## Facts

- DEA Agent John Lawler, acting undercover as a cocaine buyer, approached Jose Eligio Borges on January 3, 1979 seeking to buy three kilograms of cocaine.
- Borges quoted a price, stated delivery could be arranged, and made a telephone call in Spanish to contact a supplier.
- That evening Borges met Lawler at a restaurant with Angel Oscar Rosado-Fernandez and Rosado’s stepfather; Borges introduced Rosado as the supplier.
- Rosado told Lawler obtaining three kilograms was “no problem,” claimed he had a larger quantity available nearby, and placed a call to arrange delivery to an apartment; the deal did not close that night.
- The next day Lawler and Rosado had recorded phone conversations in which Rosado quoted a price per kilogram and arranged to complete the sale.
- Lawler and Rosado met at co-defendant Nelson Garcia’s home, where Lawler was shown the cocaine.
- As officers moved to arrest the group, another co-defendant attempted to dispose of the cocaine in a swimming pool; Lawler recovered samples, and testing confirmed the substance was cocaine.
- A jury convicted all defendants of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine; Rosado was also convicted of using a communication facility to facilitate a drug felony.
- Borges and Rosado appealed, challenging the sufficiency of the evidence; Rosado also argued the government failed to prove the cocaine was the illegal isomer.

## Issues

1. Whether sufficient evidence supported Borges’s conviction for conspiracy to possess with intent to distribute cocaine.
2. Whether Borges could be convicted of possession with intent to distribute cocaine despite not having actual physical possession of the cocaine.
3. Whether sufficient evidence proved that the substance involved was illegal cocaine (as opposed to a purportedly legal isomer) for Rosado’s conviction.
4. Whether an inconsistency in Rosado’s written judgment required correction.

## Decision

- The court affirmed Borges’s convictions for conspiracy and possession with intent to distribute cocaine.
- The court affirmed Rosado’s convictions, rejecting his claim that the government failed to prove the cocaine was illegal.
- The court remanded solely to correct a clerical error in Rosado’s written judgment and commitment order regarding the stated sentence length.

## Legal Principles

- A drug-distribution conspiracy may be proven through circumstantial evidence, including a defendant’s acts facilitating negotiations and arrangements for a sale.
- A defendant’s knowing participation may be inferred from conduct such as quoting prices, arranging meetings, connecting buyer and supplier, and concurring in operational details of the transaction.
- A conspirator may be held liable for substantive offenses committed by co-conspirators in furtherance of the conspiracy, even without actual possession of the drugs.
- The government may establish the identity and illegality of a controlled substance through forensic testing and expert testimony; a defendant’s failure to contest a stipulation at trial may undermine later sufficiency challenges.
- Clerical mistakes in a criminal judgment may be corrected on remand without disturbing otherwise valid convictions.

## Conclusion

The Fifth Circuit held that Borges’s facilitative role supported both conspiracy liability and responsibility for possession with intent to distribute committed in furtherance of the agreement, and that expert evidence and the trial record adequately established the cocaine’s illegality; the case was remanded only to correct a clerical sentencing error in Rosado’s written judgment.


United States v. Rosado-Fernandez, 614 F.2d 50 (5th Cir. 1980)