USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals
For the First Circuit
____________________

No. 95-2264

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN AROCHO GONZALEZ,

Defendant, Appellant.

____________________

No. 95-1652

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO AROCHO GONZALEZ,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________
___________________

Before

Stahl, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Raymond
Luis Sanchez Maceira
________________________________

for

appellant

Roberto

Aro

Gonzalez.
Peter Diaz-Santiago for appellant Juan Arocho Gonzalez.
___________________
Jeanette Mercado-Rios,
______________________
whom

Assistant

Jose A. Quiles-Espinosa, Senior

________________________

United States
Litigation

Attorney,

Counsel, Edwin
______

Vazquez, and Nelson Perez-Sosa, Assistant United States Attorneys,

_______
_________________
Guillermo Gil, United States Attorney, were on brief for appellee.
_____________

____________________

August 1, 1996
____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
______________

Juan

Arocho

Gonzalez,

running

a cocaine

Agustin

Stahl Housing

After a jury

eleven

possess

count

Two brothers,

were accused

sales ring

Project

out

by

of an

the

in Aguadilla,

cocaine with

the

charging them

intent

to

government of

apartment in

trial, they were convicted on all

indictment

Roberto and

with

Puerto

the

Rico.

counts of an

conspiring to

distribute

it,

with

distributing cocaine

with engaging in

and

a Continuing

feet of

a public

the mandatory

They appeal,

narcotics, but

denying

sentence of

they sold

("CCE"),

Both brothers

twenty

years.

small quantities

of

contending that the evidence was insufficient

establish the

assert that

minimum

admitting that

school,

Criminal Enterprise

with hiring minors to distribute cocaine.

received

to

within 1000

elements of

the trial

a CCE

court committed

violation.

They also

reversible error

in

their motions to substitute counsel, in declining to

find Brady
_____

error, and

in calculating

the

attributable to them for sentencing purposes.

amount of

drugs

We affirm.

I.

Because

the sufficiency

of

the

evidence

is

at

issue, we describe

the

government, as

the facts in the light

the jury

could

most favorable to

have found

them.

See
___

United States v. Hahn, 17 F.3d 502, 505 (1st Cir. 1994).

_____________
____

Local police received information that a drug point

was

being operated

out of

the Housing

-33

Project.

From May

through

November

of

1994,

Administration special agents

federal

Drug

Enforcement

and local police observed

videotaped activities conducted from Apartments 165

and

and 161.

Roberto and Juan1 lived in Apartment 161, which was leased in

their mother's

name.

The

two apartments

are about

feet from each other and both are less than

twenty

eighty feet from

an elementary school.

Visual surveillance established that the drug point

was in

operation about

eighteen hours a

day, seven

days a

week.

Sales were made by drug peddlers in front of Apartment

161.

Cars would pull up in front of the apartment, where the

drivers

containing

would

exchange

cocaine.

money

for

small

plastic

bags

The peddlers making the exchanges would

take the money

into Apartment 161 and bring

out the plastic

bags containing the cocaine.

Roberto and Juan were observed on various occasions

handing bags

to the peddlers, receiving money from them, and

counting that money.

supervising the

sales, although

sales themselves.

at times

they made

to be

direct

At least ten people were observed peddling

drugs at this drug

controlled

The brothers appeared primarily

point, some of whom were minors.

buys, agents

bought bags

whose contents

In six

tested

positive for cocaine and heroin.

____________________

1.

Because the two

defendants share a common

refer to each by his first name.

last name, we

-44

On December

1, 1994,

a search

of Apartment

161,

pursuant to a search warrant,

turned up twenty-three bags of

cocaine

$20

(worth no

more than

plastic baggies, leasing

wrappers

receipts for cars, and

in denominations

scales, money

each), measuring

wrappers and

of

$100, $500,

leasing receipts

scales,

empty money

and $1000.

were found

The

in

Juan's bedroom. In addition, cellular telephone equipment and

beeper

receipt

arrested.

were

Roberto was

seized.

Roberto

carrying a

and

beeper.

Juan

were

Although only

$70.66 was found on Roberto, and $2 on Juan, an agent witness

estimated

the volume of cocaine transactions over the period

the apartments

were under

observation

eight kilograms, which would have

to be

approximately

generated an income in the

region of $300,000.

II.

A. Sufficiency of Evidence
__________________________

Defendants'

to

the

sufficiency of the evidence supporting their convictions

for

engaging in

"In

a CCE

most

vigorous

in violation

of 21

challenge

U.S.C.

is

848.

reviewing a sufficiency of the

evidence claim we look at the

evidence in the light most favorable to the verdict."

