United States v. Pinillos-Prieto

United States Court of Appeals
For the First Circuit

No. 03-1566

UNITED STATES OF AMERICA,
Appellee,

v.

JAIME PINILLOS-PRIETO,
Defendant, Appellant.

No. 03-1627

UNITED STATES OF AMERICA,
Appellee,

v.

RODRIGO CAMPUSANO,
Defendant, Appellant.

Nos. 03-1628
03-1772

UNITED STATES OF AMERICA,
Appellee, Cross Appellant,

v.

NOLGIE RODRIGUEZ-ZAMOT,
Defendant, Appellant, Cross Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before
Selya, Lynch, and Lipez, Circuit Judges.
 Jean Philip Gauthier for Jaime Pinillos-Prieto.
Stephen J. Golembe for Rodrigo Campusano.
Ira N. Loewy, with whom Michael A. Pizzi, Jr. and Bierman,
Shohat, Loewy & Pizzi, P.A. were on brief, for Nolgie Rodriguez-
Zamot.
Nelson Pérez-Sosa, Assistant U.S. Attorney, with whom Rebecca
Kellog-De Jesús, Assistant U.S. Attorney, and H.S. Garcia, U.S.
Attorney, were on brief, for the United States.

August 17, 2005
 LIPEZ, Circuit Judge. These appeals stem from a multi-

defendant drug conspiracy trial involving a "reverse sting"

operation. Appellants were convicted of conspiring and attempting

to possess, with intent to distribute, five or more kilograms of

cocaine. They challenge the sufficiency of the evidence supporting

their convictions, the admission of certain testimony by an

undercover agent, and the jury instructions. We affirm the

convictions.

The government cross-appeals from the district court's

denial of a mandatory life sentence for Rodriguez under 21 U.S.C.

§ 841(b)(1)(A). However, we need not decide the correctness of

that decision. In light of United States v. Booker, 125 S. Ct. 738

(2005), and without opposition from the government, we vacate all

of the defendants' sentences and remand for re-sentencing under

advisory sentencing guidelines.

I.

A. Factual background

We recite the facts in the light most favorable to the

verdict. United States v. Rodriguez-Marrero, 390 F.3d 1, 6 (1st

Cir. 2004), cert. denied, 125 S. Ct. 1620 (2005). Nelson "Rafa"

Rodríguez, an experienced government informant of Colombian origin,

first met defendant-appellant Jaime Pinillos-Prieto ("Pinillos") in

-2-
Colombia in early 2001. In this meeting, Rafa1 represented himself

as a drug trafficker. Pinillos, in turn, represented himself as a

facilitator of sorts who had access to potential cocaine buyers in

the United States and the ability to launder drug money by using it

to buy computers, which could then be imported legally into

Colombia and sold.

In July 2001, Pinillos telephoned Rafa (who was in Puerto

Rico at the time) from Miami and said that he had a customer to buy

100 kilograms (kilos) of cocaine. Rafa asked Pinillos if the

customer had the money -- approximately $1.4 million, since the

going rate was about $13,500 per kilo. Pinillos confirmed that the

buyer had the money. During this telephone call, as in other

communications, Rafa and Pinillos did not use the terms "cocaine"

or "kilos," but rather the terms "laptops" and "computers," which,

Rafa later testified, were code words designed to obscure their

conversation in case law enforcement officers overheard them.

Rafa contacted his case agent at the Drug Enforcement

Administration, who authorized him to proceed with a "reverse

sting" operation. In a classic sting, government agents attempt to

buy drugs from persons suspected of being drug sellers. In a

reverse sting, government agents offer to sell drugs to persons

suspected of being drug buyers.

1
We refer to Rafa by alias mainly to avoid confusion with
appellant Rodriguez-Zamot, but also because all witnesses so
referred to him at trial.

-3-
 In this reverse sting, Rafa would be part of a three-

person team of "sellers," and would serve as the negotiator and

principal liaison to the buyers. Nataya "Princesa" Posada, a

Colombian national and occasional government informant, would pose

as the owner of the drugs. Special Agent Anthony Toro-Zambrana

("Toro") of the Special Investigations Bureau of the Puerto Rico

Department of Justice, an undercover narcotics agent, would pose as

Princesa's bodyguard and, as a Puerto Rican, one who was familiar

with Puerto Rico and could arrange certain logistics.

Rafa and Pinillos arranged to meet on July 9, 2001 in the

España Bakery in Isla Verde, Puerto Rico to finalize a sale of 100

kilos at the market rate. At the appointed time, Rafa, Princesa,

and Toro arrived at the bakery. Pinillos was already there, and

joined them after they entered. The subsequent conversation was

videotaped from outside the bakery, but no sound was recorded.

After initial introductions, Pinillos assured the sellers

that he had $700,000 ready for the purchase.2 However, he stated

that his friends wanted first to buy one kilo and test its quality

before committing to a larger purchase. Rafa and Princesa refused,

saying they were there for a multi-kilo deal. Princesa pointed out

that cocaine was traded wholesale in 25-kilo packages, and she

would not open up a package just to extract one kilo. Rafa further

2
Rafa and Pinillos had previously discussed paying $700,000
(half the purchase price) up front in Puerto Rico, and the
remainder in New York when the drugs were actually delivered.

