United States v. Rodriguez Pena

May 11, 1995
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 93-2259

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

HECTOR RODRIGUEZ-PENA,

Defendant, Appellant.

No. 93-2260

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ANGEL GALINDEZ-RODRIGUEZ,

Defendant, Appellant.

No. 93-2261

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

GONZALO VELAZQUEZ-ROTGER,

Defendant, Appellant.

No. 93-2262

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

VICTOR RIVERA a/k/a QUIQUE,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Torruella, Chief Judge,

Aldrich, Senior Circuit Judge,

and Cyr, Circuit Judge.

Rafael F. Castro-Lang for appellants Angel Galindez-Rodriguez and

Victor Rivera.
Rafael Anglada-Lopez for appellant Gonzalo Velazquez-Rotger.

Harry R. Segarra for appellant Hector Rodriguez-Pena.

Antonio R. Bazan, Assistant United States Attorney, with whom

Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa,

Senior Litigation Counsel, were on brief for appellee.

ALDRICH, Senior Circuit Judge. Appellants

Rodriguez Pe a (Pe a), Velazquez Rotger (Velazquez), Galindez

Rodriguez (Galindez) and Rivera, co-defendants in a single

criminal trial on multiple narcotics-related charges, jointly

or severally advance assignments of error on appeal of their

convictions: (1) the court erroneously instructed the jury on

the meaning of "beyond a reasonable doubt"; (2) motions for

severance should have been granted; (3) a motion to suppress

pretrial photospread identifications should have been

granted; (4) the court abused its discretion in allowing the

government to present evidence which it withheld in violation

of Federal Rule of Evidence 16; (5) the evidence was

insufficient to convict; (6) the prosecutor committed

reversible errors in his opening and closing arguments; and

(7) the court should have instructed the jury on the defenses

of entrapment and duress. We sustain one, and reject the

rest.

I. Background
I. Background

Relating the essential facts most favorably to the

verdict, United States v. DeMasi, 40 F.3d 1306, 1310 (1st

Cir. 1994), cert. denied, U.S. , 115 S.Ct. 947, 130

L.Ed.2d 890 (1995), in late December, 1991, a confidential

informant of the United States Customs Service, known as

"Gordo," responded to a shortwave radio request by a

Colombian national, identified as Cabeza, to contact certain

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individuals in Puerto Rico. This led to meetings and

telephone conversations over the next several months with

various individuals, including Velazquez and Pe a, during

which a narcotics smuggling venture with Cabeza and his

suppliers in Colombia was hatched. Both Velazquez and Pe a

worked closely on the planning and preparation with various

undercover agents who became involved to facilitate Customs'

monitoring of the plot. The evidence contains numerous

photographs and over one hundred recordings of their

discussions up until the moment it finally unravelled and

several of the players were arrested. Gordo agreed to

arrange the transport of the drugs to Puerto Rico and

proposed utilizing a Customs undercover vessel to meet and

receive the cargo from a Colombian ship at sea. Initially

the conspirators contemplated bringing in 2,000 pounds of

marijuana; subsequent discussions with Velazquez and Pe a

increased the amount to 5,000 to 6,000 pounds, or more. A

shipment of up to 300 kilograms of cocaine was discussed as

well.

On March 27, 1992 Gordo was scheduled to pick up

10,000 pounds of marijuana, and two kilograms of cocaine

specifically intended for Velazquez, from the Colombian ship

at sea. However, the latter had sailed off course, broken

down, and after Pe a provided Gordo with some equipment for

an attempt at repair, was eventually forced to jettison its

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load and return to Colombia.

The conspirators were monitored as they continued

to arrange for a successful importation throughout the month

of April. Velazquez mailed a navigational device to Cabeza

to facilitate the meeting of the two vessels at sea, and

provided a second code sheet to Gordo. On April 30, however,

Velazquez was arrested by local authorities on drug related

charges, and Gordo suddenly left Puerto Rico, apparently

because he thought the deal was dead. Customs agent Juan

Dania, posing as Gordo's boss, communicated to Pe a that the

deal was still on and, after some hesitation, Pe a agreed to

continue. Pe a thereafter met with agent Polo Diaz, who

replaced Gordo, to discuss importing around 6,500 pounds of

marijuana and 5 kilograms of cocaine, and was photographed.

In subsequent discussions he spoke of another shipment of

several hundred kilograms of cocaine. At a later meeting

Pe a provided Diaz with another new code sheet from the

Colombians, and, a week later, with a number of emergency

lamps for the ship. He remained in close contact with Diaz

as they finalized plans to meet the shipment of a second

load.

On May 30, 1992, five undercover Customs agents

picked up 153 bales of marijuana and two Colombian

participants from a Colombian ship at sea and transported

them aboard their undercover vessel to Puerto Rico, as

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arranged. Cabeza contacted Diaz to inquire about the

shipment and to discuss another shipment of 300 kilograms of

cocaine. On or about June 1st they arrived in Puerto Rico,

and Diaz telephoned Pe a to obtain keys to a truck onto which

Diaz was supposed to load the narcotics for delivery to Pe a.

Pe a had obtained a red dump truck from his friend Victor

Rivera, who had rented it from an acquaintance named Martin

Salgado. Around the beginning of June, Rivera instructed

Salgado to leave the truck at the Plaza Carolina. When it

proved unusable, Pe a enlisted Rivera to help obtain a second

one, which Rivera partially financed together with another

friend. On June 2, Rivera and the friend together delivered

a white enclosed truck to Plaza Carolina.1

Pe a and Diaz arranged that June 4th would be the

date of delivery. The agents retrieved the truck from the

Plaza Carolina, loaded it up, and delivered it back to the

Plaza Carolina, as arranged. On June 4th Diaz phoned Pe a to

inform him the truck was ready and he would be waiting in his

car at a nearby Burger King parking lot for Pe a to deliver

the money he owed for the shipment in exchange for the keys

to the marijuana- laden truck. At around noon Diaz received

a call on his car phone from Pe a, who informed him that his

1. The red dump truck was never returned to Salgado, who
eventually reported it stolen after Rivera proved unable to
provide any information on its whereabouts and advised him to
make out a stolen vehicle report using a false name and phone
number to describe the person to whom he had rented it.

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nephew was on his way over to exchange the money for the

keys. As they were talking a young black man approached,

exchanged $30,000 cash with Diaz for the truck keys, and ran

off.

Shortly thereafter the truck, followed by Pe a

driving a gray Volvo, followed by a burgundy silhouette van

with tinted windows, were tailed by several surveillance

teams from various federal agencies. The three vehicles

pulled aside briefly on 65th Infantry Avenue, and several

surveillance vehicles had to pass ahead in order not to blow

their cover. When the convoy resumed, it made a left turn

down Monte Carlo Avenue, heading toward the Monte Hatillo

housing complex. Several surveillance vehicles made u-turns

on 65th Infantry Avenue in order to head back toward the

Monte Hatillo.

When the first of these, occupied by three federal

agents, turned right onto Monte Carlo Avenue in pursuit of

the convoy, the burgundy van suddenly pulled diagonally in

front of their vehicle and raked it with machine gun fire.

The ambush severely wounded the three agents. A second

undercover car pulled up and several agents emerged to return

fire. Shooting was also coming from elsewhere, apparently

from within or around the housing complex. A third

surveillance vehicle, driven by agent Montalvo and carrying

two other federal agents, pulled up and observed the van and

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truck fleeing the scene. Pe a's Volvo was nowhere in sight.

Montalvo pursued the van and truck, but was slowed by

automatic weapons fire from several individuals on foot.

