United States v. Lazaro Tapia-Santana, A/K/A Lazaro Martinez Tapia, A/K/A Lazaro L. Martinez, A/K/A Larry Tapia, A/K/A Lazaro Tapia Martinez, 48 F.3d 1218, 4th Cir. (1995)

48 F.
3d 1218
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished
dispositions is disfavored except for establishing res judicata, estoppel, or the law
of the case and requires service of copies of cited unpublished dispositions of the
Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,

v.
Lazaro TAPIA-SANTANA, a/k/a Lazaro Martinez Tapia, a/k/a
Lazaro L. Martinez, a/k/a Larry Tapia, a/k/a
Lazaro Tapia Martinez, Defendant-Appellant.
No. 94-5327.
United States Court of Appeals, Fourth Circuit.

Argued: December 9, 1994.
Decided: March 3, 1995.
ARGUED: Dean Robert Davis, Wilmington, NC, for Appellant. John

Samuel Bowler, Assistant United States Attorney, Raleigh, NC, for
Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney,
Jane H. Jolly, Assistant United States Attorney, Raleigh, NC, for
Appellee.
Before NIEMEYER and MICHAEL, Circuit Judges, and MESSITTE,
United States District Judge for the District of Maryland, sitting by
designation.
OPINION
PER CURIAM:
Lazaro Tapia-Santana was charged in a three-count indictment with conspiracy

to distribute and possess with intent to distribute cocaine, see 21 U.S.C. Sec.
841(a)(1), possession with intent to distribute cocaine, see 21 U.S.C. Sec. 846,
and possession of counterfeit money, see 18 U.S.C. Sec. 472. At the close of
the government's case the district court granted Santana's motion for judgment
of acquittal on the possession of counterfeit money count. The jury found
Santana guilty on the cocaine counts. Santana appeals both his conviction and
his 235-month prison sentence. We affirm.

I.
2
Earl Lee Thornton, a convicted drug dealer attempting to avoid a life sentence,
arranged the event that led to Santana's arrest and conviction. Thornton, while
in custody and under police supervision, called Santana in Miami seven times.
Using coded language Thornton ordered, and Santana agreed to deliver, five
kilograms of cocaine at 8:00 p.m. on October 8, 1993, at Quincy's Steakhouse
in Fayetteville, North Carolina. The police recorded each call, and the jury
heard the tapes.
When Santana arrived at the appointed time and place, the police arrested him.
In their search of Santana's 1989 Ford Thunderbird, the police found nearly five
kilograms of pure cocaine hidden in a stereo speaker. Santana also had a pager
and cellular telephone.
At trial Santana testified that he met Thornton on the beach in Miami in 1989
and that Thornton later hired Santana to make the single (October 8, 1993)
delivery of cocaine to North Carolina. According to Santana, this was his first
drug transaction, and his courier's fee was to be $22,000.
Thornton, who distributed drugs in North Carolina, testified that Santana

regularly supplied him with cocaine from 1987 to 1993. Specifically, Thornton
said that Santana delivered an average of three to five kilograms each month.
To order cocaine Thornton paged Santana, encoded a return number, and then
discussed the amount and delivery terms when Santana called back. For most
deliveries Thornton met Santana at "South of the Border" on I-95, near the
North and South Carolina line. From there Santana followed Thornton to the
Cross Creek Mall in Fayetteville. At the mall Thornton parked his car, got into
Santana's car, and drove Santana to a safe house to exchange money for drugs.
Thornton testified that on one occasion he used counterfeit money to pay

Santana for ten kilograms of cocaine. When Santana returned to Miami, he
discovered Thornton's deceit and forced Thornton to return the drugs and take
back the counterfeit money. Thornton testified that he never counted the
counterfeit bills returned by Santana. Instead, he tried to burn them and then
buried the charred fragments. Secret Service Agent Joseph Michael Casper
corroborated Thornton's testimony about the counterfeit money. After
Thornton was arrested, he led Casper to the site of the buried counterfeit
fragments. Casper dug up the fragments and determined that counterfeit bills
with the same characteristics surfaced in both Fayetteville and Miami.