-4-
noted that Pinillos's proposal was not in the buyers' interests,

since the sellers could easily provide a high-quality test kilo and

then sell them 99 low-quality kilos. Rafa suggested instead that

the buyers purchase an entire 25-kilo package, and the buyers could

test one kilo from that package while remaining assured that the

other 24 kilos were of equal quality.

Pinillos then went to another table and conferred with

two other men whom the "sellers" had not met, defendants-appellants

Nolgie Rodriguez-Zamot ("Rodriguez") and Rodrigo Campusano.

Pinillos shortly returned and related that his friends had rejected

the 25-kilo proposal because that type of deal was how undercover

police agents did business. Rafa and Princesa then suggested that,

instead of communicating through Pinillos as an intermediary, they

should talk directly to the buyers themselves.

Pinillos led Rafa, Princesa, and Toro to meet Rodriguez

and Campusano, who were sitting at a nearby table, and introduced

the group. Rodriguez was the owner of the money and therefore the

principal on the buyers' side. Campusano was identified as the

liaison between Rodriguez and Pinillos. The group then resumed

negotiations. Rodriguez insisted that he wanted to buy just one

kilo, and proceed from there if he was satisfied with the quality.

Princesa (who, as leader of the "sellers," was Rodriguez's

counterpart) refused and made a counteroffer, which the buyers

rejected.

-5-
 Rodriguez and Campusano then abruptly left the bakery.

Pinillos and Rafa followed them outside; Toro and Princesa remained

behind. Rodriguez explained that he disliked doing business with

women, and the way that Princesa wanted to arrange the deal was

characteristic of a police sting. Outside the bakery, negotiations

continued for another 15 or 20 minutes. Rodriguez was interested

in making the purchase, but the two sides could not agree on

various logistical details. The parties agreed to meet later that

afternoon to continue talking.

That afternoon, the group met at the parking lot of the

Plaza Carolina shopping mall. By established protocol, the leaders

(Rodriguez and Princesa) would not attend this or later meetings.

Thus, the buyers were represented by Pinillos and Campusano, and

the "sellers" by Rafa and Toro. During this meeting, Campusano

spoke via mobile phone with Rodriguez, who insisted on receiving

the drugs and testing the quality before delivering the money. The

buyers continued to argue that the sellers' proposals were how

undercover police do business; the "sellers" countered that the

buyers' proposals were how thieves do business.

Finally, the group reached an agreement. The transaction

would involve two cars. First, Campusano would drive a car

containing the money to the handoff site. After Rafa counted the

money, the buyers would drive the car offsite. Then Rafa would

signal for a car containing the drugs to come to the site.

-6-
Campusano would drive that car away, leaving Pinillos with the

"sellers" as a guarantee, i.e., a hostage. Once the buyers had

verified the quantity and quality of the drugs, they would return

with the "money" car; the sellers would take the money and Pinillos

would be released. Pinillos and Rafa later agreed that this

transaction would take place on July 11, 2001 at the parking lot of

the Metropol Restaurant.

At the appointed time, Rafa and Toro arrived in the

parking lot and waited. Pinillos arrived first and the group

waited for Campusano to come with the "money" car. Pinillos

appeared somewhat nervous but assured Rafa and Toro that everything

was in order -- he had seen the money, and the buyers were not

planning to rob the "sellers." Rafa sensed that something was not

right and asked Pinillos to call Campusano, but Pinillos replied

that Campusano would not be available by telephone. Rafa then

asked whether the buyers were going to pay for one kilo or 25

kilos. Pinillos did not answer, but appeared anxious. Both Rafa

and Toro grew concerned that the transaction was not proceeding as

planned and that their lives might be at risk.

Finally, Campusano arrived at the parking lot on foot.

Toro decided that this was a bad sign. He called nearby agents,

who surrounded the vehicle and arrested Pinillos and Campusano.

Rodriguez was later arrested after a brief car chase. No drugs,

money, or weapons were ever found on or near any defendant.

-7-
B. Trial

On July 24, 2001, a grand jury returned a two-count

indictment against Pinillos, Campusano, and Rodriguez. Count I

charged that defendants conspired to possess with intent to

distribute five or more kilograms of cocaine, in violation of 21

U.S.C. § 846. Count II charged that defendants, aiding and

abetting each other, attempted to possess with intent to distribute

five or more kilograms of cocaine, in violation of 18 U.S.C. § 2(a)

and 21 U.S.C. § 841(a)(1). See also 21 U.S.C.

§ 841(b)(1)(A)(ii)(II) (defining penalties for violations involving

five or more kilograms of cocaine).

Defendants were represented separately but tried

together. Rafa, Toro, and Princesa testified for the prosecution,

presenting essentially identical accounts of the conversations at

the three meetings (minus Princesa for the last two meetings).

Rafa and Toro further testified on the use of code words in drug

transactions, based on their experience investigating such deals.

All three defendants testified and offered innocent explanations

for their business in Puerto Rico: Pinillos was there to broker a

computer sale; Rodriguez was visiting family; and Campusano was

there as a favor to Pinillos.

The jury instructions -- to which the defendants did not

object -- required the jury to find, first, whether the defendants

conspired and/or attempted to possess with intent to distribute

-8-
cocaine; then, by special verdict form, whether "the quantity of

cocaine involved [in each count] was more than five kilograms as

charged in the indictment?" The jury found all defendants guilty

on both counts, and that the amount involved was more than five

kilograms.

