Defendant Pablo Fernandez appeals from a December 22, 1995 judgment of the United States District Court for the Southern District of New York (Sprizzo, J.) convicting him of one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. Fernandez’ primary challenge on appeal is that the evidence presented was insufficient to support his eonviction. He uses this argument as a platform from which he mounts a variety of other challenges to his conviction and sentence; each additional argument depends to some degree on our assessment of the sufficiency of the evidence. That is, it is basically the same argument clothed in different verbal garb. Consequently, because defendant fails to establish that the evidence wаs deficient, each of the additional, dependent arguments must also fail.
BACKGROUND
An undercover investigation of Louis Esa, who was the alleged leader of a widespread criminal enterprise engaged in counterfeiting, credit card fraud, narcotics distribution, and other crimes, led FBI agents to arrest Ronald Besho, one of Esa’s counterfeiting coconspirators. In exchange for a reduced sentence recommendation on counterfeiting charges, Besho agreed to arrange a narcotics transaction with Esa. During the ensuing investigation most of Besho’s telephone conversations and many of his face-to-face encounters with the alleged coconspirators were recorded.
At the behest of FBI agents Besho called Esa in December 1991 saying that his friend, “Mike,” wanted to purchase cocaine. Esa responded that a person named “Pablo” could supply it. On January 6, 1992 Besho and Esa met at Esa’s brother’s Manhattan apartment to discuss the proposed transaction. While they talked, Esa packaged three ounces of cocaine into gram bags for street sales, telling Besho that the cocaine had come from defendant Pablo Fernandez, and that Fernandez was expecting another “20 to 30 keys” shortly. Esa stated that defendant planned to give him ten kilograms “to move.”
After the January 6 meeting, Esa relocated to Florida, but continued to speak periodically by telephone with Besho. In a conversation recorded on January 14, Esa advised Besho to call Fеrnandez to find out the price of the cocaine. When Besho asked what his
Later that day Besho, Fernandez, and “Chino,” an associate of Fernandez, met at the Columbus Restaurant on Manhattan’s Upper West Side. Besho testified that Fernandez agreed to supply five kilоgrams of cocaine at a price of $16,500 per kilogram and that they had devised a plan for the exchange: Mike would drive the cash for the purchase to a nearby location in his car, and Chino and Fernandez would bring the cocaine in a different car. Besho and Fernandez would then meet at the restaurant, reveal the location of their respective cars, and conclude the transaction by exchanging ears.
The next day, January 21, Besho and Fernandez spoke briefly by phone. Fernandez warned Besho, in code, that he might not be able to provide cocaine at the price quoted the day before, but promised to call the next day with a definite price. Besho and Esa talked on the telephone three times that day. In thе first two conversations, they discussed the deal in general terms. During the third call, Esa advised Besho that it would be safer to exchange only one kilogram of cocaine at a time, rather than delivering the cash for all five kilograms at once.
In a series of telephone conversations on the evening of January 21 and the morning of January 22, Fernandez confirmed that he would have to charge $17,000 per kilogram, rather than the $16,500 promised on January 20. Besho initially rejected the higher price, but later told Fernandez that “Mike” still wanted to go ahead with the deal. On January 22 Besho met again with Fernandez and Chino at the Columbus Restaurant to consummate the sale. After Besho assured Fernandez that he had the money nearby, Fernandez sent Chino to get the cocaine. About 20 minutes later, Fernandez told Besho that Chino was nervous about bringing the cocaine to the Upper West Side, and that Besho should instead bring the cash to Washington Heights, where Chino would meet him with the cocaine. Besho called the undercover agent posing as “Mike,” who directed him not to travel to Washington Heights. Thus, the planned exchange did not take place.
When Besho called Esa the next day, January 23, to explain why the deal had fallen through, Esa suggested that Besho enlist the aid of Felix Nunez. Nunez agreed, at the request of Besho and Esa, to mediate and told Besho to arrange a meeting with Fernandez at noon the following day. Fernandez and Besho met on January 24 to discuss the problem. Over the course of the following week, Besho, Fernandez, Esa and Nunez continuеd to discuss the deal, although no money or narcotics ever changed hands. In a telephone conversation on January 27, Esa told Besho that Fernandez and Nunez suspected that Besho was an informant. Later that day, Nunez called Besho and then put Fernandez on the line to talk to Besho about the proposed sale.