They lost sight of the two vehicles and stopped to pull on

bullet-proof vests. As they were doing so, three individuals

approached firing automatic or semi-automatic weapons. After

some exchange of fire, Montalvo managed to hit one of them

and the others retreated carrying the wounded man. Montalvo

and his fellow agents then returned to the site of the first

shooting incident to assist the injured agents.

The truck was later found parked in the housing

complex. The owner of the van reported it stolen some hours

later. The friend with whom Rivera had purchased the white

truck reported it stolen around 3:30 that afternoon. Pe a

was arrested later that day when he went to local police to

report that he had been kidnapped and handcuffed at gunpoint,

and his car had been stolen, a story he later recanted in

favor of cooperating with the government. Velazquez was

already in custody, and was indicted on information gleaned

from surveillance of his activities before his arrest.

Rivera was arrested some months later on information provided

by Salgado. Galindez was arrested in December of 1992 on

other charges and was indicted in February, 1993 on charges

in connection with this case after being identified in a

photospread by agents Montalvo and Diaz.

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II. Jury Instruction on Reasonable Doubt
II. Jury Instruction on Reasonable Doubt

Appellants allege the court gave erroneous

definitions of reasonable doubt in its preliminary remarks to

the jury at the outset of the case, and in its final charge.

At the outset, after defining reasonable doubt briefly and

correctly, the court added,

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It doesn't mean beyond all possible doubt
or to an absolute certainty. Simply more

evidence.

(Emphasis supplied). In its final instructions, it said,

It all boils down to an impartial
consideration of all the evidence, and
the evidence must leave you firmly

convinced that a particular defendant in

a given context of a particular charge is
guilty.

(Emphasis supplied). Defendants took no exceptions, but

claim these particular statements to be plain error under

Federal Rule of Criminal Procedure 52(b). We may find plain

error only where there is a "clear" or "obvious" error that

affects "substantial rights." United States v. Olano,

U.S. , , 113 S.Ct 1770, 1776-78, 123 L.Ed.2d 508

(1993); United States v. Romero, 32 F.3d 641, 651 (1st Cir.

1994). Granted that an erroneous charge on reasonable doubt

is plain error, Sullivan v. Louisiana, 113 S.Ct. 2078, 124

L.Ed.2d 182 (1993), there is a scope of language that is

acceptable. On the charge as a whole, we hold the words here

fell within that scope.

Defendants rely principally on United States v.

Colon-Pagan, 1 F.3d 80 (1st Cir. 1993). In Colon the trial

court had defined reasonable doubt to mean, among other

things, "proof of such a convincing character that a person

. . . would be willing to rely and act upon it." Id. at 81.

Rely on it under what circumstances? A small matter? We

found this particular language clearly erroneous, since it

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may have created the "incorrect impression that [the jury]

can convict a defendant in a criminal case upon the basis of

evidence no stronger than might reasonably support a decision

to go shopping or to a movie or to take a vacation." Id. at

81. However, we declined to hold the same language, with the

addition that the proof should be of such convincing

character that the jury should be willing to act on it "in

the most important decisions that you have to make in your

own lives and for yourselves," constituted plain error.

United States v. Gordon, 634 F.2d 639, 644 (1st Cir. 1980).

Although the charge in Gordon was by no means ideal, the

"convincing" was sufficiently defined to signal to the jury

the gravity of its task; in Colon it was meaningless.

We readily distinguish our case from Colon. First,

the preliminary charge here was not affirmatively wrong, it

was merely incomplete. The court made that clear, and

indicated it would further explain reasonable doubt at the

end of the case. The vague "simply more evidence" language

the court used to distinguish beyond a reasonable doubt from

the preponderance standard is not automatically fatal here,

as the court completed and amplified its remarks on the

subject in its final charge.

Our only question is whether, as a whole, the

instructions left the jury with the correct understanding of

its responsibility. Romero, 32 F.3d at 651-52 (while

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preliminary statements that proof beyond a reasonable doubt

required "scale" to "tip more to the government's side,"

taken alone, may suggest diluted burden of proof,

instructions as a whole did not create obvious likelihood

jury would be misled).

In its final charge the court said,

Remember what I said at the
beginning . . . . [T]he defendants . . .
are presumed innocent until proven guilty
beyond a reasonable doubt. They had no
burden to testify or to present any
evidence or prove that they are innocent.
The government has the burden of proving
every element of the charge or each
charge, I guess, against each defendant
beyond a reasonable doubt. And, of
course, if the government fails to do so,
. . . you must return a verdict of not
guilty to the particular defendant or
charge that the government failed to
prove beyond a reasonable doubt.

And what is this business of
"reasonable doubt"? I gave you, at the
beginning, a limited instruction on
reasonable doubt; and I compared the
standard of the civil case with the
standard of a criminal case.

Now let me tell you more about it. .
. . [R]easonable doubt is a doubt based
upon reason and common sense and may
arise from a careful, impartial
consideration of all the evidence in the
case, or from lack of evidence. Proof
beyond a reasonable doubt is proof that
leaves you firmly convinced that a given

defendant is guilty of a given charge.

If after a careful and impartial
consideration with your fellow jurors of
all the evidence, you are not convinced
beyond a reasonable doubt that a
particular defendant is guilty of a

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particular charge, it is your duty to
find that particular defendant not
guilty.

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On the other hand, if after a
careful and impartial consideration with
your fellow jurors of all the evidence,
you are convinced, beyond a reasonable
doubt, that the defendant is guilty, it
is your duty to find the particular
defendant related to that particular
charge guilty.

It all boils down to an impartial
consideration of all the evidence, and
the evidence must leave you firmly

convinced that a particular defendant in

a given context of a particular charge is

guilty. (Emphasis supplied.)

The court expressed the government's burden of

proof beyond a reasonable doubt, neat, seven times. Did

summing it up by saying that "it all boils down to" the

evidence must leave the jury "firmly convinced" of the guilt

of each defendant dilute its well-hammered instruction? The

court did not leave the impression, as it did in Colon, that

members of the jury could convict on the basis of evidence no

stronger than might convince them to go shopping. Colon-

Pagan, 1 F.3d at 81. The jury had to be "firmly convinced"

that each defendant "is guilty," a matter of ultimate

importance. We attach weight also to the word "firmly." The

common meaning of "firm" is "fixed." We do not consider this

summation of the court's repeated articulation of the

government's burden to have improperly diminished that

burden. Cf. United States v. DeMasi, 40 F.3d 1306 (1st Cir.

1994); Romero, 32 F.3d 641; United States v. Glenn, 828 F.2d

855 (1st Cir. 1987).

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We strongly observe, as we have before, that

lengthy explanations of reasonable doubt offer little gain,

and much risk. See, e.g., United States v. Olmstead, 832

F.2d 642, 645 (1st Cir. 1987), cert. denied, 486 U.S. 1009,

108 S.Ct. 1739, 100 L.Ed.2d 202 (1988). Solicitude for the

jury is understandable, but there is no duty to explain that

phrase, let alone to embellish. Victor v. Nebraska, 114

S.Ct. 1239 (1994).

III. Severance
III. Severance

Velazquez, Galindez and Rivera contend the court

committed reversible error in denying their motions for

severance.2 They claim as ground for reversal a highly

prejudicial spillover effect stemming from the prosecutor's

relentless emphasis on the shoot-out, for which none of them

stood charged.3

Severance is warranted only when there is a

manifest and serious risk that a "specific trial right" will

2. If it appears that a defendant . . . is
prejudiced by a joinder . . . of
defendants . . . for trial together, the
court may . . . grant a severance of
defendants, or provide whatever other
relief justice requires.

Fed.R.Crim.P. 14.