C. Sentencing

The pre-sentence report computed the defendants' offense

levels on the basis that the conspiracy involved 100 kilograms of

cocaine. This led to a base offense level of 36. All three

defendants objected to the 100 kilogram figure, arguing that they

were not reasonably capable of purchasing that amount of cocaine

because they did not have nearly enough money for such a purchase.

The district court disagreed and found that the drug offenses

involved 100 kilograms of cocaine. It therefore applied a base

offense level of 36 for each defendant. See U.S.S.G.

§ 2D1.1(c)(2).

For Pinillos and Campusano, the court then applied a two-

level enhancement for obstruction of justice under U.S.S.G.

§ 3C1.1, resulting in a total offense level of 38.3 That total

offense level led to guideline ranges of 235-293 months, and the

court sentenced both Pinillos and Campusano to two concurrent terms

of 235 months.

3
The basis for the obstruction of justice enhancement was
perjury at trial.

-9-
 For Rodriguez, there was an additional issue. The

government argued that Rodriguez's prior convictions mandated a

sentence of life imprisonment under 21 U.S.C. § 841(b)(1)(A), which

states that "[i]f any person commits a violation of this

subparagraph . . . after two or more prior convictions for a felony

drug offense have become final, such person shall be sentenced to

a mandatory term of life imprisonment without release." However,

a question arose as to whether Rodriguez had properly been notified

that the government intended to introduce prior convictions to seek

an enhanced sentence under § 841. Prior convictions may not be

used to increase the sentence for a drug offense "unless before

trial . . . the United States attorney files an information with

the court (and serves a copy of such information on the person or

counsel for the person) stating in writing the previous convictions

to be relied upon." 21 U.S.C. § 851(a)(1). The record indicated

that the government had, just minutes before jury selection, filed

an information alleging Rodriguez's prior convictions, but it was

not clear whether the information had been timely served.

The court apparently concluded that Rodriguez had not

received adequate notice, and therefore declined to consider

Rodriguez's criminal history for purposes of the mandatory life

sentence provision. Instead, it applied a two-level enhancement

for obstruction of justice under U.S.S.G. § 3C1.14 and a two-level

4
For perjury at trial. See supra note 3.

-10-
enhancement for being a leader or manager under U.S.S.G.

§ 3B1.1(c), resulting in a total offense level of 40. Combined

with his career offender status, that offense level led to a

guideline range of 360 months to life. The court sentenced

Rodriguez to two concurrent terms of 360 months.

Defendants timely appealed their convictions and

sentences. The government cross-appealed from the court's denial

of a mandatory life sentence for Rodriguez under 21 U.S.C.

§ 841(b)(1)(A). We begin with appellants' challenges to their

convictions.

II.

All three appellants argue that the evidence is

insufficient to sustain their conspiracy or attempt convictions.

We review such challenges de novo, "drawing all reasonable

inferences in favor of the verdict, to ascertain if a rational jury

could have found that the government proved each element of the

crime beyond a reasonable doubt." Rodriguez-Marrero, 390 F.3d at

12 (quotation marks and citation omitted). Appellants

collectively5 raise four different arguments in support of their

insufficiency claims: (1) the parties never mentioned "cocaine" or

"kilos," but rather were negotiating for the sale of computers; (2)

5
To be precise, Pinillos argues the first and third points,
Campusano argues the second, and Rodriguez argues the fourth. That
each appellant forfeited the issues that he did not himself raise
turns out not to matter since each argument fails on its merits.

-11-
even if appellants actually intended to arrange the sale of

cocaine, no agreement was reached because the parties could not

agree on how much to sell or how to structure a two-phase

transaction; (3) any desire to purchase drugs was inchoate and

would be impeded by factual impossibility since appellants lacked

the money to purchase anywhere near the quantities of cocaine

alleged; and (4) if an agreement was reached, appellant Rodriguez

was not present when it was reached, and if an attempt was made, he

was not present when it was made. We address each in turn.

A. Cocaine versus "Computers"

This argument is readily dispatched. Both Rafa and Toro

testified extensively on the use of code words in drug

transactions, and the jury was entitled to believe the government

witnesses over Pinillos, who insisted that it was all some sort of

misunderstanding arising from a failed negotiation over Compaq

Presario laptops.6 Furthermore, it is not quite true that the

parties never mentioned "cocaine" or "kilos." During its cross-

examination of Pinillos, the government confronted him with the

transcript of a telephone conversation in which he told Rafa

6
We also note that both Campusano and Rodriguez testified that
they knew nothing about computers, which would tend to support the
government's version.

-12-
"[t]hat they stole from me six, one. There's my kilo, brother.

There's my kilo."7

B. Alleged Lack of Agreement

This argument (which is addressed only to the conspiracy

charge, since attempt does not require an agreement) also fails.

First, a rational jury could conclude from the evidence at trial

that, despite initial disagreements about the logistics of the

transaction, the group eventually reached an agreement during the

second meeting. Rafa and Toro testified that Pinillos and

Campusano, in communication with Rodriguez, agreed with them to a

detailed and somewhat complicated protocol involving two cars, a

hostage, and opportunities to inspect both money and drugs before

the final exchange.

