United States v. Soto-Beniquez

United States Court of Appeals
For the First Circuit

Vol. I of II

No. 01-1619

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM SOTO-BENÍQUEZ,

Defendant, Appellant.

No. 01-1674

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN SOTO-RAMÍREZ,

Defendant, Appellant.

No. 00-1547

UNITED STATES OF AMERICA,

Appellee,

v.

EDUARDO ALICEA-TORRES,

Defendant, Appellant.

No. 01-1620
 UNITED STATES OF AMERICA,

Appellee,

v.

RAMON FERNÁNDEZ-MALAVÉ,

Defendant, Appellant.

No. 00-1464

UNITED STATES OF AMERICA,

Appellee,

v.

CARMELO VEGA-PACHECO,

Defendant, Appellant.

No. 00-1488

UNITED STATES OF AMERICA,

Appellee,

v.

ARMANDO GARCÍA-GARCÍA,

Defendant, Appellant.
No. 00-1470

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE LUIS DE LEÓN MAYSONET,

Defendant, Appellant.

No. 00-1362

UNITED STATES OF AMERICA,

Appellee,

v.

RENE GONZALEZ-AYALA,

Defendant, Appellant.

No. 00-1543

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN ENRIQUE CINTRÓN-CARABALLO,

Defendant, Appellant.
No. 00-1361

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL VEGA-COLÓN,

Defendant, Appellant.

No. 00-1456

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL VEGA-COSME,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.

Marlene Apontes-Cabrera for appellant Soto-Beníquez.
Miriam Ramos-Grateroles for appellant Soto-Ramírez.
Raymond Rivera Esteves for appellant Alicea-Torres.
Luz M. Rios-Rosario for appellant Fernández-Malavé.
Javier Morales-Ramos for appellant Vega-Pacheco.
Rachel Brill for appellant García-García.
Roberto Roldan-Burgos for appellant de León Maysonet.
Victor Miranda-Corrada, for appellant Gonzalez-Ayala.
Rafael Anglada-Lopez for appellant Cintrón-Caraballo.
Marcia G. Shein for appellants Vega-Cosme and Vega-Colón.
 Jacabed Rodriguez-Coss and Michelle Morales, Assistant United
States Attorneys, with whom H.S. Garcia, United States Attorney,
and Sonia I. Torres-Pabon, Assistant United States Attorney, were
on brief, for appellee.

November 20, 2003
 LYNCH, Circuit Judge. This massive drug conspiracy case

from Puerto Rico involved a six-month trial and resulted in

convictions of the eleven defendants who appeal, eight of whom

received life sentences and three of whom received sentences of

more than twenty years.

The government charged this case as involving one

overarching conspiracy from January 1990 to March 1994 to

distribute drugs at Bitumul (Israel Ward) in Hato Rey, San Juan,

Puerto Rico and to protect that distribution through multiple

murders. Twenty-two defendants were indicted on charges of

conspiracy with intent to distribute more than five kilograms of

cocaine, more than five kilograms of cocaine base, more than five

kilograms of heroin, and more than 100 kilograms of marijuana over

a four-year period, in violation of 21 U.S.C. § 841(a)(1). Two of

these defendants, William Soto-Beníquez and Juan Soto-Ramírez

(a/k/a Pipo), were also charged with violating the Continuing

Criminal Enterprise (CCE) statute, 21 U.S.C. § 848(a) and (b). The

government alleged that Soto-Ramírez headed the conspiracy and that

Soto-Beníquez was the triggerman and principal supplier. The

remaining nine appellants were charged with playing various roles

in distributing drugs or protecting the distribution of drugs.

The original twenty-two defendants were separated into

two groups. The first group of eleven, comprised of those who the

government said were more major players in the conspiracy, were

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tried before a jury from December 28, 1998 to June 25, 1999. The

jury convicted all eleven defendants on all counts with which they

were charged.

The two CCE defendants were sentenced to life

imprisonment on Count One, the CCE count, while Count Two, the

conspiracy count, was dismissed as to them under the rule of

Rutledge v. United States, 517 U.S. 292 (1996). Six other

defendants were also sentenced to life imprisonment: Alicea-

Torres, Fernández-Malavé, Vega-Pacheco, García-García, Vega-Cosme,

and Cintrón-Caraballo. The remaining three -- Vega-Colón,

Gonzalez-Ayala, and de León Maysonet -- were each sentenced to 292

months of imprisonment.

These appeals present three substantial issues: a

multiple conspiracy issue, an issue of improper argument by the

government in its rebuttal closing argument, and a set of Apprendi

sentencing issues. Defendants' key theme on appeal is that the

government overcharged the conspiracy in at least two significant

respects. First, defendants argue that, assuming Soto-Beníquez and

Soto-Ramírez did distribute drugs to points in Bitumul from 1990

until late 1992 or early 1993, the drug points were largely

independent; the fact of a common supplier does not mean the

independent drug point operators agreed to a conspiracy, much less

to the ensuing murders. Second, defendants argue that, by late

1992, both Soto-Beníquez and Soto-Ramírez were out of action: one

-7-
had been imprisoned and the other had left for Florida after

narrowly escaping an attempt on his life. Any conspiracy was by

then concluded, defendants assert, and the government's attempts to

include another year's worth of events, until March 1994, in the

conspiracy were improper. Those events involved a different and

rival drug dealer, Rodríguez-López (a/k/a El Bebo), and took place

partly in another town called Fajardo. The defendants argue that

if their theory as to multiple conspiracies is correct, then there

are significant ramifications that affect the application of the

statute of limitations, the admissibility of testimony

(particularly, evidence of fifteen horrific murders), the refusal

to sever certain defendants, and various sentencing determinations.

The defendants also complain, with justification, about

the government's poor record of pre-trial production of required

materials, as well as its belated springing of requested sentencing

enhancements on certain defendants after the Pre-Sentence

Investigative Report (PSR) had been prepared and the defendants'

objections to it had been served. The trial court was obviously

frustrated with the government's conduct in this case and

threatened three times to dismiss the indictment, but in the end

did not. Post-trial, the court also found the evidence sufficient

to support the convictions.

Over twenty-five issues are raised in these appeals and

are discussed in the sequence of events leading to and through

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trial, with the exception of the multiple conspiracies issue, which

we discuss first.

I.

The facts are stated, for sufficiency of the evidence

purposes, as a reasonable jury could have found them, in the light

most favorable to the verdict.

The government's case turned on the testimony of several

cooperating co-conspirators -- Ramón Cesário-Soto, Victor Negrón-

Maldonado (a/k/a Pitosito), and Luis Torrens-Alicea (a/k/a Pito

Salsa) -- as well as the testimony of police officers and

investigators.

The case centers around six drug points in the Bitumul

Ward of Hato Rey, San Juan, Puerto Rico: (1) Callejón Nueve,

operated by Juan Soto-Ramírez and later by Negrón-Maldonado, (2) La

Pared, also operated by Soto-Ramírez, (3) Street B between La Pared

and Callejón Nueve, operated by Juan Cintrón-Caraballo and supplied

by Soto-Ramírez, (4) El Palo on Laguna Street, operated by Alberto

Santiago-Figueroa, a defendant not participating in this trial, and

supplied by Soto-Ramírez, (5) Cuba Street, which included two

distribution points operated by Soto-Beníquez and Soto-Ramírez, and

(6) Laguna Street, operated by Miguel Vega-Cosme. These points,

which began operation around 1990, dealt in crack cocaine, cocaine,

heroin, and marijuana.

-9-
 Soto-Ramírez and Soto-Beníquez were the leaders of the

operation. Soto-Ramírez operated or supplied almost all of the

drug points. His house at Callejón Dos was used by various

defendants to prepare crack and heroin for distribution at the six

drug points and to store weapons to defend and acquire territory

for the drug points. When defendant Miguel Vega-Cosme established

his drug point on Laguna Street with his son, defendant Miguel

Vega-Colón, he first requested permission from Soto-Ramírez.

Soto-Beníquez served as the triggerman and principal

supplier. He ultimately supplied most of the narcotics sold at the

drug points and owned many of the weapons used to kill rival gang

members. Cesário-Soto described him as "one with ranks" in the

drug world.

The remaining defendants were involved in running one or

more of the six drug points. Eduardo Alicea-Torres sold drugs at

the Cuba Street and Callejón Dos drug points from 1990 until at

least 1991, and later began his own drug point. Ramon Fernández-

Malavé packaged crack and cocaine for Soto-Ramírez and cooperating

government witness Negrón-Maldonado in 1992. Carmelo Vega-Pacheco

packaged drugs for Soto-Ramírez and Negrón-Maldonado through 1992,

and sold narcotics at the Cuba Street drug points in 1990 and 1991.

Armando García-García sold narcotics at the Cuba Street drug points

from 1990 to 1991, packaged drugs in 1992, and sold drugs at

Callejón Nueve in 1993. From 1990 to 1992, Jose de León Maysonet

-10-
stored narcotics and weapons for the drug points, and after 1992,

he sold narcotics at Callejón Nueve. Juan Cintrón-Caraballo

operated the Street B drug point throughout the charged conspiracy.

Miguel Vega-Cosme supplied Soto-Ramírez with narcotics and operated

a drug point at Laguna Street from 1990 until 1994 with Soto-

Ramírez's permission. Vega-Cosme also supplied ammunition used in

shootings of rival gang members in 1992 and 1993, and negotiated on

behalf of the group in seeking to resolve its differences with the

rival Chacho gang. Miguel Vega-Colón, the son of Vega-Cosme,

packaged crack cocaine, heroin, and marijuana for his father and

stood as an armed guard at the Callejón Nueve drug point, a point

separate from the one his father ran on Laguna Street.

