United States v. Downs-Moses

United States Court of Appeals
For the First Circuit

Nos. 00-2535
00-2587
00-2589
01-1002
01-1073
01-1091
01-1561

UNITED STATES OF AMERICA,

Appellee,

v.

RADMEN DOWNS-MOSES, RAMÓN SÁNCHEZ-HERNÁNDEZ,
RAÚL SALAZAR-URIANA, GERÓNIMO AMPARO-HERNÁNDEZ,
LARRY WARD-BRYAN, and JERRY WARD-O'NEILL,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.

Raymond L. Sánchez Maceira for appellant Radmen Downs-Moses.
Rafael F. Castro Lang for appellant Ramón Sánchez-Hernández.
William A. Gilmore, Jr., with whom Azzarito & Gilmore, LLP
was on brief, for appellant Raúl Salazar-Uriana.
Jean Philip Gauthier for appellant Gerónimo Amparo-
Hernández.
H. Ernest Stone for appellant Larry Ward-Bryan.
 Terrance J. McCarthy for appellant Jerry Ward-O'Neill.

Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, were on brief, for appellee.

May 27, 2003
 HOWARD, Circuit Judge. In these consolidated appeals,

six defendants challenge their convictions and sentences for aiding

and abetting the possession of cocaine with intent to distribute.

After a careful review of their arguments, we affirm.

I. Factual and Procedural Background

We recite the pertinent facts in the light most favorable

to the verdict, see United States v. Valerio, 48 F.3d 58, 60 (1st

Cir. 1995)(citing United States v. Ortiz, 23 F.3d 21, 23 (1st Cir.

1994)), deferring some details to our analysis of the issues raised

on appeal.

A. One Boat, Twenty-Eight Bales, and Six Men Adrift

On December 26, 1998, at approximately 10:30 a.m., a U.S.

Customs pilot patrolling the waters off the west coast of Puerto

Rico and monitoring a marine emergency radio channel learned that

a vessel had capsized approximately seven and a half nautical miles

west of Cabo Rojo, Puerto Rico. Aided by coordinates provided by

a civilian vessel in the area, the pilot located an overturned

vessel, a twenty-one-foot Grand Prix with a yellow fiberglass

hull.1 The vessel was registered in Puerto Rico, and known by the

1
After locating the vessel and determining there were no
survivors in the immediate vicinity, the pilot circled the area
within a five- to ten-mile radius. Because it was a clear, sunny
day and the water was calm, the pilot and his co-pilots opted to
look for survivors without the aid of infrared equipment or other
devices. None of the Customs pilots noticed the defendants in the
water during their visual inspection.

-3-
name “MARINATHA.”2 Agents of the U.S. Coast Guard later arrived at

the scene by boat. The agents inspected the MARINATHA and, upon

righting the vessel, discovered five bales of a substance later

identified as cocaine. The bales were rectangular parcels wrapped

in brown burlap bags with red and green stripes. Inside, the

cocaine was packaged in bricks, with each brick tightly wrapped in

thick balloons of various colors.

Some distance north of the MARINATHA (the record is

unclear as to the location), a Coast Guard pilot discovered twenty-

one bales floating in the water. A U.S. Border Patrol boat

responded to a call for assistance and recovered these bales, also

later determined to contain cocaine, which were wrapped in the same

manner as those recovered with the MARINATHA.

In the early afternoon, agents with the maritime drug

interdiction unit of the Police of Puerto Rico (known as “FURA”),

acting on information received via police communication radio, went

to yet a third location in the water. Approximately five miles

west of Boquerón, Puerto Rico, FURA agents discovered floating in

the water defendants-appellants Jerry Ward-O'Neill (“Ward-

O'Neill”), his brother Larry Ward-Bryan (“Ward-Bryan”), and Raúl

Salazar-Uriana (“Salazar”). The three men wore life vests.

2
At trial, all parties stipulated to the fact that none of the
six defendants was ever a registered owner of the MARINATHA,
registry number PR-2311-AA. The MARINATHA had been purchased a few
weeks prior to December 26, 1998, and was registered in the name of
a person who was not charged in this case.

-4-
 After removing these men from the water, FURA agents

spotted three more people floating in the water approximately 200

feet away. One man in this second group, Radmen Downs-Moses

(“Downs”), was wearing a life vest identical to the life vest worn

by one of the men in the first group. The two other men in this

second group, Ramón Sánchez-Hernández (“Sánchez-Hernández”) and his

cousin Gerónimo Amparo-Hernández (“Amparo-Hernández”) were each

seen clinging to a burlap-covered bale as a flotation device. As

the agents approached, the men pushed the bales away. These bales,

also containing cocaine, were wrapped in the same manner as the

five bales recovered with the MARINATHA by the Coast Guard and the

twenty-one bales recovered by the Border Patrol.