But even if that evidence were somehow insufficient, the

jury could have convicted based on an agreement among the

defendants themselves. The jury could have found an agreement

among the three defendants (or even two separate interlocking

agreements between pairs of defendants) even if defendants never

reached any agreement with the government agents. The testimony of

the government witnesses regarding the conduct of the defendants at

the various meetings was a sufficient basis for the jury to

7
While the term "kilobyte" may be used in reference to
computers, the jury was entitled to infer that "kilos" meant
kilograms of cocaine, not kilobytes. Moreover, Pinillos did not
offer any explanation of his remark about "kilos" other than to
deny that he said it.

-13-
conclude that the defendants had agreed amongst themselves to

obtain at least five kilograms of cocaine. See, e.g., United

States v. Martinez-Medina, 279 F.3d 105, 113-14 (1st Cir. 2002)

("The jury may infer an agreement circumstantially by evidence of,

inter alia, a common purpose (such as a purpose to sell illicit

drugs), overlap of participants, and interdependence of various

elements in the overall plan.").

C. Lack of Money

To be sure, the fact that the government never recovered

anything near the funds necessary to pay for even one kilogram of

cocaine was a factual weakness. But it was not a fatal weakness.

Pinillos repeatedly assured the government witnesses (before

arriving in Puerto Rico, at the España Bakery, and at the final

meeting) not only that the money was available, but that he had

seen it. The jury was entitled to believe these statements, and to

infer that the money was secreted somewhere unknown to the

government.

D. Rodriguez's Connection

Finally, Rodriguez argues that, even if there was a

conspiracy and an attempt, his involvement was too peripheral to

link him to either. But the government witnesses provided a

sufficient basis to link him to both charges. All three government

witnesses testified that, at the España Bakery meeting, Rodriguez

was acting as the leader and decisionmaker; Rafa testified that

-14-
Rodriguez was introduced as such. Both Toro and Rafa testified

that Pinillos and/or Campusano took direction from Rodriguez by

cell phone at the second meeting, and all three government

witnesses confirmed that, according to the usual protocol, the

leader would only be present for the initial meeting, and certainly

not for the actual handoff. Thus, the jury was entitled to infer

that he was a member of the conspiracy, and either that he directly

aided or abetted the other two defendants in their attempt, or was

liable for their foreseeable acts within the scope of the

conspiracy. See Pinkerton v. United States, 328 U.S. 640, 647

(1946).

For these reasons, we reject appellants' argument that

the evidence was legally insufficient to support the verdict.

III.

Appellants argue that the district court committed three

errors during the course of the trial. All three appellants argue

that the district court allowed improper and unfairly prejudicial

expert testimony when it permitted Toro to testify, without any

evidence of violence or guns in this case, that drug organizations

are dangerous and keep their drugs near their firearms. Rodriguez

makes two further arguments: (1) that the jury instructions failed

to state that the jury could only convict a defendant of conspiracy

if it found that the defendant conspired with at least one person

who was not a government agent; and (2) that the instructions

-15-
failed to incorporate certain principles from the Sentencing

Guidelines regarding calculation of drug quantity in a reverse

sting. We reject all of these arguments.

A. Toro's Testimony

1. The Challenged Testimony

Before trial, Pinillos moved in limine to exclude expert

testimony regarding the topic of coded references to drugs and drug

trafficking, on the ground that the government had not complied

with its obligation to disclose expert testimony under Fed. R.

Crim. P. 16(a)(1)(E) (2002).8 The government explained that it

planned to ask both Toro and Rafa to testify about the use of code

phrases in drug deals, and suggested that this was lay opinion

testimony. The district court denied Pinillos's motion, but held

that the proposed testimony would be "regarded as expert testimony"

and ordered the government to disclose "any information that is

relevant to qualifying [a witness] as an expert to testify as to

the meaning of drug related or coded drug phrases."

Despite the pretrial wrangling, the government never

actually moved to qualify Toro as an expert witness. Instead,

early in its direct examination, after eliciting Toro's background

and experience, it began asking general questions about the nature

8
That provision has subsequently been renumbered Fed. R. Crim.
P. 16(a)(1)(G) (2005), but the 2002 version is otherwise virtually
identical to the present version.

-16-
of drug organizations and, in particular, their violent nature.

(No questions had yet been asked concerning code words.)

The first substantive question that the government asked

of Toro was, "What is your experience with how drug organizations

operate as far as how do they maintain control of drugs or the

guns?" (Emphasis added). After a defense9 objection, the

government rephrased the question without reference to guns, and

Toro answered that drug organizations had members "who are engaged

in safekeeping and protecting the drugs." The government then

asked, "And how do they protect the drugs?" Over a defense

objection, Toro was permitted to answer that the drugs "are kept in

a hidden place where they are protected with firearms."10

Testimony about the dangerous nature of drug

organizations recurred later in Toro's direct examination, when he

9
Typically, in a multi-defendant case the district court will
provide by standing order, or from the bench, that an objection
made by one defendant will suffice to preserve the issue for all
defendants. Cf. D.P.R. Crim. R. 117(b)(10) (providing that counsel
should be prepared to discuss these issues at pretrial conference).
The record is not clear as to whether that happened here. However,
the government has advised us that, despite the apparent absence of
an applicable order from the district court, it is the general
practice in the District of Puerto Rico to treat an objection by
one defendant as applicable to all defendants. Because of the
uncertainty, we give appellants the benefit of the doubt. We do,
however, advise future litigants to seek a ruling on the record
regarding such matters.
10
The court then sustained defendants' objection to the
government's question, "How dangerous is your job?"

