United States v. Flores Rivera

June 7, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1558

UNITED STATES,
Appellee,

v.

ERIC FLORES-RIVERA,
Defendant - Appellant.

ERRATA SHEET

The opinion of this Court issueed on June 1, 1995, is
corrected as follows:

On page 5, line 4 - change "by" to "be"

On page 5, lines 24-25 - replace "intent to agree and intent
to commit the substantive offense." Garc a, 983 F.2d at 1165

(citation omitted)" with "an intent to agree and an intent to
effectuate the commission of the substantive offense." United

States v. Piper, 35 F.3d 611, 615 (1st Cir. 1994), cert. denied,

115 S. Ct. 1118 (1995)"

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1558

UNITED STATES,

Appellee,

v.

ERIC FLORES-RIVERA,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Stahl, Circuit Judges.

Robert G. Levitt for appellant.

David S. Kris, Attorney, U.S. Department of Justice, with

whom Guillermo Gil, United States Attorney, and Salixto Medina-

Malav , Assistant United States Attorney, were on brief for

appellee.

June 1, 1995

TORRUELLA, Chief Judge. On April 11, 1991, defendant
TORRUELLA, Chief Judge.

Eric Flores-Rivera ("Flores-Rivera"), along with seventeen other

persons not party to this appeal, was named in a thirty-four-

count superseding indictment charging various drug-related

offenses. On April 14, 1993, a jury convicted Flores-Rivera on

one count of conspiracy to import cocaine and to possess cocaine

with intent to distribute it, in violation of 21 U.S.C. 846

and 963 (Count 2), and two counts of assaulting a federal officer

with a deadly weapon, in violation of 18 U.S.C. 111, (Counts 5

and 6). The jury acquitted Flores-Rivera on Counts 3, 4, and 34,

which charged importation of cocaine, possession of cocaine with

intent to distribute, and use of a communication facility to

commit a drug crime, in violation of 21 U.S.C. 952, 841(a)(1),

and 843(b), respectively. The district court sentenced Flores-

Rivera to 324 months' imprisonment, to be followed by a five-year

term of supervised release. Flores-Rivera now appeals. For the

following reasons, we affirm.

I. BACKGROUND
I. BACKGROUND

We recite the facts in the light most favorable to the

government. United States v. Echeverri, 982 F.2d 675, 676 (1st

Cir. 1993). The focus of this case was a large drug trafficking

conspiracy. The conspirators, headed by co-defendant Eusebio

Escobar-de Jes s ("Escobar"), worked with members of the Medell n

and Cali drug cartels to import cocaine from Colombia into Puerto

Rico and New York.

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The linchpin witness for the government's case against

Flores-Rivera was William Cedr s ("Cedr s"), a confidential

informant. Cedr s testified that he infiltrated the conspiracy

and gained the confidence of Escobar. In 1990, Cedr s became the

"number two man" in Escobar's organization. Cedr s testified

that Escobar informed him that Flores-Rivera was a member of the

organization. Cedr s also testified that Flores-Rivera had

accompanied him to the island of Vieques to look for sites where

an airplane could land or drop-off kilogram quantities of cocaine

in the future. Cedr s indicated that the conspirators were

planning to use the new sites to import approximately 1,500

kilograms of cocaine. The Medell n cartel was to supply the

cocaine, and the importation was to be divided into four or five

shipments.

Cedr s also testified that Escobar had instructed

Flores-Rivera to supervise the importation of between 300 and 500

kilograms of cocaine from Colombia. Flores-Rivera was tape

recorded discussing the importation plans with Cedr s and

Escobar. The tape recording, along with Cedr s' testimony,

indicate that Flores-Rivera was to travel to Colombia and return

in a boat loaded with cocaine to one of Escobar's properties.

The government also presented evidence of Flores-

Rivera's involvement in the April 1986 shooting of two U.S.

Customs agents. Two witnesses testified that on April 14, 1986,

they saw Flores-Rivera arrive at the Isla Grande Flying School in

a yellow, flatbed tanker-truck and purchase over 100 gallons of

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aviation fuel. Two U.S. Customs agents followed Flores-Rivera as

he drove the tanker-truck from the flying school to a farm

housing a covert landing strip used by the Escobar organization.

From their surveillance post outside the farm, the Customs agents

observed Flores-Rivera and codefendant Andr s Morales-Cruz enter

the farm. Later that night, the Customs agents saw a small

airplane land at the farm. Shortly thereafter, the Customs

agents witnessed an unidentified man clad in army fatigues exit

the farm in a white van. The Customs agents followed. When the

van got to a small curve in the road, it stopped as if to make a

U-turn. As the Customs agents tried to drive by, the van's

occupants opened fire on them, severely injuring both agents.

The agents were never able to identify the attackers.