3. Velazquez also contends that joinder was not proper to
begin with because he had nothing to do with the shoot-out.
As he was not charged with any offense arising from the
shoot-out, and does not contend he was improperly joined for
trial on the offenses for which he was charged, we find this
argument without merit.

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be compromised, or that the jury will be unable to make "a

reliable judgment about guilt or innocence." Zafiro v.

United States, 113 S.Ct 933, 938 (1993). District courts

have wide discretion to decide severance motions, that we are

"reluctant to secondguess." United States v. Boylan, 898

F.2d 230, 246 (1st Cir.), cert. denied, 498 U.S. 849, 111

S.Ct. 139, 112 L.Ed.2d 106 (1990); United States v. O'Bryant,

998 F.2d 21, 25 (1st Cir. 1993). We will interfere only if

it is "plainly abused." United States v. Natanel, 938 F.2d

302, 308 (1st Cir. 1991), cert. denied, 502 U.S. 1079, 112

S.Ct. 986, 117 L.Ed.2d 149 (1992).

Appellants do not allege that any specific trial

right was violated, but rather that the prosecutor's

overdramatization of the "bloodbath" prejudicially affected

the jury's ability to make a reliable judgment. They point

to the acquittal of two original codefendants whose motions

for severance were successful as evidence of prejudice. But

prejudice in this context "means more than just a better

chance of acquittal at a separate trial." United States v.

Pierro, 32 F.3d 611, 615 (1st Cir. 1994) (quoting Boylan, 898

F.2d at 246); Zafiro, 113 S.Ct. at 938.

While in a trial of multiple defendants the risk of

prejudice is magnified, for example, "when evidence that the

jury should not consider against a defendant and that would

not be admissible if a defendant were tried alone is admitted

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against a codefendant," Zafiro, 113 S.Ct at 938, severance is

not automatically required. Id.; Boylan, 898 F.2d at 246.

Though none of the evidence relating to the shoot-out would

have been admissible had appellants been tried separately, it

was not offered to prove any charges they faced, and there is

no indication the jury considered it against them. We

presume juries capable of disregarding evidence where it is

irrelevant to the charges against certain defendants.

Pierro, 32 F.3d at 616.

Rule 14 leaves the granting of any relief to the

sound discretion of the district court. Zafiro, 113 S.Ct at

938. Limiting instructions will often suffice. Id. In

denying the motions, the district court promised to take care

of any potential prejudice through appropriate instructions

and, although appellants urge otherwise, we find it

adequately did so.4 We are particularly loathe to second

4. The court's instructions were as follows:

A separate crime is charged against
one or more of the defendants in each
count. The charges have been joined for
trial. You must decide the case for each
defendant on each crime charged against
that defendant separately. Your verdict
on any count as to any defendant should
not control your verdict on any other
count or as to any other defendant.

In other words, the rule to be
followed is a separate consideration of
each person that is named as a defendant
and of each charge that appears in the
indictment.

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guess the district court here, given that the jury manifested

its ability

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to differentiate the defendants, and the evidence against

each, by returning several acquittals.5 Boylan, 898 F.2d at

246.

IV. Pretrial Photo Identifications
IV. Pretrial Photo Identifications

Galindez assigns as error the admission of two

pretrial photospread identifications, as well as the in-court

identifications based on them. He argues that the

circumstances surrounding the identifications were unduly

suggestive, and unreliable.

Galindez was first named in February 1993 as the

person who exchanged payment with agent Diaz for keys to the

marijuana-laden truck on June 4, 1992. He was indicted after

agents Montalvo and Diaz separately identified him in a

photospread. Galindez moved to suppress the identifications

and a hearing was held before a magistrate. The district

court adopted the magistrate's recommendation for denial.

Galindez now appeals.

A. Standard of Review

We "uphold a district court's denial of a motion to

suppress if any reasonable view of the evidence supports it."

United States v. De Jesus-Rios, 990 F.2d 672, 677 (1st Cir.

1993). See, also, United States v. McLaughlin, 957 F.2d 12,

16 (1st Cir. 1992) (collecting cases). The district court's

5. Both Rivera and Galindez were acquitted of the main
conspiracy charge.

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findings relating to a motion to suppress are binding on

appeal unless clearly erroneous. De Jesus-Rios, 990 F.2d at

677. See McLaughlin, 957 F.2d at 17 (collecting cases). A

finding may be clearly erroneous, however, even where there

is evidence to support it if "the reviewing court on the

entire evidence is left with the definite and firm conviction

that a mistake has been committed." Id. (quoting United

States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525,

542, 92 L.Ed. 746 (1948)).

We employ a two-part inquiry: (1) whether the

identification was "impermissibly suggestive," and, if so,

(2) whether the totality of the circumstances indicates it

was nonetheless reliable. De Jesus-Rios, 990 F.2d at 677

(collecting cases). Unreliability is found only where there

is "a very substantial likelihood of irreparable

misidentification." Id. (citations omitted). See, e.g.,

United States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990)

("it is only in extraordinary cases that identification

evidence should be withheld from the jury"), cert. denied,

501 U.S. 1234, 111 S.Ct. 2861, 115 L.Ed.2d 1027 (1991). The

magistrate purported to apply this test, and found neither

suggestiveness nor unreliability. Based on the analysis

below, we disagree.

1. Suggestiveness

On February 8, 1993, agent Diaz inspected a

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photospread built around a photograph of Galindez which an

uninvolved informant had identified as the person he heard

had made the money for keys exchange. Diaz identified

Galindez as the one with whom he had made the exchange.

Agent Montalvo was shown the photospread the next day and

also identified Galindez. Diaz testified that he was ordered

not to talk to anyone about the photospread or his

identification, and that he did not do so. Although Diaz

continued to deny it at trial, Montalvo admitted both at the

suppression hearing and at trial to speaking with Diaz about

the photospread after Diaz had viewed it, but prior to

examining it himself. The magistrate's ruling, although

detailed, inexplicably fails to note and consider this strong

hint of collusion between the identifying agents. We believe

it raises the possibility of suggestiveness, requiring

examination of the circumstances6 in order to determine

whether the ruling can nonetheless stand.

On June 4, 1992 Montalvo, along with two other

agents, was surveilling the parking lot where Diaz was

waiting for the exchange. He could not see Diaz's car, but

could see as close as five feet surrounding it from about 6'-

8' higher up and 35 feet away. It was around noon, and

raining heavily, when Montalvo observed a young black male

6. Galindez does not suggest, nor is there any evidence,
that the procedure used was faulty. We therefore address
only the circumstances surrounding the identifications.

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running toward Diaz's car. He disappeared from Montalvo's

view in the vicinity of the car for about 30 to 60 seconds

before re-emerging on the other side running toward the

shopping mall. Montalvo concluded that this person had made

the exchange, even though he could not observe it, because

immediately afterward a radio report confirmed that the

exchange had been completed, and because the suspect remained

within the small radius surrounding Diaz's car for much

longer than he would have had he simply continued running by.

On June 7 Montalvo prepared a report of his

observations. He described this suspect as a young, black,

Hispanic male, about 13-15 years old, wearing a multi-colored

tee-shirt. The next day, during a preliminary hearing

regarding co-defendant Pe a, Montalvo repeated this

description. He added that he saw the same youth a short

time later riding as passenger in the marijuana-laden truck

as the truck-Volvo-van convoy progressed toward the Monte

Hatillo housing complex.