FURA agents also recovered a white bucket floating in the

water near where the defendants were found. The bucket contained,

among other things, a cellular telephone,3 a protective case for a

global positioning system, razor blades labeled “Gillette of

Colombia, S.A.,” and a laminated piece of paper with writing on it.

The notations on the paper included two sets of coordinates (one

set of which was close to where the capsized MARINATHA was found),

as well as the name “Moreno.” FURA agents found no fishing or

diving gear in the vicinity.

3
According to a stipulation entered into at trial, the
telephone number corresponding to the cellular telephone had never
been assigned to any of the defendants.

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 The six men were taken to the FURA office in Boquerón and

placed under arrest. Customs agents read each his Miranda rights,

and each signed a written waiver. In the interviews that followed,

the men told stories that were at times incredible and

contradictory. The three men in the first group, all Colombian

nationals, claimed to know each other, but denied knowing anyone in

the second group. Ward-O'Neill claimed that he and the other two

in the first group had been near Puerto Rico for twenty-four days

on the ALEXANDER,4 allegedly a forty-two-foot fishing vessel under

the command of one Captain Alejandro. He said that he and seven

others (including Ward-Bryan and Salazar) went out on a smaller

twenty-foot fishing boat that had engine problems and capsized. He

could not identify any of the other people who had been with them

in the smaller boat. He denied knowing the men in the second group

picked up by FURA, or knowing anything about the nearby bales of

cocaine.

Ward-Bryan told a similar story, but could not recall the

name of the forty-two-foot vessel on which he had been a passenger

for twenty-four days. Salazar's version of the story differed –-

he stated that a total of five people boarded the smaller boat, and

that they had done so because the larger vessel was having engine

4
A Customs agent testified at trial that he, like agents of
the Coast Guard, Border Patrol, and FURA working in the area on
December 26, 1998, did not see any vessels fitting the alleged
description of the ALEXANDER in the vicinity.

-6-
problems, not to go fishing. According to his story, the small

boat capsized when its passengers attempted to tow the larger

vessel. They then tried to swim back to the larger vessel to be

rescued, but it abandoned the three of them (but apparently not the

other passengers who had been in the small boat) in the water

before they could reach it.

In the second group, Sánchez-Hernández, a Dominican

national residing in Puerto Rico, told agents that he and his

cousin left to go fishing in a small boat the previous evening. He

said their boat took on water and sank that night at approximately

10:00 or 10:30 p.m. He denied knowing any of the four other men

picked up in the water or even where they had come from, but stated

that if any of the other men said he was on "the yellow boat," then

that person was lying. Sánchez-Hernández admitted that he was

known by the nickname "Moreno," a name that appeared on the piece

of paper found in the white bucket. His cousin, Amparo-Hernández,

told a similar story, but said their fishing boat had hit a rock,

and that this was what caused it to sink. Despite being found

using a bale of cocaine to keep him afloat, Amparo-Hernández denied

having any knowledge of the bales found with him and Sánchez-

Hernández.

The third person in the second group was Downs, a

Nicaraguan national who claimed not to know any of the other men

found at sea. He told the agents that he had been a stowaway on a

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Costa Rican container ship, and that when he was discovered on

board the day before, the captain put a life vest on him, brought

the ship close to the coast of Puerto Rico, and threw him

overboard. Downs identified for the agents the life vest he had

been wearing, and signed the life vest in their presence. The life

vest was identical to one of the life vests worn by one of the men

in the first group.

On December 30, 1998, a grand jury indicted the six men

on a single count of aiding and abetting each other in knowingly,

intentionally, and unlawfully possessing with intent to distribute

approximately 978 kilograms of cocaine on board a vessel of the

United States, in violation of 46 U.S.C. app. § 1903(a),(b)(1) and

(f), and 18 U.S.C. § 2.

B. Trial and Sentencing

The defendants were tried before a jury in April 2000,

with testimony offered over the course of six days. In addition to

evidence introduced by the government, the parties stipulated that

the chain of custody of the evidence recovered on December 26, 1998

would be completed through the testimony of certain identified law

enforcement agents. They also stipulated that a forensic chemist

would testify to the fact that the bales contained cocaine

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hydrochloride (a Schedule II narcotic), weighing a total of 975

kilograms, and having a strength or purity of 83 percent.5

On April 11, 2000, the district court read closing

instructions to the jury in open court. Among other things, the

jury was instructed that only a "measurable amount" of cocaine must

be proven by the government beyond a reasonable doubt, not the

actual amount charged in the indictment. Although this stage of

the proceedings was not recorded by the court reporter, the

exchange between the court and counsel immediately thereafter was

transcribed, and reflected that the court gave defense counsel the

opportunity to object to the instructions. Other than an objection

by counsel for Ward-Bryan on the ground that the minimum and

maximum penalty should have been read to the jury (a request denied

5
This stipulation read, in relevant part:

It is hereby stipulated and agreed to by the United
States and the above-captioned defendants with advice of their
respective attorneys that Juan C. Bruna, forensic chemist of
the Drug Enforcement Administration would testify as follows:

1. That he received drug exhibits in this case
. . . from Special Agent Marco Rocco of the United States
Customs Service in three sealed boxes containing samples of
kilograms taken from 28 different bales and placed in three
sealed boxes;

2. That he opened said boxes and performed a chemical
analysis of the samples submitted which reveals the following:
Drug weight of seizure 975 kilograms. Net weight 852.2
kilograms. Strength or purity 83 percent;

3. That cocaine hydrochloride is a Schedule II narcotic
drug controlled substance.

-9-
by the district court), counsel made no objections to the jury

instructions.