II. DISCUSSION
II. DISCUSSION

A. Sufficiency of the Evidence
A. Sufficiency of the Evidence

Flores-Rivera contends that the evidence was

insufficient to support his convictions for conspiracy and

assault on a federal officer.

The standard of review governing a challenge to the

sufficiency of the evidence is well established. An appellate

court must determine whether a rational jury could find guilt

beyond a reasonable doubt. Echeverri, 982 F.2d at 677; United

States v. Garc a, 983 F.2d 1160, 1163-64 (1st Cir. 1993). In

making this determination, the reviewing court must examine the

evidence, together with all inferences that may be reasonably

drawn from it, in the light most favorable to the prosecution.

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Echeverri, 982 F.2d at 677. Furthermore, the reviewing court

does not evaluate witness credibility, but resolves all

credibility issues in favor of the verdict. Garc a, 983 F.2d at

1164 (quoting United States v. Batista-Polanco, 927 F.2d 14, 17

(1st Cir. 1991)). "The evidence may be entirely circumstantial,

and need not exclude every reasonable hypothesis of innocence;

that is, the factfinder may decide among reasonable

interpretations of the evidence." Batista-Polanco, 927 F.2d at

17. Nevertheless, "[i]f the 'evidence viewed in the light most

favorable to the verdict gives equal or nearly equal

circumstantial support to a theory of guilt and a theory of

innocence of the crime charged,' this court must reverse the

conviction. This is so because . . . where an equal or nearly

equal theory of guilt and a theory of innocence is supported by

the evidence viewed in the light most favorable to the

prosecution, 'a reasonable jury must necessarily entertain a

reasonable doubt.'" United States v. S nchez, 961 F.2d 1169,

1173 (5th Cir.) (citations omitted), cert. denied, 113 S. Ct. 330

(1992). With the scope of our review thus defined, we move to

the appellants' claims.

1. Conspiracy
1. Conspiracy

To establish a conspiracy conviction, the prosecution

must prove, inter alia, that the defendant entered an agreement

to commit the substantive offense, and that the defendant was a

voluntary participant in the conspiracy. Echeverri, 982 F.2d at

679. The government must prove that the defendant possessed

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both "an intent to agree and an intent to effectuate the

commission of the substantive offense." United States v. Piper,

35 F.3d 611, 615 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118

(1995). However, "[d]ue to the clandestine nature of criminal

conspiracies, the law recognizes that the illegal agreement may

be either 'express or tacit' and that a '"common purpose and plan

may be inferred from a development and collocation of

circumstance."'" United States v. S nchez, 917 F.2d 607, 610

(1st Cir. 1990)(citations omitted), cert. denied, 111 S. Ct. 1625

(1991). "Mere presence at the scene and close association with

those involved are insufficient factors alone; nevertheless, they

are relevant factors for the jury." S nchez, 961 F.2d at 1174

(5th Cir.) (citation omitted).

Although he does not dispute the existence of the

Escobar drug-trafficking conspiracy, Flores-Rivera maintains that

the evidence fails to establish that he was a member. Given that

we resolve any credibility issues in favor of the verdict, we

find that Flores-Rivera's sufficiency-of-the-evidence challenge

fails because the record contains ample support for his

conspiracy conviction. A reasonable jury could infer from

Cedr s' testimony that Flores-Rivera was deeply involved in the

entire operation. Cedr s testified that Flores-Rivera was a

member of the Escobar conspiracy, and that Flores-Rivera

accompanied him to Vieques to search for appropriate landing

sites for drug drop-offs. Moreover, the evidence against Flores-

Rivera includes a tape-recorded conversation in which Flores-

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Rivera discusses importation plans with Escobar and Cedr s. The

tape recording also indicates that Flores-Rivera agreed to go to

Colombia and return in a boat laden with cocaine. In sum, the

evidence demonstrates clearly and convincingly that Flores-Rivera

was a knowing and voluntary participant in many aspects of the

Escobar drug conspiracy.

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2. Assault on a federal agent
2. Assault on a federal agent

Under the well settled Pinkerton doctrine, members of a

conspiracy may be held liable for the substantive crimes

committed by co-conspirators, provided that the substantive

crimes were committed in furtherance of the conspiracy and while

the defendant was a member of the conspiracy. See Pinkerton v.

United States, 328 U.S. 640, 646-48 (1946); United States v.