Before a grand jury convened to indict Galindez on

February 10, 1993, the day after identifying Galindez in the

photospread, Montalvo described him for the first time as

having a long neck. At the suppression hearing held in April

1993, Montalvo testified that what caught his attention when

observing the suspect running toward Diaz's car was his long

neck. Montalvo then testified at trial that what caught his

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eye at the time was the suspect's long neck and "very

protruding Adam's apple." When confronted with the fact that

he had never mentioned the long neck and Adam's apple in the

report he prepared just three days after the incident nor any

time prior to seeing Galindez' photograph, Montalvo said that

it was because the photo "refreshed" his memory. Both

Montalvo and the agent who administered the identification

procedure testified that all six photos in the spread were

covered up to the chin -- to assure that labels identifying

the persons depicted could not be seen and that the photos

appeared uniform -- thus no necks would be observable.

Montalvo said he removed the paper covering the neck of

Galindez's photograph after he selected it but before

initialling it.

Evidence tending to strengthen agent Diaz's

identification of Galindez also materializes only after his

viewing of the photospread. Shortly after the crime, Diaz

was interviewed by an investigating case agent who prepared a

report, dated July 20, 1992. This report contains no

physical description of this suspect other than that he was

black and wearing a black tee shirt with printed letters and

jeans. Diaz, a Customs agent for seven years and trained in

identification techniques, testified that he did not recall

whether he had provided the investigating agent with more

than this general description, but admitted that had he done

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so the agent would have reported it.7

Two days after he identified Galindez, Diaz

testified before a grand jury that the feature he recalled

specifically was a long neck. At the suppression hearing two

months later Diaz testified that at the time of the incident

he had specifically noted the suspect's long neck, recessed

eyes, big lips and age between 18 and 22, and that when he

identified Galindez he was certain because he would "never

forget" the eyes, nose and mouth. It then emerged on cross

examination that Diaz, who was not required to write a report

himself, had taken contemporaneous "rough notes" of his

participation in the undercover operation. These had not

been provided to defense counsel and, despite his request,

the magistrate refused to hold up the hearing to obtain them.

Defense counsel proceeded without, and managed to establish

that (1) Diaz had reviewed them before being interviewed by

the case agent, and (2) they contained some description of

the suspect but Diaz could not recall any details other than

that he was black and wearing a black printed tee shirt,

precisely the description contained in the agent's report.

The prosecutor produced Diaz's notes on the first

day of trial, revealing a detailed description of the suspect

as black, with brown eyes, short hair, long neck, heavy

7. The agent, Juan Dania, a six year veteran, testified that
it would have been his practice to report all descriptions
provided by the agents he interviewed.

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eyebrows and recessed eyes, 5' 6-8" and age 18-22. Diaz

admitted on cross examination that he had thoroughly reviewed

these notes before the suppression hearing, yet had been

unable to recall anything about them when questioned by the

defense at that time. It stretches credulity to believe that

Diaz wrote contemporaneous notes describing the suspect as,

among other things, having a long neck and recessed eyes, and

that several weeks later when interviewed by the

investigating agent, and after reviewing those notes, he

provided none of that detail; that after again reviewing the

notes for the express purpose of testifying about his

identification at the suppression hearing, he was again

unable to recall any of their detail; and that when they were

finally revealed at trial those notes turned out to contain

the very details tending to confirm the description Diaz gave

for the first time at the suppression hearing, and describe

the very features he claimed both at the hearing and at trial

had most impressed him at the time of the incident.

Viewed in totality, the circumstances indicate a

possibility that Montalvo was influenced by Diaz prior to his

identification of Galindez, and thereafter both he and Diaz

supplemented their descriptions to include features prominent

in the photograph. Although law enforcement experience is a

factor that mitigates susceptibility to suggestiveness,

Maguire, 918 F.2d at 263, the pre-viewing conversation

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between the two agents, and the apparent post hoc doctoring

of both their descriptions, destroys that presumption here.

The finding below, which did not consider the improper

conversation, is clearly erroneous.

2. Reliability

A finding of suggestiveness, however, only requires

exclusion when it creates a "very substantial likelihood of

irreparable misidentification." De Jesus-Rios, 990 F.2d at

677 (citations omitted). This prong of the test questions

"whether under the 'totality of the circumstances' the

identification was reliable even though the confrontation

procedure was suggestive." Neil v. Biggers, 409 U.S. 188,

199 (1972). The following factors are probative:

(1) the opportunity of the witness to
view the criminal at the time of the
crime; (2) the witness' degree of
attention; (3) the accuracy of the
witness' prior description of the
criminal; (4) the level of certainty
demonstrated by the witness at the
confrontation; and (5) the length of time
between the crime and the confrontation.

De Jesus-Rios, 909 F.2d at 677 (citing Neil v. Biggers, 409

U.S. at 199-200 (other citations omitted)). Applying these

factors, we note, first, that the record indicates Montalvo

had but 25 seconds to view the suspect, in heavy rain, at a

distance of, at best, 35 feet, and 6-8 feet elevated. He

admitted his subsequent viewing of the same person in the

passenger seat of the truck was somewhat obstructed --

-26-

although he claims he recognized the tee shirt and general

appearance -- and fleeting, as it occurred while he was

driving his own vehicle past the stopped truck. This may

have been adequate to observe and note a long neck. Second,

since Montalvo was assigned to surveillance, we may assume he

was attentive. Third, his reported description just days

after the events contains none of the detail that begins to

appear in his descriptions subsequent to speaking with Diaz

and then viewing the photospread. Fourth, although it only

took Montalvo several minutes to pick out Galindez's

photograph, he testified that he was confused because he

remembered the hair of the person he saw as "coming straight

down," whereas the photo depicted Galindez with very short

hair.

Finally, eight months elapsed between the crime and

the identification. This Court has allowed photospread

identifications that have occurred as much as five years

after the crime, but this has been where other factors

strengthened considerably the reliability of the

identification. See, e.g., United States v. Drougas, 748

F.2d 8, 28 (1st Cir. 1984) (five-year gap was "very much

greater than would ordinarily be permissible," but unlike

most cases, "the witness was not identifying an assailant . .

. he viewed only once under stressful circumstances;" he was

co-conspirator who had spent considerable time with

-27-

defendant). In Biggers itself, the Supreme Court noted that

a seven month delay would "be a seriously negative factor in

most cases," 409 U.S. at 201, but since the witness, a rape

victim, had spent up to half an hour with her assailant,

under artificial light, and at least twice

-28-

"faced him directly and intimately," the identification was

allowed. Id. at 200.

In light of the conversation between Diaz and

Montalvo prior to Montalvo's viewing the photospread, the

alterations in both of their subsequent descriptions, the

suspicion that Diaz's "contemporaneous" notes were composed

after the fact (and the ease with which the prosecutor could

have cleared up that problem by promptly providing the notes

to defense counsel), and the negative weight of the third,

fourth and fifth Biggers factors compels the conclusion that

at least Montalvo's identification was unreliable, and the

district court was clearly erroneous in allowing it to go to

the jury.

B. Was the Error Harmless Beyond a Reasonable

Doubt?

Next, we assess whether the district court's error

was harmless beyond a reasonable doubt. De Jesus-Rios, 990

F.2d at 678 (citation omitted). In overturning a district

court's finding that a pretrial identification, though

impermissibly suggestive, was nonetheless reliable, this

court has focussed on the inevitable uncertainty concerning

what role the impermissible identification played in the

jury's decision to convict. De Jesus-Rios, 990 F.2d at 679.

In De Jesus-Rios, as here, there were two pretrial

identifications, and no other evidence linking defendant to

-29-

the crime.8 The court found only one identification

unreliable. In ruling nonetheless that the district court's

error in admitting both was not harmless beyond a reasonable

doubt, the court noted that it was possible that the jury had

relied significantly upon the unreliable identification. The

court was "concerned that the jury may have been persuaded to

convict by the very fact that there were two witnesses who

identified [the defendant]." Id. Here, too, it is possible

that the jury rested its decision to convict on the fact that

there were two identifications. We cannot conclude beyond a

reasonable doubt that the district court's error was

harmless.