The jury returned verdicts of guilty as to all

defendants. Sánchez-Hernández and Amparo-Hernández were each

sentenced to a term of imprisonment of 200 months; Ward-Bryan and

Ward-O'Neill (following a 2-point adjustment in his base offense

level on re-sentencing in March 2001) were sentenced to 188 months;

Salazar was sentenced to 180 months; and Downs was sentenced to 172

months. All defendants were sentenced to supervised release terms

of five years, and assigned special monetary assessments of $100.

These appeals followed.

II. Analysis

On appeal, the defendants challenge the sufficiency of

the evidence presented at trial.6 Three of the defendants (Ward-

Bryan, Sánchez-Hernández, and Amparo-Hernández) criticize the use

of the stipulation at trial that described the government chemist's

testimony regarding the nature and weight of the drug evidence,

6
Ward-O'Neill, the only defendant who did not raise this issue
in his principal brief on appeal, adopted the issue in a pro se
supplemental brief by reference to the briefs of co-defendants
Ward-Bryan and Salazar. Most of the defendants attempted to
incorporate by reference the arguments of general application made
by their co-defendants. Finding the arguments raised on appeal
unavailing, we do not address whether the defendants' attempts at
incorporation were effective. See, e.g., United States v. David,
940 F.2d 722, 737 (1st Cir. 1991)("Adoption by reference . . .
cannot occur in a vacuum; to be meaningful, the arguments adopted
must be readily transferrable from the proponent's case to the
adopter's case.").

-10-
although each frames the issue differently on appeal. Ward-O'Neill

alleges that he was denied due process of law because the jury

charge was not transcribed by the court reporter, and that the

district court erred in failing to grant him a greater reduction in

sentence based on his role in the illegal venture. Downs alleges

that his post-arrest statement should have been suppressed at

trial, that he was denied the right to a public trial, that the

prosecution indirectly referenced his failure to testify at trial,

and that he was denied effective assistance of counsel.

A. Sufficiency of the Evidence

The defendants contend that their convictions should be

vacated because the evidence presented at trial was insufficient to

support their guilty verdicts. In reviewing such a challenge, we

consider the record evidence (and any reasonable inferences

therefrom) as a whole and in the light most favorable to the

prosecution, asking whether the evidence would have permitted a

rational jury to find the defendants guilty of the crime charged

beyond a reasonable doubt. United States v. Lopez-Lopez, 282 F.3d

1, 19 (1st Cir. 2002); Ortiz, 23 F.3d at 24.

In so doing, we do not favor direct evidence over

circumstantial evidence, as either type of evidence may

satisfactorily support a conviction. See Ortiz, 23 F.3d at 24; see

also United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir.

1993)("A conviction may be premised in whole or part on

-11-
circumstantial evidence."). Nor do we weigh the evidence or judge

credibility; these determinations are the province of the jury.

See Mena-Robles, 4 F.3d at 1031. A verdict that is "supported by

a plausible rendition of the record" will not be disturbed on

appeal. United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992).

The defendants argue that the case for a finding of

innocence is at least equally as compelling as the case for a

finding of guilt, and thus reversal of their convictions is

mandated. See United States v. Flores-Rivera, 56 F.3d 319, 323

(1st Cir. 1995)(quoting United States v. Sanchez, 961 F.2d 1169,

1173 (5th Cir. 1992)(conviction cannot stand if evidence provides

"equal or nearly equal circumstantial support to a theory of guilt

and a theory of innocence on the crime charged")). We disagree.

The indictment charged the defendants with aiding and

abetting, on board a vessel of the United States, the possession

with intent to distribute approximately 978 kilograms of cocaine.

See 46 U.S.C. app. §§ 1903(a), (b)(1). To prove aiding and

abetting, the government must demonstrate that each defendant

participated in the illegal venture and sought by his actions to

make it succeed. United States v. Guerrero, 114 F.3d 332, 341 (1st

Cir. 1997). "Mere presence at the scene or even knowledge that the

crime is being committed is generally insufficient to establish

aiding and abetting." Id. at 342.

