United States v. Luciano Mosquera

October 3, 1995 United States Court of Appeals
For the First Circuit

No. 92-1923

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO LUCIANO-MOSQUERA,

Defendant, Appellant.

No. 92-1924

UNITED STATES OF AMERICA,

Appellee,

v.

RAUL LUGO-MAYA,

Defendant, Appellant.

No. 92-1925

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL PAVA-BUELBA,

Defendant, Appellant.

No. 92-1973

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS PAGAN-SAN-MIGUEL,

Defendant, Appellant.

No. 92-1974

UNITED STATES OF AMERICA,

Appellee,

v.

EDGAR GONZALEZ-VALENTIN,

Defendant, Appellant.

No. 94-1657

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS PAGAN-SAN-MIGUEL,

Defendant, Appellant.

ERRATA SHEET

The opinion of this court issued on August 28, 1995 is amended as
follows:

On page 35, lines 8-9, substitute "This argument is meritless."
for "This argument was not raised below, is reviewed for plain error,
and is meritless."

United States Court of Appeals
For the First Circuit

No. 92-1923

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO LUCIANO-MOSQUERA,

Defendant, Appellant.

No. 92-1924

UNITED STATES OF AMERICA,

Appellee,

v.

RAUL LUGO-MAYA,

Defendant, Appellant.

No. 92-1925

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL PAVA-BUELBA,

Defendant, Appellant.

No. 92-1973

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS PAGAN-SAN-MIGUEL,

Defendant, Appellant.

No. 92-1974

UNITED STATES OF AMERICA,

Appellee,

v.

EDGAR GONZALEZ-VALENTIN,

Defendant, Appellant.

No. 94-1657

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS PAGAN-SAN-MIGUEL,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Selya, Boudin and Lynch,

Circuit Judges.

Lydia Lizarribar-Masini for appellant Luciano-Mosquera.

Ramon Garcia for appellant Lugo-Maya.

Rafael Gonzalez Velez for appellant Pava-Buelba.

Frank A. Ortiz for appellant Pagan-San-Miguel.

Wilfredo Rios Mendez for appellant Gonzalez-Valentin.

Epifanio Morales Cruz, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa,

Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant United

States Attorney, were on brief, for United States.

August 28, 1995

LYNCH, Circuit Judge. At 2:45 a.m. on March 27,
LYNCH, Circuit Judge.

1991, in the darkness of the night over a Puerto Rico beach,

government flares brightened the sky as waiting police and

customs officers surprised and arrested six men offloading

eight bales of cocaine from two yawls. The men had brought

232.8 kilograms of cocaine to this country from Colombia.

Others involved were arrested on land and on sea. Those

arrests led ultimately to these appeals by five of the men,

Carlos Pagan-San-Miguel, Edgar Gonzalez-Valentin, Raul Lugo-

Maya, Rafael Pava-Buelba and Julio Luciano-Mosquera.

The appeals variously raise challenges to the

sufficiency of the evidence, to limitation of cross-

examination, to the admissibility of one defendant's

statement, to remarks made during summation, to the reading

of the transcript of trial testimony to the jury, to jury

instructions, to the delay in transcribing the trial

transcript, and to their sentences. Of these, only one

raises serious issues -- the question of the sufficiency of

the evidence to support the convictions for carrying or

aiding and abetting the carrying of a firearm during and in

relation to the drug offense as to certain defendants.

The convictions of defendants Pava-Buelba and Lugo-

Maya are reversed on the firearms count (Count 4) and their

sentences on that count are vacated. We affirm their

convictions and sentences on the drug counts (Counts 1-3).

-4-
4

The convictions and sentences of defendants Pagan-San-Miguel,

Gonzalez-Valentin, and Luciano-Mosquera are affirmed on all

counts.

I. FACTS

The jury heard or could properly infer the

following facts. Oscar Fontalvo arrived in Puerto Rico in

January 1991 to organize a scheme to smuggle cocaine into

Puerto Rico. The scheme involved the drugs being flown from

Colombia, airdropped into the sea at a prearranged location,

picked up by a waiting boat and then sailed ashore. In drug

parlance, this operation is called a "bombardeo." The

waiting boat is called the "mothership." Fontalvo enlisted

Pagan-San-Miguel and Jose Perez-Perez, who were to be paid in

kind with 50 kilograms of cocaine. Pagan-San-Miguel

introduced Fontalvo to Luis Soltero-Lopez, who agreed that

his boat, the F/V Marlyn, would be used as the mothership.

Soltero-Lopez recruited Jonas Castillo-Ramos to be captain,

and Castillo-Ramos recruited two crew members for the drug

run.

The operation was planned at a number of meetings

in Puerto Rico in March 1991. Fontalvo, Pagan-San-Miguel,

Perez-Perez and Soltero-Lopez attended the meetings. At

least two of these meetings were at the home of Gonzalez-

Valentin and, the jury could have inferred, Gonzalez-Valentin

was there for at least one.

-5-
5

Perez-Perez brought a bag to one of the meetings at

Gonzalez-Valentin's house. Pagan-San-Miguel and Perez-Perez

opened the bag and showed Fontalvo and the others there

(including Gonzalez-Valentin) a Colt M-16, Model A-1, 5.56

caliber fully automatic sub-machine gun with an obliterated

serial number (the "M-16"). Later during the meeting, Perez-

Perez brought Fontalvo over to his pick-up truck and pulled

out from under the front seat an Intratec, Model TEC-9, semi-

automatic .9mm pistol (the "Intratec pistol"). Referring to

the weapons, Pagan-San-Miguel said they had brought them.

Communication amongst the Colombian and Puerto

Rican participants, the plane, and the F/V Marlyn was

essential. Pagan-San-Miguel and Fontalvo went to Miami and

purchased a radio and antenna. Pagan-San-Miguel and Perez-

Perez installed them on the F/V Marlyn in Puerto Rico. Code

names were used for radio transmissions. The Colombian

dispatcher was "Khadafi"; Pagan-San-Miguel was "Gigante" or

"Padrino" or "Godfather." Fontalvo and Pagan-San-Miguel

handled radio communications and set up a radio in the

backyard of Gonzalez-Valentin's house, hiding it in a child's

playhouse.

Soltero-Lopez, the F/V Marlyn's owner, flew to

Colombia to board the plane so that during the bombardeo he

could identify his boat and insure the drop was not made to

the wrong boat (a not uncommon event). The F/V Marlyn went

-6-
6

to the Dominican Republic to prepare for the airdrop. The

Colombian drug owners, assigned a Colombian, Pava-Buelba, as

a "load watcher" to observe the operation and report to the

Colombian suppliers about the fate of the delivery. Pava-

Buelba went to the Dominican Republic to meet Castillo-Ramos

and the mothership.