United
______

States v. Cruz-Kuilan, 75 F.3d 59, 61-62 (1st Cir. 1996).

______
___________

In

order to preserve a sufficiency of the evidence challenge for

appeal, a defendant must first move for judgment of acquittal

at

trial.

See
___

United States v. Concemi,

_____________
_______

-55

957 F.2d 942, 950

(1st Cir. 1992).

Juan did not do so and has therefore waived

his sufficiency

challenge.

succeed only if

he can demonstrate

"clearly and grossly

Given waiver,

unjust."

Juan's conviction to be so.

a defendant

can

that his conviction

was

Id. at
___

950.

We do

not find

We focus therefore on Roberto's

challenge, which was properly preserved.

A CCE conviction requires proof that the defendant:

(i)

committed a

felony

continuing series of

five

or more

supervisor,

drug

offense; (ii)

as

such violations; (iii) in

persons in

organizer,

relation

or

manager;

to whom

and

he

(iv)

part of

concert with

acted as

from

which

multiple operations he

resources.

realized substantial income

21 U.S.C.

Roberto claims

that the

848(c);

Hahn,
____

17 F.3d

government established

or other

at

506.

neither the

third nor fourth elements of the CCE offense.

(a) Supervisor, Organizer or Manager

____________________________________

Roberto argues

that the evidence

was insufficient

to show that he was a supervisor, organizer or manager at the

drug point.

his

He asserts that

giving orders

asserts that he was

there was no direct evidence of

or instructions

to anyone.

no more than a drug addict

low-level drug peddler in order

He

further

working as a

to support his habit.

There

was evidence sufficient for the jury to find to the contrary.

The

government need show

only that

the defendant

occupied some

managerial position

with respect

to five

or

-66

more

persons,2 and not

that the defendant

organizer or manager.

See Hahn,
___ ____

was

evidence

an abundance

reasonably

have

of

concluded

was the dominant

17 F.3d at 506 n.4.

from

that

which the

Roberto

jury

There

could

performed

supervisory role

point.

with respect to

peddlers executed

showed him

conducting a few

points out

that the

direct sales

was merely a peddler.

Roberto conducted a few sales

by

observed dispensing drugs

receiving the proceeds, and

Roberto

that this shows he

of the sales

been turned over to Roberto or

Roberto, specifically, was

proceeds.

the

In an estimated 90%

observed, the proceeds

the peddlers appeared to have

to the peddlers,

At most

monitoring the peddlers as

sales with customers.

of the transactions

from

the drug

The operation was run out of Roberto's home.

times Roberto appeared to be

Juan.

the operation of

counting those

evidence at

himself and

But

trial

says

the fact that

himself does not insulate

the evidence demonstrating his supervisory role.

him

There

was

ample

evidence for

the jury

to reasonably

infer that

Roberto's role was supervisory.

(b) Substantial Income or Resources

___________________________________

Roberto makes two attacks on the sufficiency of the

government's evidence as to

substantial income or resources.

First, he says that there was not sufficient evidence for the

____________________

2.

It is undisputed

that, in addition to

Roberto and Juan,

the drug point employed at least ten other people.

-77

jury to have concluded that a substantial volume of drugs was

sold

at the

drug point.

Second,

he asserts

that

absence of evidence in the nature of bank accounts,

possessions or

have

an expensive

lifestyle, the

reasonably concluded that

with substantial income.

First, there

substantial income.

material

jury could

the drug point

not

provided him

Both arguments fail.

was adequate evidence from

jury could have reasonably

transactions at the drug

in the

which the

inferred that the volume of

point was large enough

Specifically, there was:

drug

to generate

(i)

testimony

from

that, based on
period

government

agents

their surveillance over a

of seven

months, they

estimated

the drug point to operate eighteen hours

_______________
a day, seven days a week;
________________________
(ii)

videotaped

surveillance

approximately a

six hour

12:30

6:25

p.m. and

afternoon

that

for

period between

p.m. on

showed

Friday

twenty-three

separate sales to have been made; and

(iii) testimony from government agents as
to six controlled buys that they had made
from the drug point on two Fridays, where
the

average

weight

of

the

purchased

amounts of cocaine was .54 grams.

At trial, extrapolating from the

hour period,

purchased,

eighteen

estimated

the average

and the

hours a

number of sales for the six

weight of

evidence that

day,

monthly sales

seven days

to be

in

the individual

the

drug point

week, the

the order

amounts

operated

government

of one

and a

quarter

kilograms.