-12-
 The government's evidence at trial was persuasive,

particularly when viewed in its totality. Ortiz, 966 F.2d at 711

("[J]uries are not required to examine the evidence in isolation,

for individual pieces of evidence, insufficient in themselves to

prove a point, may in cumulation prove it. The sum of an

evidentiary presentation may well be greater than its constituent

parts." (quoting Bourjaily v. United States, 483 U.S. 171, 179-80

(1987)(internal quotation omitted)). Contrary to the defendants'

contentions on appeal, the jury could have inferred far more than

the defendants' "mere presence" at the scene of the crime.

On the evidence presented, a reasonable jury could have

found that all twenty-eight bales of cocaine, elaborately and

similarly packaged, had been part of the same shipment; that the

size of the shipment (weighing 975 kilograms, or more than 2100

pounds) necessitated that a number of individuals participate in

its transport; that the six defendants had been aboard the

MARINATHA with the contraband; and that the MARINATHA was a vessel

of the United States.

Further, the jury could have credited the testimony of

the Customs agent who interviewed the defendants, including his

description of the stories told by the defendants and the

inculpatory comment by Sánchez-Hernández that if any of the other

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men said he was in "the yellow boat," he was lying.7 The jury

could have rejected the defendants' stories as fabricated,

concluding that each defendant was attempting to conceal his active

participation in a venture he knew to be illegal. This type of

concealment may have further incriminated the defendants:8

[T]he jury could certainly have chosen to believe
that the converging circumstances pointed toward a
more sinister truth and been persuaded thereby of
appellants' guilt. And that conclusion, once
reached, would be self-reinforcing; if the jury
disbelieved defendants' story, it could
legitimately have presumed that the fabrication was
all the more proof of their guilt.

United States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir. 1989). On

these facts, we cannot say that the jury's conclusion was

irrational. See, e.g. United States v. Corchado-Peralta, 318 F.3d

255, 258 (1st Cir. 2003).

7
For a jury to credit the defendants, it would have had to
believe that the defendants encountered each other in the sea by
serendipity. The jury would have to believe that two unrelated
fishing boats sank near each other for reasons inconsistently
described by the members of the purported fishing parties; that one
of the groups of fishermen had the misfortune of drifting alongside
two bales of cocaine wrapped in the same manner as some bales
floating near a capsized boat a few miles away; that near the two
groups floated a bucket nobody knew about, but which contained
known tools of the drug trade and a paper bearing (1) the nickname
of one of the men, and (2) the coordinates of a location very near
the capsized, drug-laden boat; and that a sixth unlucky stranger
passing through on a container ship was outfitted with a life vest
identical to one worn by one of the other fishermen floating in the
water, and thrown overboard in that same location.
8
Even if Downs's statement was disregarded, there was, as
discussed below, sufficient evidence to convict him.

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B. Stipulation Relating to Drug Amount

Three of the defendants contend that the stipulation

regarding the testimony of the government's forensic chemist was

used improperly at trial. Each of these defendants attempts to

draw on the principles set forth in Apprendi v. New Jersey, 530

U.S. 466 (2000). Apprendi stands for the proposition that, other

than a fact of a prior conviction, "any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

both be charged in the indictment and submitted to a jury for a

determination under the beyond-a-reasonable-doubt standard."

United States v. Eirby, 262 F.3d 31, 36 (1st Cir. 2001)(citing

Apprendi, 530 U.S. at 490). Ward-Bryan makes an express Apprendi

claim, alleging that weight of the cocaine involved should have

been submitted to the jury. Without referencing Apprendi directly,

Sánchez-Hernández argues that the stipulation was used in a manner

that violated his rights to due process and a jury trial, and

Amparo-Hernández alleges that he was denied effective assistance of

counsel in connection with the stipulation.

1. Apprendi (Ward-Bryan)

Ward-Bryan alleges that because his sentence was based on

the weight of the cocaine involved in the crime, the failure to

submit this issue to the jury for determination beyond a reasonable

doubt violated his rights under Apprendi. Having failed to object

to his sentence on this basis, Ward-Bryan's argument is reviewed on

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appeal for plain error only. United States v. Olano, 507 U.S. 725,

731-32 (1993). Accordingly, Ward-Bryan bears the burden of proving

(1) an error, (2) that is plain, and (3) that affects substantial

rights. Johnson v. United States, 520 U.S. 461, 466-67

(1997)(quoting Olano, 507 U.S. at 732). Even if he meets this

burden, this court will only exercise its discretion to notice the

error if "the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings." Id. at 467.

The indictment specified that approximately 978 kilograms

of cocaine were involved in the crime, a charge that exposed Ward-

Bryan to a sentence of ten years to life. See 46 U.S.C. app. §

1903(g)(1); 21 U.S.C. § 960(b). He concedes in his brief that he

stipulated at trial that the weight of the cocaine was 975

kilograms (an amount carrying the same penalties as the amount

charged in the indictment) and that this may have been a tactical

decision intended to limit juror prejudice by avoiding "prolonged

testimony focusing on the contraband itself."9

9
Ward-Bryan now contends that it is "entirely likely" that the
stipulation to the drug amount (entered into in April 2000, prior
to the Apprendi decision in June 2000) was made with the
expectation that, consistent with then-existing practice, the jury
would be instructed that it need not make a determination as to the
quantity of cocaine involved. Thus Ward-Bryan would have had less
of an incentive pre-Apprendi to dispute the drug quantity in front
of the jury. Ward-Bryan now wishes to be relieved of the
consequences of the stipulation (which he acknowledges may have
provided some tactical advantage to him at trial). The failure to
submit this stipulated issue to the jury does not constitute an
"error."