Torres-Maldonado, 14 F.3d 95, 101 (1st Cir.), cert. denied, 115

S. Ct. 193 (1994). Under Pinkerton, the government was required

to prove that the April 14, 1986, assault on the U.S. Customs

agents was carried out by members of the Escobar conspiracy, in

furtherance of the conspiracy, and at a time when Flores-Rivera

was still a member of the conspiracy. United States v. Mu oz, 36

F.3d 1229, 1234 (1st Cir. 1994), cert. denied, 115 S. Ct. 1164

(1995). We think it met this burden. The jury heard the

following facts: On April 14, 1986, Flores-Rivera brought

airplane fuel to a farm housing a covert landing strip operated

by the conspirators. While the Customs agents were surveilling

the farm, a plane landed at the farm and, shortly thereafter, a

man clad in army fatigues exited in a white van. The Customs

agents followed the van. The van stopped as if to make a U-turn,

and as the Customs agents drove by, they were fired upon by the

van's occupants. In these circumstances, a reasonable jury could

have found that the shooting was committed by members of the

conspiracy, in furtherance of the conspiracy, and while Flores-

Rivera was still a member of the conspiracy. Therefore, we find

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that there was sufficient evidence to convict Flores-Rivera under

Pinkerton liability for assault on a federal officer.

Accordingly, we reject both of his challenges to the

sufficiency of the evidence.

B. Separate Trials
B. Separate Trials

Flores-Rivera alleges that the district court

erroneously denied his Rule 14 motion for severance. See Fed. R.

Crim. P. 14.1 We disagree.

The First Circuit law regarding severance is clear:

As a rule, persons who are indicted
together should be tried together. This
practice helps both to prevent
inconsistent verdicts and to conserve
resources (judicial and prosecutorial).
Thus, when multiple defendants are
named in a single indictment, a defendant
who seeks a separate trial can ordinarily
succeed in obtaining one only by making
a strong showing of evident prejudice.
The hurdle is intentionally high; recent
Supreme Court precedent instructs that "a
district court should grant a severance
under Rule 14 only if there is a serious
risk that a joint trial would compromise
a specific trial right of one of the
defendants, or prevent the jury from
making a reliable judgment about guilt or
innocence."

United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir.

1993)(quoting Zafiro v. United States, 113 S. Ct. 933, 938

(1993))(internal citations omitted).

1 The rule authorizing motions for severance states in pertinent
part: "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.

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The decision to grant or deny a motion for severance is

committed to the sound discretion of the trial court and we will

reverse its refusal to sever only upon a finding of manifest

abuse of discretion. Zafiro, 113 S. Ct. at 938; United States v.

Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir. 1991); United States

v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert. denied, 112

S. Ct. 986 (1992); Boylan, 898 F.2d 230, 246 (1st Cir. 1990).

Essentially, Flores-Rivera contends that severance was

required because of the "spillover" effect of prosecuting him, an

alleged minor participant, alongside the major conspirators.

That is, Flores-Rivera claims that the joint trial "seriously

limited the jury's ability to sift through all the evidence

against each individual defendant and increased the risk that the

jury would base its verdicts on evidence which has no bearing on

the guilt or innocence of defendants with a more limited

involvement in the scheme." United States v. Brandon, 17 F.3d

409, 440 (1st Cir.), cert. denied, Granoff v. United States, 115

S. Ct. 80 (1994). In support of this contention, he points out

that he was named in less than ten percent of the of all the

overt acts charged in the indictment and that his alleged role in

the conspiracy was significantly less than that of his

codefendants. These facts, without more, do not render severance

mandatory. We rejected this argument in O'Bryant, stating:

To be sure, there is some truth to
appellant's complaint that a minnow
(O'Bryant) and a kingfish (Puleo) stood
trial together. It is also true that the
prosecution drew a bead on Puleo and
aimed most of its ammunition in his

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direction. But, these truths, without
more, did not necessitate a separate
trial for O'Bryant. It is well settled
that, "[e]ven where large amounts of
testimony are irrelevant to one
defendant, or where one defendant's
involvement in an overall agreement is
far less than the involvement of others,"
the court of appeals must be "reluctant
to second guess severance denials." Such
reluctance is fully justified here.

O'Bryant, 998 F.2d at 26 (quoting Boylan, 898 F.2d at 246

(collecting cases)).

Moreover, we have held that "'[i]n the context of

conspiracy, severance will rarely, if ever, be required.'"

Brandon, 17 F.3d at 440 (quoting United States v. Searing, 984

F.2d 960, 965 (8th Cir. 1993)); see also O'Bryant, 998 F.2d at

24-26. To convict any of the defendants under a conspiracy

theory, the government had to show the existence of an illicit

scheme to import and distribute cocaine; and because Flores-

Rivera and his codefendants were charged as coconspirators,

virtually all the evidence relating to the other conspirators was

also directly relevant to, and, therefore, independently

admissible in, the prosecution's case against him. See O'Bryant,

998 F.2d at 26 (citing United States v. Riehl, 460 F.2d 454,

457-58 (3d Cir. 1972)). And as we have held, "[w]here evidence

featuring one defendant is independently admissible against a

codefendant, the latter cannot convincingly complain of an

improper spillover effect." Id. (collecting cases).2

2 We also note that the jury acquitted Flores-Rivera on Counts
3, 4, and 34, which charged importation of cocaine, possession of
cocaine with intent to distribute, and use of a communication

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Accordingly, we find that the district court did not abuse its

discretion in refusing to grant Flores-Rivera's motion for

severance.