On March 25, 1991, the F/V Marlyn and its crew left

the Dominican Republic for its drug rendezvous. The

Colombian load watcher, Pava-Buelba, joined the F/V Marlyn at

sea after it had cleared Dominican Republic customs. The

next morning, March 26, 1991, the boat and the plane made

radio contact. The plane dropped eight bales of cocaine,

which were taken aboard the F/V Marlyn.

Waiting in Puerto Rico, Fontalvo, Pagan-San-Miguel,

Luciano-Mosquera and Gonzalez-Valentin received word that the

airdrop had been successful. A call came in to Pagan-San-

Miguel on a cellular phone in Luciano-Mosquera's car, warning

that the operation had been discovered and that the police

were watching. Pagan-San-Miguel reassured everyone, claiming

he had "informants in the authorities" who would give him

information and that he had a police scanner. Fontalvo went

back to his cabin, leaving the others to proceed.

The F/V Marlyn anchored in Dominican Republic

waters until approximately 5:30 p.m. and then began the trip

to Buoy #8, the designated meeting place for the F/V Marlyn

-7-
7

and the two smaller boats ("yawls"). Around 12:30 a.m. or

1:30 a.m. on March 27, the F/V Marlyn and the yawls, all

operating without running lights in the darkness, met several

miles off the western coast of Puerto Rico at Buoy #8. The

cocaine was roped down into the yawls. Pava-Buelba, Lugo-

Maya, Perez-Perez and Gonzalez-Valentin sailed the yawls to

Guanajibo Beach, near Mayaguez, Puerto Rico.

The landing site on Guanajibo Beach that night was

immediately behind the home of Pagan-San-Miguel's father.

Two men, one fitting the description of Pagan-San-Miguel, the

other of Luciano-Mosquera, approached the landing yawls from

the beach and helped to offload the bales of cocaine.

Law enforcement officials had indeed been silently

monitoring the operation. The airdrop had been observed by

U.S. Customs Service airplanes, which videotaped the

mothership. Coast Guard vessels had tracked the F/V Marlyn

and the yawls. Camouflaged agents, hidden on the beach, had

watched the offloading. Flares went up; arrest signals were

given. The conspirators scattered, leaving bales in a line

from the yawls to the home of Pagan-San-Miguel's father,

along the roughly five-meter wide beach.

Pagan-San-Miguel sprinted and sought refuge under

an abandoned Volkswagen at a house next to the beach. When

found, he was wet and had his jeans rolled up to his knees.

Gonzalez-Valentin, dressed in camouflage pants and black T-

-8-
8

shirt, completely wet and covered with sand, ran to the gate

of Pagan-San-Miguel's father's house. He called out to

Pagan-San-Miguel's father to open up, as the police were

there. He was arrested at the gate.

Luciano-Mosquera and Pava-Buelba were found, about

forty minutes after the flares went up, under a jeep parked

in a carport by the building where bales of cocaine were

left. Pava-Buelba was under the driver's side, Luciano-

Mosquera under the passenger's. Pava-Buelba was wet,

Luciano-Mosquera was dry.

Lugo-Maya headed to sea in one of the yawls and was

intercepted by Coast Guard vessels.1 Perez-Perez was

arrested near the beach. A later search of Lugo-Maya's

escape yawl found a well-hidden box of 50 rounds of

ammunition. That ammunition fit the Intratec pistol, which

was found in the beached other yawl.

The M-16 was later found hidden in the

undercarriage of the jeep where Luciano-Mosquera and Pava-

Buelba had hidden in vain. The M-16 was on Luciano-

Mosquera's side "at the place where the chass[is] and the [ ]

springs of the front of the jeep are located." Two small

beepers were found above the chassis on the same side where

1. The F/V Marlyn was not forgotten. The U.S.S. Shark, a
Coast Guard vessel, intercepted it, and a boarding party led
by Lt. Wendy Abrisz arrested Castillo-Ramos and the two crew
members. Fontalvo was later arrested in Miami.

-9-
9

the M-16 was found. Two M-16 magazines with twenty bullets

in each of them were found on the side of the Pagan-San-

Miguel house. The machine gun and the pistol were the same

ones Pagan-San-Miguel and Perez-Perez had shown to Fontalvo

earlier.

No weapons were seen during the observation of the

offloading operation and no weapons were found on any of the

defendants. There had been no weapons on the F/V Marlyn.

Neither Luciano-Mosquera nor Pava-Buelba had arrived at the

beach by the jeep. There was no evidence as to who owned the

jeep or how the jeep got there.

After being given his Miranda warnings, Pagan-San-

Miguel later bemoaned his arrest to a police officer, saying

he would have been given $300,000 for his role in the deal.

Instead, he was given a sentence of 60 years in prison by the

court. Fontalvo and Castillo-Ramos were key government

witnesses at trial.

The five appellants, Luciano-Mosquera, Lugo-Maya,

Pava-Buelba, Pagan-San-Miguel and Gonzalez-Valentin, were

found guilty of conspiracy to import cocaine, in violation of

21 U.S.C. 960 and 963 (Count 1); importing 232.8 kilograms

of cocaine, in violation of 21 U.S.C. 952 and 18 U.S.C. 2

(aiding and abetting) (Count 2); possessing the cocaine with

intent to distribute, in violation of 21 U.S.C. 841(a)(1)

and 18 U.S.C. 2 (Count 3); and of knowingly carrying or

-10-
10

aiding and abetting the carrying of firearms in relation to

the drug trafficking crime of importing the cocaine, in

violation of 18 U.S.C. 924(c)(1) and 18 U.S.C. 2 (Counts

4 and 5).

The district court sentenced the appellants on

Counts 1, 2, and 3 to terms of imprisonment ranging from 188

to 360 months and to terms of supervised release of five

years. It also sentenced the appellants on Count 4, the

firearms count as to the M-16, to the mandatory minimum of

360 months imprisonment, to be served consecutively to the

terms of imprisonment imposed on Counts 1, 2 and 3. The

court dismissed Count 5, the Intratec pistol count, out of

-11-
11

double jeopardy concerns.2 It also ordered a special

2. At oral argument a question arose as to whether the
district court had in fact dismissed Count 5 or had simply
not sentenced on that count. We asked the government to
inform us as to the disposition of the convictions for Count
5. In its response, the government represented that Count 5
had not been dismissed and that the district court had simply
not sentenced on that count. Our own review of the docket
sheet, however, reveals plainly an order dismissing Count 5,
which the government acknowledged when the court called the
order to counsels' attention. We take a dim view of the
government's conduct in this matter, even if it is viewed as
nothing more than negligence.
The government now claims that, in any event, the
order dismissing Count 5 is a nullity because the order was
entered on the docket a few days after each appellant had
filed his notice of appeal. Pointing out that as a general
rule the entry of a notice of appeal divests the district
court of jurisdiction to adjudicate any matters related to
the appeal, see United States v. Distasio, 820 F.2d 20, 23