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 Ward-Bryan has not demonstrated any error on these facts.

He was sentenced to 188 months' imprisonment, a term less than the

statutory maximum (in this case, a life sentence). In such a case,

"Apprendi is irrelevant." Eirby, 262 F.3d at 37. Ward-Bryan

concedes this point in his brief, but urges us to find that

Apprendi extends to circumstances in which a defendant is sentenced

to more than the mandatory minimum sentence. This suggested

expansion of Apprendi is wholly inconsistent with our precedent,

see United States v. Newton, --- F.3d --- , No. 01-2636, 2003 WL

1826135, at *11 (1st Cir. Apr. 9, 2003); Lopez-Lopez, 282 F.3d at

22; United States v. Robinson, 241 F.3d 115, 119 (1st Cir. 2001),

and we are not empowered to revisit the issue. See United States

v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991)("[I]n a multi-panel

circuit, prior panel decisions are binding upon newly constituted

panels in the absence of supervening authority sufficient to

warrant disregard of established precedent."). We find no error in

Ward-Bryan's sentencing.

2. Erroneous Jury Instruction (Sánchez-Hernández)

In his pro se supplemental brief, Sánchez-Hernández also

alleges that the stipulation regarding the forensic chemist's

testimony was used in a manner that violated his rights, referring

generally to his right to due process and to his Sixth Amendment

right to a speedy and public jury trial. Sánchez-Hernández argues

that he stipulated only to what the forensic chemist would testify

-17-
to, not to the accuracy of the witness's testimony. He contends

that the district court erred in (1) failing to explain this

distinction to the jury, and (2) affirmatively misstating the

effect of the stipulation to the jury. The latter alleged error

occurred immediately after the stipulation was read to the jury

when the district court instructed the jury:

Let me advise the jury first that the United States
and the defendants having stipulated to the facts
as stated in that stipulation, those facts stated
in that stipulation as to the drug are facts that
must be taken as true not subject to credibility.

Tr. Apr. 4, 2000, 28:1-5 (emphasis added). Sánchez-Hernández made

no contemporaneous objection to either alleged error, nor did he

later request jury instructions or a form of verdict that would

require the jury to determine the amount of cocaine involved beyond

a reasonable doubt. Having failed to preserve these issues at

trial, Sánchez-Hernández's arguments are reviewed for plain error.

Olano, 507 U.S. at 731-32.

Although Sanchez-Hernandez's argument may be technically

correct that he stipulated to only the chemist's testimony about

the drugs, and the district court therefore erred in characterizing

the stipulation as a stipulation "as to the drug[s]," this error

did not affect Sánchez-Hernández's substantial rights. As a

factual matter, the defendants and their counsel treated the

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stipulation as a stipulation to the quantity of cocaine,10 and no

other evidence was presented that would have contradicted the

testimony of the government's forensic chemist. As a matter of

law, because Sánchez-Hernández was sentenced to less than the

statutory maximum, the failure to present the issue of the drug

amount to the jury has no constitutional significance.11 See

Apprendi, 530 U.S. at 490; see also Section II.B.1., above.

3. Ineffective Assistance of Counsel (Amparo-
Hernández)

Amparo-Hernández contends that he received ineffective

assistance of counsel, both at the time he entered into the

defendants' stipulation, and at the time counsel failed to object

to jury instructions that did not require the jury to determine the

10
Prior to sentencing, Sánchez-Hernández, Amparo-Hernández, and
Salazar each moved for a new trial or for sentencing at the
mandatory minimum, alleging a violation of Apprendi because the
amount of drugs involved was not determined by the jury. At their
sentencing hearings on October 27, 2000, these defendants, through
counsel, withdrew their motions after reviewing a copy of the
stipulation regarding the testimony that would be offered by the
government's forensic chemist. Similarly, at Downs's sentencing
(which occurred three days before), Downs's counsel reviewed the
motion filed on behalf of Sánchez-Hernández and asked that the same
issues be preserved for his client. He later conceded, however,
that the drug amount "was agreed and stipulated."
11
Sánchez-Hernández also argues that the district court erred
in instructing the jury that it need not determine the amount of
cocaine as charged in the indictment. This argument is identical
in all relevant respects to the Apprendi argument made by Ward-
Bryan, and is rejected for the reasons discussed in Section
II.B.1., above.