C. Jury Selection
C. Jury Selection

Defendant asserts two claims regarding jury selection.

First, he contends that the "English only" requirement of the

jury selection system violates his Fifth and Sixth Amendment

rights because it effectively excludes two-thirds of the

population of Puerto Rico.3 This argument is foreclosed by our

decision in United States v. Aponte-Su rez, in which we held that

even if the English-only requirement "[results] in a smaller pool

of eligible jurors and a 'systematic exclusion' in the jury

selection process, the overwhelming national interest served by

the use of English in a United States court justifies conducting

proceedings in the District of Puerto Rico in English and

requiring jurors to be proficient in that language." 905 F.2d

483, 492 (1st Cir.)(citing United States v. Benmuhar, 658 F.2d

14, 19 (1st Cir. 1981), cert. denied, 457 U.S. 1117 (1982)),

facility to commit a drug crime. This suggests that the jury was
able to sift through the evidence in an analytical fashion and
that the alleged spillover effect did not cause the jury merely
to enter a lump conviction against Flores-Rivera. See Brandon,

17 F.3d at 440 (finding acquittals to be a relevant factor in
upholding a district court's denial of a severance)(collecting
cases).

3 Federal law requires that all grand and petit jurors have the
ability to speak English and read, write and understand English
with proficiency sufficient to fill out satisfactorily the juror
qualification form. 28 U.S.C. 1865(b)(2) & (3).

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cert. denied, 498 U.S. 990 (1990). Accordingly, we reject this

contention.

Second, Flores-Rivera maintains that the district court

did not adequately inquire whether the jurors could speak and

understand English as required by 28 U.S.C. 1865(b)(2) & (3),

and that "[p]resumably, there were many . . . jurors who actually

sat on this case who may not have comprehended English." We

disagree.

28 U.S.C. 1865(b) requires that jurors be dismissed

if they cannot demonstrate a minimum proficiency in English. 28

U.S.C. 1867 sets forth the proper procedure for challenging the

district court's compliance with selection procedures, and

requires that the defendant make an appropriate challenge within

seven days "after the defendant discovered or could have

discovered, by the exercise of diligence, . . . substantial

failure to comply with the provisions of this title in selecting

the grand or petit jury." Here, Flores-Rivera did not challenge

the English proficiency of the empaneled jurors within the

prescribed time frame. In similar cases, we have held that where

the defendant failed to raise a timely objection, "later doubts

as to a juror's linguistic competence will not constitute grounds

for relief without a showing of 'manifest' or 'clear' injustice."

United States v. Nickens, 955 F.2d 112, 117 (1st Cir.)(collecting

cases), cert. denied, 113 S. Ct. 108 (1992). Flores-Rivera has

shown no such injustice. In fact, his bald assertion that

"presumably, there were many . . . jurors who actually sat on

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this case who may not have comprehended English" is unaccompanied

by any support whatsoever. Accordingly, we reject his challenge

to the empaneled jury, not only because it was untimely, but also

because it is devoid of factual support.4

D. Double Jeopardy
D. Double Jeopardy

Flores-Rivera maintains that his conviction for

conspiracy to import cocaine and to possess cocaine with intent

to distribute cannot stand because it is inconsistent with his

acquittal on the substantive crimes charged in the indictment

(importation of cocaine, possession of cocaine with intent to

distribute, and use of a telephone to facilitate the importation

of cocaine).5 We have addressed similar claims before and found

4 Flores-Rivera further contends that it was improper for the
district court to conduct a portion of its voir dire in Spanish,
and that this constitutes reversible error. Flores-Rivera fails
to identify any statute or caselaw requiring that the district
courts conduct voir dire entirely in English. Moreover, he has
not explained how he was prejudiced by the bilingual voir dire,
especially in light of the fact that he requested that the

district court perform its voir dire in Spanish. Consequently,
we deem this argument waived. See United States v. Zannino, 895

F.2d 1, 17 (1st Cir.)(discussing "the settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived)(collecting
cases), cert. denied, 494 U.S. 1082 (1990).