7
Santana was convicted after a three-day trial, and he now appeals.
II.
8
Santana's first assignment of error is that the evidence about counterfeit money
found in Miami was inadmissible. First, Santana argues that Agent Casper's
testimony was irrelevant because the Miami bills were not sufficiently
connected with the charred bills Thornton buried in North Carolina. See
Fed.R.Evid. 401. Second, Santana says that a Secret Service report of
counterfeit bills seized (compiled weekly by denomination, serial number and
place of seizure) was admitted without a proper foundation under the business
record exception to the hearsay rule.* See Fed.R.Evid. 803(6).
We need not decide whether this evidence was admissible. Santana's own
testimony rendered it inconsequential to the determination of his guilt on the
two drug counts submitted to the jury. In other words, even if we could find
error, it would be harmless. Santana took the stand and admitted the essential
elements of each crime for which he was convicted. He testified that he agreed
with Thornton to deliver five kilograms of cocaine to Thornton for $22,000.
The cocaine was found in Santana's car when he was arrested, and Santana
admitted that he was bringing it to Thornton.
10
Santana's second and third assignments of error involve his sentencing. Santana
says that the district court should have reduced his sentence for acceptance of
responsibility since he admitted delivering the cocaine found in his
Thunderbird. See U.S.S.G. Sec. 3E1.1, Application Note 1. Based on
Thornton's testimony, the district court decided that Santana did not accept
responsibility for his prior drug transactions. Santana also says that there was
no credible evidence to support the district court's factual finding that Santana
had delivered up to 150 kilograms of cocaine to North Carolina. This relevant
conduct finding was likewise based on Thornton's testimony. See U.S.S.G. Sec.
1B1.3. Both of Santana's arguments rest on his charge that Thornton was an
unreliable witness. Specifically, Santana says that Thornton's desire to avoid a
life sentence makes his testimony unworthy of belief.
11
Thornton testified in detail about his long-term cocaine trafficking relationship

with Santana. Thornton testified that from early 1987 until 1993 he received
three to five kilograms of cocaine per month from Santana. Thornton's
testimony was corroborated by the taped telephone calls. They revealed an
intimate working relationship between Thornton and Santana. The district court
found Thornton's
12
testimony credible, and credibility determinations are not reviewable on appeal.

United States v. Saunders, 886 F.2d 56, 60 (4th Cir.1989).
13
The district court did not clearly err in deciding that Santana failed to accept
responsibility for all of his illegal conduct and in finding that Santana delivered
at least 150 kilograms of cocaine to Thornton.
14
We affirm Santana's conviction and sentence.

AFFIRMED
The Secret Service report provided the basis for Agent Casper's testimony that
the serial numbers on the North Carolina and Miami bills indicated they were
from the same batch

United States v. Lazaro Tapia-Santana, A/K/A Lazaro Martinez Tapia, A/K/A Lazaro L. Martinez, A/K/A Larry Tapia, A/K/A Lazaro Tapia Martinez, 48 F.3d 1218, 4th Cir. (1995)

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48 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals, Fourth Circuit.

ARGUED: Dean Robert Davis, Wilmington, NC, for Appellant. John

Lazaro Tapia-Santana was charged in a three-count indictment with conspiracy

his 235-month prison sentence. We affirm.

Thornton, who distributed drugs in North Carolina, testified that Santana

Thornton testified that on one occasion he used counterfeit money to pay

with the same characteristics surfaced in both Fayetteville and Miami.

Santana was convicted after a three-day trial, and he now appeals.

Thornton testified in detail about his long-term cocaine trafficking relationship

testimony credible, and credibility determinations are not reviewable on appeal.

We affirm Santana's conviction and sentence.

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