Roberto

trial, as he does now,

attacked

this estimation

asserting that the government

at

should

-88

have

discounted for

Fridays was probably

even

if

the

jury

the fact

that the

volume of

higher than that on the

had

been

instructed

to

sales on

weekdays.

But

discount

the

government's

readily

Friday-based estimation,

determined that

the drug

it

point

could still

have

transacted a

high

volume of drugs.

Roberto further argues that the government produced

no direct

drug

evidence of his having accumulated wealth from the

operation.

element

can

defendant's

operation.

870

role

addition

substantial

met

circumstantial

by

in the

operation

and

income or

resources

evidence

of

the

the scope

of

the

See Hahn, 17 F.3d at 507; United States v. Roman,

___ ____
_____________
_____

F.2d 65,

(1989).

be

But the

75

(2d

Proof that

to

organization,

proof

is

Cir.), cert.
_____

denied,
______

a large quantity of

of

adequate

defendant's

to

490 U.S.

1109

drugs was sold, in

position

produce the

in

the

inference

that

substantial

F.3d at 507.

revenue must

Here

have been

derived.

there was evidence of a

See
___

Hahn, 17
____

high-volume drug

operation, from which the jury could reasonably have inferred

that substantial income resulted

for Roberto, a

supervisor.

A government witness estimated the income from the operation,

for the

approximately seven

months it

was observed,

to be

almost $300,000.

Roberto also points

out that he lived in a housing

project where the rent was only $3 per month.

-99

However, given

the

have

evidence of a high-volume drug operation, the jury could

reasonably

discounted

accumulated

wealth.

government

presented

operation,

jury could

from defendant's

the

Cf. Hahn,
___ ____

evidence

have

lack

of

17 F.3d

of

evidence

at 507

high-volume

defendant lived

park and was constantly short of money).

B. Motion to Substitute Counsel

_______________________________

to

n.6 (where

reasonably discounted

father that

as

in a

drug

evidence

trailer

Both brothers assert error in

denial

of their last-minute

They argue that

make an

the district court's

motions to

substitute counsel.

the district court failed

inquiry into an alleged failure

the attorney-client relationship.

its obligation to

of communication in

The trial transcript shows

the argument to be without merit.

Denials of motions for

reviewed for an abuse of

substitution of counsel are

discretion.

United States v. Diaz_____________

_____

Martinez, 71 F.3d 946, 950 (1st Cir. 1995).

________

consider

the

timeliness of

circumstances

the motions

conflict was

so great as

United States
_____________

v. Allen,
_____

of

and

the

Within that, we

denial,

whether the

such

the

attorney-client

to preclude an adequate

789 F.2d 90,

as

92 (1st

defense.

Cir.), cert.
_____

denied, 479 U.S. 846 (1986).

______

As

first

day

allowance

to timeliness, the

of trial,

of

the

after

motion

motions were raised

the

jury

was

would

have

delayed

on the

impaneled,

the

and

trial.

-1010

Questioning

by

the

district court

revealed

that

neither

brother

had substitute

"[W]hen, as

here, the

counsel ready

granting of

to

step into

the defendant's

place.

request

would almost certainly necessitate a last-minute continuance,

the trial

to

extraordinary

deference."

United States v. Pierce, 60 F.3d

______________
______

886, 890 (1st

Cir. 1995),

cert. denied, __ S. Ct. __, No. 95-6474 (July 1,

_____ ______

1996); see
___

also Diaz-Martinez, 71 F.3d at 950; United States

____ _____________
_____________

v.

judge's

actions

Betancourt-Arretuche,
____________________

("eleventh-hour"

procedure and

(1991);

are

933

requests may

are disfavored),

United States v.
______________

entitled

F.2d

89,

94

interfere with

cert. denied,
_____ ______

Torres,
______

793 F.2d

Cir.), cert. denied, 479 U.S. 889 (1986).

(1st

Cir.)

orderly court

502 U.S.

436,

959

440 (1st

_____ ______

Defendants argue

communication between

showed

that there

in counsel advising

when they wanted to go to trial.

adequate

provide

judgment

as

to

with

the

communication.

disagreement

client's

basis

See Allen,
___ _____

over

whether

is

or

the attorney's

an adequate

This

them to plead

communication precluding

it

his

from

of

What defendants point to is

lack of

Indeed,

client

disagrees with

alone,

not a

defense.

total lack

themselves and their attorneys.

itself, they say,

a disagreement,
____________

was a

an

her

attorney's role

independent

options.