Several of the defendants were involved in a series of

murders undertaken to defend and acquire territory in Bitumul on

behalf of the conspiracy. The first of these killings occurred on

February 10, 1991. Soto-Ramírez confessed to Negrón-Maldonado that

he, along with two deceased members of the conspiracy, killed

Dagoberto Robles-Rodríguez because he felt threatened by Robles-

Rodríguez. Soto-Ramírez then gained control of Robles-Rodríguez's

heroin point on Cuba Street. Soto-Ramírez pled guilty in a Puerto

Rico court to Robles-Rodríguez's homicide.

Another killing occurred on February 20, 1991. As

government informant Ana Luz Dones-Arroyo was leading undercover

police officer Efrain Hernández de León to the location at Callejón

-11-
Dos where Soto-Ramírez and others stored their weapons, both were

gunned down. Soto-Ramírez shot Dones-Arroyo, and defendant Alicea-

Torres killed the police officer and disposed of the body. A

ballistics expert testified that the same two weapons used in the

murder of Robles-Rodríguez were used to kill Dones-Arroyo and

Hernández de León.

According to Negrón-Maldonado's testimony, several more

murders occurred after these two. On July 20, 1991, Soto-Ramírez

ordered the murder of one of his sellers at the Cuba Street drug

point, Fernando Agosto-Villegas, because two-eighths of a kilogram

of cocaine and a machine gun belonging to Soto-Ramírez were

missing. On May 12, 1992, Soto-Beníquez ordered the murder of

Heriberto Rivera-González in retribution for the death of Jose

Cosme-Sobrado (a/k/a Canito), who had been managing several of

Soto-Ramírez's drug points. Rivera-González was suspected of

participating in the murder of Cosme-Sobrado earlier that day.

Defendant Cintrón-Caraballo, cooperating government witness Negrón-

Maldonado, and two other members of the group kidnapped Rivera-

González and brought him to Callejón Dos, where Negrón-Maldonado

and others killed him. Finally, on November 25, 1992, Negrón-

Maldonado, Soto-Beníquez, and another co-conspirator not on trial

here, Juan Antonio Rodríguez-López, killed Reynaldo Cancel-Robles.

Soto-Beníquez supplied a drug dealer named "Cuelli," who owned a

drug point outside Bitumul in the Vista Hermosa housing project.

-12-
Cancel-Robles was killed because he had ousted "Cuelli" from this

drug point.

On December 20, 1992, gang warfare broke out between the

group and members of a rival gang led by "Chacho." A shootout

occurred between the two gangs, in which Angel Rivera-Pagán, a

member of Soto-Ramírez and Soto-Beníquez's group, was killed.

Eight days later, Negrón-Maldonado, Rodríguez-López, and others

retaliated by murdering Roberto Vasallo-Morninglane, a member of

the Chacho gang.

The gang warfare continued, and several days later, on

January 10, 1993, defendant Vega-Pacheco, government witnesses

Cesário-Soto and Negrón-Maldonado, Rodríguez-López, and others went

to the Quintana housing project and killed five more people, two of

whom were members of the Chacho gang. Vega-Pacheco later pled

guilty in a Puerto Rico court to participating in those five

murders, which came to be known as the Quintana massacre.

Yet another murder took place on March 7, 1993, when

defendant Fernández-Malavé killed Tito Dones-Sanchez. Negrón-

Maldonado and Cesário-Soto testified that Fernández-Malavé opened

fire on a white van after Cintrón-Caraballo and other dealers at

the Callejón Nueve drug point saw it driving nearby and suspected

that those inside were members of the rival El Visco gang. Dones-

Sanchez was later found dead inside a white van of the same

description, which a municipal police officer had witnessed leaving

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the Bitumul area. Fernández-Malavé pled guilty in a Puerto Rico

court to the murder of Dones-Sanchez.

While these murders were occurring in 1992 and 1993, some

changes occurred in the leadership of the group. On January 8,

1992, Soto-Ramírez was incarcerated after pleading guilty in a

Puerto Rico court to various crimes, including attempted murder.

After Soto-Beníquez was shot in an assassination attempt, he ceased

activities in Bitumul in December 1992 and moved to Florida in

1993. While Soto-Ramírez was in prison, Cosme-Sobrado managed

three of Soto-Ramírez's drug points until Cosme-Sobrado was killed

on May 12, 1992. Negrón-Maldonado then took over managing the

points until he left for Philadelphia in June or July 1993. When

managing the points, both Cosme-Sobrado and Negrón-Maldonado took

instructions from Soto-Ramírez through telephone calls from prison

and forwarded the proceeds from the drug points to Soto-Ramírez's

wife.

In June or July 1993, Rodríguez-López, a former member of

the group, returned to Bitumul from Fajardo, where he had fled

after the Quintana massacre. Rodríguez-López had teamed up with

defendant Rene Gonzalez-Ayala and government witness Torrens-Alicea

to steal a two hundred kilogram shipment of cocaine at a beach in

Fajardo. Without consulting anyone in Bitumul, Rodríguez-López

brought the cocaine back to Bitumul and established a "new" drug

point at Callejón Nueve, where Soto-Ramírez's drug point had been

-14-
abandoned. Rodríguez-López employed several members of the

original group in setting up the new drug point, including García-

García and de León Maysonet, but he also brought in individuals

from outside Bitumul, including Gonzalez-Ayala and Torrens-Alicea.

Tension arose between Rodríguez-López and the members of

the original group, in particular Cintrón-Caraballo and Negrón-

Maldonado, over the influx of outsiders working at the new drug

point at Callejón Nueve. Torrens-Alicea testified, however, that

after Negrón-Maldonado returned from Philadelphia, he "ironed out"

these differences with Rodríguez-López over the course of two

meetings in August or September 1993.

Around that time, several defendants again became

involved in violent activities. According to Torrens-Alicea's

testimony, on September 12, 1993, de León Maysonet, Gonzalez-Ayala,

García-García, and three other members of the gang went to Fajardo

to find and kill an individual named Vitito, who had been hired to

kill those responsible for the stolen cocaine in Fajardo. They

never found Vitito. Instead, de León Maysonet, Gonzalez-Ayala, and

another member of the gang were arrested in Fajardo while in

possession of a firearm and eleven decks of heroin; both de León

Maysonet and Gonzalez-Ayala pled guilty in Puerto Rico court to the

charges. On October 11, 1993, Torrens-Alicia, García-García, and

two others killed Oscar Nazario-Rivera in Floral Park, Hato Rey,

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because he was a member of the Chacho gang and had threatened

Rodríguez-López.

II.

On April 10, 1997, a federal grand jury in Puerto Rico

returned a two-count indictment against the eleven appellants,

along with ten other defendants. Count One charged Soto-Beníquez

and Soto-Ramírez with engaging in a continuing criminal enterprise

in violation of 21 U.S.C. § 848(a) and (b). Count Two charged that

from about January 1, 1990, until about March 7, 1994, all twenty-

one defendants conspired to distribute more than five kilograms of

heroin, more than five kilograms of cocaine, more than five

kilograms of cocaine base, and more than 100 kilograms of

marijuana, as prohibited by 21 U.S.C. § 841(a)(1) and 21 U.S.C. §

846.

Rodríguez-López, who became a cooperating witness in the

pre-trial stage of the case, testified to the grand jury. The

government eventually discovered that he had lied before the grand

jury about his presence at a murder. The government informed the

grand jury about the false testimony, and on December 14, 1998,

obtained a superseding indictment. In the superseding indictment,

the government alleged the same charges against the same twenty-one

defendants listed in the original indictment. The government also

added Rodríguez-López as a defendant to the conspiracy charge of

-16-
the superseding indictment, thus raising the total number of

defendants to twenty-two.

On December 28, 1998, the district court divided the

twenty-two defendants into two groups for trial purposes. At that

point, sixteen of the original twenty-two defendants were slated to

go to trial. The district court selected the eleven appellants as

the first group to be tried. After an eighty-six-day trial, the

jury returned a guilty verdict as to all eleven defendants on all

counts for which they were charged.

All eleven defendants appealed. This court consolidated

their appeals.

III.

A. Sufficiency of the Evidence Proving a Single Conspiracy
(García-García, de León Maysonet, Gonzalez-Ayala)

To join a drug conspiracy, a defendant must agree with

others to advance the aim of the conspiracy -- here, to possess

drugs for distribution. United States v. Garcia-Torres, 280 F.3d

1, 4 (1st Cir. 2002). Advancing the aim of the conspiracy can

involve performing ancillary functions such as processing and

cooking drugs, procuring weapons, collecting monies, enforcing

discipline, chastising rivals, accounting, and the like, as long as

such actions are performed with the aim of furthering the

conspiracy. See id. To hold that defendants have "joined" a

conspiracy, there must be sufficient evidence both that they knew

-17-
about the conspiracy and that they knew the ancillary service would

advance that conspiracy. Id.

