United States v. Vega-Figueroa

United States Court of Appeals
For the First Circuit

No. 99-1394

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ A. VEGA-FIGUEROA, A.K.A. PITO CASCO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Bruce R. Bryan and Paul G. Carey on brief for appellant.

Jacabed Rodriguez-Coss, Assistant United States Attorney,
Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney on brief for appellee.

December 18, 2000
 BOWNES, Senior Circuit Judge. Defendant-appellant José

A. Vega-Figueroa, along with eight other defendants, was tried

pursuant to a three-count indictment in the District Court for

the District of Puerto Rico for drug related activities. The

indictment charged as follows: Count I, 21 U.S.C. § 848(a) and

(b), continuing criminal enterprise, and 18 U.S.C. § 2, aiding

and abetting; Count II, 21 U.S.C. § 846, conspiracy to

distribute in excess of five kilograms of heroin, in excess of

five kilograms of cocaine, in excess of five kilograms of

cocaine base and in excess of 100 kilograms of marijuana; and

Count III, 18 U.S.C. § 924(c)(1) & (2), unlawful use of firearms

during and in relation to a drug trafficking offense and aiding

and abetting.

All nine of the defendants who stood trial were found

guilty on all or some of the counts. We consolidated the

appeals. Seven of the defendants argued orally on September 14,

2000. The other two defendants' appeals were submitted on

briefs to the same panel.

The defendant in this case, Vega-Figueroa, was found

guilty on all three counts. He was sentenced to life

imprisonment on Counts I and II of the indictment1 and a term of

five years on Count III, to be served consecutively. Defendant

1Count II was subsequently dismissed.

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has raised ten issues on appeal, which we will discuss in the

order followed in his brief.

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 I. FACTS

We state the facts in the light most favorable to the

verdict. See United States v. Duclos, 214 F.3d 27, 32 (1st Cir.

2000). This rehearsal of the evidence does not, of course,

cover the facts that are applicable only to other defendants.

Nor do we recite, at this juncture, all of the facts involving

defendant. Many of the facts pertaining to particular issues

will be set forth in our discussion of the issues. All we do

now is state those facts that will give the reader the necessary

background information to understand the different issues raised

by defendant. Defendant and Carlos Hernandez-Vega were in

charge of an extensive criminal enterprise involving the sale

and distribution of heroin, cocaine, crack cocaine, and

marijuana. Cooperating witnesses for the government included

five former members of the enterprise who sold narcotics for the

organization. Their testimony can be summarized as follows.

Defendant and/or Hernandez-Vega delivered the drugs to

the various cooperating witnesses at the drug point, located in

a public housing project. Members of the enterprise carjacked

automobiles on a regular basis. The carjacked vehicles were

then used for drive-by shootings targeted against other drug

dealers who operated drug points in other public housing units

in competition with defendant and Hernandez-Vega. The drug

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distribution point of the enterprise was guarded by armed

members of the organization. There was also testimony that

defendant and Hernandez-Vega operated a heroin drug point

located within the Hogar Crea detention and drug rehabilitation

facility in Saint Just at Trujuillo Alto, Puerto Rico. Another

drug gang ousted two members of defendant’s organization from

the Hogar Crea drug point. Defendant and Hernandez-Vega ordered

that the two men who had taken over the Hogar Crea drug point be

murdered. The men were ambushed and killed by defendant,

Hernandez-Vega, and other members of defendant’s enterprise.

The indictment charged that the continuing criminal

enterprise and conspiracy started on or about August 1, 1990,

and continued until on or about April 10, 1997.

II. DISCUSSION

The issues are essentially stated as phrased by

defendant.

1. Whether a statement made by defendant
while in custody should have been
suppressed.

After being arrested, defendant, along with other

codefendants, was taken into custody to be interrogated,

photographed, and finger-printed. Before any police

interrogation started, another arrestee, Medina-Sanchez, asked

defendant if he had been arrested for running a criminal

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enterprise and supervising a drug point. Defendant replied

“that was before . . . about the drug point . . . now I only

supervise the kitchen. . . .” In the parlance of the drug trade

a “kitchen” is that part of a drug operation in which the drugs

are prepared for sale. Unfortunately for defendant, two federal

agents overheard the conversation and included it in their

report. The statement was used against defendant at trial.

Defendant contends “that the statement should have been

suppressed because (1) he should have been warned of his

constitutional rights under Miranda and (2) the statement was

not voluntarily made.”