On January 29 Besho had a three-way conversation with Fernandez and Esa. They discussed Fernandez’ fear that Besho was a cop or an informant, and Fernandez again urged Besho to complete the five-kilogram sale in Washington Heights. Esa urged Besho to agree to Fernandez’ plan. In the end, however, the transaction was never consummated because Besho adamantly refused to travel to Washington Heights and Fernandez just as аdamantly refused to make the exchange anywhere else.
Fernandez, Nunez, Esa and others were eventually charged in a multi-count indictment alleging multiple acts of narcotics conspiracy and trafficking, robbery, credit card fraud, counterfeiting, and forgery. On February 15, 1994 Judge Sprizzo granted Fernandez’ motion to sever Count 19, the only count in which appellant was named. Following a three-day jury trial, Fernandez and Nunez were convicted of conspiring to violate federal narcotics laws, in violation of 21 U.S.C. § 846. Fernandez was later sen
DISCUSSION
I Conspiracy
A. Standards of Proof for Conspiracy
Appellant argues first that the evidence рresented at trial was insufficient to show either that a conspiracy existed or that he intended to sell narcotics to Besho. A defendant seeking to overturn a conviction on the grounds that the evidence was insufficient bears a heavy burden. United States v. Russo,
In order to prove a conspiracy, the government must show that two or more persons agreed to participate in a joint venture intended to commit an unlawful act. See United States v. Martino,
The existence of — and a particular defendant’s participation in — a conspiracy may be established entirely by circumstantial evidence. See United States v. Gordon,
An individual defendant’s membership in a conspiracy may not be established simply by his presence at the scene of a crime, nor by the fact he knows that a crime is being committed. Instead, membership requires proof of purposeful behavior aimed at furthering the goals of the conspiracy. See United States v. Torres,
B. Conspiracy Standards Applied to Instant Case
Appellant contends the government did not prove there was an agreement between him and any of the alleged coconspirators. The government concedes that as a government informant Besho cannot be considered a culpable coconspirator. Fernandez maintains that the proof before the jury was also insufficient to support a finding that he entered into an agreement with either Esa or Nunez.
1. Agreement with Esa. Fernandez asserts no conspiratorial agreement existed
In Tyler we reversed the conspiracy conviction of a defendant who introduced an undercover officer to a drug dealer from whom the officer subsequently purchased heroin.
The inference that there was an agreement between Fernandez and Esa was bolstered by Esa’s continued involvement in the deal after introducing Besho to Fernandez. Taken in the light most favorable to the government, the evidence showed that Esa acted as both an advisor to Besho and a mediator between Besho and Fernandez as they attempted to consummate the narcotics sale. Esa monitored Besho’s progress with Fernandez through regular telephone conversations and maintained independent contact with both Nunez аnd Fernandez to discuss the proposed transaction. In the January 29 three-way telephone conversation between Esa, Besho and Fernandez, Esa urged Besho to agree to Fernandez’ proposal to complete the sale in Washington Heights.
Later, in a final attempt to resolve the conflict between Fernandez and Besho, Esa invited Nunez to help broker the deal. The evidence further demonstrated that Esa’s assistance was offered not as a favor, but with an expectation of compensation from the profits of the cocaine sale. Esa’s financial stake in the outcome of the negotiations constituted proof of his interest in furthering the goals of the conspiracy. Based on this evidence, the jury could reasonаbly have concluded that Esa and Fernandez had a tacit agreement to bring about the sale of five to ten kilograms of cocaine to Besho.