(1st Cir. 1987), the government argues that the entry of the
notices of appeal divested the district court of jurisdiction
over the case and that, absent jurisdiction, the order on
Count 5 can have no effect.
But the government forgets that a criminal judgment
involving multiple counts is not final and appealable unless
the record discloses the precise disposition (e.g., the
sentence) for each count. See United States v. Wilson, 440

F.2d 1103 (5th Cir.) (no final judgment where the court
imposed sentence on three counts of a six count indictment
and withheld sentence on three counts)(cited with approval in
15B Charles A. Wright, et al., Federal Practice and

Procedure, 3918.7 & n.10 (2d ed. 1992)), cert. denied, 404

U.S. 882 (1971). The district court here had not specified
the disposition of Count 5 by the time the notices of appeal
were docketed. Absent a disposition on Count 5, there was no
final judgment from which the defendants could appeal.
Because there was no appealable order at the time the notices
were filed, the notices of appeal could not have divested the
district court of its jurisdiction over the case.
Accordingly, the district court had jurisdiction and its
order dismissing Count 5 was not a nullity.
That the notices were premature does not affect
this court's jurisdiction of these appeals. The notices
simply relate forward to the entry of judgment. See Fed. R.

App. P. 4(b); cf. Yockey v. Horn, 880 F.2d 945, 948 n.4 (7th

Cir. 1989) (where district court inadvertently failed to
dismiss one count of a multi-count complaint, notice of

-12-
12

assessment of $50 for each of Counts 1-4.

II. CONVICTION ISSUES

A. Sufficiency of the Evidence

1. Count 4, the M-16 Firearm Count.

Appellants' principal focus is on the denial of

their Rule 29 motions at trial for acquittal on Count 4, the

M-16 firearm count. Each appellant claims that there was

insufficient evidence to support his conviction under Count 4

for carrying, or aiding and abetting the carrying of, the M-

16 during and in relation to the drug trafficking offense, in

violation of 18 U.S.C. 924(c)(1) and 18 U.S.C. 2(a).

Section 924(c)(1) provides, in pertinent part:

Whoever, during and in relation to any . . . drug
trafficking crime . . . uses or carries a firearm,
shall, in addition to the punishment provided for
such . . . drug trafficking crime, be sentenced to
imprisonment for five years, . . . and if the
firearm is a machine gun . . . to imprisonment for
thirty years. . . . .

18 U.S.C. 924(c)(1). Section 2(a) provides: "Whoever

commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is

punishable as a principal." 18 U.S.C. 2(a).

appeal that was technically premature related forward after
district court entered an order officially dismissing the
remaining count). The notices of appeal are treated as if
they were filed on the date the order dismissing Count 5 was
entered on the docket.
Count 5 is no longer at issue in this case. The
government did not cross-appeal from the dismissal, nor has
it requested reversal of the dismissal of Count 5.

-13-
13

The standard of review for sufficiency of the

evidence is familiar. "Our task is to review the record to

determine whether the evidence and reasonable inferences

therefrom, taken as a whole and in the light most favorable

to the prosecution, would allow a rational jury to determine

beyond a reasonable doubt that the defendants were guilty as

charged." United States v. Mena-Robles, 4 F.3d 1026, 1031

(1st Cir. 1993), cert. denied sub nom. Rivera v. United

States, 114 S. Ct. 1550 (1994).

The facts of this case do not require us to define

the precise contours of the meaning Congress intended the

phrase "carries" to have, and we note the variety of views on

both that issue and the meaning of its companion term "use"

in 18 U.S.C. 924(c)(1). See generally United States v.

Joseph, 892 F.2d 118, 126 (D.C. Cir. 1989) (to prove

carrying, the government must show that the defendant had the

ability to exercise dominion and control over the firearm and

that the firearm was within easy reach to protect the

defendant during the drug trafficking offense); United States

v. Evans, 888 F.2d 891, 895 (D.C. Cir. 1989) (carrying

comprehends more than actually physically wearing or bearing

a gun on one's person), cert. denied sub nom. Curren v.

United States, 494 U.S. 1019 (1990); see also United States

v. Bailey, 36 F.3d 106, 125 (D.C. Cir. 1994) (Williams, J.,

dissenting) (stating that carrying included situations (1)

-14-
14

where a weapon was within easy reach of the defendant, (2)

where a defendant had sufficient control over confederates

carrying weapons to establish constructive possession, or (3)

where a defendant had transported a weapon by motor vehicle

and had ready access to the weapon as if it were in his

pocket), cert. granted, 115 S. Ct. 1689 (1995); Bailey, 36

F.3d 106 at 114-15 & n.1 (stating that what constitutes "use"

depends upon the nature of the underlying substantive

offense); United States v. Paulino, 13 F.3d 20, 26 (1st Cir.

1994) (focussing on whether the firearm was available for use

in connection with the narcotics trade). Suffice it to say

that actual physical carrying of the gun comes within the

scope of the statute. See Joseph, 892 F.2d at 126.

The conclusion is reasonable that at least one

Puerto Rico based participant in the drug conspiracy

physically carried the M-16 to the beach. The M-16 had been

at Gonzalez-Valentin's house a few days before the beach

landing. It was then found in the undercarriage of the jeep

in a carport near the beach, next to a building entryway

where bales of cocaine had been brought. Someone brought it

from Gonzalez-Valentin's house to the jeep. The fact that

the jeep was not otherwise connected to the defendants

suggests that sometime before the arrest, the gun was

somewhere on the beach and was then brought from the beach

and placed under the jeep to avoid detection. That the

-15-
15

bullets for the machine gun were found behind Pagan-San-

Miguel's house near the bales of cocaine further supports the

inference that the gun was either carried onto the beach

during the offloading or was nearby as part of the operation.

Still, the gun was not found in the hands of anyone at the

beach and there is no direct evidence as to who carried the

gun. None of the agents watching the offloading saw anyone

with a weapon of any kind.

Our initial focus then is on the sufficiency of the

evidence on the aiding and abetting charge. Aiding and

abetting requires that "the defendant [have] associated

himself with the venture, participated in it as in something

he wished to bring about, and sought by his actions to make

it succeed." United States v. Alvarez, 987 F.2d 77, 83 (1st

Cir.), cert. denied, 114 S. Ct. 147 (1993). Mere association

with the principal, or mere presence at the scene of a crime,

even when combined with knowledge that a crime will be

committed, is not sufficient to establish aiding and abetting

liability. Id.; see also United States v. De la Cruz-

Paulino, No. 94-1985 (1st Cir. Aug. 3, 1995). The defendant

must have taken some affirmative action that facilitated

violation of 924(c)(1).3 Of course, knowledge that a gun

3. A Pinkerton instruction was never given to the jury, nor

did the government argue at trial or on appeal that Pinkerton

liability should apply. See Pinkerton v. United States, 328

U.S. 640, 646-47 (1946). We therefore could not support the
convictions on a Pinkerton theory. See United States v.