-17-
opined as to why the leader of a drug organization would not be

physically present for the actual handoff:

The most crucial and dangerous moment during
the work of an undercover agent and everyone
engaged in drug business is that time when the
drugs and the money are handed over. Based on
my experience, this is the point in time when
any of the people involved, for any reason at
that point in time, may lose his or her life.

Defendants objected on the ground that the testimony was

inflammatory; the objection was overruled.

When discussing the meeting at the España Bakery, the

government asked Toro whether, in his experience, drug traffickers

bring innocent people to negotiations for the sale of drugs. Toro

answered that they do not. The following discussion ensued:

Q. Why would you not bring in innocent
people?
A. Because it could cause the life of that
innocent person, to be in a drug
transaction.

MS. PLAZA: Objection, Your Honor.
THE COURT: Overruled.
. . .

Q. So when these drug deals happen, is it
dangerous?

MS. PLAZA: Objection.
MS. LIZARRIBAR: Objection.
THE COURT: Overruled.
THE WITNESS: Yes, sir.

BY MR. SCHULTE:

Q. Why is it dangerous?
A. Because when you are involved in a drug
transaction, you have drugs and money
involved. No one wants to have their

-18-
 drugs stolen; no one wants to have
their money stolen, and that's
practically [sic] when there is large
amounts of money involved and large
amounts of drugs involved.

Later, when discussing the second meeting at the Plaza Carolina,

Toro explained that if he "had not demanded to see the money, it

could look as though we were cops and things could get dangerous."

The prosecutor asked for clarification, and Toro explained:

In a drug transaction where you have agents --
law enforcement agents from Puerto Rico and
people who are engaged in drug trafficking,
should these people become aware that we are
agents, as has happened, it could cost us our
lives.

The defense objected "as to what has happened in other cases," and

the court sustained that objection, allowing into evidence, in the

court's words, "that if these people find out that they are law

enforcement, it could cost their lives."

The final contested statements came during Toro's

explanation as to why he felt "insecure" and "unsure" in the car

with Pinillos at the delivery site. Toro explained that at that

time he "didn't know if Campusano and Pinillos were with other

people." The government asked for clarification as follows:

Q. What do you mean with other people?
A. Maybe they were accompanied by other
members of their organization which
could place --

MS. PLAZA: Objection, Your Honor.
THE COURT: Overruled.
THE WITNESS: -- which could place at
stake both the informant's life and my life.

-19-
 2. Analysis

Appellants argue that these statements were erroneously

admitted because (1) they were not a proper subject of expert

testimony, see Fed. R. Evid. 702, and (2) they created a risk of

unfair prejudice that substantially outweighed any probative value,

see Fed. R. Evid. 403. The government, perhaps missing the thrust

of appellants' argument on appeal (which is not directed at the

testimony regarding code words, but rather at that regarding

violence), responds that code words are an appropriate subject for

expert testimony, and the code word testimony was not prejudicial.11

It also argues that Toro's testimony would have been admissible as

lay opinion testimony under Fed. R. Evid. 701. We review the

court's decision to admit the testimony for abuse of discretion.

United States v. Ayala-Pizarro, 407 F.3d 25, 27 (1st Cir. 2005).

Appellants' argument under Rule 702 is easily dispatched.

"It require[s] no special expertise for [an officer] to conclude,

based on his observations, that places which sell drugs are often

protected by people with weapons." Ayala-Pizarro, 407 F.3d at 29

(rejecting challenge to admission of such testimony as improper

expert testimony). That type of testimony is admissible as lay

opinion under Rule 701. See Ayala-Pizarro, 407 F.3d at 28-29. The

same reasoning applies to the other testimony to which appellants

11
Since appellants do not challenge on appeal (and did not
contemporaneously object to) the code word testimony, we do not
address it.

-20-
object, e.g., that the moment when the drugs and money are handed

over is the most dangerous part of the work of an undercover agent.

As in Ayala-Pizarro, these matters were "well founded on personal

knowledge and susceptible to cross-examination," id. at 28

(quotation marks and citation omitted), and appropriate for lay

opinion testimony.

Nor was the testimony inadmissible under Rule 403, under

which evidence "may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice." Fed.

R. Evid. 403. "Trial judges enjoy wide latitude in making Rule 403

rulings and are only overturned after a showing of an egregious

error." United States v. Kornegay, 410 F.3d 89, 96 (1st Cir.

2005). The challenged statements had considerable probative value

regarding, respectively, why the government might come to a drug

transaction in which it planned to sell drugs without the actual

drugs; why the leader of a drug organization would not be

physically present for the actual handoff; why it would be unlikely

that any defendant who was present at the España Bakery meeting

would be a mere innocent bystander; why it was important for the

government agents to demand to see the money during the Plaza

Carolina meeting; and why Toro called in the arrest before the

"sale" had been consummated. To a significant extent, Toro's

testimony about the dangerousness of drug transactions simply

helped to explain his own conduct.