V. Delayed Discovery
V. Delayed Discovery

Rivera challenges the admission into evidence

certain telephone records revealing calls between his line

and those belonging to others involved in the conspiracy that

the government did not provide until the first day of trial.

The government admitted to possessing some of them as much as

one year before trial. Rivera reasserts his argument below

that the government's late disclosure violated Rule 16 of the

8. The only other evidence linking Galindez to the crime are
Diaz's notes containing a description to which Galindez can
be matched. The notes cannot be credited.

-30-

Federal Rules of Criminal Procedure9 and prejudiced his

defense by depriving him of the opportunity to investigate

the calls.

We review a district court's ruling on the

prejudicial effect of a failure to provide pre-trial

discovery for abuse of discretion. United States v. Alvarez,

987 F.2d 77, 85 (1st Cir.), cert. denied, U.S. , 114

S.Ct. 147, 126 L.Ed.2d 109 (1993); see Fed.R.Crim.P.

16(d)(2). Prejudice must be proven to obtain reversal on

appeal. Alvarez, 987 F.2d at 85.

The court allowed the evidence, finding that the

government did not act in bad faith and that no prejudice

resulted. See, e.g., United States v. Nickens, 955 F.2d 112,

126 (1st Cir.), cert. denied, U.S. , 113 S.Ct. 108,

121 L.Ed.2d 66 (1992) (citations omitted). We agree. The

prejudice Rivera alleged below related entirely to linking

9. Rule 16 provides, in pertinent part:

Upon request of the defendant the
government shall permit the defendant to
inspect and copy or photograph books,
papers, documents, . . . which are within
the possession, custody or control of the
government and which are material to the
preparation of the defendant's defense or
are intended for use by the government as
evidence in chief at the trial . . .

Fed.R.Crim. P. 16(a)(1)(C). Rule 16 imposes a continuing
duty to disclose such requested material. Fed.R.Crim.P.
16(c). See, e.g., United States v. Tajeddini, 996 F.2d 1278,

1287 (1st Cir. 1993).

-31-

him to the conspiracy, for which he was acquitted, and he

proffers no additional proof of prejudice on appeal. This

verdict itself verifies the court's ruling.

Rivera also challenges the admission of this

evidence on relevancy grounds. This contention was not made

to the district court.

VI. Sufficiency of the Evidence
VI. Sufficiency of the Evidence

All appellants challenge the sufficiency of the

evidence by which they were convicted, having made timely

motions for acquittal to the trial court. On appeal, we

assess the evidence as a whole, taking "all reasonable

inferences, in the light most favorable to the verdict, with

a view to whether a rational trier of fact could have found

the defendant guilty beyond a reasonable doubt." United

States v. Vargas, 945 F.2d 426, 427 (1st Cir. 1991) (internal

quotations omitted); United States v. Montas, 41 F.3d 775,

778 (1st Cir. 1994), petition for cert. filed, (April 4,

1995) (No. 94-8798). We resolve all credibility issues in

favor of the verdict. United States v. De Jesus Rios, 990

F.2d at 680.

A. Galindez

Although we are awarding Galindez a new trial

because of an erroneously admitted identification, it is

still necessary to consider whether his motion for acquittal

should have been allowed. Our evidentiary ruling leaves a

-32-

viable identification. A jury might reasonably conclude that

this identification alone, made by the agent who dealt

directly and closely, if briefly, with the suspect,

establishes Galindez's guilt beyond a reasonable doubt.

B. Pe a

Pe a was convicted of conspiring to import,

importing, and possessing with the intent to distribute

controlled substances in violation of 21 U.S.C. 952(a) and

841 (a)(1) (Counts One, Two and Three), using a telephone in

violation of 21 U.S.C. 843(b) (Count Four), possessing a

firearm during commission of a drug trafficking offense in

violation of 18 U.S.C. 924(c)(1) (Count Six), and aiding

and abetting an attempt to kill three federal agents in the

line of duty in violation of 18 U.S.C. 1114 and 2 (Counts

Seven through Nine). Although he states a flat challenge to

the evidence on all counts, we discern questions only with

respect to the evidence for importation, possession of

firearms, and the attempt to kill the agents.

1. Importation

Pe a attempts to place sole responsibility for

importing the drugs on the undercover agents involved in the

scheme, alleging that it was they, not he, who actually

brought the marijuana across the border. Pe a misinterprets

the scope of the crime of importation. Importation of a

controlled substance is a "continuous crime" that is not

-33-

complete until the drugs reach their intended destination.

United States v. Leal, 831 F.2d 7, 9 (1st Cir. 1987) (citing

cases). Thus the fact that Pe a was not present and

physically involved at the point of entry into the United

States does not absolve him. While the outermost limits of

importation have never been defined by this Court, we are

satisfied that the crime was ongoing when Pe a took custody

of the marijuana, the evidence of which is ample.

2. Use of Firearms During Drug Trafficking

Offense

Section 924(c)(1) requires the government to show

that the defendant "used one or more firearms during a drug

trafficking offense." United States v. Reyes-Mercado, 22

F.3d 363, 367 (1st Cir. 1994).10 There being no question

that firearms were thus used, Pe a claims the record lacks

evidence that he used or possessed a firearm, actually or

constructively, or aided anyone in procuring them, asserting

10. Whoever, during and in relation to any
crime of violence or drug trafficking
crime . . . uses or carries a firearm,
shall, in addition to the punishment
provided for such crime . . . be
sentenced to imprisonment for five years,
and if the firearm is a short-barreled
rifle, short-barreled shotgun . . . to
imprisonment for ten years, and if the
firearm is a machine-gun, or a
destructive device, or is equipped with a
firearm silencer or firearm muffler, to
imprisonment for thirty years. . . .

18 U.S.C. 924(c)(1).

-34-

he did not even know of their presence in the silhouette van

that

-35-

escorted the drug-laden truck after he and his co-

conspirators took possession of it.

The government contends Pe a's conviction can be

upheld on either of two theories: first, Pe a aided and

abetted the occupants of the van in their possession of the

weapons; second, he can be held criminally accountable for

the reasonably foreseeable substantive offenses committed by

others in furtherance of their joint criminal venture.

Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90

L.Ed. 1489 (1946).11

One who aids and abets a crime is punishable as a

principal. 18 U.S.C. 2; Nye & Nissen v. United States, 336

U.S. 613, 618-619, 69 S.Ct 766, 769-770, 93 L.Ed. 919 (1949)

("one who aids, abets, counsels, commands, induces, or

procures the commission of an act is as responsible for that

act as if he committed it directly"); United States v.

Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (acts of principal are

those of aider and abetter "as a matter of law"). To prove

liability as an accomplice the government must show the

11. The court instructed the jury as follows:

If one member of a conspiracy commits a
crime in furtherance of a conspiracy, the
other members have also, under the law,
committed that crime.