In denying defendant's motion to suppress, the district

court examined the totality of the circumstances and found:

[I]t is clear that the statements which
defendant made while waiting to be booked at
the Federal Building were indeed voluntary.
Defendant merely responded to questioning
from another arrestee. Although he was
being closely supervised by various agents
who were present to ensure that things were
under control, those agents did not address
him directly, except to allegedly ask him
routine questions, such as his name,
nickname, prior employment, and whether he
had any addiction problems.

Our prior case law establishes the standard of review.

We held in United States v. Taylor, 985 F.2d 3, 7 n.5 (1st Cir.

1993), that "[n]ormally, 'clear error' is the standard employed

in reviewing findings of fact. In the present case, however,

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none of the relevant facts are in dispute . . . . Thus, the

determination as to whether police 'interrogation' occurred

depends on the totality of the circumstances, a balancing

analysis commonly considered amenable to plenary review"

(citations omitted). We held in United States v. Sealey, 30

F.3d 7, 9 (1st Cir. 1994), that "[i]n scrutinizing a district

court's denial of a suppression motion, the court of appeals

will review findings of fact for clear error, while at the same

time subjecting the trial court's ultimate constitutional

conclusions to plenary oversight."

Neither party here disputes the circumstances

surrounding defendant's statement. The only questions presented

for review are whether the district court erred in holding that

defendant's statements were voluntary and that the custodial

situation did not amount to the functional equivalent of an

interrogation. Because these issues involve questions of law,

we apply plenary review.

First, we reject defendant's argument that he was

entitled to Miranda warnings. In order for Miranda rights to be

invoked, there must be (1) custody and (2) interrogation. See

United States v. Ventura, 85 F.3d 708, 709-10 (1st Cir. 1996).

It is undisputed that defendant was in custody at the time of

his statement. Because he does not allege that there was ever

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an actual interrogation, the crux of his appeal hinges on

whether the environment within which defendant made the

statement amounted to the functional equivalent of an

interrogation.

The Supreme Court discussed the concept of the

functional equivalent of an interrogation in Rhode Island v.

Innis, 446 U.S. 291 (1980), holding:

. . . Miranda safeguards come into play
whenever a person in custody is subjected to
either express questioning or its functional
equivalent. That is to say, the term
"interrogation" under Miranda refers not
only to express questioning, but also to any
words or actions on the part of the police
(other than those normally attendant to
arrest and custody) that the police should
know are reasonably likely to elicit an
incriminating response from the suspect . .
. . A practice that the police should know
is reasonably likely to evoke an
incriminating response from a suspect thus
amounts to interrogation. But, since the
police surely cannot be held accountable for
the unforeseeable results of their words or
actions, the definition of interrogation can
extend only to words or actions on the part
of police officers that they should have
known were reasonably likely to elicit an
incriminating response.

Id. at 300-01 (citations omitted).

Here, defendant alleges only that the police performed

their routine activities of fingerprinting and photographing him

and other defendants. He points to no words or actions on the

part of the federal agents that were likely to elicit his

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incriminating words about "supervising the kitchen." Hence,

there is nothing to support his contention that he experienced

the functional equivalent of interrogation such that Miranda

warnings were warranted.

Nor did the district court err in holding that

defendant's statements were voluntary. The Supreme Court has

held that "[t]he admissibility of the respondent's statement as

a constitutional matter [is] governed . . . by the contemporary

case law elaborating the due process standard of voluntariness.

The question [is] whether the will of the defendant had been

overborne so that the statement was not his free and voluntary

act, and that question [is] to be resolved in light of the

totality of the circumstances." Procunier v. Atchley, 400 U.S.

446, 453 (1971); see also United States v. Melendez, 228 F.3d

19, 22 (1st Cir. 2000) (holding that Miranda has no force

outside of interrogations where interrogators do not have the

"capacity to dominate the scene to such an extent that the risks

of coercion and intimidation are unreasonably high").

Applying the applicable case law to the undisputed

facts of the circumstances surrounding defendant's statement, we

have no difficulty finding that the statement was his free and

voluntary act. Defendant's statement was not the result of

intimidation, coercion resulting from the setting in which the

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statement was made, or a deliberate plan by the agents to place

defendant in an environment that would induce a confession.

