[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-1116

UNITED STATES OF AMERICA, Appellee,

v.

JUAN R. MERCED-MORALES, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Peter Díaz-Santiago, by appointment of the court, for appellant. Jacabed Rodriguez-Coss, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief, for appellee.

October 19, 2000 SELYA, Circuit Judge. On April 10, 1997, a federal

grand jury sitting in the District of Puerto Rico returned a

three-count indictment against a number of individuals. In

Count 2 of the indictment, the grand jury charged several

persons, including Juan R. Merced-Morales, with conspiring to

distribute controlled substances in violation of

. Following a five-week trial, a petit jury found Merced-

Morales guilty as charged. The district court thereafter

sentenced him to serve 292 months in prison. Merced-Morales

appeals.1 Having carefully reviewed the record, we affirm.

The appellant's basic argument entails a challenge to

the sufficiency of the evidence. This challenge invokes a

familiar standard of review: when evaluating the sufficiency of

the evidence presented against a defendant in a criminal case,

an appellate court must "canvass the evidence (direct and

circumstantial) in the light most agreeable to the prosecution

and decide whether that evidence, including all plausible

inferences extractable therefrom, enables a rational factfinder

to conclude beyond a reasonable doubt that the defendant

1 Merced-Morales stood trial with eight other alleged coconspirators (all of whom were found guilty), and we consolidated the nine ensuing appeals. Seven of them, including this one, were argued together on September 14, 2000. The other two were submitted on the briefs to the same panel. Because this appeal raises at least one issue peculiar to Merced- Morales, we have chosen to decide it in a separate opinion.

-3- committed the charged crime." United States v. Noah,

(1st Cir. 1997).

The statute of conviction here is

. To

convict a defendant of violating that statute, the government

must "show beyond a reasonable doubt that a conspiracy existed

and that a particular defendant agreed to participate in it,

intending to commit the underlying substantive offense." United

States v. Sepulveda,

(1st Cir. 1993). Proof

of the illicit agreement requires "no particular formalities."

Thus, a defendant may join in a drug-trafficking conspiracy

without knowing the full extent of the enterprise or the

identities of all the coconspirators. See United States v.

Rivera-Santiago,

(1st Cir. 1989). By like

token, the government may satisfy its burden through either

direct or circumstantial evidence, or through any combination of

the two. See United States v. Marrero-Ortiz,

(1st Cir. 1998); United States v. Hernandez,

(1st Cir. 1998). In short, both the conspiracy's existence and

a particular defendant's membership in it may be inferred from

the participants' "words and actions and the interdependence of

activities and persons involved." United States v. Boylan,

(1st Cir. 1990).

-4- Against this backdrop, we turn to the appellant's

principal assignment of error. Merced-Morales concedes, as he

must, that the government proved the existence of a large, long-

lasting conspiracy to peddle various controlled substances. The

question, then, is whether the government also proved that he

was part and parcel of it. The record dictates that this

question must be answered affirmatively.

At trial, the government adduced competent evidence

that Merced-Morales sold contraband at a drug point operated by

the conspiracy in the Ramos Antonini housing project, and that,

on occasion, he carried a firearm to protect that drug point.

This evidence suffices to undergird his conviction. See, e.g.,

Rivera-Santiago,

(holding that "[t]he fact that

[the defendant] participated in one retail link of the

distribution chain, knowing that it extended beyond his

individual role, [is] sufficient" to demonstrate his culpability

as a member of a drug-trafficking conspiracy).

The appellant seeks to deflect the force of this proof

by assailing the credibility of the government's several

witnesses. But that line of attack avails him naught. In

passing upon challenges to the sufficiency of the evidence, we

are bound to refrain from making independent judgments as to

witness credibility. See Noah,

; United States

-5- v. Echeverri,

(1st Cir. 1993). We recently

summed up this principle in United States v. Alicea,

(1st Cir. 2000), in which we wrote that "[e]xcept in the

most unusual circumstances . . . credibility determinations are

for the jury, not for an appellate court."

. The

circumstances here are not extraordinary, so this case comes

within the sweep of the general rule, rather than the long-odds

exception to it.

The appellant puts a twist on his credibility theme,

attempting to invoke the specter of a witness-bribery statute

that provides in pertinent part:

Whoever . . . directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court . . . authorized by the laws of the United States to hear evidence or take testimony . . . shall be fined under this title or imprisoned for not more than two years, or both.