This was sufficient. United States v. Alvarado, 898 F.2d

987, 993 (5th Cir. 1990); United States v. Gallo, 763 F.2d

1504, 1520 n.23 (6th Cir. 1985), cert. denied, 474 U.S. 1069,

106 S.Ct. 828, 88 L.Ed.2d 800 (1986).

-36-

defendant associated himself with a criminal scheme in some

way, acted so as to demonstrate his wish to bring it about,

and sought by his actions to make it succeed. Nye & Nissen,

336 U.S. at 619; United States v. Loder, 23 F.3d 586, 590-91

(1st Cir. 1994). Criminal intent may be inferred from

surrounding facts and circumstances. United States v. Campa,

679 F.2d 1006, 1010 (1st Cir. 1982). It is settled that for

an accomplice to be convicted under 924(c)(1) the

government must prove that he knew "to a practical certainty"

that a firearm would be used or carried during a qualified

offense, United States v. DeMasi, 40 F.3d 1306, 1316 (1st

Cir. 1994); United States v. Torres-Maldonado, 14 F.3d 95,

103 (1st Cir.) (citing cases), cert. denied, U.S. ,

115 S.Ct. 193, 130 L.Ed.2d 125 (1994).

The evidence establishing Pe a's involvement in the

drug importation conspiracy, as well as its size, aim and

scope supports the conclusion that Pe a aided and abetted the

use of firearms in connection with the transfer of the

narcotics into his custody. Pe a himself directed the

exchange of $30,000 in cash for keys to a truck containing

over 9,000 pounds of marijuana. He then rode in the van to

the Monte Hatillo complex to pick up his car. A coordinated

convoy consisting of the truck, a Volvo driven by Pe a,

followed by the van, was later observed heading back toward

the Monte Hatillo. The three vehicles pulled to the side of

-37-

the road together, and turned together into the housing

complex moments later. Both Pe a and the truck's passenger

were observed talking on cellular telephones. There was

evidence suggesting that the van was also equipped with a

cellular phone antenna, although activities within could not

be seen due to its darkened windows. Finally, the convoy

broke up just before the occupants of the van began shooting,

and the truck and Pe a's car rapidly disappeared.

A rational jury could conclude that the van was

connected to and provided security for the operation, and

that Pe a must at least have known that the transaction would

be secured with arms, and could expect that they would be

used in the event of trouble. Further, the evidence supports

a conclusion that the barrage of automatic weapons fire was

designed to provide cover for Pe a and the truck to escape,

and that Pe a both knew of and benefitted from it. It is

immaterial that Pe a did not carry or himself use a firearm,

if he was aware that firearms were available for use during

or in relation to the transaction, DeMasi, 40 F.3d at 1316,

or if the firearms facilitated the crime or lent him courage

to see it through. Reyes-Mercado, 22 F.3d at 367.

Because the evidence is sufficient to support the

conclusion that, at the very least, Pe a knew to a practical

certainty that the transaction would be secured with

firearms, his conviction on count six is affirmed.

-38-

-39-

3. Aiding and Abetting the Attempt to Kill

the Agents

The government contends the same theories of

liability support Pe a's convictions for the attempt to kill

the agents; and Pe a again seeks to avoid responsibility by

claiming innocence of the identities, actions and intent of

the occupants of the van. There is no question that an

attempt was made to kill the agents during the drug

operation; our only concern is whether Pe a aided and abetted

this attempt, or whether it was reasonably foreseeable to

Pe a that such an offense might be committed in furtherance

of the conspiracy. Pinkerton, 328 U.S. at 648.

We hold that the jury could have inferred that Pe a

knew there were automatic weapons in the van for protecting

the transfer of the narcotics, that Pe a was in telephonic

contact with the occupants of the van up until moments before

the shooting began, and that the ambush of the agents was

undertaken with his knowledge, if not pursuant to his orders,

and that he benefitted by being able to flee the scene. A

rational jury therefore could have found that the evidence

indicated Pe a was associated with the ambush, acted in a way

that showed his desire that it succeed, and shared the

requisite criminal intent to bear responsibility. The record

also supports the conclusion that it was reasonably

foreseeable to Pe a that the firearms would be used in the

-40-

event that the successful completion of the drug deal was

threatened. United States v. Bruno, 873 F.2d 555, 560 (2nd

Cir.), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d

86 (1989). Pe a's conviction on counts seven through nine

are therefore affirmed.

C. Rivera

Rivera was convicted for possession of a controlled

substance with intent to distribute. He claims he is but a

legitimate businessman whose tangential involvement in the

scheme was innocent and unknowing, and that the evidence does

not support the verdict.

Proof of criminal intent or guilty knowledge is

essential under 18 U.S.C. 2,12 Campa, 679 F.2d at 1010,

otherwise anyone who brushed a criminal en route to his deed

could be swept within the statute. See United States v.

O'Campo, 973 F.2d 1015, 1020 (1st Cir. 1992). Rivera's

knowledge and furtherance of the conspirators' plan can be

inferred from his providing a truck to the conspirators,

suggesting to its owner that he report it stolen, loaning his

own money to help obtain a second truck, and the fact that

this truck ended up reported stolen shortly after the

incident. Although Rivera claims that all of this could be

12. It is immaterial that the indictment neither alleged
aiding and abetting nor referred to 18 U.S.C 2. United

States v. Sanchez, 917 F.2d 607, 611 (1st Cir. 1990), cert.

denied, 499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991).

-41-

seen as the innocent pursuit of his trucking business, the

jury acted within its province in resolving this credibility

issue against him. Viewed in the light most favorable to the

verdict, the evidence is sufficient to sustain Rivera's

conviction.

D. Velazquez

Velazquez challenges the sufficiency of evidence

for all counts for which he was convicted: conspiracy to

import marijuana and cocaine in violation of 21 U.S.C.

952(a) (count one); importation of 9,540 pounds of marijuana

in violation of 21 U.S.C. 952(a) (count two); possession

with intent to distribute marijuana in violation of 21 U.S.C.

841(a)(1) (count three); and use of a telephone in

violation of 21 U.S.C. 843(b) (count five).

1. Conspiracy

Velazquez attacks his conviction on counts one and

five by claiming the evidence showed two distinct

conspiracies, one failed effort before his arrest and

incarceration on April 30, 1992, and another conceived only

afterwards. He concedes the evidence supports his

participation in the first,13 but argues that the second,

13. Such evidence included taped meetings with a
confidential informant in which he participated in price
negotiations, discussions of secret code sheets, and made an
agreement to pay a certain sum for transportation of the
drugs, as well as evidence that he personally inspected a
U.S. Customs undercover vessel for its suitability for
shipment and provided marine charts and code sheets to others

-42-

ultimately successful one, was formed and carried out only

after his arrest by local authorities on April 30, 1992, and

since he was still incarcerated on June 4, when this second

scheme was consummated, it was impossible for him to have

participated in it. He promotes his two conspiracy theory by

claiming there were "new players" and new secret "codes" in

the second plot, and that about four times as much marijuana

was ultimately imported than he and the original conspirators

contemplated.

Velazquez makes this argument for the first time,

having conceded the sufficiency of evidence to convict on

count one to the trial court. "It has long been the practice

in this circuit that an issue not presented in the district

court will not be addressed for the first time on appeal."

United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989). We

discuss it only because he makes an essentially similar

argument regarding counts two and three, which he did not

concede, and it bears on the question concerning those

counts.

Whether multiple conspiracies existed is a question

of fact for the jury. United States v. Bello-Perez, 977 F.2d

664, 667 (1st Cir. 1992); United States v. Drougas, 748 F.2d

8, 17 (1st Cir. 1984). To have proceeded on the assumption

that a single conspiracy existed in this case, the jury need

to assist their planning and execution of the deal.

-43-

only have found that the evidence as a whole adequately

showed that all the co-conspirators "knowingly and

intentionally 'directed their efforts towards the

accomplishment of a common goal or overall plan' to commit

the substantive offense charged." Bello-Perez, 977 F.2d at

667-668 (quoting Drougas, 748 F.2d at 17). The jury need not

have found that they joined the conspiracy together,

participated at the same time, nor even that they all knew

each other. Bello-Perez, 977 F.2d at 668 (citing cases).