Special issues arise when defendants argue that there

were multiple conspiracies and that their activities were not part

of the conspiracy charged. The initial issue -- and the only issue

we need to reach here -- is whether the government proved the

conspiracy charged in the indictment. This issue, assuming a

properly instructed jury, resolves into a sufficiency-of-evidence

question. United States v. Martinez-Medina, 279 F.3d 105, 113 &

n.2 (1st Cir. 2002); United States v. Wihbey, 75 F.3d 761, 773-74

(1st Cir. 1996). If the evidence is sufficient to support the

jury's finding that all the defendants are guilty of the single

conspiracy charged, then no error has occurred.1

A number of factors come into play in determining whether

the evidence establishes a single conspiracy,2 including (1) the

1
If the evidence instead establishes agreements different
from those charged, the next issue is variance. The reviewing
court asks whether the evidence is sufficient to permit a properly
instructed jury to convict the defendant of a similar related
conspiracy, and if so, whether the variance between the two
conspiracies affected the substantial rights of the defendant.
United States v. Glenn, 828 F.2d 855, 858 (1st Cir. 1987); see also
Kotteakos v. United States, 328 U.S. 750, 774 (1946). We need not
reach this step of the inquiry in this case because we find
sufficient evidence to support the finding of a single conspiracy.
2
In some cases, the indictment itself sets forth
different, often sequential conspiracies in multiple counts. See,
e.g., United States v. David, 940 F.2d 722 (1st Cir. 1991).
Defendants then may argue that there is only one conspiracy, not
two, and that they may not be sentenced for two conspiracies
without violating the double jeopardy clause. Id. at 732. This

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existence of a common purpose, such as selling drugs for profit,

(2) the interdependency of various elements in the plan, such as

whether the success of an individual's own drug transactions

depends on the health and success of the drug trafficking network

that supplies him, and (3) the degree of overlap among the

participants. See Martinez-Medina, 279 F.3d at 114; United States

v. Rivera-Ruiz, 244 F.3d 263, 268 (1st Cir. 2001); United States v.

Portela, 167 F.3d 687, 697 (1st Cir. 1999). We look to the

totality of the evidence to see if it supports a finding of a

single conspiracy. Rivera-Ruiz, 244 F.3d at 268; Portela, 167 F.3d

at 696. The government need not show that each conspirator knew of

or had contact with all other members. Nor need it show that the

conspirators knew all of the details of the conspiracy or

participated in every act in furtherance of the conspiracy. United

States v. Mena-Robles, 4 F.3d 1026, 1032 (1st Cir. 1993). Changes

in the cast of characters do not preclude a finding of a single

overarching conspiracy. United States v. Shea, 211 F.3d 658, 665

(1st Cir. 2000).

The defendants present two main challenges to the

sufficiency of evidence proving a single conspiracy. First, they

argue that there was no conspiracy at all because Soto-Ramírez and

Soto-Beníquez were simply common distributors to a number of

court uses a similar totality of the circumstances, multi-factored
approach in analyzing a claim of that type. Id. at 734.

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diverse and independent drug points. This argument is belied by

the record, which shows a great deal more than common distribution.

The evidence establishes not only that Soto-Ramírez and Soto-

Beníquez were the primary suppliers of the six drug points, but

also that the six drug points shared a common system of defense.

Various defendants stood guard at drug points owned by other co-

conspirators to protect them from rival gang members. For example,

Vega-Colón, who worked at his father's point on Laguna Street, also

stood as an armed guard at Rodríguez-López's point on Callejón

Nueve. Those standing guard at different drug points shared

resources with each other. They communicated among themselves via

walkie-talkies or radios, issuing alerts when the police or

unfamiliar cars from outside Bitumul were in the area. They also

shared rifles purchased and stored by Soto-Beníquez, and ammunition

purchased by Vega-Cosme after taking up collections from each of

the drug points. When the drug points were threatened by rival

gangs, members of the group would join together to guard vulnerable

points from attack. After the shootout with the Chacho gang in

December 1992, Negrón-Maldonado, Fernández-Malavé, and Vega-Pacheco

stood guard together at Callejón Dos. And after the conspiracy was

threatened by members of the El Vizco gang, Soto-Beníquez, Negrón-

Maldonado, Fernández-Malavé, and Cintrón-Caraballo stood guard

together at the Street B drug point. The six drug points also

negotiated as a group in settling disputes with rival gangs. When

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war broke out against the Chacho gang at the end of 1992, Vega-

Cosme met with Chacho to negotiate on behalf of all six drug points

because the war was interfering with drug sales at the Bitumul

points.

Furthermore, members of the group jointly avenged the

deaths of others involved in the operation of the six drug points.

After the death of Cosme-Sobrado, who managed Soto-Ramírez's drug

points while he was in prison, members of the group met at Callejón

Dos. Individuals from different drug points attended the meeting,

including Soto-Beníquez and Alicea-Torres (Cuba Street point),

Vega-Cosme and Vega-Colón (Laguna Street point), Cintrón-Caraballo

(Street B point), and Negrón-Maldonado (Callejón Nueve point). As

a result of the meeting, Negrón-Maldonado and Cintrón-Caraballo

came together to kidnap and murder Rivera-González, whom Soto-

Ramírez's wife suspected of participating in Cosme-Sobrado's

murder.

In addition to this system of common defense, the co-

conspirators had agreements regarding the distribution of narcotics

at the drug points. Vega-Cosme and Negrón-Maldonado met at least

three times to assign colors to the caps of crack capsules sold at

different points in the Bitumul Ward so that their origin could be

identified and competition between the points avoided. Vega-Cosme

also asked Soto-Ramírez for permission before setting up his drug

point with his son Vega-Colón on Laguna Street.

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 The evidence supports the jury's finding that each of the

defendants joined in this common enterprise. First, the evidence

establishes that each defendant joined in the common defense of the

points. Seven of the defendants -- Soto-Ramírez, Soto-Beníquez,

Alicea-Torres, Vega-Pacheco, Fernández-Malavé, García-García, and

Cintrón-Caraballo -- ordered or participated in murders to protect

the drug points. Soto-Ramírez and Alicea-Torres killed a police

officer and a government informant who were about to discover the

group's stash of weapons used to protect the drug points. Soto-

Ramírez ordered the murder of one of his drug dealers when some

cocaine and a machine gun disappeared, sending the message that

those who broke ranks and stole from the group would be punished.

See United States v. Rodriguez, 162 F.3d 135, 143 (1st Cir. 1998)

(finding the beating of a member of the conspiracy suspected of

being an informant to be in furtherance of the conspiracy because

it served to "maintain[] discipline in [the conspiracy's] ranks").

On Soto-Beníquez's orders, Cintrón-Caraballo kidnapped Rivera-

González and brought him to Bitumul to be killed to avenge the

death of Cosme-Sobrado. Vega-Pacheco participated in the Quintana

massacre to avenge the death of Rivera-Pagán, a member of the

group. While defending the group's territory at Callejón Nueve,

Fernández-Malavé killed Tito Dones-Sanchez by opening fire on a van

suspected of containing rival gang members. García-García killed

a member of the rival Chacho gang who threatened Rodríguez-López.

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 Although not direct participants in those murders, the

remaining four defendants also contributed to the common defense of

the drug points. We put aside, for the moment, the issue of

whether the group's post-1993 activities involved a separate

conspiracy. De León Maysonet and Gonzalez-Ayala went to Fajardo

for the purpose of killing someone who threatened Rodríguez-López.

Vega-Cosme supplied ammunition for shootings of rival gang members

in 1992 and 1993 and negotiated on behalf of the group with the

Chacho gang. Vega-Colón stood as an armed guard at Rodríguez-

López's point on Callejón Nueve.

Second, in addition to evidence that each defendant

participated in the system of common defense, there is evidence

that each defendant participated in the common enterprise of

selling drugs through the six points. We again put aside for the

moment whether the group's post-1993 activities involved a separate

conspiracy. Soto-Ramírez controlled several drug points, and his

house was used to prepare and package crack and heroin for

distribution at several of the drug points. Soto-Beníquez was the

primary supplier of cocaine and crack to the six drug points.

Alicea-Torres and Vega-Pacheco sold narcotics for points owned by

Soto-Beníquez and Soto-Ramírez from 1990 to 1991. Fernández-Malavé

packaged crack cocaine, cocaine, and heroin from 1992 to 1993, and

packaged cocaine specifically for Soto-Ramírez from May 1992 to

December 1992. García-García sold narcotics for Soto-Beníquez and

-23-
Soto-Ramírez from 1990 to 1991, packaged narcotics in 1992,

returned to selling narcotics for Rodríguez-López in 1993.

Cintrón-Caraballo supervised a drug point for crack cocaine and

distributed cocaine and crack cocaine for Soto-Ramírez throughout

the duration of the conspiracy. Gonzalez-Ayala helped Rodríguez-

López steal 200 kilograms of cocaine for the conspiracy in 1993 and

subsequently packaged and distributed it. De Leon-Maysonet

packaged and stored narcotics for the conspiracy from 1990 to 1992

and then sold narcotics at the Callejón Nueve point in 1993.

Vega-Cosme supplied ammunition and narcotics to Soto-Ramírez and

distributed heroin at a drug point with Soto-Ramírez's permission

throughout the duration of the conspiracy. Vega-Colón,

Vega-Cosme's son, packaged crack, heroin, and marijuana for his

father's point.

The second argument challenging the sufficiency of

evidence proving a single conspiracy is presented by defendants

García-García, de León Maysonet and Gonzalez-Ayala. They argue

that the government overreached in counting as part of one massive

conspiracy a separate, later, and antagonistic drug-selling group.

The three defendants argue that they cannot be guilty of the

continuing conspiracy when they were in competition with the

original conspiracy and the original conspirators were out to kill

the head of their drug group. They concede that the evidence does

show their involvement with separate drug points. But the evidence

-24-
does not, they contend, show that they participated in an overall

drug conspiracy headed by Soto-Beníquez and Soto-Ramírez. They

argue that this conspiracy effectively ended by the summer of 1993.

In January 1992, Soto-Ramírez was arrested and incarcerated. And

William Soto-Beníquez, after escaping death in a shootout, ceased

activities in Bitumul in December 1992 and moved to Florida in

1993. Cosme-Sobrado, who succeeded Soto-Ramírez, was killed on May

12, 1992, and Victor Negrón-Maldonado left for Philadelphia in June

or July 1993.

