We have explained that the amount of drugs is only one factor relevant to determining whether a defendant had an intent to distribute. United States v. Cortés-Cabán , 691 F.3d 1, 35-36 (1st Cir. 2012). Other relevant factors include "the purity of the drugs at issue, [ ] the quantity of cash on a defendant, [ ] the manner in which the drugs were packaged, [ ] the presence of drug paraphernalia, [ ] the lack of any evidence showing a defendant used or consumed the type of drug seized, [and] the presence of firearms."
The other underlying offenses and offense levels proposed in the presentence report were: (1) illegal searches (offense level 18); (2) false reports (offense level 8); larceny (offense level 6); and perjury (offense level 17).In using U.S.S.G. § 2D1.1 to determine Figueroa's base offense level, the District Court relied heavily on a recent case, United States v. Cortes–Caban, 691 F.3d 1, 16 (1st Cir.2012), in which the First Circuit Court of Appeals held that police officers who conspired to plant drugs on individuals to fabricate criminal offenses were properly convicted of conspiracy to possess controlled substances with an intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. The court reasoned that the plain language of 21 U.S.C. § 841(a), which deems it “unlawful for any person knowingly or intentionally—(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance ...”, encompassed the police officers' conduct. Cortes–Caban, 691 F.3d at 16 (quoting 21 U.S.C. § 841(a)).
Even so, 21 U.S.C. § 885(d)"carve[s] out a specific exemption for distribution of controlled substances by law enforcement officers." United States v. Cortes–Caban, 691 F.3d 1, 20 (1st Cir.2012). The purpose of section 885(d) is to "protect[ ] accepted law enforcement tactics ... in which officers handle and transfer drugs."
Nor does he challenge the jury instruction that "possession of controlled substances by a law enforcement officer for the purpose of planting those substances on others is possession with intent to distribute." R.216 at 94; see United States v. Cortes-Caban , 691 F.3d 1, 17–23 (1st Cir. 2012) (holding that planting drugs constitutes distribution); United States v. Figueroa , 729 F.3d 267, 273–75 (3d Cir. 2013) (same). The only pertinent question under Wallace's framing of the appeal is whether a rational jury could find that he possessed this methamphetamine for the purpose of planting it.
Our role at the stage is “quite limited.” United States v. Cortés–Cabán, 691 F.3d 1, 12 (1st Cir.2012) (quoting United States v. Hernández, 218 F.3d 58, 64 (1st Cir.2000)). It is not our job to re-weigh the evidence or second-guess the jury's credibility determinations.
In Figueroa, we favorably cited a case from the First Circuit describing "distribution" as a "transfer of possession of a controlled substance." Id. (quoting United States v. Cortes-Caban, 691 F.3d 1, 18 (1st Cir. 2012)). We then held that the defendant, a police officer whose offense involved planting controlled substances on individuals to facilitate false arrests, engaged in distribution.
Id. (quoting United States v. Cortés-Cabán, 691 F.3d 1, 28 (1st Cir. 2012)); see also id. at 108-09 (observing that U.S.S.G. § 3B1.1(c)'s analogous enhancement based on "organizer, leader, manager, or supervisor" will apply when "the defendant, in committing the offense, exercised control over, organized, or was otherwise responsible for superintending the activities of, at least one of those other persons" (quoting United States v. Cruz, 120 F.3d 1, 3 (1st Cir. 1997))). Now some parameters for what it means to have authority or control over another criminal actor.
But even the uncorroborated testimony of a single cooperating witness may be sufficient to support a conviction, so long as the testimony is not facially incredible. See United States v. Cortés-Cabán, 691 F.3d 1, 14 (1st Cir. 2012) (collecting cases). Here, multiple witnesses described Velazquez-Fontanez's participation in La Rompe's criminal activities; it matters not for purposes of our sufficiency review that others did not do so.
Although the guidelines do not define the term "supervisor" or "manager," "we have held that ‘[e]vidence of the defendant's role in the conspiracy "may be wholly circumstantial," and need only show that he exercised authority or control over another participant on one occasion.’ " United States v. Cortés-Cabán, 691 F.3d 1, 28 (1st Cir. 2012) (quoting United States v. Flores–de–Jesús, 569 F.3d 8, 34 (1st Cir. 2009) ); see also Cruz, 120 F.3d at 3 (noting that the analogous enhancement based on "organizer, leader, manager, or supervisor" status in U.S.S.G. § 3B1.1(c) applies if "the defendant, in committing the offense, exercised control over, organized, or was otherwise responsible for superintending the activities of, at least one of those other persons"). With respect to exhibiting control as a manager or supervisor, the defendant's conduct must satisfy two conditions.
To earn the enhancement, the government must show by a preponderance of the evidence that the defendant did more than participate in shared criminal activity; he must have led or facilitated that criminal activity. See Al-Rikabi, 606 F.3d at 14-15 ; United States v. Cortés-Cabán, 691 F.3d 1, 28 (1st Cir. 2012). One way to demonstrate leadership is by "the degree of control and authority exercised over" at least one other person.