5 Flores-Rivera also maintains that the indictment is
multiplicitous and violates the Double Jeopardy Clause of the
United States Constitution because the substantive crimes charged
in Counts 3, 4 and 34 are "in fact and in law" identical to the
overt acts alleged under the conspiracy Count. This argument
falls short for two reasons. First, the Double Jeopardy Clause
is not implicated here because Flores-Rivera was acquitted of the
substantive crimes charged in the indictment, and therefore the
sentencing court did not impose multiple punishments for the same
offense. See Jones v. Thomas, 491 U.S. 376, 381 (1989)(noting

that the Double Jeopardy Clause affords protection against
multiple punishments for the same offense imposed in a single
proceeding.); Missouri v. Hunter, 459 U.S. 359, 366 (1983)(noting

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them unavailing. See, e.g., United States v. Gonz les-Torres,

980 F.2d 788 (1st Cir. 1992); United States v. L pez, 944 F.2d

33, 41 (1st Cir. 1991). "It is well settled that inconsistency

in a criminal verdict does not require setting the verdict

aside."6 Gonz les-Torres, 980 F.2d at 791 (citing Dunn v. United

States, 284 U.S. 390, 393-94 (1932); United States v. Powell, 469

U.S. 57, 69 (1984); United States v. Bucuvalas, 909 F.2d 593 (1st

Cir.1990)). As we explained in L pez:

Although it may seem inconsistent in this
case to convict on the conspiracy charge,
and acquit the same defendant on the
substantive charge alleged to have been
the object of the conspiracy, the Supreme
Court has made it clear that verdict
inconsistency in itself is not a
sufficient basis for vacating a
conviction.

that "the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the
legislature intended").

Second, the fact that Flores-Rivera's indictment charges both
conspiracy and the substantive crimes involved in the conspiracy
fails to implicate the Double Jeopardy Clause because it has long
been the rule that "a substantive crime, and a conspiracy to
commit that crime, are not the 'same offense' for double jeopardy
purposes." United States v. F lix, 112 S. Ct. 1377, 1384

(1992)(citing United States v. Bayer, 331 U.S. 532, 542

(1947)(noting that "the same overt acts charged in a conspiracy
count may also be charged and proved as substantive offenses, for
the agreement to do the act is distinct from the act itself"));
see also Pinkerton, 328 U.S. at 643 ("[T]he commission of the

substantive offense and a conspiracy to commit it are separate
and distinct offenses . . . [a]nd the plea of double jeopardy is
no defense to a conviction for both offenses.").

6 Even so, the verdicts are not inconsistent. As explained
above, the substantive crime and the conspiracy to commit it are
separate offenses. Callanan v. United States, 364 U.S. 587, 593

(1961).

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Verdict inconsistency does not indicate
that the government necessarily failed to
prove an essential element of its case
beyond a reasonable doubt. We cannot
necessarily assume that the acquittal was
proper -- the one the jury "really
meant." It is equally possible that the
jury, convinced of guilt, properly
reached its conclusion on one offense,
and then through mistake, compromise, or
lenity, arrived at an inconsistent
conclusion on the other offense. As long
as the trial and appellate courts are
convinced on independent review that
there was sufficient evidence to sustain
a rational verdict of guilt beyond a
reasonable doubt, the defendant is
properly protected against any risk of
injustice resulting from "jury
irrationality."

L pez, 944 F.2d at 41 (discussing Powell, 469 U.S. 57)(internal

quotations omitted). Accordingly, because we found that Flores-

Rivera's conspiracy conviction is supported by sufficient

evidence, it must stand.

E. Prosecutorial Misconduct
E. Prosecutorial Misconduct

Flores-Rivera claims that Agent Tejada's grand jury

testimony was replete with perjury, that the government either

cooperated with Agent Tejada or was negligent in allowing him to

testify falsely, that this prosecutorial misconduct rose to the

level of a due process violation, and that, therefore, the

various indictments against him must be dismissed. Specifically,

Flores-Rivera claims that Agent Tejada misled the grand jury when

he testified (1) that the government's informant, William Cedr s,

was a businessman, (2) that Cedr s had been arrested only once,

and (3) that Cedr s had infiltrated the defendant's drug

organization rather than being recruited by authorities from

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within the organization and then "flipping" pursuant to a formal

cooperation agreement with the prosecution. The district court

addressed these issues before trial and found them meritless. In

particular, the district court found (1) that Cedr s was indeed a

businessman, (2) that at the time of Agent Tejada's testimony,

there was only one arrest listed in Cedr s' criminal history, and

(3) that no evidence substantiated the allegation that Cedr s had

"flipped" pursuant to a formal cooperation agreement.

In Bank of Nova Scotia v. United States, 487 U.S. 250

(1988), the Court provided the applicable standard for

determining when errors before the grand jury warrant dismissal

of an indictment: "[A]s a general matter, a district court may

not dismiss an indictment for errors in grand jury proceedings

unless such errors prejudiced the defendants." Id. at 254; see

also United States v. Latorre, 922 F.2d 1, 6-7 (1st Cir.), cert.

denied, 502 U.S. 876 (1991). As we explained in United States v.