2. Whether defendant was denied a
fair trial by the failure of
the government to disclose
information in its possession.

Defendant asserts that the government was untimely in

its disclosure of two pieces of evidence - rough notes taken by

F.B.I. agents for use in preparing a report, and photographs

used to question a key witness - and that he was therefore

impaired in his ability to defend. The district court permitted

the introduction of both of these pieces of evidence.

Defendant presents extensive case law discussing the

government's obligation, under Fed. R. Crim. P. 16(c), to

disclose documents "which are material to the preparation of the

defendant's defense or are intended for use by the government as

evidence in chief at the trial. . .." He does not specify,

however, how his ability to defend the case was impaired, or how

he would have altered his defense had the allegedly untimely

information been disclosed earlier.

As to the notes, defendant seems to argue that he hoped

that by viewing copies of the notes used in writing the F.B.I.

report, he would be able to show inconsistencies between the

agents' testimony and the report. The district court was

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unconvinced that defendant even needed to survey the notes at

all, noting that defendant had access to the actual report, as

well as an opportunity to cross-examine the agents who had

prepared the report, during which defendant could have attempted

to unearth all of the same alleged inconsistencies that he hoped

to bring to light in viewing the notes.

As to the photographs, defendant contends that his

defense was impaired by the government's failure to timely

disclose the photos. The district court allowed the photos to

be used at trial even though they had not previously been

disclosed to defendant, on the ground that the photos were used

exclusively for identification purposes. The photos were

presented to a witness whose description of a third party had

been called into question by the defense, in order to verify

that he was able to identify the correct person. Implicit in

the district court's decision is a finding that because the

photos were only used to clarify an identification, an

identification that defendant was well aware would take place,

the delayed disclosure did not impair defendant's case.

We held in United States v. Devin, 918 F.2d 280 (1st

Cir. 1990):

When the issue is one of delayed disclosure
rather than total nondisclosure . . . the
applicable test is whether defense counsel
was prevented by the delay from using the

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 disclosed material effectively in preparing
and presenting the defendant's case . . . .
Although our opinions have not been explicit
on the point, we believe that, absent a
mistake of law, a court of appeals should
review a district court's finding that
delayed disclosure was harmless . . . under
an abuse-of-discretion standard.

Id. at 289 (citations and internal quotations omitted).

"Generally, [the court has] viewed the failure to ask for a

continuance as an indication that defense counsel was himself

satisfied he had sufficient opportunity to use the evidence

advantageously." United States v. Osorio, 929 F.2d 753, 758

(1st Cir. 1991). We also held that "[a defendant's] claim that

he was unfairly surprised is severely undermined, if not

entirely undone, by his neglect to ask the district court for a

continuance to meet the claimed exigency." United States v.

Diaz-Villafane, 874 F.2d 43, 47 (1st Cir. 1989).

Here, defendant never moved for a continuance as a

result of the allegedly delayed disclosure. In light of this

failure, combined with his failure to substantiate his assertion

of impairment in defending his case with even a single concrete

example, we cannot say that the district court abused its

discretion in allowing the evidence in question to be admitted.

3. Whether defendant was denied
due process by the
interference of the government
with a key defense witness.

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 The essential facts are as follows. Defendant intended

to call as a defense witness Isabelle Cesareo, the aunt of Ramon

Cesareo, a prosecution witness who had made an agreement with

the federal government in exchange for his testimony. Isabelle

was to testify adversely on the credibility of her nephew. The

prosecution sent three F.B.I. agents to Isabelle's home to speak

with her. She was not home at the time, and the agents were

only able to speak with her daughter. The daughter testified

that the agents questioned her about whether defense counsel had

been in contact with her mother; told her that unless served

with a subpoena, her mother was under no obligation to testify;

and said that her mother's testimony could adversely affect

Ramon's agreement with the government. Isabelle, though

seemingly reluctant to testify after the visit, ultimately did

so.

The district court asked the prosecutor why F.B.I.

agents had been sent to the home of a defense witness. She

responded that the visit followed a report that the defense had

been in contact with a witness. Ramon told the F.B.I. that, in

an attempt to keep him from testifying, defense counsel had

visited members of his family and told them that he, Ramon,

would be the only government witness to take the stand against

defendant at trial. The prosecutor claimed that the visit to

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Isabelle's home was simply an attempt to corroborate Ramon's

statement.