Save for his own removal by arrest, the only change

of players was the replacement of one of the government's

agents after a first botched attempt in March 1992. The

other players remained and continued with the original plot.

Nor does the fact that much more marijuana was imported than

the original negotiations contemplated necessarily cleave the

conspiracy in two. The jury could have readily found that

new codes were issued for security reasons. There is no

reason it could not have found beyond a reasonable doubt that

there was a single conspiracy in which Velazquez clearly

played a part.

2. Use of Telephone to Facilitate the Crime

Section 843(b) makes it a crime to use a

communication facility, such as a telephone, to facilitate

the commission of a crime such as importation of controlled

substances. Velazquez was convicted of one count of

-44-

violating 843(b) on the basis of unrefuted evidence of a

telephone conversation on March 9, 1992, in which he

discussed details of the importation plans with a

confidential informant who recorded the call. He employs the

same two conspiracy theory

-45-

to attack this conviction. We find the evidence more than

sufficient to uphold it.

3. Importation

Velazquez attacks his convictions for counts two

and three by claiming his imprisonment by local authorities

as of April 30, 1992 made it impossible for him to have

participated after that time, and that evidence of his

participation in the conspiracy before then was insufficient

to prove his guilt beyond a reasonable doubt for the

substantive counts.

The trial court was initially inclined to grant

Velazquez's motion for acquittal for these two counts, but

reconsidered. The government contends that the evidence is

sufficient to support his convictions "at least as an aider

and abetter." Velazquez contends that all the unlawful

actions comprising counts two and three were committed by

others after his incarceration, and therefore the government

failed to prove his involvement in any of the elements of

either offense.

With respect to his importation conviction,

Velazquez fails to understand the scope of the law of

conspiracy. The jury was properly instructed that a member

of a conspiracy is criminally responsible for any illegal

acts of co-conspirators committed in furtherance of it.

Pinkerton, 328 U.S. 640; United States v. Munoz, 36 F.3d

-46-

1229, 1234 (1st Cir. 1994), cert. denied, U.S. , 115

S.Ct. 1164, 130 L.Ed.2d 1120 (1995). Thus courts have held

that the same evidence that supports a defendant's conviction

for conspiracy to commit a crime may support his conviction

for the substantive count, even where he did not commit it

himself. See, e.g., United States v. Salazar, 958 F.2d 1285,

1292 (5th Cir.), cert. denied, U.S. , 113 S.Ct. 185,

121 L.Ed.2d 129 (1992). As we found the evidence sufficient

to uphold both the jury's finding of a single conspiracy to

import illicit narcotics in which both Velazquez and Pe a

were at various times involved, and Pe a's conviction on the

substantive count of importation, Velazquez's conviction for

the substantive count may also stand.14

4. Possession

We cannot make the same simple assertion with

respect to Velazquez's conviction for possession of narcotics

with intent to distribute, given that he was not convicted

for conspiracy to commit this offense. Velazquez again

14. Velazquez seems to make an argument that his arrest and
incarceration effectively removed him from the conspiracy.
Where membership in a conspiracy is proven, evidence of
simply ceasing one's activities in connection with it, for
whatever reason, is insufficient to constitute withdrawal.
Munoz, 36 F.3d at 1234. An affirmative step, such as a full

confession to authorities or communicating to co-conspirators
abandonment of the enterprise and its goals, is required to
avoid responsibility for the continuing crimes of co-
conspirators. Id. Velazquez presented no such evidence, and

the jury was entitled to surmise that but for his involuntary
removal by arrest, he would have continued.

-47-

contends that because he was incarcerated at the time his co-

conspirators possessed the drugs, it was impossible for him

to have been in possession himself, even constructively,

within the meaning of 21 U.S.C. 841(a)(1), nor could he

have aided and abetted their possession within the meaning of

18 U.S.C. 2.

Evidence of Velazquez's association, participation,

and active promotion of others' possession of the drugs is

sufficient to sustain his conviction as an aider and abetter.

Nye & Nissen, 336 U.S. at 619. Velazquez actively associated

himself with a scheme that was specifically designed to

result in his possession and distribution of a substantial

amount of narcotics by participating in initial negotiations

over price and amounts and subsequent meetings and telephone

conversations to refine details of the plan, attempting to

travel to St. Maarten to pick up one of the suppliers,

supplying a marine chart, inspecting an undercover Customs

vessel for its suitability for the smuggle, providing a new

set of secret codes and a navigational device after an

initial attempt at shipment failed when the Colombian vessel

carrying the narcotics got lost en route to Puerto Rico,

broke down, and had to jettison its cargo, and bringing

others into the scheme. There was no evidence he was acting

merely as a facilitator for others with no intent to

participate in possession and distribution himself. On the

-48-

contrary, there was evidence that 2 kilograms of cocaine

contained in the first, failed shipment

-49-

were included specifically per his request and intended

exclusively for him.

From this evidence the jury could have concluded

that possession and distribution of the drugs were the

obvious intended consequences of the plot to import, and that

Velazquez promoted and facilitated that goal.

The only case of which we are aware that addressed

a conviction for possession by an inmate on the basis of

possession by his at-large co-conspirators involved a

defendant who, while incarcerated, made numerous phone calls

from prison to his cohorts between the time of his arrest and

their apprehension with a cache of cocaine and directions to

his apartment. United States v. Disla, 805 F.2d 1340 (9th

Cir. 1986). Although Disla's conviction for conspiracy to

possess cocaine with intent to distribute was upheld, the

court reversed his conviction for the substantive count,

holding that evidence he was involved as a conspirator before

his incarceration could not support either an aiding and

abetting or a constructive possession theory of guilt, given

that there was no evidence Disla did anything to "effect" or

"assist" the actual crime.15 Id. at 1350-52.

15. The court held that an inference that he assisted the
possession of his cohorts based on the telephone calls could
not be drawn because there was no evidence as to the content
of those calls.

-50-

The Disla court was foreclosed from considering

Disla liable under Pinkerton, because the jury had not been

given the requisite instruction. Id. at 1350. Here, as

previously noted, the jury was properly instructed,

consistent with Pinkerton, that a defendant is liable for the

reasonably foreseeable substantive offenses committed by co-

conspirators in furtherance of their joint criminal venture.

We may therefore also affirm if possession of the drugs by

Pe a and the other conspirators was an act committed in

furtherance of their unlawful agreement to import, such that

Velazquez can be held accountable as a party to the plot.

As discussed above in relation to Pe a, importation

is a continuous crime that does not cease until the

contraband reaches its destination. United States v. Leal,

831 F.2d 7, 9 (1st Cir. 1987) (citing cases). Whatever its

final destination in this case, we are satisfied that upon

the conspirators' taking possession of the marijuana-laden

truck the crime of importation was still on-going. See ante.

Thus, in this particular case, possession with intent to

distribute a large cache of marijuana was committed by

Velazquez's co-conspirators in furtherance of the crime they

conspired to commit, and although it is agreed that he was

incapable of possessing the drugs himself while imprisoned,

his conviction for the substantive count can nonetheless

stand.

-51-

VII. Prosecutor's Conduct
VII. Prosecutor's Conduct

A. Opening Statement and Presentation of the

Evidence

Appellants Rivera and Galindez contend that, by

creating the impression of a "planned," "ambush type

situation" designed to kill the federal agents, and painting

a graphic picture of "raining bullets" that produced a "blood

bath," the prosecutor aimed to raise the passions of the

jury. The crux of their argument is that by stating "the

only possible verdict is that of guilty, because of an

attempt to kill the agents," the prosecutor improperly urged

the jury to do justice to the severely wounded agents. They

further point to the prosecutor's emphasis throughout the

trial on the culmination of the drug scam in the attempt on

the agents' lives, tending to suggest it was an element of

the conspiracy for which they stood charged. Neither was

charged with the attempt to kill the agents. They claim the

prosecutor so inflamed and confused the jury as to seriously

prejudice their right to a fair trial.