2. Agreement with Nunez. Fernandez also contends that the government failed to prove the existence of an agreement between Nunez and himself. Although the agreement between Esa and Fernandez is sufficient to affirm Fernandez’ conspiracy conviction, we briefly address this additional contention. The government’s evidence, appellant believes, simply proved that Nunez and appellant acted as “freelance competitors” for Besho’s business. While this may be one plausible view of the evidence, it is not the only one. Several of the taped conversations indicated that Nunez was working with Fernandez, nоt competing against him. For example, on January 23, Nunez advised Besho that he could be contacted through Fernandez. On January 27 Nunez and Fernandez were together when they called Besho to discuss the deal — Nunez placed the call then handed the receiver to Fernandez. In a telephone conversation taped on January 29 Nunez explained to Besho that although he would have preferred to supply the cocaine for the deal himself, he didn’t want “to go over Pablo[ Fernandez’] head.” Nunez then described a conversation with Fernandez in which “Pablo said we going [sic] to do it together because he didn’t know you ... and I know you and I say [sic] OK.” Thus, a jury could reasonably have inferred from both the substance and the circumstances of the tapеd conversations that appellant and Nunez had entered into an agreement to sell cocaine to Besho.
C. Defendant’s Ability to Supply Cocaine
Appellant next maintains that the prosecution failed to show that he was actual
Fernandez’ capacity and intent to deliver the promised quantity of cocaine could, for example, have been inferred from Esa’s claim that the three ounces of cocaine he was repackaging on January 6 came from Fernandez, or from Esa’s further statement that Fernandez was expecting an additional shipment of 20-30 kilograms that month. The tapes established that Esa and Fernandez knew each other, and the evidence was sufficient to allow the jury tо rely on Esa’s statements—as Esa was shown to be familiar with the nature and extent of Fernandez’ criminal activities—at least with regard to the sale of narcotics. While Fernandez’ stubborn insistence on having Besho bring a large amount of cash to Washington Heights could be interpreted as an attempt to maneuver Besho to a convenient location for a robbery, it could also support a finding that Fernandez was an experienced dealer who, though cautious, was nonetheless ready and willing to complete the sale. Faced with competing reasonable inferences drawn from the evidence, we are required to defer to the jury’s resolution implicit in its guilty verdict.
Appellant’s insistence that the government is or ought to be held to a higher standard of proof where the negotiated quantity of narcotics is not delivered or seized is similarly without merit. We have explicitly rejected the notion that circumstantial evidence is inherently weaker than direct evidence. Sureff,
II Multiple Conspiracy Charge
Building from his assertion that the government failed to show an agreement between him and any оf the alleged coconspirators, Fernandez declares that the court erred in failing to include a multiple conspiracy charge in its jury instructions. Before turning to the merits, we consider the appropriate standard of review.
Ordinarily, when a criminal defendant fails to object to a perceived trial error an appellate court will review that issue only for plain error. Fed.R.Crim.P. 52(b). This rule also applies where a defendant seeks reversal on the ground that a trial court failed to give a jury instruction that was not specifically requested. See United States v. Lanese,
In addition, although Fernandez frames the alleged error as a failure to give a
To determine whether the proof supports a finding of a single or multiple conspiracies, we first examine the scope of the proven criminal enterprises to determine whether any of them fits the pattern of the conspiracy alleged in the indictment. Johansen,
Ill Failure to Define Reasonable Doubt
In its instructions to the jury the district court repeatedly advised that the government bore the burden of proving the defendant’s guilt beyond a reasonable doubt, although it did not define “reasonable doubt.” The following morning, after the jury had already deliberated for approximately three hours, defense counsel brought this omission to the court’s attention. While Judge Sprizzo was considering whether to take remedial action, the jury sent him a note indicating it had reached a verdict. The judge then announced he would not accept the verdict, but instead would give a supplemental charge defining reasonable doubt and send the jury back to reconsider its verdict in light of the supplemental instruction. There was no objection to this procedure or the content of the supplemental charge.
After deliberating an аdditional two and a half hours, the jury returned a verdict of guilty against both defendants. Defendants’ subsequent motion for a new trial was denied on the ground that defense counsel’s failure to object or move for a mistrial prior to the second deliberation waived the issue. On appeal, Fernandez contends that the initial charge’s failure to define reasonable doubt impermissibly tainted the jury’s deliberations and, further, that he did not knowingly and voluntarily waive his right to a mistrial.