-16-
16

would be carried is also required. See United States v.

Torres-Maldonado, 14 F.3d 95, 103 (1st Cir.), cert. denied,

115 S. Ct. 193 (1994); see also United States v. DeMasi, 40

F.3d 1306, 1316 (1st Cir. 1994) (knowledge that co-

conspirators would be using a gun may be inferred from

defendant's activity in planning and attempting to rob a

Brink's armored truck guarded by two armed guards), cert.

denied sub nom. Bonasia v. United States, 115 S. Ct. 947

(1995).

The question here, then, is whether the evidence

was sufficient to show that each appellant knew that a

firearm would be involved in the drug trafficking offense and

took some action in relation to the M-16 that was intended to

cause the firearm to be carried during and in relation to the

drug trafficking offense. We believe that the evidence was

sufficient to convict Pagan-San-Miguel, Luciano-Mosquera and

Gonzalez-Valentin under this standard, but was not sufficient

to convict Pava-Buelba and Lugo-Maya as to the M-16.

As to Pagan-San-Miguel, there was sufficient

evidence that he knowingly assisted the carrying of the

weapon. He was the ringleader of the importation operation

in Puerto Rico. He was a key participant in the meeting at

Torres-Maldonado, 14 F.3d 95, 101 (1st Cir.) ("On appeal, we

will not infer either that the jury found guilt based on a
theory upon which it was not instructed, or that the jury
would have found guilt had it been given a Pinkerton

instruction."), cert. denied, 115 S. Ct. 193 (1994).

-17-
17

Gonzalez-Valentin's house during which he and Perez-Perez

showed Fontalvo the M-16. He showed Fontalvo the weapon at

the meeting and said they had brought it. The jury could

certainly infer that he, or Perez-Perez at his direction or

with his assistance, procured the M-16 for purposes of using

it to protect the operation.

The evidence is also sufficient to show that

Gonzalez-Valentin knowingly assisted the carrying of the

weapon. Gonzalez-Valentin is chargeable with knowledge of

the M-16, since the M-16 was displayed in his presence during

one of the meetings at his house and the jury could infer

that he was present. Moreover, by providing his house for

the meeting at which the guns were displayed and discussed,

Gonzalez-Valentin assisted the substantive 924(c)(1)

offense.

As for Luciano-Mosquera, when viewed in the light

most favorable to the government, the evidence was sufficient

for the jury to infer that he either carried or aided in

carrying the weapon to or from the beach and hid the M-16

under the jeep at the time he hid or had placed it there

sometime before the arrests. The weapon was directly above

him in the undercarriage, no more than an arm's span away.

It was also placed up in the undercarriage between the

chassis and the springs, so clearly someone took some effort

to place the weapon there. He was at the beach with Pagan-

-18-
18

San-Miguel to meet the yawls; he arrived at the beach with

Pagan-San-Miguel, who supplied the weapon; magazines from the

M-16 were nearby; beepers were found near the gun (suggesting

a connection between the gun and the drug offense); and the

call tipping the conspirators off that the police were

watching came into a car phone in his car. This evidence

supports the reasonable inference that his proximity to the

weapon was more than a mere fortuity. A jury could conclude

from these circumstances that Luciano-Mosquera either placed

the weapon in the jeep before the arrest signals were given

or that he carried the weapon from the beach and hid it

underneath the jeep as he was hiding from the police. From

these circumstances, a jury could reasonably conclude that

Luciano-Mosquera had carried the weapon sometime during and

in relation to the offense or at least that he aided in the

carrying of the weapon during and in relation to the drug

offense. See United States v. Olbres, No. 94-2123, slip op.

at 17 (1st Cir. July 26, 1995) (evidence must be taken as a

whole, in cumulation).

All of the appellants have argued that, regardless

of whether the evidence was sufficient to show aiding and

abetting "carrying," it was insufficient to show that any

carrying was done "during and in relation to" the drug

importation offense. They argue that, because their

importation efforts ended the moment the flares went up, the

-19-
19

subsequently found M-16 machine gun could not have "related

to" the drug trafficking. That argument is inventive, but

wrong. The jury could easily infer from the discovery of the

weapon in close proximity to the offloading operation after

the arrest signals were given that it had been carried at a

time when the offense was in progress, particularly in light

of the evidence that it was brought by the conspirators to a

planning meeting and shown off, ammunition for it was found

nearby, and it was found close to the bales of cocaine.

Further, the legislative history of the 1984 amendment to

924(c) is explicit that where the defendant had a gun during

the underlying offense (even if the gun had not been

displayed), the section is violated "if from the

circumstances or otherwise it could be found that the

defendant intended to use the gun if a contingency arose or

to make his escape." S. Rep. No. 225, 98th Cong., 2d Sess.

1, 314 n.10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492

n.10; see also United States v. Feliz-Cordero, 859 F.2d 250,

254 (2d Cir. 1988).

In sum, the evidence was sufficient to convict

Pagan-San-Miguel, Gonzalez-Valentin and Luciano-Mosquera of

carrying the M-16 on an aiding and abetting theory. Their

convictions on Count 4 are, therefore, affirmed.

The evidence as to Lugo-Maya and Pava-Buelba,

however, was insufficient to sustain a conviction on Count 4.

-20-
20

The only evidence the government presented linking Lugo-Maya

to the M-16 was the evidence that 50 rounds of .9mm

ammunition for the Intratec pistol were found in the yawls.

Evidence of his involvement with the Intratec pistol might

have been enough to show knowledge of the M-16 on the

inference that the two firearms were together when the Puerto

Rico-based participants met to launch the yawls to the F/V

Marlyn, and that knowledge of one supports the inference of

knowledge of the other. There was no evidence, however,

showing that he took any step to assist the carrying of the

M-16 in relation to the drug offense. Lugo-Maya was not at

the meeting where the M-16 was shown. The government

presented no evidence that Lugo-Maya took any steps to

procure or otherwise supply the weapons or ammunition. He

was also nowhere near the weapon at the time of his arrest.

There was simply insufficient evidence to show beyond a

reasonable doubt that he either carried or aided and abetted

the carrying of the M-16.

The government's only evidence connecting Pava-

Buelba to the M-16 was the fact that he was found under the

jeep in which the M-16 had been hidden. Unlike Luciano-

Mosquera, however, Pava-Buelba was on the opposite side of

the jeep from where the M-16 was found. Given the darkness

and the fact that the gun was stuck up between the chassis

and the springs it is not reasonable to infer that Pava-

-21-
21

Buelba saw the weapon when he was under the jeep. And also

unlike Luciano-Mosquera, there was no evidence linking him to

the activities in Puerto Rico, specifically the activities on

the beach on the evening of the arrest from which it would be

reasonable to infer the requisite knowledge of the weapon

before he hid under the jeep. Indeed, Fontalvo's testimony

never associated Pava-Buelba with any weapons. Pava-Buelba

was simply a load watcher whose job it was to observe and

report back to the Colombian supplier about whether the

cocaine was successfully delivered. His interests were not

the same as the interests of the Puerto Rico-based importers.