Valencia-Lucena, 925 F.2d 506, 511 (1st Cir. 1991), errors before

the grand jury will often be deemed harmless if the defendants

were subsequently and properly convicted before an impartial

petit jury:

[T]he fact that the defendants were
convicted by a petit jury acts as a cure
for any error which may have resulted
during grand jury proceedings. An
indictment returned by a legally
constituted and unbiased grand jury, if
valid on its face, is enough to call for
trial of the charge on its merits. A
court should not inquire into the
sufficiency of the evidence before the
indicting grand jury, because the grand
jury proceeding is merely a preliminary

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phase and all constitutional protections
are afforded at trial. Once a defendant
has been convicted by a petit jury, the
petit jury's verdict of guilty beyond a
reasonable doubt demonstrates a fortiori
that there was probable cause to charge
the defendants with the offenses for
which they were convicted. At that
point, our review is limited to
determining if the district court abused
its discretion in failing to dismiss the
indictments.

Valencia-Lucena, 925 F.2d at 511 (internal quotations and

citations omitted); cf. United States v. Osorio, 929 F.2d 753,

763 (1st Cir. 1991). Here, Flores-Rivera was properly convicted

by a petit jury after he and his codefendants were afforded ample

opportunity to cross-examine Cedr s at trial. Moreover, Flores-

Rivera has not demonstrated that the alleged misconduct in fact

occurred, much less that it was prejudicial or outrageous.

Accordingly, we find that Flores-Rivera's proper conviction by a

petit jury cures any alleged error before the grand jury.7

7 Nevertheless, we repeat our prior admonishment against
government misconduct, this time in the context of prosecutorial
misconduct before the grand jury:

Before departing from these shores, we
pause to add a qualification: the use of
supervisory power to dismiss an
indictment, in the absence of injury to
the defendant, may not be entirely a dead
letter. The [Supreme] Court's reasoning
in [United States v. Hasting] may be

read to leave open the possibility that
the goal of deterring future misconduct
would justify using the supervisory power
to redress conduct not injuring
defendants if the conduct is plainly
improper, indisputably outrageous, and
not redressable through the utilization
of less drastic disciplinary tools.

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F. Evidentiary matters
F. Evidentiary matters

Flores-Rivera maintains that his trial was marred by

four evidentiary errors, and that each constitutes reversible

error. We address his contentions in turn.

United States v. Santana, 6 F.3d 1, 11 (1st Cir. 1993)(citing

Hasting, 461 U.S. 499, 506 (1983)).

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1. "Other crimes" evidence:
1. "Other crimes" evidence:

Flores-Rivera's first contends that the prosecutor

improperly elicited inadmissible evidence of "other crimes" from

informant Cedr s. Cedr s did allude to the fact that defendant

Escobar had spent time in prison. Counsel for Escobar

immediately objected and demanded a mistrial. Flores-Rivera

joined in this motion. The court denied the defendants' motions

for mistrial, issued curative instructions, and admonished the

government to keep its questions simple to avoid eliciting

further improper testimony. Flores-Rivera insists that the

curative instructions were insufficient and that the court erred

in not granting a mistrial. We disagree.

Generally, "we will presume that juries can and will

follow instructions to disregard inadmissible evidence

inadvertently presented." United States v. Mart nez, 922 F.2d

914 (1st Cir. 1991) (citing United States v. Paiva, 892 F.2d 148,

160 (1st Cir. 1989)). Here, the risk of prejudice to Flores-

Rivera was slim because Cedr s alluded only to codefendant

Escobar's prison time; Cedr s did not indicate that Flores-Rivera

had also served prison time. Moreover, the district court issued

a timely and forceful curative instruction, to which neither

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Flores-Rivera nor Escobar objected.8 Accordingly, we affirm the

district court's refusal to grant a mistrial.

2. Pre-conspiracy evidence:
2. Pre-conspiracy evidence:

Flores-Rivera also contends that the district court

erred in admitting evidence that drugs were imported by

codefendants Escobar and Santos-Caraballo in March of 1986, one

month before the start of the conspiracy alleged in Count 2.

Flores-Rivera notes correctly that the evidence was admissible

against his codefendants, but not against him. He argues that

the court's instruction to this effect was insufficient and

confusing. This contention has little merit and can be disposed

of quickly.

To prevent prejudice to the other defendants, the

district court issued an extensive limiting instruction to the

jury, which included the admonishment:

8 The curative instruction states, in pertinent part:

. . . I have stricken the last statement
made by Mr. Cedres. . . . You are not to
consider it at all during your
deliberation.

[T]he defendants are not on trial today
except for whatever is charged in the
indictment. And you're not to consider,
when deciding the issues of this case,
matters that are outside what is charged
in the indictment.

And I'm admonishing the government to
keep its questions simple . . . so the
witness maintains his answer and
testimony within the confines of the
questions . . . so as not to bring in
facts which are not alleged in the
indictment.