Although application of the reasonable-doubt standard in criminal cases is required as a matter of due process, “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska,
Instead, jury instructions must be viewed in their entirety to ensure that the instructions, read as a whole, correctly convey the reasonable-doubt concept to the jury. United States v. Birbal,
In the case at hand, the court’s initial charge to the jury repeatedly referred to the reasonable-doubt standard. The jury was instructed that “[t]he government bears the sole and exclusive burden of establishing the elements [of the crime] beyond a reasonable doubt” and that “[e]ach [of those elements] must be proved beyond a reasonable doubt.” Judge Sprizzo emphasized that “[the] presumption of innocence remains with the defendant ... until such time, if ever, as you, the jury, are convinced that the government has proved all of the elements of the offense against each defendant beyond a reasonable doubt.” Thus, even if the court had declined to add the supplemental charge defining reasonable doubt, the original charge adequately conveyed the appropriate standard of proof to the jury.
Nor do the circumstances surrounding the two deliberation sessions suggest that the jury failed to apply the correct standard. When the jury returned its first verdict, Judge Sprizzo explained that he could not accept the verdict and delivered a standard instruction on the meaning of reasonable doubt. He then directed the jury to recommence its examination of all the evidence in light of the supplemental instruction and stated again that the government bore the burden of proving each defendant guilty beyond a reasonable doubt. The jurors reached their second verdict after deliberating for an additional two hours — an amount of time comparable to that spent prior to reaching the first verdict — which suggests that they took seriously the admonition to review the evidence de novo, without relying on their initial decision. Absent contrary evidence, we assume the jury followed the judge’s instructions and applied the proper standard.
Although Fernandez apparently concedes that the substance of the supplemental charge was legally sufficient, he believes the lapse of over 12 hours between the original charge and the “curative” supplemental instruction and the weakness of the government’s case against him should be taken into account in determining whether the initial, allegedly improper instruction was cured. Both the timeliness of a trial court’s curative measures and the relative weakness of the government’s case may be relevant to the prejudice suffered by a defendant as a result of an erroneous instruction. See United States v. Oliver,
Fernandez urges he was entitled to a mistrial when the court first discovered the omission of the reasonable doubt instruction from the initial charge. He declares that because he was not specifically offered a mistrial, his waiver of the “right” to a mistrial was not knowing and voluntary. For this proposition, he relies on United States v. Lane,
Lane does not stand for the proposition that trial courts must, sua sponte, offer a mistrial in every case in which the jury charge may have been erroneous. Neither this Circuit nor, to our knowledge, any other has adopted so expansive a rule. Instead, Lane simply reiterates the familiar principle that a waiver not knowingly, intelligently, and voluntarily made will not be enforced. See, e.g., United States v. Ready,
IV Sentencing Issues
A. Capacity and Intent
Fernandez challenges the calculation of his offense level under the Sentencing Guidelines as having attributed to him an amount of cocaine that he was not capable of producing. The government has the burden of proving facts relevant to sentencing by a preponderance of the evidence, see United States v. Jones,
The Sentencing Guidelines provide that the offense level of a defendant convicted of a narcotics offense is ordinarily governed by the amount of narcotics involved, U.S. Sentencing Guidelines Manual (U.S.S.G.) §§ 2D 1.1 (a)(3) & (c), and that quantity ordinarily includes the quantity under negotiation unless the sentencing court finds that the defendant lacked the intent and the ability to produce the negotiated quantity, see U.S.S.G. § 2D1.1, comment. (n.12). Where the government contends that the defendant personally negotiated to produce a contested quantity of drugs, the proof must demonstrate that the defendant intended to produce such an amount. Hendrickson,
Defendant maintains both that the district court failed to make a sufficiently specific finding as to his ability and intent to produce five kilograms of cocaine and that such a finding, if made, would not be supported by a preponderance of the evidence. The record refutes defendant’s first point. When defense counsel raised the issue of Fernandez’ capacity to produce the cocaine, the trial court observed that the appropriate offense level depended upon whether defendant had the capacity to deliver the amount alleged and declared that it was “satisfied that [Fernandez and Nunez] had the capacity.” When the defendant protested and said he was unable to produce the drugs, the trial judge replied, “I saw the tapes. I tried this case. I don’t believe what you are telling me now.” Moreover, in his written judgment form Judge Sprizzo expressly adopted the presentence report’s factual findings of capacity and intent and its guideline applica
Appellant’s second argument, that thе evidence was insufficient to sustain a finding of capacity and intent, essentially reprises his original argument that the conviction itself was rendered without legally sufficient support. Because we have already determined that the evidence presented at trial was sufficient to allow a jury to find capacity and intent beyond a reasonable doubt, we necessarily conclude that a sentencing court considering the same evidence could reasonably find that the government had established capacity and intent under the less stringent preponderance of the evidence standard applied to disputed issues of fact at sentencing.