The first time he set foot in Puerto Rico in connection with

this case was when he arrived at the offloading site in one

of the yawls. There was no evidence linking him to the

Puerto Rico end of the operation where he would have been in

a position to know about the specific weapon. Therefore, the

inference that he knew about the weapon is much weaker than

the inference with respect to Luciano-Mosquera. Moreover,

even if there were evidence sufficient to infer that he saw

the hidden weapon in the darkness once he crawled under the

jeep, given his disconnection with the Puerto Rico side of

the operation, such knowledge would have been a mere

fortuity. Unlike Luciano-Mosquera, who was found directly

beneath the weapon and had substantial dealings with Pagan-

San-Miguel during the hours before the arrest, there is

-22-
22

insufficient evidence to conclude beyond a reasonable doubt

that Pava-Buelba hid under the jeep to be next to the M-16

with the idea that he would carry it. In short, the

government did not present evidence that Pava-Buelba knew

about the weapon sufficient to support a 924(c) conviction,

even on an aiding and abetting theory.

Furthermore, there was no evidence that Pava-Buelba

ever had actual possession of the weapon. With Luciano-

Mosquera lying underneath the gun, it is far from clear that

Pava-Buelba was in a position to exercise dominion and

control over the weapon. Even if his proximity to the M-16

under the jeep gave him sufficient possession, at most, a

theory of constructive possession might have been argued. In

this case, however, the district court specifically

instructed the jury that a conviction for "carrying" a

firearm could not be based on constructive possession of the

firearm. Such an instruction sets the benchmark against

which the sufficiency of the evidence must be measured.

United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992);

United States v. Angiulo, 897 F.2d 1169, 1196-97 (1st

Cir.)(appellate determination of sufficiency must be

constrained by trial court's instructions; "otherwise . . .

we would be sustaining a conviction on appeal on a theory

upon which the jury was not instructed below"), cert. denied,

498 U.S. 845 (1990). While the correctness of that

-23-
23

instruction might otherwise be open to question, the

government did not object to the instruction at trial nor

does it argue on appeal that the instruction was error.

See Saylor v. Cornelius, 845 F.2d 1401, 1408 (6th Cir. 1988)

(although reversal due to a trial error normally does not

raise double jeopardy concerns, double jeopardy bar would be

triggered where government had failed to object to the

error).

Issues of the sufficiency of the evidence

necessarily involve the tension between deference to the

jury's role under the Seventh Amendment as the finder of

fact, see Olbres, No. 94-2123, slip op. at 18, and the

appellate court's role in providing meaningful review of

whether the government has indeed met its burden of proof of

guilt beyond a reasonable doubt. That burden is

constitutionally mandated. In re Winship, 397 U.S. 358

(1970). The Supreme Court has said that the relevant

question is whether "after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319

(1979) (emphasis removed). The difficulty of these

questions of sufficiency of the evidence to draw reasonable

inferences is illustrated in the case law. See, e.g.,

Stewart v. Coalter, 48 F.3d 610 (1st Cir.) (each of four

-24-
24

courts reviewing a conviction reach different conclusions as

to sufficiency, culminating in a split decision by a panel of

this court upholding the conviction), petition for cert.

filed, No. 94-9742 (U.S. June 19, 1995).

In sum, we believe there was insufficient evidence,

in light of the government's burden of proof, to convict

either Lugo-Maya or Pava-Buelba of carrying or aiding and

abetting the carrying of the M-16 and so reverse their

convictions on Count 4. There is no direct evidence as to

either and an insufficient basis to draw inferences of guilt

beyond a reasonable doubt.

2. Drug Counts.

Gonzalez-Valentin and Luciano-Mosquera also raise

sufficiency challenges on the drug counts. As the facts

above amply demonstrate, there was overwhelming evidence of

each appellant's complicity in the scheme to import the

cocaine and of their guilt on the drug counts. Their

convictions on the drug counts are affirmed.

B. Other Issues Going To The Verdict

The appellants4 -- principally Pagan-San-Miguel --

have raised six other claims of error concerning the district

court's conduct of the trial: (1) the limitation of Pagan-

4. Appellants Gonzalez-Valentin and Pava-Buelba have
incorporated all arguments made by the other appellants not
inconsistent with those otherwise made in their briefs. Our
review of the issues applies therefore to their appeals as
well.

-25-
25

San-Miguel's cross-examination of two government witnesses,

(2) the admission of an incriminating statement made by

Pagan-San-Miguel, (3) the refusal to grant a mistrial after

allegedly improper remarks were made during closing

statements, (4) the jury instruction on 924(c)(1), (5) the

jury instruction on the defendants' flight from the crime

scene, and (6) the allowance of a read-back of testimony by a

government witness to the jury during its deliberation. None

of these claims of error provides a ground for reversal.

-26-
26

1. Cross-Examination.

Pagan-San-Miguel complains that the district court

erred in cutting off his cross-examination into the penalties

Castillo-Ramos would have faced on firearms counts which were

dropped against him. Pagan-San-Miguel attempted to establish

bias by showing that the government had been able to procure

Castillo-Ramos' cooperation by deciding not to charge

Castillo-Ramos under the firearms counts in the second

superseding indictment. After questioning on this topic,

Pagan-San-Miguel asked Castillo-Ramos whether his attorney

had informed him that if he had been "found guilty of the

possession of the firearm during the commission of a drug

offense [he would be] sentenced to thirty-five years in

addition to the drug offense." The district court sustained

an objection to this question on the ground that, because

defendants faced the same firearms charges, it was an

impermissible attempt to inform the jury about the

defendants' possible punishment on the firearms counts.

Pagan-San-Miguel claims that this truncating of his

cross-examination impermissibly interfered with his right to

confrontation under the Sixth Amendment. We disagree.

Pagan-San-Miguel had a sufficient opportunity to expose

potential biases, including any bias resulting from any

benefit Castillo-Ramos received as a result of his

cooperation. Pagan-San-Miguel was able to ask Castillo-Ramos

-27-
27

repeatedly whether he had received a benefit for his

testimony. Any probative value of information about the

precise number of years Castillo-Ramos would have faced had

he been charged for the firearms offense was slight. The

district court properly decided that the value of the

information was outweighed by the potential for prejudice by

having the jury learn what penalties the defendants were

facing.

Although cross-examination is an important

component of a defendant's Sixth Amendment rights under the

confrontation clause, a defendant's right to cross-examine

witnesses is not unlimited. Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986). A district court is entitled to cut

off cross-examination that may create prejudice or confusion

of the issues, or may be harassing or unduly repetitive. Id.