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[T]his evidence will only be considered
by you in reference to defendants
[Escobar] and [Santos-Caraballo]. This
evidence only relates to them. It
doesn't relate at all whatsoever to
Michael Cruz- Gonz lez, to Eric Flores-
Rivera or to Andr s Morales-Cruz. They
are not involved in that. So if you
consider this evidence, it pertains only
to those two defendants.

This instruction clearly instructed the jury that it was not to

consider the pre-conspiracy evidence against Flores-Rivera.

Accordingly, we reject Flores-Rivera's contention that the

admission of this evidence constituted reversible error.

3. Statements of co-conspirators:
3. Statements of co-conspirators:

Flores-Rivera also contends that the district court

misapplied the co-conspirator exclusion to the hearsay rule and

thus clearly erred when it admitted the out-of-court statements

of codefendant Escobar. Federal Rule of Evidence 801(d)(2)(E)

excludes from the operation of the hearsay rule "a statement by a

coconspirator of a party during the course and in furtherance of

the conspiracy." Fed. R. Evid. 801(d)(2)(E). "To invoke the

exception, a party who wants to introduce a particular statement

must show by a preponderance of the evidence that a conspiracy

embracing both the declarant and the defendant existed, and that

the declarant uttered the statement during and in furtherance of

the conspiracy." United States v. Sep lveda, 15 F.3d 1161, 1180

(1st Cir.)(citing Bourjaily v. United States, 483 U.S. 171,

175-76 (1987); Ortiz, 966 F.2d at 714-15), cert. denied, 114 S.

Ct. 2714 (1994).

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Here, the informant, Cedr s, testified that Escobar had

told him that Flores-Rivera was a member of the narcotics

conspiracy. Flores-Rivera contends that this statement was

improperly admitted under the co-conspirator exclusion because it

was not made in furtherance of the conspiracy. We disagree. As

we have often explained, a damaging statement is admissible under

801(d)(2)(E) if it "tends to advance the objects of the

conspiracy as opposed to thwarting its purpose." United States

v. Fahey, 769 F.2d 829, 839 (1st Cir. 1985); see also United

States v. Masse, 816 F.2d 805, 811 (1st Cir 1987). The evidence

shows that Escobar intended to make Cedr s "the number two man in

his organization." Clearly, such a person would need to know the

identities of the players in the organization, and statements to

this end are certainly in furtherance of the conspiracy. Cf.

Sep lveda, 15 F.3d at 1180 (explaining that "it is common

ground--and common sense--that the reporting of significant

events by one coconspirator to another advances the

conspiracy")(citing United States v. Smith, 833 F.2d 213, 219

(10th Cir. 1987)). Accordingly, we find that the district court

did not clearly err in admitting the statement under the co-

conspirator exclusion to the hearsay rule.

4. Identification testimony:
4. Identification testimony:

Lastly, Flores-Rivera contends that he was prejudiced

by the government's use of photo spreads that were allegedly

impermissibly suggestive. Although his brief is unclear, he

appears to argue that the photo spreads shown to two witnesses

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were so impermissibly suggestive as to render their subsequent

in-court identifications unreliable and inadmissible.

The framework for our appellate review is well settled.

The Supreme Court, in Manson v.

Brathwaite, concluded that reliability is

the "linchpin" in deciding the
admissibility of identification
testimony. The Court directed attention
to the factors indicating reliability
previously set out in Neil v. Biggers,

[including] the opportunity for the
witness to view the defendant at the time
of the crime, the witness's degree of
attention, the accuracy of his prior
description, the level of certainty
demonstrated at the confrontation, and
the time between the crime and the
confrontation.

United States v. Fields, 871 F.2d 188, 195 (1st Cir.)(citing

Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers,

409 U.S. 188, 199-200 (1972)), cert. denied, 493 U.S. 955 (1989);

see also United States v. Guzm n-Rivera, 990 F.2d 681, 683 (1st

Cir. (1993).

Here, Flores-Rivera has not demonstrated how the photo

spreads were impermissably suggestive, except to aver generally

that Flores-Rivera has different facial characteristics than the

other persons featured in the display. The district court judge

rejected this same averment at trial, stating that the photo

spreads were among the fairest he had seen. Moreover, even if

the photo spreads had been impermissibly suggestive, the

circumstances indicate that the subsequent in-court

identifications were reliable.

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Two witnesses testified that they had seen Flores-

Rivera purchase aviation fuel at the Isla Grande Flying School on

April 14, 1986, the day that the Customs agents were shot.