The district court was presented with three issues:

(1) the reason that the prosecution sent agents to the witness's

home; (2) whether the visit was improper; and (3) whether the

visit affected the testimony given by the witness. The district

court held:

[W]e do find after hearing Mrs. Cesareo and
her daughter that this witness is not
hostile to the defendant. She is willing to
testified [sic]. Her testimony in court
this morning was frank, honest and the Court
has no reason to be concerned about it, as
far as what the defendant wishes her to
testify about . . . . [W]e do find that in
substance the visit by these agents,
although, in the Court's opinion not the
best practice without notifying counsel . .
. we do find that it has not in any way
affected the right of the defendant to bring
this witness via a subpoena to have her
testify candidly like she is prepared to do
and the Court corroborated that this morning
and, therefore, the defendant's rights have
not been affected in any way. Mrs. Cesareo
is here in court. She will be a witness.

Defendant asserts that the prosecution sent the agents

to Isabelle's home in order to encourage her not to testify, and

that, even though she ultimately did testify, she had been

"changed from a willing participant in the court proceeding to

a highly reluctant and scared participant." This interference,

defendant argues, constitutes a denial of due process.

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Defendant does not specify what parts of Isabelle's testimony

would have been different had the prosecution not contacted her.

The government points out that the agents never actually spoke

with Isabelle or entered into a discussion as to whether she

should testify. Finally, the government argues that, even were

the prosecutor's visit found to have been improper, the

defendant was not prejudiced since, in the end, Isabelle did

take the stand.

If any improprieties surrounding the prosecution's

contact with the witness are found, we must determine whether

that interference constituted reversible error. See Lisenba v.

California, 314 U.S. 219, 236 (1941) (holding that "[a]s applied

to a criminal trial, denial of due process is the failure to

observe that fundamental fairness essential to the very concept

of justice. In order to declare a denial of it we must find

that the absence of that fairness fatally infected the trial;

the acts complained of must be of such quality as necessarily

prevents a fair trial."); see also United States v. Olano, 507

U.S. 725, 733 (1993) (holding that an appeals court's authority

to reverse a district court decision is contingent upon the

error being prejudicial). Regardless of whether actual

prejudice is required, defendant has failed to prove a due

process violation.

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 We take a dim view of government agents gratuitously

confronting a defense witness out of court before the witness

testifies. See Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir.

1981) (holding that "when the free choice of a potential witness

to talk to defense counsel is constrained by the prosecution

without justification, this constitutes improper interference

with a defendant's right of access to the witness.

Justification on the part of the prosecution to interfere with

that right can be shown only by the clearest and most compelling

considerations."). In the present case, however, there is

nothing in the record indicating that the testimony would have

been different or more exonerating if the agents had not talked

to the witness's daughter. We are, therefore, bound to uphold

the district court's ruling.

4. Whether the government proved
a continuing conspiracy or
only multiple conspiracies.

Part of the conspiracy for which defendant was

convicted involved the operation of a drug point after 1995.

Defendant was incarcerated from January, 1995, through April,

1997, and denies having participated in any conspiracy during

that time. He argues that the evidence was insufficient to

prove the existence of only a single conspiracy and that he thus

should not be held liable for any of the transactions that took

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place after the start of his incarceration. Defendant further

asserts that, because there is no evidence connecting him with

any conspiracy after the start of his incarceration, no evidence

having to do with the operation of the drug point subsequent to

his incarceration should have been admitted. In support of this

contention, he points to evidence suggesting that, while he was

in jail, the drug point in question came to be controlled by

another organization of which he was not a member, and that

certain members of his conspiracy were also members of another

conspiracy. This, he argues, shows the existence of multiple

conspiracies rather than just a single conspiracy. If, as

defendant contends, multiple conspiracies existed, the criminal

activities for which he could be held responsible would be

greatly reduced.

Whether a series of events constitutes a single

conspiracy is a question of fact, reviewed for sufficiency of

evidence. We held in United States v. Bello-Perez, 977 F.2d

664, 667 (1st Cir. 1996), that "[w]hether the evidence adduced

at trial established one or more conspiracies [is] a question of

fact for the jury." "It is a recurring question in conspiracy

cases whether related illegal agreements comprise one conspiracy

or several. Because the agreements are often not explicit and

are regularly inferred from conduct, the courts ordinarily treat

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the issue as one of fact and offer various criteria that might

help the factfinder distinguish . . . ." United States v.