Assuming that the minimal constitutional threshold level of

inquiry was allowed, as here, a trial court has discretion in

limiting cross-examination. A trial court does not abuse its

discretion if there is sufficient evidence before the jury

(absent the excluded evidence) from which the jury could

"make a discriminating appraisal of the possible biases and

motivations of the witnesses." Brown v. Powell, 975 F.2d 1,

5 (1st Cir. 1992), cert. dismissed, 113 S. Ct. 1035 (1993).

That was the case here.

-28-
28

2. Pagan-San-Miguel's Incriminating Statement.

Pagan-San-Miguel argues that the district court

erred by not conducting a hearing out of the jury's presence,

pursuant to Jackson v. Denno, 378 U.S. 368 (1964), and 18

U.S.C. 3501(a),5 to determine the voluntariness of his

incriminating statements. Police Officer Samuel Jusino

testified that Pagan-San-Miguel, while being held following

his arrest, told Jusino that he "would make three hundred

thousand dollars out of [the drug venture]" and, once the

arrest signals were given, "that he ran and hid himself

underneath a metal plank, and if he had found a hole he would

have gone through that place."

Before the issue of a Jackson v. Denno hearing may

be raised on appeal, the issue of voluntariness must have

been placed before the district court in a timely and

coherent manner. See United States v. Santiago Soto, 871

F.2d 200, 201 (1st Cir.) (failure to raise the issue of

voluntariness in a way that would have alerted the trial

judge that a Jackson v. Denno hearing was desirable waives

right to hearing), cert. denied, 493 U.S. 831 (1989); see

also United States v. Berry, 977 F.2d 915, 918 (5th Cir.

1992) (a generic objection to the admissibility of the

5. Section 3501(a) provides, in pertinent part, that
"[b]efore such confession is received in evidence, the trial
judge shall, out of the presence of the jury, determine any
issue as to voluntariness." 18 U.S.C. 3501(a).

-29-
29

confession was insufficient to put the court on notice that

defendant sought a Jackson v. Denno hearing and therefore the

court's ruling was reviewed for plain error). Pagan-San-

Miguel failed to place the issue properly before the trial

court here.

Pagan-San-Miguel did not specifically object to the

admissibility of the statements on voluntariness grounds. He

never specifically requested a voluntariness hearing during

trial. He never raised the voluntariness issue in his pre-

trial motion to suppress statements made to law enforcement

personnel. He never raised voluntariness in his objection to

the statement at trial. His objection was a narrow

foundational one not going to voluntariness -- that at the

time of Officer Jusino's testimony no one had yet testified

that Miranda warnings had been given to Pagan-San-Miguel

before he made the incriminating statements. The court

specifically asked Pagan-San-Miguel whether his objection as

to foundation was a suppression request and Pagan-San-Miguel

informed the court that it was not. Indeed during the

colloquy with the district court over the testimony, Pagan-

San-Miguel conceded that "there [was] evidence that [Miranda]

warnings were properly made and there was a waiver." Given

his disclaimer that he was seeking suppression of the

statement and the total absence of any evidence that the

statements were made involuntarily, Pagan-San-Miguel did not

-30-
30

sufficiently apprise the district court that voluntariness

was an issue. Thus, Pagan-San-Miguel's claim to a Jackson v.

Denno hearing has been waived.

There also is no colorable claim here that the

district court was nevertheless obliged to hold a

voluntariness hearing sua sponte. See Santiago Soto, 871

F.2d at 202 (recognizing, without adopting, a rule that such

a hearing must be given sua sponte under circumstances, "such

as a defendant's apparent abnormal mental or physical

condition, obvious ignorance or lack of awareness," raising a

serious question over voluntariness). At best, Pagan-San-

Miguel's argument is that he was so "shell-shocked" by the

events that transpired on the beach that the court must have

been alerted to the possibility that he did not understand

the Miranda warnings that were given to him and that, as a

result, his statements made hours later were involuntary.

Undoubtedly a defendant who suddenly becomes aware the police

are on to him suffers a jolt, but that jolt does not

incapacity make.

3. Remarks During Closing Arguments.

Pagan-San-Miguel argues that certain remarks made

during the closing arguments were unduly prejudicial. He

points to four remarks, one made by the attorney for Pava-

Buelba and three made by the government. None provides a

basis for reversal.

-31-
31

Pava-Buelba's attorney, in an apparent effort to

distinguish his client and to distinguish the firearms

charges from the drug charges, made the following remarks to

the jury:

I ask you to please keep in mind that the fact
that there are a number of defendants here [does]
not mean that they were all to be treated as one.
And the fact that they were being charged with five
different counts does not mean that you had to find
them guilty or innocent or all the same, but that
you could choose and pick. And that you could
discern among the evidence and determine which, if
any, were guilty of any of the counts charged.
Some might be guilty of one or more. Some
might be guilty of none. And I ask you to please
be careful watching the evidence so that you will
be able to distinguish between each and every
individual and each and every count.

Pagan-San-Miguel objected to these remarks, arguing they

implied that Pava-Buelba was guilty of the drug offenses and

thus implicated the other defendants. The district court

sustained the objection. Pagan-San-Miguel's later motion for

a mistrial was denied, but the court offered to provide a

curative instruction, which all defendants declined. Pagan-

San-Miguel argues that a curative instruction would have been

pointless and that the district court abused its discretion

in refusing to grant a new trial.

Fatal to Pagan-San-Miguel's claim, however, is that

to "require a new trial, we must conclude . . . that, despite

the instruction, the misconduct was likely to have affected

the trial's outcome." United States v. Capone, 683 F.2d 582,

585-86 (1st Cir. 1982) (internal citations omitted). In the

-32-
32

context of the full record, these statements could not have

had any impact on the outcome of the trial. The evidence of

Pagan-San-Miguel's complicity on the drug counts was

overwhelming. Moreover, a curative instruction would have

solved any spillover problem created by the statements.

Pagan-San-Miguel also challenges the government's

statement that "Carlos Pagan-San-Miguel can't deny his

association with [Fontalvo], that terrible, terrible person

that was described to you." Pagan-San-Miguel argues this was

an impermissible comment from a prosecutor on an accused's

failure to testify. We think it was not. The government did

not say that Pagan-San-Miguel "didn't deny his association,"

only that he "can't deny his association." Even assuming

that this comment cut too close to the line, "there is no

reason to conclude that the prosecutor intentionally drew

attention to the appellant's silence at trial." United

States v. Taylor, 54 F.3d 967, 980 (1st Cir. 1995). And the

evidence was otherwise so overwhelming that this comment

could have had no effect on the jury's judgment. Id. at 977.

Pagan-San-Miguel's next two challenges are to the

government's statements that the firearm found under the jeep

"would be used to protect the very cocaine that was being

illegally smuggled into Puerto Rico" and that "Carlos Pagan-

San-Miguel bragged about having bought the firearms." Pagan-

San-Miguel argues that the first was misleading in that it

-33-
33

suggested that the jury could convict the defendant for

planning on using the firearm once it had arrived in Puerto

Rico, an offense not charged in the indictment. Pagan-San-

Miguel's reading is strained, at best. The first statement

was consistent with the evidence and the government's theory.