-21-
 At the same time, any danger of unfair prejudice was

substantially dissipated. The first four of the five disputed

references to guns or violence were general statements about how

drug organizations typically operate, offered principally to

explain Toro's own actions; only the last statement suggested that

these particular defendants might potentially have some involvement

with violence. All five statements were counterbalanced by the

government's open concession (and Toro's admission on cross-

examination) that no weapons were ever found on or near any

defendant in this case. We do not discount that the testimony may

have increased the impact of Toro's testimony in a manner

unfavorable to appellants. But that is not enough to make a

violation of Rule 403. "Virtually all evidence is prejudicial --

if the truth be told, that is almost always why the proponent seeks

to introduce it -- but it is only unfair prejudice against which

the law protects." United States v. Pitrone, 115 F.3d 1, 8 (1st

Cir. 1997). The district court did not abuse its discretion in

concluding that the danger of unfair prejudice from the disputed

testimony did not substantially outweigh its probative value.

B. Instructions Regarding Conspiracy with Government Agent

Both before and after the jury charge, all three

defendants requested an instruction that a jury can only convict a

defendant of conspiracy if it finds that he conspired with at least

one person who was not a government agent. In other words, there

-22-
must be at least two true conspirators, and "government agents do

not count." United States v. Giry, 818 F.2d 120, 126 (1st Cir.

1987). The district court denied the request on the ground that

the instruction is only applicable when the facts support the

inference that the defendant and one or more government agents were

the only participants in the agreement, and that scenario was not

even the defense's theory of this case, let alone a reasonable

inference from the facts. On appeal, Rodriguez maintains that the

refusal to grant this instruction requires a new trial.

The parties spar over the standard of review, but we need

not resolve that controversy. Instead, we will assume, in the

appellant's favor, that the de novo standard applies. In order to

conclude that Rodriguez had formed an agreement to possess with

intent to distribute cocaine, but that he had reached this

agreement solely with government agents, the jury would have had to

accept an unlikely hybrid of Rodriguez's testimony and the

government's theory of the case. Nevertheless, as unlikely as this

version of events may be, we will also assume for argument's sake

that the district court erred in denying the instruction.

In all events, the error was harmless in this case. See

United States v. Duff, 76 F.3d 122, 127-28 (7th Cir. 1996) (where

testimony showed that defendant "participated in many of the [drug]

organization's activities as one of its supervisors" whereas

government agent "entered at the bottom[,] . . . . [n]o reasonable

-23-
jury would have thought that [defendant] agreed only with [the

government agent]" and therefore the failure to give the

instruction was harmless). In order for the instruction to have

made a difference, the jury would have had to believe the following

version of events. Rodriguez, who lives in Miami, flew to Puerto

Rico. The next day, he visited Campusano -- who also lived in

Miami and whom he had known for about a year and a half -- at his

hotel. Campusano introduced Rodriguez to Pinillos, with whom he

was staying. At no point did Rodriguez agree with either Campusano

or Pinillos to obtain cocaine for distribution. The next day,

Rodriguez accompanied Campusano and Pinillos to the España Bakery.

So far, Rodriguez had not agreed with anyone to obtain cocaine. At

the bakery, all three defendants met with all three government

agents, but Rodriguez still had not, by either words or conduct,

agreed with either Campusano or Pinillos to obtain cocaine. Later,

all three defendants stepped outside and talked with Rafa. At this

point, and not before, Rodriguez reached an agreement to obtain

cocaine -- with Rafa alone, because Campusano and Pinillos were

merely bystanders. Finally, Rodriguez either never relayed

instructions to Campusano at the Plaza Carolina mall via mobile

phone, or did it in such a way that he did not bring Campusano (let

alone Pinillos) into the agreement.

As noted, this is an unlikely scenario, to put it mildly.

At the same time, the evidence for the government's version of

-24-
events was considerably stronger. Indeed, the theory of the case

under which the instruction could have made a difference was never

advanced by Rodriguez or any other witness, and was less plausible

than the theory of innocence that Rodriguez actually professed. To

accept the hybrid version of events under which the instruction

might have mattered, the jury would have had to disbelieve both the

government witnesses (who testified that Rodriguez participated

with Campusano and Pinillos in reaching an agreement) and Rodriguez

himself (who testified that he was not involved in any discussions

relating to the purchase of anything). Because the evidence for

the government's version of events was so much stronger than the

evidence for the version of events under which an error could have

affected the verdict, we are easily satisfied that any such error

"does not affect substantial rights [and therefore] must be

disregarded." Fed. R. Crim. P. 52(a). Cf. Gillespie v. Sears,

Roebuck & Co., 386 F.3d 21, 30 (1st Cir. 2004) (in civil cases,

"[r]ecognizing that a jury is likely to prefer a better supported

theory to one less supported, we have generously applied the

harmless error concept to rescue verdicts where we could be

reasonably sure that the jury in fact relied upon a theory with

adequate evidentiary support").

C. Instructions Regarding Drug Quantity Calculation

The district court required the jury to answer a question

on a special verdict form: "Do you unanimously agree by proof

-25-
beyond reasonable doubt that the quantity of cocaine involved in

the conspiracy charged in count 1 was more than five kilograms as

charged in the indictment?" A similar question was applied to the

attempt charge. The jury answered yes to each question for each

defendant.