(c)(2). In 1998, a Tenth Circuit panel held that

this statute forbade testimony given in exchange for promised

leniency, and applied an exclusionary rule to remedy perceived

violations. See United States v. Singleton,

(10th

Cir. 1998) (Singleton I). The appellant acknowledges that

Singleton I has been withdrawn and that the Tenth Circuit,

-6- sitting en banc, has repudiated it. See United States v.

Singleton,

(10th Cir. 1999) (en banc)

(Singleton II), cert. denied,

(1999). The

appellant also acknowledges that this court has disavowed its

reasoning. See United States v. Lara,

(1st

Cir. 1999). He nonetheless argues that the spirit of Singleton

I persists, and that the rationale behind the decision — namely,

that testimony from government witnesses who have received

inducements to testify is inherently unreliable — justifies the

reversal of the jury verdict in this case.

We reject this specious argument. While the testimony

of cooperating witnesses must always be scrutinized with care,

see, e.g., United States v. LiCausi,

(1st Cir.

1999), the witnesses here were subjected to withering cross-

examination by several sets of defense counsel, and the jury was

properly instructed to weigh their testimony in light of the

promises made and inducements tendered. The jury apparently

found the witnesses credible. We know of no authority that

would permit us, in the circumstances of this case, to second-

guess the jury's assessment. We therefore decline to accept the

appellant's reading of either the letter or the spirit of

section 201(c)(2). See Lara,

; Singleton II,

; see also United States v. Lowery,

,

-7- 1122-24 (11th Cir. 1999); United States v. Ramsey,

(D.C. Cir. 1999); United States v. Ware,

, 418-

25 (6th Cir. 1998), cert. denied,

(1999); United

States v. Haese,

(5th Cir. 1998), cert.

denied,

(1999).

The appellant's second assignment of error addresses

his sentence. He complains that the district court should have

lowered his offense level because he was, at most, a "minor" or

"minimal" participant in the offense of conviction. This

complaint lacks force.

USSG §3B1.2 permits a sentencing court to shrink a

defendant's offense level by four levels for "minimal"

participation or two levels for "minor" participation. To earn

either adjustment, however, a defendant must prove an

entitlement to it. See United States v. Ocasio,

(1st Cir. 1990). Moreover, if the sentencing court

refuses to grant such an adjustment, the defendant has the

burden of demonstrating to the court of appeals that the

sentencing court's role-in-the-offense determination was clearly

erroneous. See

This is a heavy burden, and the appellant

cannot carry it in the instant case. Cf. United States v.

Graciani,

(1st Cir. 1995) (warning that battles

over a defendant's precise role in the offense almost always

-8- will be won or lost before the sentencing court). We explain

briefly.

Merced-Morales tries to portray himself as merely a bit

player in the sprawling narcotics extravaganza orchestrated by

José Vega-Figueroa and Carlos Hernández-Vega, suggesting that

others played much more prominent supporting parts. But role-

in-the-offense adjustments do not hinge exclusively on the

comparative conduct of persons within a criminal enterprise. To

the contrary, the availability vel non of a role-in-the-offense

adjustment also depends "on comparing each offender's actions

and relative culpability with the elements of the offense."

Ocasio,

. In other words, a defendant seeking

such an adjustment must show that he was "substantially less

culpable than the average participant."

Measured by these benchmarks, the appellant's

initiative fails. The indictment in this case charged Merced-

Morales with conspiring to distribute narcotics — and the proof,

taken in the light most flattering to the verdict, showed that

he did exactly that. Moreover, he was not merely an occasional

participant, but functioned as a dealer on a regular and

sustained basis. After hearing arguments on the question, the

lower court determined unequivocally that Merced-Morales was

neither a "minimal" nor "minor" participant in the conspiracy,

but, rather, a full-fledged member.

-9- Tarrying would serve no useful purpose. "[T]he

determination of a defendant's role in an offense is necessarily

fact-specific." Graciani,

. Given the elements of

the offense of which Merced-Morales was convicted, the evidence

amassed by the government, the allocation of the burden of proof

vis-à-vis downward role-in-the-offense adjustments, and the

standard of appellate review, we see no hint of clear error in

the sentencing court's decision to deny a downward adjustment in

this instance.

We need go no further. We conclude, without serious

question, that the evidence introduced at trial, taken in the

light most congenial to the government's theory of the case,

amply supported the appellant's conviction. We also conclude

that the lower court did not clearly err in refusing to treat

the appellant as a "minor" or "minimal" participant with respect

to the offense of conviction. Accordingly, the judgment below

must be

Affirmed.

-10-