There is no plausible argument that this statement was likely

to have affected the outcome of the trial or was so egregious

that a new trial is needed as a sanction. See Capone, 683

F.2d at 587. While the second statement appears to have

exaggerated the evidence, there was no objection and it does

not amount to plain error. See Taylor, 54 F.3d at 977.

4. Jury Instruction on 18 U.S.C. 924(c)(1).

Pagan-San-Miguel argues that the court erroneously

instructed the jury on an essential element of the firearms

offense, 18 U.S.C. 924(c)(1). That section requires that

the defendant have carried the firearm "during and in

relation to . . . [a] drug trafficking crime." The

district court, however, instructed the jury that it was

enough if the defendant knowingly carried the firearm "during

the commission of the crime of drug trafficking." In so

doing, the district court appears to have relied on obsolete

statutory language. Before 1984, 924(c)(1) provided that

it was a crime to carry a firearm "during the commission of

any [federal] felony." In 1984, however, Congress amended

the language adding the phrase "during and in relation to,"

-34-
34

to make clear that the firearm must be linked to the

underlying felony to come within the scope of the statute.

S. Rep. No. 224, supra, at 312-13, reprinted in 1984

U.S.C.C.A.N. at 3490-92.

Because Pagan-San-Miguel did not object to the

instruction, the instruction is reviewed for plain error.

See Fed. R. Crim. P. 52(b). Pagan-San-Miguel argues that the

court's use of the phrase "during the commission of" was

plain error, claiming it omitted an essential element of the

offense and it broadened the scope of the conduct under which

the jury could convict.

The actual charge given here undercuts Pagan-San-

Miguel's argument.6 The district court emphasized that the

carrying of the firearm must be linked to the specific

underlying drug offense for which the defendants were

convicted:

First, it must be proven that a[] defendant[]
committed a crime of drug trafficking for which he

may be prosecuted in the United States. And
second, that during the commission of the crime of

6. Faced with a similar challenge the Ninth Circuit has held
that the change in statutory language was not substantive and
that the requirement that the firearm be linked to the crime
was already implicit in the statute. "Though the legislative
history does not say so expressly, it strongly implies that
the 'in relation to' language did not alter the scope of the
statute, explaining that the original section was directed at
persons who chose to carry a firearm as an offensive weapon
for a specific criminal act." United States v. Stewart, 779

F.2d 538, 539-40 (9th Cir. 1985) (internal quotation
omitted), cert. denied, 484 U.S. 867 (1987).

-35-
35

drug trafficking the defendant[] knowingly carried

a firearm.

In light of the actual instruction given, Pagan-San-Miguel's

attack on the instruction does not rise to the level of plain

error.

Pagan-San-Miguel also argues that the instruction

allowed the jury to convict for a crime not charged in the

indictment because the firearms charge was limited to Count 2

of the three drug counts. Pagan-San-Miguel has not and

cannot articulate how, in the context of this case, such a

possibility created a "miscarriage of justice" or "seriously

affect[ed] the fairness, integrity or public reputation of

judicial proceedings". See United States v. Olano, 113 S.

Ct. 1770, 1779 (1993).

5. Jury Instruction on Flight.

Pagan-San-Miguel also argues that the district

court erroneously instructed the jury about his flight and

concealment. This argument is meritless. As long as there

is an adequate factual predicate supporting an inference of

guilt on the crime charged, as there was here, evidence of

the accused's flight may be admitted at trial to show

consciousness of guilt. See United States v. Hernandez-

Bermudez, 857 F.2d 50, 52 (1st Cir. 1988).

6. Read-Back To The Jury.

Pagan-San-Miguel and Luciano-Mosquera assert that

the district court committed error when it failed to take

-36-
36

certain precautions in allowing the testimony of Castillo-

Ramos, the boat captain, to be read back to the jury at the

jury's request, during deliberations. Counsel did not object

to the procedures followed; in fact, what happened was by

agreement among counsel.7 To prevail, defendants must show

plain error.

It certainly would have been preferable for the

district court to have taken some precautions. See, e.g.,

United States v. Hernandez, 27 F.3d 1403, 1408-09 (9th Cir.

1994) (reversing a conviction where district court failed to

take precautions to prevent undue emphasis on the witness

testimony that jury reviewed during deliberation), cert.

denied, 115 S. Ct. 1147 (1995). But counsel did not object

and the standard set by Olano is not met. In light of the

overwhelming evidence of guilt on the drug counts to which

Castillo-Ramos' testimony went, the read-back did not result

in a miscarriage of justice, nor did the absence of such

precautions seriously affect the fairness, integrity or

7. The court reporter entered the jury room unsupervised and
read the testimony. The court gave the jury no cautionary
instructions (i.e., that the testimony was not to substitute
for the jurors' memories, or that the jury should not focus
on one particular aspect of the evidence to the exclusion of
other evidence). There was no observation of the court
reporter's reading of the testimony to ensure that no
editorializing or slanting was done during the reading. No
instructions were given to the court reporter to be careful
not to converse with the jurors or otherwise taint their
deliberations and to be careful not to read to the jury
potentially prejudicial side-bar conferences she had recorded
during the course of Castillo-Ramos' testimony.

-37-
37

public reputation of judicial proceedings. There is no

evidence that anything untoward happened in the jury room and

no reason to think the reporter did anything other than

properly read the pertinent portions of the record.

Pagan-San-Miguel and Luciano-Mosquera also argue

they were never consulted by either of their attorneys or the

court about whether they would waive their right to be

present during the read-back. Although the defendant's right

to be present at every stage of the proceedings may be waived

by the defendant, it is less clear whether the defendant's

attorney can waive it. See Taylor v. Illinois, 484 U.S. 400,

418 & n.24 (1988). Nevertheless, Pagan-San-Miguel and

Luciano-Mosquera were present at the time Castillo-Ramos

actually gave his testimony and so could "confront" their

accuser. There was no plain error.

III. SENTENCING ISSUES

A. Pagan-San-Miguel

Pagan-San-Miguel challenges his sentence on two

grounds, neither of which has merit. He asserts he should

not have been given a four level increase as a leader or

organizer of the activity under 3B1.1(a) of the Sentencing

Guidelines. See United States Sentencing Commission,

Guidelines Manual, 3B1.1(a) (Nov. 1991). He also argues he

should have been given a downward adjustment of two levels

for acceptance of responsibility under U.S.S.G. 3E1.1(a).

-38-
38

Absent a mistake of law, the district court's determination

of a defendant's role may be set aside only for clear error.

United States v. Tejada-Beltran, 50 F.3d 105, 111 (1st Cir.

1995). There was no error.