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drug amount beyond a reasonable doubt.12 Typically we do not

consider claims of ineffective assistance of counsel on direct

appeal. United States v. Soldevila-Lopez, 17 F.3d 480, 485 (1st

Cir. 1994). Such claims usually present mixed questions of law and

fact, and should be addressed at the district court level in the

first instance. See id. Here, however, the key facts are not in

dispute, the record appears "sufficiently developed to allow a

reasoned consideration" of Amparo-Hernández's claim, and both sides

contend that further factfinding is unnecessary. United States v.

Natanel, 938 F.2d 302, 309 (1st Cir. 1991). Accordingly, we

consider Amparo-Hernández's claim of ineffective assistance.

The Sixth Amendment guarantees criminal defendants the

right to effective assistance of counsel at trial. Strickland v.

Washington, 466 U.S. 668, 686 (1984). To demonstrate a violation

of this right, a defendant must show that counsel's performance was

constitutionally deficient and that prejudice resulted. See id. at

687. The first prong of the analysis, the "performance" prong, is

12
These are the only claims of ineffective assistance discussed
in any detail in Amparo-Hernández's brief, although he makes
references, not developed on appeal, to the fact that (1) counsel
failed to adequately inform him of his rights and the consequences
of the drug stipulation (Amparo-Hernández Br. at 19); and (2) the
stipulation "was forced upon the defendant" (Amparo-Hernández Br.
at 26). These types of fact-based allegations are not suitable for
consideration on direct review. See United States v. Gonzalez-
Vazquez, 219 F.3d 37, 42 (1st Cir. 2000). Accordingly, our
disposition of Amparo-Hernández's remaining ineffective assistance
arguments is without prejudice to Amparo-Hernández raising these
two fact-based allegations in a motion for relief under 28 U.S.C.
§ 2255.

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applied with deference to counsel's professional judgment, and is

based on what counsel knew or should have known at the time counsel

exercised such judgment. See Natanel, 938 F.2d at 309. Counsel's

performance will be deemed deficient only if, considering all

relevant circumstances, counsel's conduct or omissions fell

"outside the wide range of professionally competent assistance."

See Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir. 2002)(quoting

Strickland, 466 U.S. at 690).

Amparo-Hernández's claim fails at the first prong of this

analysis. Accepting Amparo-Hernández's characterization of the

stipulation as one in which he agreed to the quantity of cocaine at

issue (and not a mere agreement to the forensic chemist's

testimony, as Sánchez-Hernández suggests on appeal), this

stipulation spared the defendant the spectacle of twenty-eight

bales of cocaine on parade before the jury. This was an approach

apparently agreed to by all of the defendants, who devoted their

defense to disputing the connection between the defendants and the

cocaine without highlighting the amount of contraband involved.

Under the circumstances, this was a reasonable tactical decision.

Similarly, no objection to the related jury instruction would have

been appropriate in light of the stipulation as it was understood

by the defendants and their counsel at the time. Amparo-Hernández

has demonstrated no deficiency in counsel's performance on these

facts.

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C. Transcription of Jury Charge (Ward-O'Neill)

Ward-O'Neill contends that he was denied due process of

law because the jury charge was not transcribed, and that his

conviction should be reversed because this gap in the transcript

deprived him of the opportunity to seek review of the jury

instructions for substantial error. But "due process does not

automatically require reversal when a defendant is denied a full

verbatim transcript." United States v. Brand, 80 F.3d 560 (1st

Cir. 1996) (citing Bundy v. Wilson, 815 F.2d 125, 135 (1st Cir.

1987)). Here, Ward-O'Neill and his co-defendants do not dispute

that they were provided written copies of the jury instructions,

that the district court read from them, and that all counsel were

afforded the opportunity to make objections on the record. There

has been no due process violation under these facts.13 See Bundy,

815 F.2d at 135 ("A defendant's right to a transcript can be

satisfied by providing him with a written substitute that reports

13
Although raised for the first time only in Ward-O'Neill's
reply brief and therefore not considered on appeal, see Rivera-
Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st Cir. 1992), the
failure to transcribe any portion of the proceedings in open court
is inconsistent with the requirements of the Court Reporters Act,
28 U.S.C. § 753(b)("Each session of the court and every other
proceeding designated by rule or order of the court or by one of
the judges shall be recorded verbatim . . . ")(emphasis added).
Technical noncompliance, without more, does not give rise to
reversible error, but there could be cases in which prejudice
results. The practice of not transcribing the instructions as
actually given is inadvisable.

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the portions of the trial which underlie his appellate

contentions.").

D. Sentencing (Ward-O'Neill)

Ward-O'Neill challenges his sentence, alleging that he

should have received a greater reduction in his offense level under

the federal sentencing guidelines than the two-level reduction as

a "minor" participant he received at a re-sentencing held in March

2001.14 See U.S. Sentencing Guidelines Manual ("U.S.S.G.") §

3B1.2(a) (2002). Specifically, Ward-O'Neill claims he was entitled

to a four-level reduction as a "minimal" participant, see U.S.S.G.