Randazzo, 80 F.3d 623, 629 (1st Cir. 1992). "[A] single

conspiracy may exist where there has been no direct contact

among some of the participants . . . . Moreover, [t]he fact

that every defendant did not participate in every transaction

necessary to fulfill the aim of their agreement does not

transform a continuing plan into multiple conspiracies." United

States v. Mena-Robles, 4 F.3d 1026, 1033 (1st Cir. 1993)

(citations and internal quotation marks omitted). In reviewing

a jury's finding concerning the number of conspiracies, "where

. . . there is no challenge to the jury instructions, we review

the jury's conclusion as to whether one or more conspiracies

existed only for evidentiary sufficiency." Id.

The evidence suggesting multiple conspiracies to which

defendant refers in his appeal is only tangentially related to

the issue presented to this court: whether there is sufficient

evidence in the record upon which a reasonable jury could have

found that the conspiracy to distribute drugs continued after

defendant was incarcerated. That there may be some evidence

suggesting the existence of multiple conspiracies does not

change the fact that this court cannot reverse the jury's

verdict (which rested upon a finding of a single conspiracy)

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absent a determination that no reasonable jury could have come

to this conclusion.

The record is replete with evidence allowing for a

finding of a single conspiracy that continued beyond the start

of defendant's incarceration. During the three months of trial,

witness after witness provided testimony demonstrating the

impeccable organization of the conspiracy – everything from the

color of the packaging used for the drugs, to the preferred car

models stolen for use in drive-by shootings, to the particular

kinds of firearms members were permitted to carry in various

situations – all of which was under defendant's control. There

was even a reference made to a designation of which specific

members of the conspiracy would be allowed to make decisions at

a meeting that took place during a period in which defendant was

briefly incarcerated. Based on all of this testimony

demonstrating the rock-solid, intricately designed

organizational structure of the conspiracy, there is no basis to

find that the jury was unreasonable in coming to the conclusion

that the conspiracy continued after defendant was imprisoned and

that he continued to play a major role in its operation.

5. Whether the proof at trial
varied from the indictment.

Defendant claims to have had inadequate notice of the

conduct for which he was charged. He argues that the

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prosecution, without indicating in the indictment that it was

going to do so, introduced evidence that, as part of the

conspiracy, he (1) was involved in the murder of Maria Magdalena

Gotay, the sister of one of the prosecution's key witnesses; and

(2) supervised the drug point at the housing project while he

was incarcerated. Defendant asserts that these unforeseen

accusations represent a variance between the indictment and the

proof adduced at trial. The prosecution asserts that it is not

required to prove the commission of any overt act in furtherance

of a 21 U.S.C. § 846 drug conspiracy and that therefore it was

not required to list any overt acts in the indictment.

Defendant raised a nearly identical argument before the

district court in a motion to suppress. The district court

denied the motion, rejecting defendant’s claims of

unconstitutional variance and insufficient notice. With respect

to the variance assertion, the district court held that "what

defendants fail to recognize is that the indictment charged

defendants with conspiracy, not murder. The use of this

testimony regarding the murder is merely another overt act in

furtherance of the conspiracy, and not an additional charge for

the murder itself." The district court then rejected the

insufficient notice claim, pointing out that "the Government was

not even required to supply the defendants with the name of the

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witness who [would] testify about this murder prior to the

trial." In his appeal to this court, defendant reasserts the

argument he made to the district court.

21 U.S.C. § 846 provides that "[a]ny person who

attempts or conspires to commit any offense defined in this

subchapter shall be subject to the same penalties as those

prescribed for the offense, the commission of which was the

object of the attempt or conspiracy." In United States v.

Shabani, 513 U.S. 10, 13 (1994), the Supreme Court stated that

"[t]he language of neither [the original conspiracy statute of

the Comprehensive Drug Act of 1970 nor the version amended by

the Anti-Drug Act of 1988] requires that an overt act be

committed to further the conspiracy, and we have not inferred

such a requirement from congressional silence in other

conspiracy statutes." We held in Bello-Perez, 977 F.2d at 669,

that "[t]he government is not required to plead or prove any

overt act in furtherance of a section 846 conspiracy. Although

overt acts are gratuitously set forth in the indictment, the

government is not limited at trial to proof of the alleged overt

acts; nor is the indictment rendered insufficient for failure to

plead other overt acts." (citations and internal quotation marks

omitted) (emphasis added).