Awilda Torres de Reyes, the owner of the flying school, testified

that Flores-Rivera had arrived in a flatbed tanker-truck and

purchased over 100 gallons of aviation fuel, an unusually large

amount. She stated that it required between one and two hours to

complete the transaction, thus giving her ample time to view the

defendant. She testified further that the transaction stuck in

her mind because the defendant had purchased an unusually large

amount of fuel, and that she suspected that the purchase was

connected to a drug trafficking scheme because she knew that drug

traffickers often required large quantities of aviation fuel.

She indicated that the transaction became especially memorable

the following day when she read that two U.S. Customs agents had

been shot while investigating a narcotics operation. She called

the Customs office and informed them that she had sold a

suspiciously large quantity of aviation fuel on the same day as

the shooting, and that she thought that the two incidents might

be connected. The second witness who identified Flores-Rivera as

the April 14 fuel-purchaser was Ra l Jim nez, who was then

working as a pilot for the Puerto Rico Department of Justice. He

testified that the incident was memorable to him because he was

forced to wait for over an hour while Flores-Rivera was filling

the tanks on the flatbed truck. Mr. Jim nez also indicated that

he contacted Customs agents after he heard rumors that a flatbed

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tanker truck had been involved in the shooting of two Customs

agents on the night of the fuel purchase. Accordingly, the

circumstances indicate that the attention of both witnesses was

sufficiently focused on Flores-Rivera, both at the time of the

viewing and shortly thereafter.

At trial, both witnesses evinced certainty that Flores-

Rivera was in fact the April 14 fuel-purchaser. The only

troubling factor is that their in-court identifications did not

occur until February 23, 1993, nearly seven years after their

initial viewing at the flying school. Nevertheless, we find that

the other reliability criteria were sufficiently persuasive to

overcome any unreliability engendered by the delay. Accordingly,

the district court did not err in admitting the identification

evidence.

G. Sentencing challenge
G. Sentencing challenge

Flores-Rivera contends that the district court

improperly determined his appropriate base offense level ("BOL").

The district court determined Flores-Rivera's BOL to be 40 after

it concluded that between 500 and 1500 kilograms of cocaine were

attributable to Flores-Rivera for sentencing purposes. See

U.S.S.G. 2D1.1(c)(2). Flores-Rivera contends that the evidence

does not support this conclusion.

The determinative factor for sentencing under the

guidelines is the quantity of drugs. United States v. Reyes, 3

F.3d 29, 31 (1st Cir. 1993). That quantity is the sum of the

charged conduct for which defendant is convicted plus his

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"relevant" uncharged conduct. United States v. Bradley, 917 F.2d

601, 604 (1st Cir. 1990). "The drug quantity is to be derived

from all acts 'that were part of the same course of conduct or

common scheme or plan as the offense of conviction.'" United

States v. Garc a, 954 F.2d 12, 15 (1st Cir. 1992)(quoting

U.S.S.G. 1B1.3 (a)(2)). In the case of jointly undertaken

criminal activity -- whether or not charged as a conspiracy --

relevant conduct includes all acts reasonably foreseeable by the

defendant and committed in furtherance of the jointly undertaken

activity. U.S.S.G. 1B1.3, comment. (n.1); United States v.

Castellone, 985 F.2d 21, 24 (1st Cir. 1993); Garc a, 954 F.2d at

15. To include disputed transactions as relevant conduct, the

government must prove by a preponderance of the evidence a

sufficient nexus between the conduct underlying the disputed

transaction and the offense of conviction. See Castellone, 985

F.2d at 24; United States v. Sklar, 920 F.2d 107, 110 (1st Cir.

1990). We accord considerable deference to the district court's

determination of whether a given drug transaction forms part of

the same course of conduct as counts of conviction and, absent

mistake of law, will set aside its finding only if clearly

erroneous. Castellone, 985 F.2d at 24; Garc a, 954 F.2d at 15.

Here, the evidence clearly supports the district

court's conclusion that between 500 and 1,500 kilograms of

cocaine were attributable to Flores-Rivera for sentencing

purposes. Cedr s testified that Escobar ordered Flores-Rivera to

supervise the importation of between 300 and 500 kilograms of

-27-

cocaine from Colombia. The district court could reasonably have

attributed this quantity to Flores-Rivera for sentencing

purposes, and Flores-Rivera concedes as much. Cedr s also

testified that the Escobar Organization was conspiring to import

approximately 1,500 kilograms of cocaine from Colombia for

distribution in New York, and that Flores-Rivera had accompanied

Cedr s to look for appropriate "drop zones" on the island of

Vieques. From this evidence, the district court could have

reasonably concluded that there was a sufficient nexus between

Flores-Rivera's conspiracy conviction and the importation efforts

of the other members of the conspiracy to attribute to him

between 500 and 1500 kilograms of cocaine for sentencing

purposes. Accordingly, we find no error in the district court's

determination of Flores-Rivera's BOL.

We have considered the other issues raised by Flores-

Rivera and find them to be similarly meritless.

Affirmed.

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