Fernandez asserts that this result is at odds with our holding in Hendrickson,
On appeal, we noted that negotiations ordinarily constitute reliable admissions as to а defendant’s intent to produce a particular quantity of narcotics in the course of a conspiracy. Id. at 338 n. 10. But see United States v. Crespo,
Fernandez contends that Hendrickson should be broadly read to preclude a finding of capacity to produce a particular quantity of narcotics based solely on evidence that the defendant negotiated to produce that amount. Appellant’s reading of Hendrickson ignores its explicit acknowledgement that proof of negotiated amounts of narcotics “will often outweigh any post-conviction claims that the defendant lacked either the intent or the ability to produce the contested amount.” Id. at 338 n. 10. Thus, we read Hendrickson to hold only that where a defendant disavows a prior representation of his intent and ability to obtain narcotics, the sentencing court must consider those contradictory statements in its assessment of the defendant’s capability and intent.
In none of the taped conversations presented at trial did Fernandez disclaim his promise to supply Besho with five kilograms of cocaine. In fact, the record was replete with proof of his efforts to assure Besho that he had the cocaine in hand and would produce it as soon as Besho agreed to meet him in Washington Heights. Absent evidence other than Fernandez’ own post-arrest assertion that he intended to commit a robbery, the sentencing court was justified in relying on Fernandez’ pre-arrest promises to dеliver five kilograms of cocaine.
Moreover, the negotiations were not the sole evidence on which the court’s capacity and intent findings could have been based.
B. Enhancement
Finally, defendant declares the district court chilled his right to testify when it warned him that he risked a sentencing enhancement for obstruction of justice if he insisted on pursuing his claim of lack of intent and capability at a pre-sentencing hearing. Defendant avers this admonition showed that the court had improperly predetermined that the enhancement would apply regardless of the content of defendant’s testimony.
An enhancement for obstruction of justice may not be imposed in the absence of a specific finding that the defendant testified falsely as to a material issue with the intent to obstruct justice. See United States v. Giraldo,
Defendant’s declaration that the sentencing court threatened automatic application of the obstruction enhancеment is belied by the record. When defense counsel requested a hearing on the issue of capacity and intent, the trial court reminded him that his codefendant, Nunez, had received an obstruction enhancement after he testified at a similar hearing. Judge Sprizzo offered to hold a hearing if Fernandez wanted one. The judge expressly left open the possibility he might change his mind if defendant’s testimony was credible, but told Fernandez there would be “a downside” were he to be impeached. These statements did not threaten an automatic obstruction enhancement had defendant insisted on a hearing. Instead, the trial judge simply advised defendant that, in light of the taped telephone conversations almost certain to be introduced in rebuttal to his testimony, he faced a substantial risk of incurring an enhancement if he testified at such a hearing.
We have not held that a sentencing court may not warn a defendant of the possibility of a sentencing enhancement, nor are we inclined to do so in this case. It seems sensible to us for a sentencing court to offer a realistic assessment of the possible, or even probable, negative consequences of pursuing a presentence hearing with respect to a factual issue, provided there has been no predetermination that those consequences will result regardless of the outcome of the requested hearing. Judge Sprizzo’s statements show he maintained an open mind as to defendant’s credibility. Hence, his warning to Fernandez was not improper.
CONCLUSION
For the reasons stated above, the judgment of the district court is affirmed.