The three defendants argue that later events centered

around a separate conspiracy, led by Rodríguez-López. Rodríguez-

López, who had originally been part of the conspiracy headed by

Soto-Ramírez and Soto-Beníquez, left Bitumul for Fajardo in the

summer of 1993 to avoid being arrested for his involvement in the

Quintana massacre. While in Fajardo, he stole a 200 kilogram

shipment of cocaine. Upon his return to San Juan in June or July

of 1993, and without consulting anyone in Bitumul, Rodríguez-López

reestablished a drug point at Callejón Nueve with the stolen

cocaine, employing outsiders from Fajardo to operate the point.

Negrón-Maldonado testified that while he was in Philadelphia, he

had telephone conversations with people in Bitumul, including

Cintrón-Caraballo, who wanted to kill Rodríguez-López for bringing

outsiders into the Bitumul operation; Torrens-Alicea confirmed that

-25-
some members of the original group "were out to kill" Rodríguez-

López.

Each of the three defendants argues that the multiple

conspiracies theory affects his liability in a different way.

Gonzalez-Ayala contends that, at most, he was a member only of a

later uncharged conspiracy headed by Rodríguez-López; he did not

join any conspiracy at all until the summer of 1993, when he helped

Rodríguez-López steal the shipment of cocaine and returned with

Rodríguez-López to set up the drug point at Callejón Nueve.

Gonzalez-Ayala thus contends that no evidence ties him to the other

Bitumul drug points or the earlier murders connected with those

drug points.

De León Maysonet contends that he was prejudiced by the

government's single conspiracy theory because all of his

participation in the original conspiracy occurred while he was a

minor. He was nonetheless held liable as an adult because he

supposedly ratified the conspiracy by continuing to participate

after he turned eighteen on January 12, 1992. United States v.

Welch, 15 F.3d 1202, 1211-12 (1st Cir. 1993). He contends,

however, that the only acts of ratification presented by the

government occurred after the original conspiracy had ended and

Rodríguez-López had taken over.

García-García argues that the government's presentation

of a single overarching conspiracy, rather than multiple

-26-
conspiracies, subjected him to evidence of murders in which he did

not participate. García-García contends that the only murder in

which he allegedly participated -- that of Oscar Nazario-Rivera --

occurred after the original conspiracy ended and was not drug-

related.

The jury was instructed on multiple conspiracies, at the

request of the defense. The district court informed the jury that

it must acquit "[e]ven if the evidence in the case shows that

defendants were a member of some conspiracy, and not the single

conspiracy charged in the indictment." As noted earlier, where the

jury was properly instructed and found the defendants guilty of

conspiracy, its verdict is reviewable only for sufficiency of

evidence. David, 940 F.2d at 732.

On the evidence, a jury could have concluded that there

was a later, rival conspiracy, but it was not compelled to do so.

There is sufficient evidence to support the jury's verdict of

guilt, as well as its implicit finding that a single conspiracy

existed that extended through the summer of 1993. The jury could

plausibly have found that Rodríguez-López was a member of the

original conspiracy, that the reestablishment of the Callejón Nueve

drug point in the small neighborhood of Bitumul was part of an

agreed-upon general operation to sell drugs and to control the drug

trade in Bitumul, that the tension among the members of the

overarching group did not destroy the overall agreement, that those

-27-
tensions were worked out, and that the cooperation worked to

everyone's benefit and continued to provide a system of common

defense.

Government informant Luis Torrens-Alicea testified that

differences between Rodríguez-López and the original Bitumul

conspiracy were "ironed out" during two meetings involving

Rodríguez-López, Negrón-Maldonado, and Cintrón-Caraballo at the El

Trebol housing project in August or September of 1993.3 Other

evidence corroborates this account. Members of the original group

continued to transact and meet with Rodríguez-López after his

return. Negrón-Maldonado bought heroin on credit from Rodríguez-

López on at least one occasion, and "cooked" crack cocaine for

Rodríguez-López. "Peter," who managed Soto-Ramírez's point,

Alicea-Torres, and Vega-Cosme all distributed kilograms of cocaine

for Rodríguez-López after his return. On September 12, 1993,

García-García, de León Maysonet, and two other members of the

original Bitumul group joined together with newcomers Gonzalez-

Ayala and Torrens-Alicea to find and kill Vitito, who had been

hired to kill those who had stolen the 200 kilogram shipment of

cocaine in Fajardo. Furthermore, after Rodríguez-López's return,

3
Torrens-Alicea also testified that, at this meeting,
Cintrón-Caraballo and Negrón-Maldonado informed Rodríguez-López
that they now sought to kill Soto-Ramírez and his associates.
Because Soto-Ramírez and Soto-Beníquez had already left Bitumul at
this point, however, these new tensions did not prevent the drug
points from working together, as described infra.

-28-
Soto-Ramírez, Vega-Cosme, Cintrón-Caraballo, and Negrón-Maldonado

all continued to operate the same drug points, and García-García,

de León Maysonet, Alicea-Torres, Fernández-Malavé, and two other

members of the original conspiracy continued to work at those

points.

Moreover, contrary to defendants' assertions that the

drug points operated independently after the summer of 1993, the

evidence permitted the conclusion that they continued to work

together. Negrón-Maldonado's three meetings with Vega-Cosme to

coordinate the cap colors for crack capsules occurred between

September and November of 1993, three to five months after

Rodríguez-López's return. In addition, members of the conspiracy

acted jointly to defend each other from threats. Vega-Cosme

continued to purchase ammunition for the collective defense of the

drug points. On September 12, 1993, as mentioned earlier, members

of the original Bitumul group joined with the newcomers to find and

kill Vitito, who had been hired to kill Rodríguez-López and others.

On October 11, 1993, Torrens-Alicea, García-García, and two other

individuals murdered Oscar Nazario-Rivera, a member of the rival

Chacho gang who had threatened Rodríguez-López. Members of the

conspiracy also continued to warn one another about possible

threats. In 1994, after Vega-Cosme's drug point was shot at by

individuals from San Jose, he went to Cintrón-Caraballo and Negrón-

Maldonado to warn them of the danger. And on several occasions in

-29-
early 1994, after Alberto Santiago-Figueroa, who ran the El Palo

point on Laguna Street, saw people armed with rifles driving by his

point, he sent a messenger to inform Negrón-Maldonado of what he

had seen.

Because the record supports the jury's finding of a

single conspiracy, the three defendants are liable for their

participation. Although Gonzalez-Ayala may have joined the

conspiracy late, as long as he did so knowingly, he is liable for

the conspiracy itself and earlier acts in furtherance of the

conspiracy. David, 940 F.2d at 735. A jury could easily have

found that he joined knowingly. Gonzalez-Ayala was present at the

meeting of Negrón-Maldonado, Cintrón-Caraballo, and Rodríguez-López

in August or September of 1993, in which they worked out their

differences. He also participated in the trip to Fajardo to kill

Vitito. Mere association with conspirators does not establish a

knowing intent to join a conspiracy. United States v. Gomez-Pabon,

911 F.2d 847, 853 (1st Cir. 1990). But, in this situation, the

jury could have reasonably inferred from Gonzalez-Ayala's presence

at negotiations between major players in the gang and from his

participation in the hunt for Vitito that he knew or learned of

"the essential nature of the plan" to distribute narcotics in

Bitumul and the violent tactics used to carry out that

distribution. Mena-Robles, 4 F.3d at 1032 (quoting United States

v. O'Campo, 973 F.2d 1015, 1019 (1st Cir. 1992)).

-30-
 Similarly, although de León Maysonet joined the

conspiracy as a minor, he ratified his participation after he had

turned eighteen. In 1993, he stood guard at the Callejón Nueve

point, packaged and stored narcotics for the point, and

participated in the unsuccessful mission to Fajardo in 1993 to find

and kill Vitito.

García-García actively participated in the conspiracy

from the beginning, selling drugs at the Cuba Street point from

1990 to 1991 and packaging narcotics for drug points from 1992 to

1993.

We reject the defendants' multiple conspiracies

arguments.

B. Pre-Trial

1. Grand Jury Misconduct
(Soto-Beníquez, Soto-Ramírez, Fernández-Malavé)4

One event concerning a grand jury witness underlies a

number of issues presented by the defense.

The government used a then-cooperating conspirator,

Rodríguez-López, as a grand jury witness in obtaining the original

indictment on April 10, 1997. In July of 1998, the prosecution

first learned that it might have been misled by Rodríguez-López.

4
A number of defendants present no argument on issues but
purport to adopt arguments presented by other defendants on those
issues. In no instance in which that is done is the argument
successful. When an issue is listed as raised by a defendant, the
defendant listed is the one who argued the issue.

-31-
Negrón-Maldonado, who had just started cooperating with federal

authorities, informed the prosecution that Rodríguez-López was not,

as he had told the prosecution, present at Rivera-González's

murder. When confronted with this information, Rodríguez-López

admitted that he had lied to FBI investigators about being present

at the murder but insisted that he had not fabricated any of his

testimony before the grand jury, which did not address the Rivera-

González murder.

Rather than disclose this information immediately, the

prosecution waited and investigated. In November 1998, the

government learned from a second cooperating defendant that

Rodríguez-López also might have lied about his presence at several

other murders, including at least one murder about which he had

testified to the grand jury, that of Rivera-Pagán. On November 18,

the government notified defense counsel of this inconsistency. It

also insisted that Rodríguez-López, who still denied lying to the

grand jury, take a polygraph test. When he failed the test on

December 1, Rodríguez-López admitted that he had indeed lied during

the grand jury proceedings and that he had not been present at

Rivera-Pagán's murder. On December 14, the prosecution obtained a

superseding indictment from the grand jury that changed Rodríguez-

López from a star government witness to a defendant. The

superseding indictment, which was returned 15 days before trial

started, was based on the testimony of a federal agent who

-32-
presented the government's evidence that Rodríguez-López had lied

to the FBI. Rodríguez-López did not testify at trial.

