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United States v. Padilla

argued: November 16, 1992.

UNITED STATES OF AMERICA
v.
ABELARDO PADILLA, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Crim. No. 91-00127-05).

Before: Mansmann, Hutchinson and Garth, Circuit Judges.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

Abelardo Padilla challenges his conviction, after trial by jury, for conspiracy to possess with intent to distribute cocaine. He argues that the government did not present sufficient evidence of a conspiracy and, alternatively, that there was a prejudicial variance between the single conspiracy charged in the indictment and multiple conspiracies he asserts were proven at trial. Because the evidence was sufficient and the variance, if any existed, was not prejudicial, we will affirm.

I.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3231. We review a claim of insufficient evidence by inquiring whether "there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision." United States v. Palmeri, 630 F.2d 192, 203 (3d Cir. 1980), cert. denied, 450 U.S. 983 (1981).

With this standard of review in mind, we turn to the facts as proven by the government at trial.

II.

Much of the government's evidence came from Julio Aguilar, a drug dealer, and from tape recordings of his telephone conversations with Padilla. In general, Aguilar testified that he had extensive dealings in cocaine -- up to four kilograms per week -- and he identified his customers as those who had been recorded on the tapes. Aguilar's modus operandi was to deliver cocaine in person after speaking to a buyer on the telephone.

Regarding Padilla specifically, Aguilar told the jury that he had known Padilla in Columbia, had maintained a relationship with Padilla in this country based on drugs, and had in fact sold cocaine to Padilla on a few occasions. Four telephone conversations, which occurred within one month, implicated Padilla in drug trafficking. Aguilar identified Padilla as the other speaker in three of these calls. Padilla's brother Francisco also testified for the government, identifying Padilla's voice in three calls and the voice of Padilla's wife in the fourth. Aguilar detailed the subject matter of the calls.

In the first conversation, Padilla sought four and one-half ounces of cocaine, valued at approximately $2,400 per quarter-ounce. In the second conversation, about which Aguilar testified extensively, the two commiserated over the scarcity of drugs. Several aspects of this second conversation indicate Padilla's involvement in the drug trade with Aguilar: references to lack of work as a result of the scarcity of drugs,*fn1 concern about the scarcity of drugs and about police activity in tightening the supply of drugs. The jury could have reasonably interpreted one exchange to have included Padilla within the aegis of Aguilar's network.*fn2 Another statement by Padilla indicated knowledge of large scale trafficking: "With one seven you can bring it here, including transportation." According to Aguilar, the figure "one seven" meant $17,000, the price of a kilogram.

In the third conversation, Aguilar offered to sell Padilla cocaine, and in the fourth conversation, Aguilar left the price of the drug in a message given to Padilla's wife. The content of this last call is reflected in Aguilar's testimony:

Q: Now looking at this conversation, you asked, "Hello?" and you asked, "Abelardo" and the person says, "Hello?" and you asked, "Is Abelardo there?" and --

A: That's correct correct.

Q: And the voice says, "No, is this ...


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