Rodriguez argues that the jury instructions were

defective because they did not incorporate certain standards found

in the Sentencing Guidelines for determination of drug quantity in

a reverse sting:

In an offense involving an agreement to sell a
controlled substance, the agreed-upon quantity
of the controlled substance shall be used to
determine the offense level unless the sale is
completed and the amount delivered more
accurately reflects the scale of the offense.
. . . [I]n a reverse sting, the agreed-upon
quantity of the controlled substance would
more accurately reflect the scale of the
offense because the amount actually delivered
is controlled by the government, not by the
defendant. If, however, the defendant
establishes that he or she did not intend to
provide, or was not reasonably capable of
providing, the agreed-upon quantity of the
controlled substance, the court shall exclude
from the offense level determination the
amount of controlled substance that the
defendant establishes that he or she did not
intend to provide or was not reasonably
capable of providing.

U.S.S.G. § 2D1.1, cmt. n.12 (2002).12

12
This was the version of application note 12 available at the
time of trial. It has since been amended slightly.

-26-
 Rodriguez argues that application note 12 should have

been incorporated into the jury charge, and that the jury might

have found that since there was no evidence that he had even a

tenth of the money needed to buy five kilograms of cocaine, he was

not reasonably capable of purchasing five kilograms. Because

Rodriguez did not request this instruction below, we review for

plain error. United States v. Medina-Martinez, 396 F.3d 1, 8 (1st

Cir. 2005). Under this rigorous standard, Rodriguez must show that

"(1) an error occurred, (2) the error was clear or obvious, (3) the

error affected his substantial rights, and (4) the error also

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings." Id.

It may seem unusual to suggest that a principle from the

Sentencing Guidelines, which are applied by the court (even under

the post-Booker advisory regime), should govern a statutory

determination. Indeed, Rodriguez has not cited any case from any

court holding that any aspect of the Sentencing Guidelines must be

incorporated into jury instructions. He does, however, cite United

States v. Lindia, 82 F.3d 1154, 1160 (1st Cir. 1996), for the

proposition that "[a]pplication note 12 applies for the purposes of

both the Sentencing Guidelines and the statutory penalties under 21

U.S.C. § 841(b)." But Rodriguez has cited no case, and we have

found none, suggesting that Lindia has any applicability to jury

-27-
quantity determinations, or that application note 12 must be

incorporated into jury instructions.13

That said, we need not decide whether it would have been

correct to grant a request to instruct the jury that it should

exclude "the amount of controlled substance that the defendant

establishes that the defendant did not intend to provide or

purchase or was not reasonably capable of providing or purchasing"

if the defendant had requested such an instruction, nor whether it

would have been error to deny a timely request for such an

instruction, nor even whether it was error to fail to so instruct

sua sponte. The error, if any, was not "clear or obvious," and

therefore Rodriguez's challenge fails under plain error review.

IV.

Although the appellants allege various errors in

sentencing, we need not address their claims. All three defendants

challenged the district court's calculation of the drug quantity as

100 kilograms. The government concedes that all three defendants

preserved claims at sentencing under Apprendi v. New Jersey, 530

U.S. 466, 490 (2000), which in turn suffices to preserve claims

under United States v. Booker, 125 S. Ct. 738 (2005). See United

States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005). We

accept those concessions without further inquiry. The government

13
We also note, but do not rely upon, the fact that other
aspects of Lindia have been called into doubt. See United States
v. Eirby, 262 F.3d 31, 36 (1st Cir. 2001).

-28-
further conceded at oral argument that it cannot show that the

error was harmless, and therefore remand is appropriate.

Consequently, all three appellants' sentences will be remanded for

resentencing in light of Booker.14

V.

The government cross-appeals from the district court's

refusal to impose upon Rodriguez a mandatory life sentence based on

its conclusion that he had inadequate notice of the government's

intent to seek that sentence. If the prosecution intends to seek

an enhanced sentence under 21 U.S.C. § 841 based on prior

convictions, it must "before trial . . . file[] an information with

the court (and serve[] a copy of such information on the person or

counsel for the person) stating in writing the previous convictions

to be relied upon." 21 U.S.C. § 851(a)(1).

There is no dispute that the prosecution filed and served

a § 851 information on October 17, 2002, the first day of trial.

The question is whether it was served "before trial." The

government contends that it filed and personally served the

information on October 17, 2002, the morning that the trial began,

just before jury selection started. "While such cliff-hanging

practices are not wise," if "the filing was made before jury

14
Because we vacate appellants' sentences in their entirety,
we need not decide appellants' claims that the district court
erroneously (1) determined role in the offense for Campusano and
Rodriguez, (2) calculated the drug quantity under U.S.S.G. § 2D1.1,
cmt. n.12, or (3) set the conditions of supervised release.

-29-
selection, [then] that is all that was required." United States v.

Cartagena-Carrasquillo, 70 F.3d 706, 715 (1st Cir. 1995).

According to the courtroom deputy's notes for the morning

of October 17, 2002, jury selection was delayed because Campusano's

attorney was in a hearing in a different courtroom. The notes

record that Campusano's attorney arrived at 10:45 A.M. and joined

a bench conference already in progress. Jury selection began

several minutes later, after the bench conference ended.

