may have removed the discretion which we find expressed in the commentary in force at the time of Fuentes' sentencing. See Application Note 3(b) (the successor to note 1(c)) (1990)