§ 3B1.2(b), on the ground that there was no evidence at trial that

he did anything more than off-load drugs from another vessel. In

challenging the fact-based determination as to his role in the

offense, Ward-O'Neill bears the burden of proving that the district

court's determination was clearly erroneous. United States v.

14
In a crime involving multiple participants, a district court
may decrease a defendant's offense level by two to four levels if
the defendant had a mitigating role in the offense. U.S.S.G. §
3B1.2. A four-level reduction may be granted for a "minimal
participant," which is defined as someone who is "plainly among the
least culpable of those involved in the conduct of a group."
U.S.S.G. § 3B1.2, comment (n.4). A defendant may fit in this
category if he is shown to lack "knowledge or understanding of the
scope or structure of the enterprise and of the activities of
others." Id. A two-level reduction is available for those who are
also less culpable, "but whose role could not be described as
minimal." Id. (n. 5). For those defendants falling between
"minimal" and "minor," a three-level reduction is available.
Sánchez-Hernández, Amparo-Hernández, and Ward-Bryan each received
two-level reductions in their offense level; Salazar and Downs
received three-level reductions.

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Murphy, 193 F.3d 1, 8 (1st Cir. 1999) ("This is normally a fact-

bound decision, reviewed only for clear error and rarely

reversed."); United States v. Gonzalez-Soberal, 109 F.3d 64, 73

(1997); United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir.

1990).

Ward-O'Neill did not present evidence that he had a

minimal role in the offense. In fact, during his testimony at

trial, he denied having any role at all, for the most part

repeating the fishing-trip story he told investigators upon his

arrest. The district court found that, because of the size of the

cocaine shipment, the size of the boat used, and the number of

defendants involved in its transport, the offense involved more

than minimal planning, and was not likely to involve "strangers" to

the transaction who had no role in the enterprise. Despite these

conclusions, the district court gave Ward-O'Neill the benefit of a

two-level reduction in his offense level. Ward-O'Neill has not

shown that the court clearly erred in declining to grant a four-

level reduction, an adjustment that the sentencing guidelines note

should be "used infrequently." U.S.S.G. § 3B1.2, comment (n.4);

see United States v. Munoz, 36 F.3d 1229, 1238 (1st Cir. 1994).

E. Waiver of Miranda Rights (Downs)

Downs contends that his post-arrest statement, including

his admission that he had been wearing a life vest that matched

another defendant’s, should have been suppressed on the ground that

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his waiver of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), was not knowingly and intelligently made. Downs raised

this issue below in a May 20, 1999, motion to suppress, which was

denied by the district court in January 2000 at the recommendation

of Magistrate Judge Justo Arenas.

A defendant may make a valid waiver of his rights under

Miranda if he does so voluntarily, knowingly and intelligently.

Miranda, 384 U.S. at 444; United States v. Palmer, 203 F.3d 55, 60

(1st Cir. 2000). The district court must begin with the

presumption that the defendant did not waive his rights. Palmer,

203 F.3d at 60. The government bears the burden of proving a valid

waiver by a preponderance of the evidence. See id.; United States

v. Rosario-Diaz, 202 F.3d 54, 69 (1st Cir. 2000). We review the

district court’s factual findings for clear error, United States v.

Marenghi, 109 F.3d 28, 31 (1st Cir. 1997), recognizing that if

there are two plausible interpretations of the evidence, the

district court’s choice of one of these interpretations cannot be

clearly erroneous. Palmer, 203 F.3d at 60. Conclusions of law,

including the determination as to whether a waiver of rights was

voluntary, engender de novo review. See id.; United States v.

Bienvenue, 632 F.2d 910, 913 (1st Cir. 1980).

The magistrate judge held evidentiary hearings in

November and December 1999 and recommended that Downs's motion to

suppress his post-arrest statement be denied. In reaching his

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decision, the magistrate judge described the findings of the

experts15 and the testimony of one of the Customs agents who

interviewed Downs and witnessed his waiver of his Miranda rights.

The magistrate judge focused almost exclusively on the issue of

whether Downs’s waiver of his rights was voluntary, finding no

indicia that his statement was “the product of force, intimidation,

or fatigue.” As to whether Downs’s waiver was knowingly and

intelligently made, the magistrate judge observed only that there

were "varying opinions in terms of [Downs's] intellectual

capacity," and that

[t]here is enough in his personal history, as well
as the embellished saga of the Costa Rican
containership and the strangers the defendant found
on the high seas, like a scenario from a Clive
Cussler novel, to belie the argument that his
waiver was not intelligently made.