We begin by restating that it is improper to

suggest to the jury that it "act in any capacity other than

as the impartial arbiter of the facts." United States v.

Manning, 23 F.3d 570, 573 (1st Cir. 1994). Appealing to the

jury's emotions or suggesting in any way that it feel a duty

to convict is error. Id. (telling jury, "take responsibility

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for yourselves," "take responsibility for your community" and

"convict the defendant because justice compels conviction" is

error); United States v. Young, 470 U.S. 1, 17, 105 S.Ct.

1038, 1047, 84 L.Ed.2d 1 (1985) (error to urge jury to "do

its job"); United States v. Mandelbaum, 803 F.2d 42, 44 (1st

Cir. 1986) (error to urge jury to "do its duty"). While the

line separating improper from acceptable behavior in our

adversary system is "not easily drawn," Young, 470 U.S. at 7,

we assume without deciding that to the extent the

prosecutor's comments could be understood to urge the jury to

avenge the injured agents, they were improper.

Whether those comments warrant a new trial,

however, turns on whether they likely affected the outcome.

Manning, 23 F.3d at 574 (citing cases).16 We look to the

severity of the misconduct, the context in which it occurred,

the curative effect of the judge's admonitions, if any, and

the strength of the evidence against the defendant. Id.

(citing cases).

We do not find the factors in this case compel a

new trial. An objection to the statement was sustained and

the prosecutor did not repeat it. No remedial action was

16. Although this line of authority derives from cases
recognizing deterrence of prosecutorial misconduct as an
additional basis for reversal, see United States v. Capone,

683 F.2d 582, 586 (1st Cir.1982), the Supreme Court
eliminated this option where the error is harmless. United

States v. Hasting, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979,

76 L.Ed.2d 96 (1983).

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requested, nor was any offered -- perhaps a decision not to

draw attention to the remark. See Mandelbaum, 803 F.2d at

44 (although urging jury to "do its duty" was error, it was

not reversible error). It was made during opening statements

wherein it was unlikely to have had a lasting effect.

Moreover, that Rivera was acquitted of the conspiracy charge

demonstrates that the jury was not so confused or inflamed

that it could not rationally evaluate the charges and the

evidence.

B. Misstatement of the Evidence in Closing

Galindez and Rivera allege the prosecutor

materially misstated the evidence in his closing argument.

Because we find Galindez deserves a new trial on another

ground, we address only Rivera's claim here.

Rivera objects to the prosecutor's summation of the

evidence in which he suggested that Rivera called the owner

of one of the two trucks that he had obtained for Mr. Pe a

and advised him to report it stolen, and that these acts show

knowledge. Rivera's attorney did not object. On appeal,

Rivera points to the record which reveals that the owner

repeatedly called Rivera about his truck, and only after

repeated assurances that he would return it as soon as it

turned up did Rivera suggest that if the owner wasn't

satisfied he should report it stolen.

Absent objection, we review for plain error.

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United States v. Arrieta-Agressot, 3 F.3d 525, 528 (1st Cir.

1993). Except on rare occasions, a defendant "who believes

that a prosecutor's closing argument goes too far must

usually object to the offending statements when and as they

are uttered." United States v. Sepulveda, 15 F.3d 1161, 1186

(1st Cir. 1993), cert. denied, U.S. , 114 S.Ct. 2714,

129 L.Ed.2d 840 (1994). Absent objection it seems fair to

give the arguer the benefit of every plausible interpretation

of her words." Id. at 1187.

The evidence is unequivocal, regardless of who

called whom, that Rivera told the owner he should report his

truck stolen. Further, Rivera provided him with a false name

and telephone number to use in the stolen vehicle report.

The evidence also showed Rivera was involved in obtaining a

second truck, the one that was ultimately used, and on the

day of the incident he gave this owner the same advice, and

shortly after the shooting this truck was reported stolen.

Although we do not condone prosecutorial

distortions of evidence, United States v. Carrasquillo-Plaza,

873 F.2d 10, 14 (1st Cir. 1989), the misstatement here did

not prejudice Rivera's right to a fair trial. See, id.;

United States v. Pasarell, 727 F.2d 13, 16 (1st Cir.), cert.

denied, 469 U.S. 826, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984).

Suggesting that a truck be reported stolen, whether after

pestering or on his own initiative, could amount to an

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attempt to hide guilt, and the jury was entitled to so infer.

The conclusion that Rivera was knowingly involved can readily

be drawn even from the facts as he would present them.

VIII. Requested Jury Instructions on Entrapment and
VIII. Requested Jury Instructions on Entrapment and

Coercion
Coercion

Pe a assigns as error the district court's refusal

to instruct the jury on his defenses of entrapment and

coercion or duress. A defendant is entitled to instruction

on his theories of defense so long as "any probative material

in the record" supports them. United States v. Rodriguez,

858 F.2d 809, 814 (1st Cir. 1988). This is a question of law

for the court and review is plenary. Id. at 812, 814.

A. Entrapment

The entrapment defense, like any other, "is

measured by the time-honored sufficiency of-the-evidence

yardstick." Id. at 814. Entrapment has two essential

elements: (1) government inducement to engage in criminal

activity, and (2) the defendant's lack of predisposition to

engage in such conduct. Id. at 812, 814 (citing Mathews v.

United States, 485 U.S. 58, 63, 108 S.Ct 883, 886, 99 L.Ed.2d

54 (1988)). Defendant must produce sufficient evidence to

support both elements. When viewed in the light most

favorable to the accused, there must be some evidence which,

"if believed by a rational juror, would suffice to create a

reasonable doubt as to whether government actors induced the

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defendant to perform a criminal act that he was not

predisposed to commit," in order for defendant to be entitled

to the instruction.17 Rodriguez, 858 F.2d at 814.

Pe a claims he repeatedly refused to go on with the

scheme after Velazquez was arrested on April 10, 1992 and the

original undercover agent was replaced by another, but that

the latter urged him to continue. The evidence was ample

that Pe a willingly participated in the conspiracy at least

until then. He therefore could not have sustained the lack

of predisposition element and was not entitled to the

instruction.

B. Coercion or Duress

The district court also denied instruction on

Pe a's alternative defense that he acted under duress,

coerced by government agents into continuing a criminal

venture which he wished to abandon. For this defense, a

defendant must adduce evidence sufficient, if believed, to

convince a rational juror that (1) he acted under an

immediate threat of serious bodily injury or death, (2) he

had a well founded belief that the threat would be carried

out, and (3) he had no reasonable opportunity to escape or

avoid the threat. United States v. Amparo, 961 F.2d 288, 291

17. Of course once defendant meets this entry-level burden,
the government must prove beyond a reasonable doubt that no
entrapment occurred. Rodriguez, 858 F.2d at 815 (collecting

cases).

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(1st Cir.), cert. denied, U.S. , 113 S.Ct. 224, 121

L.Ed.2d 161 (1992).

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Pe a presented his own uncorroborated testimony

that he refused to continue negotiations to consummate the

drug deal once Velazquez had been incarcerated and that the

undercover agent threatened his parents with "the

consequences" if he did not. A threat to injure some other

person in the future is neither immediate nor unavoidable.

The conviction of Galindez is vacated and his case

is remanded for a new trial; the remaining convictions are

affirmed.

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