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 Under the applicable case law, it is clear that

defendant has no basis for asserting that there was a fatal

variance between the indictment and the proof at trial.

6. The government made promises
of value to witnesses for
their testimony in violation
of 18 U.S.C. § 201(c)(2)
(2000).

18 U.S.C. § 201(c)(2) (2000) provides that "[w]hoever

. . . directly or indirectly, gives, offers, or promises

anything of value to any person, for or because of the testimony

under oath or affirmation given or to be given by such person as

a witness upon a trial, hearing, or other proceeding, before any

court . . . shall be fined under this title or imprisoned for

not more than two years, or both." Defendant contends that the

government violated this statute by agreeing, in return for the

witnesses' testimony, not to prosecute one witness, and to

support a reduction in a sentence for another. We heard and

unequivocally rejected this argument in United States v. Lara,

181 F.3d 183, 197-98 (1st Cir. 1999), cert. denied, 120 S.Ct.

432 (1999):

[W]e make our position explicit and
unqualified. There are several reasons why
section 201(c)(2) cannot be invoked as a
bright-line barrier to the government's use
of witnesses whose cooperation has been
secured by agreements not to prosecute or by
promises of recommended leniency. The most
basic reason is that section 201(c)(2) does

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 not apply at all to the federal sovereign
qua prosecutor. After all, statutes of
general purport do not apply to the United
States unless Congress makes the application
clear and indisputable, and Congress has
taken no such steps in respect to this
statute. Reliance on this tenet is
particularly apt where, as here, the failure
to honor it would divest the government of a
long-established prerogative and, in the
bargain, lead to an eccentric result.

(citations and internal quotation marks omitted) (emphasis

added). Under this holding, defendant's assertion is meritless.

7. Whether defendant was denied a
fair trial because a witness
was permitted to give an
opinion on an ultimate issue
in the case.

Fed. R. Evid. 701, Opinion Testimony by Lay Witnesses,

provides:

If the witness is not testifying as an
expert, the witness's testimony in the form
of opinions or inferences is limited to
those opinions or inferences which are
(a) rationally based on the perception of
the witness and (b) helpful to a clear
understanding of the witness' testimony or
the determination of a fact in issue.

Defendant asserts that the district court should not have

permitted testimony by Aleida Gotay Saez in which Gotay stated

her opinion that the reason her sister was killed was that

Gotay's drug point, where her sister worked, sold more drugs

than the drug point operated by defendant and his co-

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conspirators. Defendant argues that this testimony was based on

hearsay, that it was an opinion concerning an ultimate issue

that had to be determined by the jury, that it was not "helpful"

as required by section (b) of the rule, and that it seriously

prejudiced his case.

The government argues that because of Gotay's heavy

involvement with the competing drug point at the housing

project, her participation in a meeting in which defendant

mentioned the benefits of joining his operation, her first-hand

knowledge of how drug trafficking organizations operated, and

her witnessing of her sister's murder, she was in a position to

give an opinion as to why her sister was killed. The government

contends that her testimony was helpful because it helped the

jury understand the motive behind the murder and how the act

furthered the interests of the conspiracy.

In United States v. Paiva, 892 F.2d 148, 156 (1st Cir.

1989), we reiterated the generally accepted rule:

The admissibility of lay opinion testimony
pursuant to Rule 701 is committed to the
sound discretion of the trial judge, and the
trial judge’s admission of such testimony
will not be overturned unless it constitutes
a clear abuse of discretion.

We pointed out that “[t]he modern trend favors the admission of

opinion testimony provided it is well founded on personal

knowledge and susceptible to cross-examination.” Id. at 157;

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see also United States v. Rivera-Santiago, 107 F.3d 960, 968

(1st Cir. 1997); United States v. Jackman, 48 F.3d 1, 4 (1st

Cir. 1995).

The record shows that Gotay was subject to intensive

cross-examination. Under the applicable law and the facts to

which she testified, we find that the district court did not

abuse its discretion in allowing Gotay to state her opinion as

to why her sister was killed. In all events, given the strength

of the government's case against defendant, any error in the

admission of this evidence was harmless.

8. Whether the search warrant for
defendant’s apartment was
invalid because it failed to
correctly identify the
apartment to be searched.

Defendant moved to suppress the evidence seized on the

ground that an erroneous address on the warrant invalidated it.

He further argued that even if the warrant was valid, it should

not have issued because it was not supported by probable cause.