Several defendants object that their convictions were

irreparably tainted by Rodríguez-López's perjury before the grand

jury. The trial court rejected this claim, holding that the fact

that the superseding indictment was obtained and the perjured

testimony was not presented at trial cured any problem. That

ruling was correct.

The unknowing presentation of perjured testimony before

the grand jury was harmless and does not warrant any remedial

action. "[A]s a general matter, a district court may not dismiss

an indictment for errors in grand jury proceedings unless such

errors prejudiced the defendants." Bank of Nova Scotia v. United

States, 487 U.S. 250, 254 (1988); see also United States v.

Flores-Rivera, 56 F.3d 319, 328 (1st Cir. 1995). Here, the

district court specifically found that "[d]efendants can hardly

show prejudice when the matter was later explained to the Grand

Jury and the perjured testimony has not been used in trial." We

review this conclusion only for an abuse of discretion. See United

States v. Maceo, 873 F.2d 1, 3 (1st Cir.), cert. denied, 493 U.S.

840 (1989). No such abuse was present here.

First, the grand jury returned a superseding indictment

after learning of the perjured testimony, thereby demonstrating

-33-
that sufficient evidence existed to indict the defendants even

absent the testimony of Rodríguez-López.

Of even greater import, a petit jury subsequently found

the defendants guilty beyond a reasonable doubt of the charges

alleged in the indictment. Such a finding "demonstrates a fortiori

that there was probable cause to charge the defendants with the

offenses for which they were convicted." United States v.

Lopez-Lopez, 282 F.3d 1, 9 (1st Cir. 2002) (quoting United States

v. Mechanik, 475 U.S. 66, 67 (1986)). As such, "[a]ll but the most

serious errors before the grand jury are rendered harmless by a

conviction at trial." United States v. Reyes-Echevarria, No. 02-

1653, 2003 U.S. App. LEXIS 19614, at *6 (1st Cir. Sept. 22, 2003).

"Only a defect so fundamental that it causes the grand jury no

longer to be a grand jury, or the indictment no longer to be an

indictment" is sufficient to invalidate a subsequent conviction.

Id. (quoting Midland Asphalt Corp. v. United States, 489 U.S. 794,

802 (1989)). The government's unknowing presentation of perjured

testimony before the grand jury is not a defect of that magnitude

on these facts.

2. Indictment

a) Pre-Indictment Delay
(Soto-Beníquez, Soto-Ramírez)

Soto-Beníquez and Soto-Ramírez argue that the indictment

should have been dismissed because the government delayed in

obtaining it. As discussed infra, the indictment complied with the

-34-
statute of limitations, which is the primary safeguard against pre-

indictment delay. When the statute of limitations has been met, a

defendant seeking reversal of his conviction based on pre-

indictment delay "bears the heavy burden of showing not only that

the pre-indictment delay caused him actual, substantial prejudice,

but also that the prosecution orchestrated the delay to gain a

tactical advantage over him." United States v. Stokes, 124 F.3d

39, 46-47 (1st Cir. 1997); see also United States v. Marion, 404

U.S. 307, 324 (1971). Soto-Beníquez and Soto-Ramírez have not

attempted to make such a showing.

b) Constitutionality of CCE Indictment
(Soto-Beníquez, Soto-Ramírez)

i. Failure to Charge Three Predicate CCE Acts

Soto-Beníquez and Soto-Ramírez argue that their CCE

convictions should be reversed because the indictment did not set

forth as elements of the offense the three predicate offenses

required for the crime of CCE, 21 U.S.C. § 848. As described in

our case law, the elements of a CCE crime are (1) the defendant

committed a felony violation of the federal narcotics laws, (2) the

violation was part of a continuing series of violations, (3) the

series of offenses occurred in concert with five or more persons,

(4) the defendant was an organizer, supervisor, or manager, and (5)

the defendant obtained substantial income or resources from the

series of violations. United States v. Rouleau, 894 F.2d 13, 14

-35-
(1st Cir. 1990). To show a continuing series of violations, three

or more predicate drug offenses must be demonstrated. Id.

Defendants argue that their due process rights were

violated because they were deprived of adequate notice of the

predicate offenses underlying the CCE charge. Where the CCE count

of an indictment does not list the specific predicate offenses but

those offenses are alleged in other counts of the indictment,

courts have generally held that defendants have received actual

notice of the charges and no reversible error has occurred. United

States v. Staggs, 881 F.2d 1527, 1530-31 (10th Cir. 1989) (finding

indictment adequate where no underlying violations were specified

in the CCE count but at least three underlying violations were

listed elsewhere in the indictment); United States v. Moya-Gomez,

860 F.2d 706, 752 (7th Cir. 1988); United States v. Becton, 751

F.2d 250, 256-57 (8th Cir. 1984). We think it preferable for

predicate offenses to be alleged in the CCE count. But, at least

where the CCE count incorporates by reference predicate offenses

charged elsewhere in the indictment, failure to list predicate

offenses in the CCE count itself is not reversible error because

the defendant has been provided fair notice. Moya-Gomez, 860 F.2d

at 752; Becton, 751 F.2d at 256-57.

Here, while the CCE count did not explicitly set forth

three CCE predicate offenses, it incorporated Count Two, the

conspiracy count. Count Two did provide such notice. Count Two

-36-
states that "at divers times" between January 1, 1990 and March 7,

1994, the defendants distributed and possessed with intent to

distribute heroin, cocaine, crack cocaine, and marijuana. It

further states that the defendants "would purchase multi-kilogram

quantities of heroin, cocaine and marijuana at wholesale prices, .

. . would cut, divide, and package [the drugs] in small packages

for subsequent sale at drug points, [and] . . . would sell packaged

[drugs] in small quantities to customers at drug points." That

count also alleges specifically that Soto-Ramírez and Soto-Beníquez

supervised the "supply [of] sellers with the drugs to be sold . . .

and [the sale of] narcotics at drug point," and that they would

"personally deliver packaged narcotics to [their] runners and

sellers."

Defendants argue (1) that the acts described in Count Two

are insufficient to provide notice because they establish only one

predicate offense, namely, the conspiracy to distribute narcotics,5

and (2) that the acts are insufficiently described. Both

assertions are incorrect. As to the defendants' first contention,

each act of distribution described in the indictment constitutes a

separate predicate offense. See, e.g., United States v. Escobar-de

5
If the conspiracy is used to establish the continuing
series of violations, then defendants may be punished on the CCE
charge but not the conspiracy charge. Rutledge v. United States,
517 U.S. 292, 307 (1996). Because the court eventually dismissed
the conspiracy charge, Count Two, against the two CCE defendants,
this is not an issue here.

-37-
Jesús, 187 F.3d 148, 160 n.6 (1st Cir. 1999) (treating two

different incidents of possession with the intent to distribute as

two separate predicate offenses). Multiple acts of distribution,

certainly three or more, are alleged. As to their second

contention, the time period and acts are alleged in sufficient

detail to provide adequate notice.

Defendants then argue that the indictment failed to

specify either the amount of drugs distributed or the amount of

"substantial income" received by the defendants, thus depriving

them of notice as to whether they were charged under 21 U.S.C. §

848(a) or (b). Section 848(a) carries a sentence of thirty years

to life, whereas § 848(b) carries a mandatory life sentence. We

reject defendants' argument. Defendants, merely by reading the

indictment, were on notice of the possibility of a life sentence.

Section 848(b) requires life imprisonment for the "principal . . .

leaders" of the continuing criminal enterprise if their violation

of the drug laws involved more than 300 times the quantity

described in 21 U.S.C. § 841(b)(1)(B). The indictment identified

Soto-Ramírez and Soto-Beníquez as the two "leader[s] . . . of the

drug-trafficking organization described in Counts One and Two." It

also identified them as conspiring to distribute, inter alia, more

than five kilograms of cocaine base, which is more than 300 times

the five grams of cocaine base described in § 841(b)(1)(B).

-38-
 Defendants also argue that in the indictment the

predicate offenses for the CCE charge were based on the conspiracy

count, but at trial, the government used evidence of uncharged

narcotics offenses to establish the predicate offenses. Thus,

defendants argue, although the CCE charge remained the same, the

facts used to prove the series element of the charge were different

from those set forth in the indictment.

Defendants frame this argument as a claim of constructive

amendment, but it is actually a claim of variance. "A constructive

amendment occurs when the charging terms of the indictment are

altered, either literally or in effect, by prosecution or court

after the grand jury has last passed upon them. A variance occurs

when the charging terms remain unchanged but when the facts proved

at trial are different from those alleged in the indictment."

United States v. Fisher, 3 F.3d 456, 462 (1st Cir. 1993) (citations

and quotation marks omitted). Convictions may be reversed based on

variance only upon a showing of prejudice to the defendant's

substantial rights -- that is, when lack of notice regarding the

charges deprives the defendant of his ability to prepare an

effective defense and to avoid surprise at trial. Id. Here,

defendants were not prejudiced. The indictment charged them with

violations of narcotics laws from January 1990 to March 1994; the

use of narcotics offenses in that time period should have been no

surprise to them.

-39-
 ii. CCE Prosecution As Contrary to Congressional
Intent

Soto-Beníquez and Soto-Ramírez next argue that their

prosecution under the CCE statute is contrary to legislative

intent. That intent, they contend, is to enhance punishment for

large-scale drug kingpins. Defendants argue that the evidence did

not show them to be kingpins because they lived modestly. The

government argues that we should not entertain this argument

because the crime charged is within the statutory language and that

ends the inquiry. If the crime charged is literally within the

words of the statute, there is not usually occasion to inquire into

intent. See United States v. Rutherford, 442 U.S. 544, 551 (1979).