Critically, the notes indicate that the information was filed at

10:45 A.M. -- the same time that Campusano's attorney arrived, and

a few minutes before jury selection began. That notation was

consistent with the prosecutor's statement at the sentencing

hearing that he personally filed the § 851 information, and handed

copies to Rodriguez and his counsel, shortly before jury selection

began. However, while the notes suggest that the information was

timely filed, they say nothing about when it was served.15

On March 18, 2003, the district court found that the

information was timely filed and served, and denied Rodriguez's

motion to strike the information. Rodriguez's sentencing hearing

was held later that same day, and his counsel requested

reconsideration. Counsel disputed the government's version of

15
The government also served the information by mail on October
17, 2002. Again, the date on the certificate of service does not
indicate the time of service.

-30-
events, and noted that there was nothing in the record stating that

Rodriguez had received the information. He further argued:

A lot of times what the U.S. Attorney will do,
Judge, is they'll stand up and announce, to
make sure there's no problem, they'll stand up
and announce in open court that notice has
been filed, and the judge will voir dire the
defendant to make sure that the defendant is
aware of the fact that this has been filed.
It's kind of like a prophylactic remedy to
make sure that these types of issues do not
occur. I'm not aware of anything in the
record to suggest that the government
announced this in open court and that Mr.
Rodriguez was voir dired to make sure that he
was aware of the filing.

Shortly afterwards, the court conducted a bench conference, then

stated for the record:

At sidebar the Court was discussing
with the attorneys whether the lack of voir
dire by the Court directly with the defendant
would preclude the enhancement because of
prior convictions. We were discussing whether
it is a requirement for the Court to voir dire
the defendant as to the information that has
been filed in Court, by informing him that
this information has been filed in which the
allegations as to prior convictions are such-
and-such, and then asking him if he affirms or
denies that he was previously convicted or
that the convictions were invalid.
That did not occur, and in all fairness
to the defendant, I will state that for the
record. We were waiting for [Campusano's
counsel] to come, and the matter of the
information was taken up at the informal
sidebar conference, where the government had
filed it and defendant counsel had previously
been given notice and so had the defendant.
On that I'm very clear, that he received --
the filing was done before, the notice was
done before the actual selection of the jury
and voir dire.

-31-
 However, if the dialogue of the Court
with the defendant is a requirement is
something that I don't have an answer to right
now.

The court then took a brief recess, and during the recess issued a

written order stating:

Although the Court is convinced, as stated in
its previous Order, that the filing of the
Information certifying that defendant
committed this offense after two prior
convictions was made before the selection of
the jury commenced and that he was notified of
the Information before voir dire started, the
Court acknowledges that it did not conduct any
inquiry directly with defendant as to his
awareness of such filing and of the
allegations of the Information, nor whether he
affirmed or denied his previous convictions or
claimed their invalidity. Since this is the
practice followed by the Court in other cases,
its absence in this case casts doubt on
whether defendant [Rodriguez] was fully aware
of the consequences of the filing of the
Information and was able to rethink his
decision to stand trial. For these reasons,
the Court will not apply the enhancement based
on his prior convictions.

The court's final order could be read in two ways. The

government interprets it to state, as a matter of law, that § 851

notice is not complete unless the court addresses the defendant

concerning the information before trial begins.16 If so, it would

be an incorrect statement of law; there is no basis for such a

requirement. However, Rodriguez argues that the court was simply

making a factual inference: since this district court judge

16
Such a colloquy before trial would be entirely separate from
the post-conviction, pre-sentencing colloquy required by § 851(b).

-32-
consistently, in other cases, discusses the information with the

defendant on the record, the fact that no such discussion occurred

in this case is evidence suggesting that the information may not

have been timely served on Rodriguez. In other words, under this

latter view, the absence of colloquy is relevant as part of a

factual determination, not a legal requirement in itself.

The final written order is at least susceptible to the

reading that Rodriguez advocates. However, the government's

interpretation seems more consistent with the district court's

statement at the sentencing hearing that it was "very clear, that

[Rodriguez] received -- the filing was done before, the notice was

done before the actual selection of the jury and voir dire," and

its expression of uncertainty only as to whether "the dialogue of

the Court with the defendant is a requirement."

Because the stakes of construing the court's order

incorrectly are potentially high, and a remand is already warranted

under Booker, we decline to interpret the order. Rather, we

suggest that the district court, on resentencing, clarify its

original ruling. If the court initially declined to impose the

enhanced sentence based solely on the conclusion that § 851

requires a colloquy before trial -- a conclusion we have now

rejected -- then the court should impose the enhanced sentence.

If, on the other hand, the court correctly recognized that § 851

does not require a colloquy before trial, and its written order

-33-
reflected a factual determination of the events of October 17,

2002, or if there were other valid grounds for the order not

apparent to us, the court need not impose a life sentence.

VI.

The convictions of appellants are affirmed. Their

sentences of imprisonment are vacated and remanded for re-

sentencing in light of Booker. For Rodriguez, the court should

further determine whether a mandatory life sentence under 21 U.S.C.

§ 841(b)(1)(A) applies. Whatever its intention, the court should,

however, make reasonably specific findings that clarify its

thinking.

So ordered.

-34-