Even were we to assume arguendo that the district court

erred in finding that Downs's waiver was made knowingly and

intelligently, the introduction of the confession at trial would

15
The defense expert testified that Downs had an IQ of 61,
placing him in the extremely low range of intellectual functioning.
She testified that, on an intellectual level, Downs is mentally
retarded. She also found that Downs had a limited vocabulary, and
did not have the capacity to make a rational choice because he
lacked an appreciation of the consequences of his decisions. The
government's expert found that Downs's intellectual capacity
"seemed average" despite his lack of formal education. She found
that Downs's memory and recollection also "seemed average" and that
"when lapses were apparent they were more the result of a conscious
denial and not a cognitive deficiency." She concluded, however,
that under the circumstances, Downs's competency to waive his
constitutional rights at the time of his arrest was "questionable."

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constitute a "trial error." Arizona v. Fulminante, 499 U.S. 279,

307-08 (1991). Trial errors -- unlike structural defects in a

prosecution, id. at 309-10, such as the total deprivation of the

right to trial counsel -- occur during the presentation of evidence

to the jury and therefore may be "quantitatively assessed in the

context of other evidence presented in order to determine whether

its admission was harmless beyond a reasonable doubt." Id. at 308.

In reviewing the evidence, we are mindful that

the harmless-error doctrine is essential to
preserve the principle that the central purpose of
a criminal trial is to decide the factual question
of a defendant's guilt or innocence, and promotes
public respect for the criminal process by focusing
on the underlying fairness of the trial rather than
on the virtually inevitable presence of immaterial
error.

Id. (internal quotation omitted).

The admission of Downs's post-arrest statement, including

his story about being on a Costa Rican container ship and his

identification of the life vest he was wearing when he was found at

sea, was insignificant in the context of the other evidence

presented. Without this statement, the government still had

testimony placing Downs in the water beside two defendants afloat

on bales of cocaine. The government had five other defendants who

gave contradictory explanations regarding how they came to be at

sea, and denied knowing most of the other defendants, including

Downs. And contrary to representations made by Downs's counsel at

oral argument, Downs's post-arrest statement was not the sole

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evidence presented at trial linking Downs to the life jacket he

signed; Downs, through trial counsel, volunteered to stipulate that

the signature on the life vest was his. The life vest, with a

distinctive dolphin logo and brand name, was then shown to the

jury, as was a matching life vest worn by one of the other

defendants. On these facts, we find that even if an error occurred

in admitting Downs's statement, it was harmless.

F. Other Assignments of Error (Downs)

In a supplemental pro se brief, Downs raises three

additional issues that may be readily dispatched. First, Downs

alleges a violation of his right to a public trial because, during

voir dire, "the jury venire panel filled every seat in the

courtroom making it virtually impossible to seat anyone who wasn't

a juror." Downs does not reference any portion of the record

supporting his claim that the courtroom was ever closed, nor does

he contend that this arrangement was ever the subject of an

objection or a request for alternative accommodations. Without

more, Downs fails to show any violation of his right to a public

trial. See, e.g. United States v. Kobli, 172 F.2d 919, 923 (3d

Cir. 1949) ("The courts . . . have denied that the constitutional

right to a public trial involves the necessity of holding the trial

in a place large enough to accommodate all those who desire to

attend.").

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 Second, Downs argues that the prosecution improperly

referenced his decision not to testify, citing two exchanges during

the cross-examination of Ward-O'Neill by the prosecution. As

support, Downs cites questioning directed at whether Downs spoke

English and at whether Ward-O'Neill knew Downs (Ward-O'Neill

volunteered that he and Downs were held in the same prison pending

trial). Downs complains that these questions put him in a position

where he felt pressured to testify to explain how he learned

English and why he had been incarcerated. In determining whether

there has been an improper reference to a defendant's silence, we

ask "whether, in the circumstances of the particular case, the

language used was manifestly intended or was of such a character

that the jury would naturally and necessarily take it to be a

comment on the failure of the accused to testify." United States

v. Akinola, 985 F.2d 1105, 1111 (1st Cir. 1993)(quoting United

States v. Glantz, 810 F.2d 316, 322 (1st Cir. 1987)). We fail to

see how a jury could have drawn any connection between these

questions and Downs's silence at trial. That Downs would have

liked to give an explanation of his co-defendant's answers (a

sentiment no doubt shared by many defendants who choose not to

testify) does not render the questions improper nor the questioning

constitutionally infirm.

Third, Downs contends that he was denied effective

assistance of counsel, alleging that his counsel was assigned to

-29-
his case only fifteen days before trial and that his performance

was deficient because he failed to (1) discuss the possibilities of

a plea bargain with Downs; (2) seek to plea bargain with the

government; or (3) attempt to minimize Downs's sentence through the

provision of substantial assistance to the government. Unlike the

claims raised by Amparo-Hernández and resolved in this direct

appeal, see Section II.B.3., above, Downs's claim is a mixed

question of law and fact for which we have virtually no record

support. We therefore decline to address this claim on appeal,

without prejudice to Downs asserting it in a motion for relief

under 28 U.S.C. § 2255.

III. Conclusion

For the foregoing reasons, the defendants' convictions

and sentences are AFFIRMED.

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