That is the case here.

To the extent that defendants' argument challenges the

sufficiency of evidence as to the substantial income element of the

CCE charge, it fails. Soto-Beníquez sold at least $10,000 worth of

cocaine per week to Negrón-Maldonado. Soto-Ramírez owned three

drug points for at least three years, each of which yielded

approximately $5,000 per week from crack cocaine alone. These

figures provide sufficient evidence to support the jury's finding

of substantial income.

c) Statute of Limitations
(Soto-Beníquez, Soto-Ramírez)

Soto-Beníquez and Soto-Ramírez argue that their

prosecution was untimely under the statute of limitations. A CCE

-40-
offense consists of a series of three or more underlying predicate

offenses. A CCE charge is within the statute of limitations if the

government demonstrates that at least one predicate act was

committed in the five years prior to the indictment. See, e.g.,

United States v. Baker, 10 F.3d 1374, 1410 (9th Cir. 1993). In

this case, the indictment is dated April 11, 1997. Thus, the

prosecution had to prove that one predicate act was committed on or

after April 12, 1992.

The parties dispute which acts count as predicate

offenses for purposes of determining whether the statute of

limitations has run. Soto-Beníquez and Soto-Ramírez argue, by

analogy to the RICO statute, that only the acts of the parties

charged with the CCE count, and not those of their co-conspirators,

may be considered. See United States v. Torres-Lopez, 851 F.2d

520, 524-25 (1st Cir. 1988) (applying this rule to substantive RICO

charges). The government argues that it need only demonstrate that

acts in furtherance of the conspiracy occurred within the five-year

limitations period and that the defendants failed to withdraw from

the conspiracy.

We need not resolve this issue because the evidence,

viewed in the light most favorable to the prosecution, is

sufficient to support the conclusion that both Soto-Ramírez and

Soto-Beníquez themselves committed predicate offenses after April

12, 1992. Although Soto-Ramírez was incarcerated on January 8,

-41-
1992, the government presented evidence that he still controlled

and managed the drug points at La Pared, Callejón Nueve, and Cuba

Street. While he was in prison, he employed Cosme-Sobrado to

manage the points until May 1992. After Cosme-Sobrado was killed,

Soto-Ramírez appointed "Manolín" and "Peter" as Cosme-Sobrado's

successors. Soto-Ramírez gave instructions on the operation of the

points by telephone, and the proceeds from the points were given to

Soto-Ramírez's wife. This evidence of Soto-Ramírez's own acts

within the five-year period is sufficient to establish the

timeliness of his indictment.

Soto-Beníquez argues that he ceased all activities

related to the conspiracy in December 1992 when he moved to

Florida. Assuming arguendo that this statement is true, the

December 1992 date does not help Soto-Beníquez. The operative date

for limitations purposes is April 12, 1992, some eight months

earlier. The record supports the conclusion that Soto-Beníquez

engaged in predicate offenses after that date. In January 1993,

for example, Soto-Beníquez provided transportation, firearms, and

a hide-out for members of the Bitumul gang after the Quintana

massacre, in which the gang murdered five people in retaliation for

the death of fellow gang member Rivera-Pagán. Soto-Beníquez's

indictment was not barred by the statute of limitations.

-42-
 3. Abuse of Prosecutorial Discretion
(Fernández-Malavé)

Fernández-Malavé makes a generalized protest that the

federal prosecution should never have been brought because he (and

many of the other defendants) had already pled guilty to related

state charges. This argument does not present an issue that is

reviewable by this court. Whatever the contours of permissible

attacks on the exercise of prosecutorial discretion, this claim

lies outside of those contours. See United States v. Stokes, 124

F.3d 39, 45 (1st Cir. 1997) ("[T]he federal government [has] a

perfect right to take a hard look at [a] case and to determine

whether society's interests call for the unusual step of

instituting a federal prosecution notwithstanding the prior

commencement of a state prosecution for substantially the same

conduct.").

4. Pre-Trial Denial of Motions for Severance
(Gonzalez-Ayala, de León Maysonet)

Gonzalez-Ayala and de León Maysonet appeal from the

district court's denial of their motions to be severed and tried

with the second group of defendants. On December 28, 1998, the day

on which jury selection began, the district court decided to split

the sixteen defendants who planned to go to trial into two groups.

The government proposed that the first ten defendants on the

indictment become the first group to go to trial. The government's

reasoning was that this division would allow the prosecution to

-43-
"try[] the senior conspirators together, that is the principal

leaders, and the organizers and supervisors of the conspiracy" and

to "try[] the conspirators who planned and carried [out] numerous

acts of violence within the conspiracy together." The district

court initially accepted this proposal but then severed one

defendant to allow for a mental competency hearing, another

defendant because he was on bond, and yet another defendant because

his counsel withdrew from the case on that day. Two other

defendants were severed because they could not yet proceed to

trial; one was still a fugitive and the other, Rodríguez-López, had

been indicted only two weeks earlier. Having severed five

defendants, the district court was left with the eleven appellants

and decided to proceed to trial with all eleven.

Gonzalez-Ayala and de León Maysonet contend that the

district court erred in refusing to sever their cases. Rule 14,

Fed. R. Crim. P., allows a trial court to sever defendants when

joinder would prejudice them. Gonzalez-Ayala and de León Maysonet

argue that the joinder prejudiced them by forcing them to go to

trial with more senior conspirators. They contend that the

complexity of the case and the markedly different degrees of

culpability between them and their co-defendants, many of whom

committed murders or held leadership positions in the conspiracy,

created the potential for jury confusion. Moreover, they argue

that they were prejudiced by the presentation of spillover evidence

-44-
regarding fifteen murders committed by their co-defendants, in

which they did not participate.

We review the district court's denial of defendants'

motions for severance under Fed. R. Crim. P. 14 for abuse of

discretion. United States v. Lane, 474 U.S. 438, 449 n.12 (1986);

United States v. DeLuca, 137 F.3d 24, 36 (1st Cir. 1998). To

demonstrate abuse of discretion, defendants must show that joinder

deprived them of a fair trial, resulting in a miscarriage of

justice. United States v. Baltas, 236 F.3d 27, 33 (1st Cir. 2001).

Because the general rule is that those indicted together are tried

together to prevent inconsistent verdicts and to conserve judicial

and prosecutorial resources, severance is particularly difficult to

obtain where, as here, multiple defendants share a single

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

1993).

Defendants have not made such a strong showing of

prejudice. As to the murder evidence, defendants cannot complain

of an improper spillover effect where evidence is independently

admissible against them. United States v. Brandon, 17 F.3d 409,

440 (1st Cir. 1994); O'Bryant, 998 F.2d at 26. Because conspiracy

cases often involve evidence that is admissible against all members

of the conspiracy, "in the context of conspiracy, severance will

rarely, if ever, be required." DeLuca, 137 F.3d at 36 (quoting

Flores-Rivera, 56 F.3d at 325 (internal quotation marks and

-45-
citations omitted)). Here, the murder evidence would likely be

admissible against Gonzalez-Ayala and de León Maysonet even in a

separate trial in order to demonstrate the operation and

development of the conspiracy's system of common defense.

As to the complexity of the case and the potential for

jury confusion, there is no indication that the jury was unable to

distinguish the evidence and acts relating to each defendant. The

court instructed the jury that each defendant must be judged

separately based on the evidence admissible against him.

Defendants are not entitled to severance solely on the basis that

their co-defendants were more culpable. See Flores-Rivera, 56 F.3d

at 325; Brandon, 17 F.3d at 440-41.

5. Pre-Trial Discovery
(Soto-Beníquez, Soto-Ramírez, Fernández-Malavé, Alicea-
Torres)

Defendants make both a generalized attack on the

government's habitual dilatoriness in turning over discovery

material and more specific attacks. Here, we address only the

alleged lateness of the prosecution's compliance with discovery;

the Brady and Giglio claims are dealt with later, as are the

specific attacks.

Several of the defendants allege that the prosecution

consistently failed to respond to discovery requests and orders in

a timely fashion, and then "smother[ed] [them] with an avalanche of

documents during trial." The defendants are correct that the

-46-
prosecution did, on several occasions, fail to comply with

discovery timetables set by the district court. These discovery

violations do not warrant reversing the defendants' convictions.

We have long recognized that "the decision as to whether

discovery sanctions are warranted and the choice of what sanctions

should be imposed are matters within the sound discretion of the

trial court." Gannett v. Carp (In re Carp), 340 F.3d 15, 23 (1st

Cir. 2003); Media Duplication Servs., Ltd. v. HDG Software, Inc.,

928 F.2d 1228, 1238 (1st Cir. 1991). As such, review of a district

court's use or non-use of discovery sanctions is only for abuse of

discretion. See United States v. One 1987 BMW 325, 985 F.2d 655,

657 (1st Cir. 1993). An abuse of discretion "occurs when a

material factor deserving significant weight is ignored, when an

improper factor is relied upon, or when all proper and no improper

factors are assessed, but the court makes a serious mistake in

weighing them." Indep. Oil & Chem. Workers, Inc. v. Procter &

Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988).