The district court did reach the merits of the motion to

suppress but dismissed it on the ground that it was untimely.

Although we do not entirely disagree with the district court as

to the timeliness of the motion, we prefer to decide the issue

on the merits.

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 We held in United States v. Vigeant, 176 F.3d 565, 569

(1st Cir. 1999), that "[w]e review the question of probable

cause de novo, assessing the information provided in the four

corners of the affidavit supporting the warrant application" and

that "probable cause exists when the affidavit upon which a

warrant is founded demonstrates in some trustworthy fashion the

likelihood that an offense has been committed . . . ." (internal

quotation marks and citations omitted). Probable cause, in the

context of granting a search warrant, requires no more than the

existence of a "fair probability" that evidence of a crime will

be found. United States v. Grant, 218 F.3d 72, 75 (1st Cir.

2000).

The facts leading to the warrant are as follows. Edwin

Nunez Cotto, an officer in the drugs and narcotics division of

the Puerto Rico Police Department, testified that while

conducting surveillance of the building in which defendant

lived, he had seen individuals who appeared to be transporting

weapons and other individuals positioned on the roof, apparently

as lookouts. These observations led Nunez to conclude that

“they were protecting something in defendant’s apartment."

Defendant argues in his brief that the warrant was not

supported by probable cause. He states: “Where information is

supplied by a confidential informant to a police officer, the

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informant, in general, must be shown to have an adequate basis

of knowledge and a background demonstrating reliability.” This

is a substantially correct statement of the law but there is

nothing in the record about information from a confidential

informant. Rather, it seems clear that the warrant was issued

based on the observations and conclusion of Officer Nunez.

There can be little doubt that there was at least a “fair

probability,” based on Nunez’s observations, that evidence of a

crime could be found. We rule that there was probable cause for

issuing the search warrant.

Defendant’s final argument on this issue focuses on an

incorrect address given in the warrant. The warrant mistakenly

described the apartment to be searched as building 44, apartment

446. Defendant's address was in fact building 45, apartment

446, and that was the only premises searched. Officer Nunez,

who made the observations that were the basis for issuing the

warrant and was its executing officer, was also a member of the

search team. He correctly directed the team to defendant’s

apartment.

Defendant argues that, because of the address mistake,

his apartment was not "particularly described" in the warrant as

required by the Fourth Amendment. He contends that the search

of his apartment was thus improper, and that any evidence found

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as a result of the search should be suppressed. Defendant

asserts that the warrant allowed the police to undertake wide-

ranging general searches in violation of the Fourth Amendment,

and that there was a great probability that the wrong apartment

would be searched.

We held in United States v. Bonner, 808 F.2d 864, 866-

67 (1st Cir. 1986), that "[t]he manifest purpose of the

particularity requirement of the Fourth Amendment is to prevent

wide-ranging general searches by the police" and that "[t]he

test for determining the adequacy of the description of the

location to be searched is whether the description is sufficient

to enable the executing officer to locate and identify the

premises with reasonable effort, and whether there is any

reasonable probability that another premise might be mistakenly

searched." (internal quotation marks and citations omitted).

The warrant in Bonner was held to be valid despite its omission

of the house number, because it included an adequate description

of the premises to be searched and because, as in the present

case, an agent who had been involved with surveillance of the

house had accompanied the search team. The incorrect address

did not invalidate the warrant where "[t]here was no risk that

federal agents would be confused and stumble into the wrong

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house, or would take advantage of their unforeseeable windfall

and search houses indiscriminately, . . . ." Id. at 866.

We rule that the warrant was properly issued and

executed.

9. Whether the district court
omitted key instructions from
the instruction on a
continuing criminal
enterprise.

Defendant asserts that the district court’s charge to

the jury was deficient in that it failed to (1) define the

meaning of the terms “organizer,” “supervisor” and “manager,”

(2) instruct the jury on what was meant by acting “in concert or

together with” five or more other persons,” (3) instruct as to

which individuals were countable in the “five or more other

persons,” and (4) sufficiently communicate the need of the jury

to unanimously identify each underlying violation. He argues in

the alternative that the failure to object on this issue

constituted ineffective assistance of counsel.

Because defendant did not raise any of these objections

after the charge and before the jury started deliberations, we

review the district court’s instructions for plain error. In

United States v. Olano, 507 U.S. 725, 732 (1993), the Supreme

Court defined this standard of review as requiring "an 'error'

that is 'plain' and that 'affect[s] substantial rights.' . . .