The facts outlined earlier establish Pagan-San-

Miguel's leadership and organizational role. Fontalvo

testified that Pagan-San-Miguel was "the land person in

charge of all the merchandise." Indeed, his code names in

the operation were "Gigante," "Padrino," and "Godfather."

Pagan-San-Miguel's argument that the court made no specific

finding that at least four others were under his leadership

and control does not help him. It was obvious that nine

others, at the least, were involved in addition to Pagan-San-

Miguel. And "retention of control over other participants .

. . is not an essential attribute of organizer status."

Tejada-Beltran, 50 F.3d at 113.

As to acceptance of responsibility, "the

determination of the sentencing judge is entitled to great

deference on review." U.S.S.G. 3E1.1, comment. (n.5). The

fact that Pagan-San-Miguel in pre-trial plea bargaining

unsuccessfully offered to plead guilty to the drug counts if

certain conditions were met does not provide a sufficient

basis to reverse the district court's decision. "This

adjustment is not intended to apply to a defendant who puts

the government to its burden of proof at trial by denying the

-39-
39

essential factual elements of guilt, is convicted, and only

then admits guilt and expresses remorse." U.S.S.G. 3E1.1,

comment. (n.2). His argument is not enough to reverse the

district court's determination that he failed to

"demonstrate[] a recognition and affirmative acceptance of

personal responsibility for his criminal conduct." U.S.S.G.

3E1.1(a); see also United States v. Curran, 967 F.2d 5, 7

(1st Cir. 1992).

B. Gonzalez-Valentin

Gonzalez-Valentin argues he was a minor participant

and thus entitled to a two level reduction under U.S.S.G.

3B1.2(b). The trial judge's determination was not clearly

erroneous. See United States v. Lopez-Gil, 965 F.2d 1124,

1131 (1st Cir.), cert. denied, 113 S. Ct. 484 (1992).

Gonzalez-Valentin was at the beach to assist in the

offloading; his house was used regularly to plan the drug

smuggling; weapons were shown and discussed at his house; a

communications radio was hidden and used in his backyard.

There was ample evidence he was more culpable than the

average participant. See U.S.S.G. 3B1.2, comment.

(backg'd.).

C. Lugo-Maya

In addition to the mandatory sentence of 30 years

on Count 4, Lugo-Maya was sentenced under the Guidelines on

the drug counts, Counts 1-3. Lugo-Maya challenges on appeal

-40-
40

the district court's calculation of his guidelines sentence

on the drug counts. He argues the court erred in not giving

him two-level reductions each for being a minor participant,

pursuant to U.S.S.G. 3B1.2(b), and for acceptance of

responsibility, pursuant to U.S.S.G. 3E1.1(a). As the

district court properly found, Lugo-Maya was not a minor

participant -- he supplied the yawls, sailed one out to the

mothership, helped to unload the drugs from the boat, sailed

the drugs to shore and helped unload them to the land. As to

acceptance of responsibility, Lugo-Maya's claim is factbound,

and the district court's resolution of it is not clearly

erroneous. See United States v. Royer, 895 F.2d 28, 29 (1st

Cir. 1990). His sentence on the drug counts is affirmed.

IV. SECTION 2255 MOTION ISSUES

While these consolidated appeals were pending,

Pagan-San-Miguel filed in the district court a motion under

28 U.S.C. 2255 to vacate and set aside his conviction on

the ground that the court reporter's delay in providing him

with a transcript denied him his right to a timely appeal

and, therefore, deprived him of due process of law.8 The

8. Pagan-San-Miguel filed his notice of appeal on August 3,
1992. Around that time, the court reporter agreed to furnish
the necessary transcripts to Pagan-San-Miguel. The court
reporter, however, did not provide any transcripts to Pagan-
San-Miguel until mid-1994. Largely due to the court
reporter's failure to prepare the transcripts, this court
extended the period for briefing the case sixteen times. On
at least three occasions this court entered Orders to Show
Cause threatening the court reporter with contempt if she did

-41-
41

district court denied the motion.9 On appeal, Pagan-San-

Miguel argues that this was error.

Although extreme delay in the processing of an

appeal may amount to a due process violation, and delays

caused by court reporters are attributable to the government

for purposes of determining whether a defendant has been

deprived of due process, see, e.g., United States v. Wilson,

16 F.3d 1027, 1030 (9th Cir. 1994), mere delay, in and of

itself will not give rise to a due process infraction. The

defendant must show prejudice. See United States v. Tucker,

8 F.3d 673, 676-77 (9th Cir. 1993) (en banc), cert. denied,

114 S. Ct. 1230 (1994). Whether an appellate delay results

in prejudice sufficient to warrant reversing a conviction

rests, most importantly, on a showing that it has impaired

the appeal or the defense in the event of retrial. See id.

at 676.

not produce the transcripts.

9. We have held that absent extraordinary circumstances a
district court should not entertain a 2255 motion while a
direct appeal from the same conviction is still pending.
United States v. Gordon, 634 F.2d 638 (1st Cir. 1980).

Nevertheless, instead of dismissing Pagan-San-Miguel's motion
as being premature, the district court denied the motion. In
such a case, we may elect to reach the merits of the 2255
motion. See United States v. Buckley, 847 F.2d 991, 993 n.1,

1000 n.6 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989);

see also Rule 5, Rules Governing Proceedings in the United

States District Courts Under Section 2255 of Title 28, United
States Code, advisory committee note (1976).

-42-
42

There was no prejudice. Although there was an

appalling delay in preparing the transcripts, there is no

argument they are incomplete or unreliable. This is not a

situation in which the court reporter has prepared an

unusable transcript. Compare Wilson, 16 F.3d at 1031 (record

had portion missing or was unintelligible so that record was

totally unreliable). Indeed, Pagan-San-Miguel only argues

that the delay impaired his ability to present "the strongest

possible evidence in support of the appellant's version of

the facts" surrounding the read-back of Castillo-Ramos'

testimony to the jury. As Pagan-San-Miguel concedes,

however, no objection was made to the district court's

handling of the read-back. And since Pagan-San-Miguel has

not shown plain error in this regard, this argument does not

make a difference to his appeal.10

The order of the district court denying his 2255

motion is affirmed.

CONCLUSION

The convictions and sentences of appellants

Luciano-Mosquera, Pagan-San-Miguel, and Gonzalez-Valentin are

affirmed on all counts. The convictions of Lugo-Maya and

Pava-Buelba are reversed on Count 4 and their sentences on

10. Alternatively, Pagan-San-Miguel requests that we set
aside his conviction pursuant to our supervisory powers.
This is not an appropriate case for this court to exercise
its supervisory powers. See Tucker, 8 F.3d at 676.

-43-
43

that count are vacated. Lugo-Maya's and Pava-Buelba's

convictions and sentences on the drug counts, Counts 1-3, are

affirmed. The district court's order denying Pagan-San-

Miguel's 2255 motion is affirmed. It is so ordered.

-44-
44