The district court did not abuse its discretion in

refusing to dismiss the indictment due to the prosecution's

discovery violations. Rather than resort to the drastic remedy of

dismissal, the district court wisely addressed the prosecution's

failures to comply with discovery deadlines on a situation-by-

situation basis in order to prevent or remedy any prejudice that

those violations may have had on the defendants. Cf. United States

-47-
v. Santana, 6 F.3d 1, 11 (1st Cir. 1993) (suggesting that a court

should not dismiss an indictment when prosecutorial misconduct is

"redressable through the utilization of less drastic disciplinary

tools"). For instance, in response to the government's failure to

comply with one discovery order, the district court chastised the

prosecution and ordered the government to provide the defendants

with information not normally covered by Rule 16 of the Federal

Rules of Criminal Procedure. Addressing another violation, the

district court set an accelerated discovery timetable and warned

the prosecution that "[i]f the government fails to comply, the

court will dismiss the indictment." In a third instance, the court

refused to admit into evidence a photograph that the prosecution

had not adequately disclosed to the defense. Each of these

responses to the government's discovery violations helped mitigate

any prejudice to the defendants that might otherwise have resulted

from the government's apparent inability to meet discovery

deadlines. Given this solution, the district court's continual

denials of the defendants' motions to dismiss the indictment due to

the government's discovery violations were certainly not abuses of

discretion. That conclusion is not a condonation of the

government's behavior; it is just a recognition that reversal of

the conviction is not warranted, given the district court's

imposition of other sanctions.

-48-
C. Alleged Trial Errors

1. Evidentiary Rulings

a) Admission of Murder Evidence As to CCE Defendants
(Soto-Beníquez, Soto-Ramírez)

Soto-Beníquez and Soto-Ramírez object that they were

unfairly prejudiced by the admission of evidence concerning the

murders of Jose Cosme-Sobrado, Angel Rivera-Pagán, and Miguel Angel

Millan-Soto (a/k/a Guelo). The district court found that the three

murders were not part of the conspiracy, but admitted the evidence

over the defendants' Rule 403 objection because the three murders

explained the motive for subsequent murders that did further the

conspiracy.

The district court's ruling is reviewed for abuse of

discretion. Old Chief v. United States, 519 U.S. 172, 183 n.7

(1997). The court did not abuse its discretion in admitting the

evidence. Cosme-Sobrado's murder was relevant to demonstrate a

motive for an overt act in furtherance of the conspiracy: the

kidnapping and murder of Herberto Rivera-González. Members of the

conspiracy killed Rivera-González because he was a suspected

participant in Cosme-Sobrado's murder. Cosme-Sobrado's death was

also important to demonstrate that conspirators from different drug

points would come together to avenge the death of a member of their

gang. Similarly, the killings of Rivera-Pagán and Millan-Soto in

shootings by the Chacho gang were relevant to demonstrate the basis

for gang warfare with Chacho. This gang warfare led to two overt

-49-
acts in furtherance of the conspiracy: the murder of Roberto

Vasallo-Morninglane, who was a member of the Chacho gang, and the

Quintana massacre.

Soto-Ramírez and Soto-Beníquez also claim, without

further explanation, that they were prejudiced by evidence of

twelve other murders. Because this argument is made in a

perfunctory manner, unaccompanied by any effort at developed

argumentation, it has been waived. See Grella v. Salem Five Cent

Sav. Bank, 42 F.3d 26, 36 (1st Cir. 1994).

b) Admission of Murder Evidence As to Non-CCE
Defendants
(García-García, Gonzalez-Ayala, de León Maysonet)

Three defendants contend that evidence of murders should

not have been admitted against them because the government did not

establish a connection between any of the murders and the charged

conspiracy. They argue that the murders were not shown to be in

furtherance of the charged conspiracy. They also argue that even

if the murders were in furtherance of a conspiracy headed by Soto-

Ramírez and Soto-Beníquez from 1990 until the summer of 1993, those

murders did not advance the interests of the later conspiracy

headed by Rodríguez-López. These errors regarding the admission

of the murder evidence, they contend, cannot be harmless because

the murders constituted about seventy-five percent of the

government's evidence at trial.

-50-
 Review is for abuse of discretion. No abuse occurred

here. The three murders discussed in the previous section were

admissible to demonstrate the motive for subsequent overt acts in

furtherance of the conspiracy. The remaining murders were

admissible as acts in furtherance of the conspiracy.

A reasonable factfinder could infer that the murder of

Dagoberto Robles-Rodríguez was in furtherance of the conspiracy.

Soto-Ramírez and Soto-Beníquez worked for Robles-Rodríguez, who

owned the drug point on Cuba Street, at the time of the murder.

Negrón-Maldonado testified that Soto-Ramírez teamed up with co-

conspirators Cosme-Vega and "Manolín" and killed Robles-Rodríguez

at least partly because Soto-Ramírez felt threatened by him.

Afterwards, Soto-Ramírez and Soto-Beníquez took control of Robles-

Rodríguez's drug point. A reasonable inference is that Soto-

Ramírez killed Robles-Rodríguez to avoid further threats and to

gain full control of the drug point, thus eliminating a potential

competitor to the conspiracy.

It is also a reasonable inference that government

informant Ana Luz Dones-Arroyo and undercover police officer Efrain

Hernández de León were killed in furtherance of the conspiracy --

to prevent their discovery of the group's weapons stash. The two

were gunned down as Dones-Arroyo was leading the officer to the

location of the stash.

-51-
 Fernando Agosto-Villegas was killed on Soto-Ramírez's

orders because two-eighths of a kilogram of cocaine and a machine

gun belonging to Soto-Ramírez were missing. The murder furthered

the conspiracy by sending the message that those suspected of

stealing from the conspiracy would be treated harshly. Rodriguez,

162 F.3d at 143.

Herberto Rivera-González was killed in retribution for

the death of Cosme-Sobrado, who had been managing Soto-Ramírez's

drug point for him while he was in prison. The defendants

correctly note that the government never proved that Rivera-

González was actually a member of a rival gang or participated in

killing Cosme-Sobrado. But the government met its burden when it

presented testimony that the conspirators believed, even if

incorrectly, that Rivera-González was responsible and that they

killed him for that reason. See, e.g., United States v. Mayes, 917

F.2d 457, 464 (10th Cir. 1990) (explaining that to be "in

furtherance" of a conspiracy, an act must be intended to promote

conspiratorial objectives but need not actually succeed in

furthering the conspiracy).

Reynaldo Cancel-Robles was killed because he seized

control of a drug point located outside Bitumul in the Vista

Hermosa housing project that was supplied by Soto-Beníquez. His

murder furthered the conspiracy by protecting its customer base and

thus ensuring a stronger market for its narcotics.

-52-
 Robert Vasallo-Morninglane and the five victims of the

Quintana Massacre were killed in retribution for the death of

Angel Rivera-Pagán. Rivera-Pagán had died in a shootout in Bitumul

with the rival Chacho gang, to which Vasallo-Morninglane and two of

the five victims of the Quintana Massacre belonged. These murders

furthered the conspiracy's goal of defending its territory and its

members against rival drug-trafficking organizations.

Tito Dones-Sanchez was killed while riding in a van near

the drug point at Callejón Nueve. Fernández-Malavé spotted the van

and opened fire on it, believing that those inside were members of

a rival gang who intended to threaten the drug point. Dones-

Sanchez was murdered to protect the drug territory at Callejón

Nueve, and thus to further the goals of the conspiracy.

Oscar Nazario-Rivera was killed because he was a member

of the rival Chacho gang and had fired shots at Rodríguez-López in

the past. His murder furthered the conspiracy by eliminating a

possible threat to one of its major players, Rodríguez-López. Cf.

United States v. Nesser, 939 F. Supp. 417, 421 (W.D. Pa. 1996)

("Hiding information about the leader of a drug conspiracy [in

order to protect him] is another way to further its purpose, by

allowing it to continue.").

We also reject defendants' argument that these murders

furthered a separate conspiracy from the one in which they

participated. As discussed above, the record supports the jury's

-53-
finding that a single conspiracy existed and that the three

defendants were part of it.

Because evidence of all fifteen murders was admissible to

demonstrate the existence of a conspiracy, it was admissible

against these three defendants. Defendants correctly note that the

record establishes that García-García participated in only one

murder, that Gonzalez-Ayala and de León Maysonet participated in no

murders, and that most of the murders occurred before Gonzalez-

Ayala joined the conspiracy and before de León Maysonet turned

eighteen. But, as discussed earlier, the three defendants are

liable for conspiracy. As a result, they are liable for acts in

furtherance of the conspiracy, even if they did not participate in

those acts and even if those acts occurred before they joined the

conspiracy.

c) Admission of Guilty Pleas
(Fernández-Malavé, Gonzalez-Ayala, de León Maysonet)

The district court admitted into evidence Fernández-

Malavé's guilty plea to the murder of Tito Dones-Sanchez over

defense counsel's objection that the plea was not knowing and

voluntary.6 According to Fernández-Malavé, his plea in Puerto Rico

6
Fernández-Malavé also asserts in his brief a different
objection to the admission of his guilty plea, rooted in Fed. R.
Evid. 403. Because this objection was not raised below, the
court's decision not to exclude the evidence on Rule 403 grounds is
reviewed for plain error. See United States v. Woods, 210 F.3d 70,
78 (1st Cir. 2000). Given the relevance of the murder of Dones-
Sanchez to the charged conspiracy, it is clear that there was not
plain error in admitting the guilty plea despite potential Rule 403

-54-
court was coerced because the local prosecutor had falsely

represented to him that the earlier testimony of an unavailable

witness could be used against him at trial. After hearing lengthy

argument on this issue, the district court denied Fernández-

Malavé's motion, concluding that Fernández-Malavé knowingly pled

guilty in order to avoid facing first-degree murder charges.

Normally, it is inappropriate for a federal court to

review a collateral attack on a state court conviction without

affording the state court a prior opportunity to do so. United

States v. Bouthot, 878 F.2d 1506, 1511 (1st Cir. 1989). But when

a defendant challenges the voluntariness of a state court guilty

plea for purposes of an admissibility determination, the interests

of comity and federalism that underlie the exhaustion doctrine are

best served by addressing the merits of that claim. Id.; see

United States v. Campusano, 947 F.2d 1, 4-5 (1st Cir. 1991). We

thus review the district court's evidentiary ruling for abuse of

discretion. United States v. Perrotta, 289 F.3d 155, 164 (1st Cir.