That

weighing of

which to

789 F.2d at

client's

to

informed

the client

options is

infer

an

not,

a lack

of

93 (attorney-client

better

option

was to

-1111

accept plea

or go

to trial was

not, by

itself, enough

to

create good cause for substitution of counsel).

The

district court made

a detailed inquiry

as to

each brother's reasons for wanting a substitution of counsel.

The

questioning revealed that counsel for each defendant met

with his client on a number of occasions to discuss the case.

It further revealed that at

cause of

able to

some

of

least in Roberto's case the real

his dissatisfaction was

that counsel had

obtain for him as favorable

his

former

defendant's

counsel

prosecution

charges or

court was well

co-defendants

does

not

not been

a plea bargain offer as

had

control

is willing to

obtained.

But

either

the

offer.

within its discretion in

what

The district

denying the motions

for substitution of counsel.

C. Brady Violation
___
__________

Defendants argue

in the

that there was

prosecution's failure

to turn

over

prejudicial error

to the

defense

certain computer records in violation of the rule established

in

Brady v.
_____

Maryland, 373
________

reports contained the

that government

and in the

U.S.

83 (1963).

The

identities of the owners

witnesses testified

were under

possession of the defendants.

computer

of four cars

the control

Defendants assert

that the information as to the owners' identities

would have

brought

government

into

question

the

witnesses on the question of

credibility

of the

the scope of the drug operation

-1212

and the allegedly substantial income that it generated.

hypothesize

that if the

owners' identities had

they could have been called

not been under

court

found no

government

been known,

to testify that the vehicles had

the control of the defendants.

Brady violation,
_____

witnesses

They

testified

reasoning

only as

The district

that since

to

the

the defendants

having control and possession of the vehicles, not ownership,

the computer reports were not exculpatory.

We agree.

"To show a Brady violation, the defendant must show

_____

(among

other

factors)

that

the

withheld

exculpatory, as measured by its materiality.'"

`evidence

was

United States
_____________

v. Watson, 76 F.3d 4, 7 (1st Cir.) (quoting United States

______
_____________

Hemmer, 729
______

1218

F.2d 10,

(1984)),

"Evidence

14 (1st Cir.),

cert.
_____

denied,
______

is material if

116

there is a

cert denied,
____ ______

S.

the evidence

been disclosed."

467 U.S.

1889

(1996).

reasonable probability

that the outcome of the proceeding would

had

Ct.

v.

have been different

See id.
___ ___

(citing United
______

States v. Bagley, 473 U.S. 667, 682 (1985)).

______
______

In

the

face

of

this,

demonstrated why the information as

was

material.

cars they

the

defendants

evidence had any

not

to ownership of the cars

Further, defendants did

used, as counsel

have

know who

owned the

admitted at oral argument.

exculpatory value, defendants

Had

had the

ability to present it.

III.

-1313

Defendants

under

was

21 U.S.C.

appear to

challenge their

841(a)(1) & 846

insufficient evidence

convictions

on the ground that there

to support

finding that

they

distributed

in excess

of five

kilograms of

cocaine.

The

to

any

challenge is unavailing.

The

government

was

not

required

prove

particular quantity of drugs before the jury in order to gain

convictions

under 21

U.S.C.

841 and

846.

See
___

United
______

States v. Barnes, 890 F.2d 545, 551-52 & n.6 (1st Cir. 1989),
______
______

cert. denied, 494 U.S. 1019 (1990).

_____ ______

drug quantity in

at the

excess of five kilograms

sentencing phase,

defendants

The evidence relating to

and specifically,

was relevant only

to whether

the

were subject to the mandatory minimum sentence of

ten years imposed by section 841.3

___

the defendants

on

this

However, any challenge by

sentencing point

would

be

of

no

practical

under

significance,

Section 841 were

because

their

ten-year

imposed concurrently to
____________

sentences

the twenty______

year mandatory sentences required for their CCE convictions.4

Therefore, we

need not address

562

90

F.2d 88,

(1st Cir.

it.

See Vanetzian
___ _________

1977)

(declining to

v. Hall,
____

entertain

____________________

3.

A mandatory minimum sentence of ten years is triggered if

the

offense involves

containing a detectable

five kilograms
amount of

841(b)(1)(A)(ii)(II); see also

___ ____

or more

cocaine.

of a

mixture

See 21
___

U.S.C.

United States v.
_____________

Muniz, 49
_____

F.3d 36, 38 (1st Cir. 1995).

4.

The five-kilogram determination does not directly

the defendants' CCE sentences.

-1414

affect

challenge to

sentence where

sentence was not in question).

Affirmed.
________

validity of

longer, concurrent

-1515