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Moreover, Rule 52(b) leaves the decision to correct the

forfeited error within the sound discretion of the court of

appeals, and the court should not exercise that discretion

unless the error 'seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.'”

The prosecution argues that a district court has no

obligation to define terms generally understood by the average

person and that therefore defendant’s first two claims are

meritless. We agree with the government's argument in this

regard. See United States v. De LaCruz, 902 F.2d 121, 123 (1st

Cir. 1990). Regarding the third claim, the prosecution notes

that there were nine defendants at trial (the tenth having pled

guilty) and that it thus went without saying who could be

counted. As to the final claim, the prosecution asserts that

the district court was clear in indicating that the jury had to

unanimously agree on which three violations constituted the

series of three or more violations.

The district court's charge to the jury on Count 1 of

the indictment, the continuing criminal enterprise charge, was

as follows:

In Count 1 of the indictment two of
the defendants are charged, Jose Vega
Figueroa and Carlos Hernandez Vega. The law
makes it a federal crime or offense for
anyone to engage in what is called a

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continuing criminal enterprise involving
controlled substances.

A defendant can be found guilty of
that offense only if all of the following
facts are proved beyond a reasonable doubt:

First, that the defendants violated
Section 841(a)(1) as charged in the
indictment. This is the drug trafficking
case.

Second, that such violations were part
of a continuing series of violations as
herein after defined.

Third, that such continuing series of
violations were undertaken by the defendants
in concert or together with at least five or
more other persons.

Fourth, that the defendant occupied
the position of an organizer, supervisor or
manager.

Fifth, that the defendant obtained
substantial income or resources in the
continuing series of violations.

A continuing series of violations
means proof of at least three violations
under the Federal controlled substances law,
as charged in Count 1 of the indictment, and
also requires a finding that those
violations were connected together as a
series of related or ongoing activities as
distinguished from isolated and disconnected
acts. You must unanimously agree on which
three violations constitute the series of
three or more violations in order to find
the essential element of No. 2 of this
offense has been proven.

It must also be proved that the
defendants engaged in the continuing series
of violations with at least five or more

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 persons, whether or not those persons are
named in the indictment and whether or not
the same five or more persons participated
in each of the violations, or participated
at different times. And, it must be proved
that the defendant's relationship with the
other five or more persons was that of
organizers, supervisors or managers – that
the defendant's relationship with the other
five or more persons was that of organizer,
supervisor or manager, and that the
defendant was more than a fellow worker and
either organized or directed the activities
of the others, whether the defendant was the
only organizer or supervisor or not.

Finally, it must be proved that the
defendant obtained substantial income or
resources from the continuing series of
violations.

(emphasis added).

Given the language of the charge, we cannot conclude

that the instructions on this issue were defective, much less

plainly erroneous.

Defendant's alternative claim – that the failure to

object on this issue constitutes ineffective assistance of

counsel – depends on whether we find any merit in his argument

that the jury instructions were flawed. Because we find that

the jury instructions were not flawed, we do not discuss

defendant's alternate claim of ineffective assistance of

counsel.

10. Whether the jury engaged in
improper deliberations prior
to the closing of the case.

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 During the trial, the jury requested to see the scene

of the two murders at Hogar Crea, a drug detention and

rehabilitation facility where members of the conspiracy had set

up a second drug point. In response, the district court

instructed the jury to wait until the government had presented

its case-in-chief and that if, at that time, it still wished to

see the scene, it should renew its request at that time.

Defendant asserts that this request demonstrates that the jury

had been deliberating and weighing the evidence before all of

the evidence had been presented, and that the court erred in

failing to remind the jury that it was not within its province

to determine what evidence it should consider. Because

defendant did not raise this objection during trial, we review

the district court's failure to so instruct for plain error. See

Olano, 507 U.S. at 732.

The record shows the jury was instructed at the

beginning of the trial that they should not discuss the case

until instructed to do so, and that the court concluded every

session by warning the jury: "Do not discuss the case with

anyone," or "Do not discuss it among yourselves or with anyone."

We do not think that the desire of the jury to view a drug point

is any indication that it disregarded the court’s repeated and

explicit instructions and engaged in improper deliberations.

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 For the foregoing reasons, the judgment below is

affirmed.

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