2002).

The district court had a more than sufficient basis upon

which to deny Fernández-Malavé's motion to exclude his guilty plea.

The court noted that "counsel for the defendant described exactly

what the plea was" during the plea colloquy in state court and that

concerns: the murder was highly probative of a material issue in
the case.

-55-
Fernández-Malavé expressly told the court that he had discussed his

options with his lawyer and was pleading guilty freely and

voluntarily. Furthermore, the court concluded that the Puerto Rico

prosecutor did not mislead Fernández-Malavé about the admissibility

of the unavailable witness's prior testimony, but was instead

simply advocating a plausible interpretation of the Puerto Rico

evidence rules. Fernández-Malavé has not presented any reason to

doubt these findings.

De León Maysonet and Gonzalez-Ayala also object to the

district court's admission of their plea agreements regarding state

crimes; de León Maysonet had pled guilty to possessing a controlled

substance, while Gonzalez-Ayala had pled guilty to conspiring or

attempting to violate the Puerto Rico controlled substances law.

The argument of these defendants differs slightly from that of

Fernández-Malavé: they claim that the plea agreements were not

admissible because the government did not enter in evidence a

transcript of their plea colloquies in Puerto Rico court.

Gonzalez-Ayala also argues that his plea should not have been

admitted because the crime to which he pled encompasses numerous

types of criminal activity, making it impossible for the jury to

determine the activities for which he was actually convicted.7

7
The defendants also argue briefly that the convictions
were inadmissible hearsay because they did not fall within Rule
803(22). This argument is not developed in the defendants' brief,
and, in any case, is not meritorious. See Fed. R. Evid. 803(22)
(exception to hearsay rule for "[e]vidence of a final judgment,

-56-
 The district court had a sufficient basis to reject these

arguments as well. Even without the transcript of the plea

colloquy, the pleas linked the defendants to the charged drug

conspiracy: according to the arresting officer, both Gonzalez-Ayala

and de León Maysonet possessed heroin and a firearm when they were

arrested. Had the defendants produced specific evidence that the

guilty pleas were coerced, the admissibility of the pleas might be

questionable. But defendants cannot defeat the relevance of these

guilty pleas by making unsupported allegations that they were not

voluntary.

For similar reasons, we reject Gonzalez-Ayala's argument

that his plea should not have been admitted because the statute to

which he pled guilty applied to more than one factual scenario.

The guilty plea corroborated the fact that Gonzalez-Ayala was found

carrying drugs and a weapon, and that fact was relevant in

establishing that he was part of the charged conspiracy.

d) Admission of the Testimony of Cesário-Soto
(Alicea-Torres)

Alicea-Torres makes a separate argument that the

government knowingly offered in evidence perjured testimony from

witness Cesário-Soto. Cesário-Soto testified at trial that he had

observed Alicea-Torres sell drugs at two different drug points.

entered after a trial or upon a plea of guilty . . . adjudging a
person guilty of a crime punishable by death or imprisonment in
excess of one year, to prove any fact essential to sustain the
judgment").

-57-
Alicea-Torres alleges that at an earlier interview conducted by his

counsel and attended by the prosecuting attorney, Cesário-Soto

stated only that Alicea-Torres was in the area. That discrepancy

provides the basis for the defendant's misconduct claim.

We bypass the question whether the defendant properly

preserved the objection and reject on the merits his claim that the

prosecution knowingly used perjured testimony. First, the two

statements by Cesário-Soto are not necessarily conflicting. At the

interview, defense counsel did not pursue what was meant by the

witness's statement that Alicea-Torres was "in the area." Second,

there was no prejudice. Defense counsel cross-examined Cesário-

Soto as to the supposed conflict between his testimony and the

statements he made during the interview. Moreover, Cesário-Soto

was not the only witness to link Alicea-Torres to two different

drug points: Negrón-Maldonado testified that Alicia-Torres sold

drugs at Calejon Dos and Torrens-Alicea testified that Alicea-

Torres conducted drug transactions with Rodríguez-López and spent

time at Callejón Nueve. There is no reasonable likelihood that any

false testimony could have affected the judgment of the jury. Cf.

Kyles v. Whitley, 514 U.S. 419, 433 n.7 (1995) ("[A] conviction

obtained by the knowing use of perjured testimony is fundamentally

unfair, and must be set aside if there is any reasonable likelihood

that the false testimony could have affected the judgment of the

jury.").

-58-
 e) Motion to Suppress Exhibit 227, a Photograph, and

Related Testimony
(Fernández-Malavé)

Fernández-Malavé appeals the denial of his motion to

suppress a photograph, later admitted as Exhibit 227, of items that

appeared to be drugs and that were seized when he was arrested on

April 9, 1993. He contends that the photograph was taken after

Officers Rosa-Lopez and Victor-Rivera illegally entered and

searched his apartment without a warrant.

The trial court conducted an evidentiary hearing on the

suppression motion and held that the warrantless entry was

justified by exigent circumstances. The court made the following

factual determinations. Officer Rosa-Lopez was on routine patrol

during the evening of April 9, 1993 when he saw a person carrying

a nickel plated gun in his hand. Before he could respond, the

individual noticed Officer Rosa-Lopez (who was in uniform) and

began to run in the opposite direction. Officer Rosa-Lopez pursued

the suspect up a nearby stairway between two houses, but lost sight

of him when he apparently jumped onto an adjacent patio.

Meanwhile, Officer Victor-Rivera was patrolling the same area when

he received notice on his police radio of the pursuit involving

Officer Rosa-Lopez. While he was approaching the area to provide

back-up, he observed an individual carrying a black gun. That

individual, on spotting Officer Victor-Rivera (who was in uniform),

immediately turned around and ran into a house behind him. Officer

-59-
Victor-Rivera followed the person, later identified as Fernández-

Malavé, into the house and pursued him up the stairway. Officer

Rosa-Lopez, still searching for the first suspect outside, heard a

window open. He turned toward the noise and saw someone drop a gun

and a plastic bag containing drugs out of the window. When he

looked through the window, he saw Fernández-Malavé inside. He then

seized the drugs and the weapon. After a third officer told him

that Officer Victor-Rivera was inside, Officer Rosa-Lopez went to

the front of the house. Officer Rosa-Lopez explained to Officer

Victor-Rivera that he had just observed Fernández-Malavé drop the

seized drugs and weapon out of the back window, and Fernández-

Malavé was placed under arrest.

This court reviews the district court's findings of fact

for clear error and its ultimate Fourth Amendment conclusion de

novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). The

district court's rendition of facts is not clearly erroneous.

Fernández-Malavé unsuccessfully attempts to discredit the court's

findings by noting that much of Officer Rosa-Lopez's testimony was

not included in an earlier sworn statement of his. There are

multiple explanations for why Officer Rosa-Lopez might not have

reported certain details about his encounter with Fernández-Malavé

in his sworn statement, including his belief at the time that those

details were not important. The absence of those details does not

establish clear error.

-60-
 The district court's Fourth Amendment conclusion was

correct. Once Fernández-Malavé abandoned the weapon and drugs by

throwing them out of the window, he had no reasonable expectation

of privacy in those items and their seizure did not itself violate

his Fourth Amendment rights. It is well settled that if a

defendant abandons property while he is being pursued by police

officers, he forfeits any reasonable expectation of privacy he may

have had in that property. See Abel v. United States, 362 U.S.

217, 241 (1960). Nevertheless, if Officer Victor-Rivera's pursuit

of Fernández-Malavé into his house was unconstitutional, then the

evidence of the drugs might well have been subject to suppression

as the fruit of an illegal entry. Cf. California v. Hodari D., 499

U.S. 621, 629 (1991); United States v. Lewis, 40 F.3d 1325, 1334

(1st Cir. 1994).

Even without a warrant, police officers are entitled to

enter private residences when "exigent circumstances" necessitate

such action. See Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st

Cir. 1999). One consistently recognized example of exigent

circumstances encompasses the "hot pursuit" of a suspect the police

reasonably believe to be a felon. Minnesota v. Olson, 495 U.S. 91,

100 (1990); Hegarty v. Somerset County, 53 F.3d 1367, 1374 (1st

Cir. 1995). In such cases, the police are permitted to pursue the

fleeing felon into a private residence in order to effect an

arrest. See United States v. Santana, 427 U.S. 38, 43 (1976).

-61-
 Officer Victor-Rivera's pursuit of Fernández-Malavé falls

squarely within the doctrinal confines of the hot pursuit

exception, and thus did not violate the Fourth Amendment. We have

previously held in a remarkably similar situation that an officer

who is looking for a fleeing suspect and has a reasoned basis to

think that he has found the suspect is justified in pursuing the

suspect into a house. See United States v. Lopez, 989 F.2d 24, 27

(1st Cir. 1993) (holding that police were justified under the hot

pursuit doctrine in following defendant into a house because he fit

a general description of an armed assault suspect and ran from

police when he was ordered to halt). That same conclusion holds

here.

Fernández-Malavé also objects on hearsay grounds to the

admission of Officer Rosa-Lopez's testimony about a subsequent

field test that confirmed that the items in the picture were indeed

drugs. The hearsay objection is that Officer Rosa-Lopez did not

perform the field test himself, but instead only observed the test

as it was conducted. The court correctly overruled this objection

at trial. Officer Rosa-Lopez did not testify about an out-of-court

statement, see Fed. R. Evid. 801(c), but about his personal

observation of the results of the field test.

-62-