United States v. Mangual-Garcia

United States Court of Appeals
For the First Circuit

No. 05-2275
UNITED STATES OF AMERICA,
Appellee,

v.

ANDY WILLIAMS MANGUAL-GARCIA,
Defendant, Appellant.

No. 05-2414
UNITED STATES OF AMERICA,
Appellee,

v.

GILBERTO VILLANUEVA-RIVERA,
Defendant, Appellant.

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

Before

Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Dyk,* Circuit Judge.

September 18, 2007

Jorge L. Armenteros-Chervoni for appellant Gilberto
Villanueva-Rivera.

*
Of the Federal Circuit, sitting by designation.
 Rachel Brill for appellant Andy Williams Mangual-Garcia.
Julie Mosley, Assistant United States Attorney, with whom,
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, and Thomas F. Klumper,
Assistant United States Attorney, were on brief, for the appellee.
 DYK, Circuit Judge. Andy Williams Mangual-Garcia

(“Mangual-Garcia”) and Gilberto Villanueva-Rivera (“Villanueva-

Rivera”) appeal from their convictions for (1) conspiracy to

possess with the intent to distribute in excess of five kilograms

of cocaine in violation of 21 U.S.C. § 841 and (2) possession with

intent to distribute approximately five kilograms of cocaine in

violation of 21 U.S.C. § 841(a)(1). Finding no reversible error,

we affirm the convictions. Additionally, although the district

court’s failure to articulate its reason for choosing a particular

sentence within a guideline range that exceeded twenty-four months

violated 18 U.S.C. § 3553(c)(1), we find no plain error that would

require resentencing.

BACKGROUND

We describe the evidence in the light most favorable to

the government. See, e.g., United States v. Sampson, 486 F.3d 13,

47 (1st Cir. 2007). From 2000-2002, appellants Mangual-Garcia and

Villanueva-Rivera, along with others, allegedly shipped cocaine

from Puerto Rico to the mainland United States on commercial

airline flights departing from either San Juan or Aguadilla

airports. Luis Escobar-Lopez (“Escobar-Lopez”), an employee of the

catering company that serviced airplanes at Puerto Rican airports

and a member of the conspiracy, agreed to cooperate with law

enforcement officers. He arranged to have drugs shipped on a

commercial flight leaving Aguadilla airport on December 22, 2002,

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and taped conversations among the alleged conspirators, including

the appellants, regarding this shipment.

On February 23, 2004, a grand jury indicted Mangual-

Garcia and Villanueva-Rivera, along with Irvin Caraballo-Torres

(“Caraballo-Torres”) and Carlos Escobar-Rivera (“Escobar-Rivera”).

During the course of a 22-day trial, the government introduced the

testimony of cooperating witness Escobar-Lopez regarding the

alleged conspiracy, including testimony that both Mangual-Garcia

and Villanueva-Rivera were part of the December 22 conspiracy. The

government also introduced tape recordings Escobar-Lopez had made

with the alleged conspirators. The taped conversations, which

occurred between December 10 and December 24, 2002, concerned the

planning of the December 22 shipment as well as the actions of the

alleged conspirators after the shipment was lost.

In addition, the government showed video recordings of

Villanueva-Rivera’s delivering silver or gray wrapped packages to

Caraballo-Torres on December 21 and Caraballo-Torres’ entering the

plane on December 22. Finally, the government introduced evidence

of five drug packages that it seized from the rear lavatory of the

airplane on December 22. The appearance of these packages matched

the appearance of the packages Villanueva-Rivera delivered on the

21st.

The jury convicted Mangual-Garcia and Villanueva-Rivera

on April 14, 2005. Mangual-Garcia was sentenced to 364 months in

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jail and Villanueva-Rivera to 192 months. In sentencing the

defendants, the district court never explained why it chose the

specific sentences within the guidelines range, other than to

recite that it had considered all of the factors that it was

required to consider under 18 U.S.C. § 3553(a).

Mangual-Garcia and Villanueva-Rivera timely appealed, and

we have jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

I. Introduction of Evidence of a Separate Conspiracy

The appellants’ principal argument on appeal is that the

district court should have granted their motion for a mistrial

based on the prosecutor’s misconduct in introducing evidence of a

separate December 8 conspiracy. It is undisputed that five of the

government’s eleven witnesses1 testified about the FBI’s attempt on

December 8, 2002, to seize another shipment of drugs. That attempt

was stymied when the alleged drug traffickers were notified of the

presence of federal agents. In fact, two of the witnesses

testified exclusively about the December 8 events. In the course

of the trial, the government admitted that the events of December

8 involved a different conspiracy, to which the appellants were not

1
At points in their briefs, both the government and
Mangual-Garcia assert that six government witnesses testified about
the December 8 events. However, they then only list five witnesses
who so testified. This error may stem from Mangual-Garcia’s
apparently incorrect assertion below that FBI Special Agent Amado
Vega testified about the December 8 events.

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parties. For present purposes, we will assume that the government

did not advise the defendants of the error until April 6, 2005,

during the jury charge conference after the government had rested.

Then, the government clearly admitted that the December 8 events

involved a “different conspiracy” that did not involve the

appellants. The defendants immediately objected and filed a motion

for a new trial the next day, which the district court denied.

Appellant Mangual-Garcia first argues that a mistrial

should have been granted because the prosecutor’s delayed

disclosure regarding the separate December 8 conspiracy violated

his rights under Brady v. Maryland, 373 U.S. 83 (1963), to access

to exculpatory material. Mangual-Garcia argues that if the

information had been disclosed earlier, he would have been able to

impeach the truthfulness of Escobar-Lopez’s testimony and cast

reasonable doubt on the amount of drugs involved in the charged

conspiracy. It is unclear how further cross-examination would have

benefitted Mangual-Garcia. Mangual-Garcia’s vague assertions that

this evidence could have impeached the cooperating witness, without

explaining why or how, is insufficient to establish that Brady

material was withheld. In any event, Mangual-Garcia admits that he

did not request a continuance or seek to recall any witnesses when

he learned about this evidence before he presented his case-in-

chief. “As a general rule, a defendant who does not request a

continuance will not be heard to complain on appeal that he

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suffered prejudice as a result of late-arriving discovery.” United

States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993); see also

United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991).

Mangual-Garcia has failed to establish the “manifest abuse of

discretion” required to overturn “the presider’s decision to allow

a criminal case to go forward, notwithstanding delayed disclosure

of material relevant to impeachment of a witness.” Sepulveda, 15

F.3d at 1179.2

Next, both appellants assert that the introduction of the

December 8 evidence constituted prosecutorial misconduct that

warrants a new trial. “[W]e determine the legal question of

whether the prosecutor’s actions constitute misconduct de novo,

[and the question] of whether the alleged misconduct requires a new

trial . . . for abuse of discretion.” United States v. Casas, 425

F.3d 23, 39 (1st Cir. 2005).

We assume, without deciding, that the prosecutor’s

actions constituted misconduct. See United States v. Auch, 187

F.3d 125, 128-29 (1st Cir. 1999) (finding misconduct where a

prosecutor made repeated references to an uncharged armored car

robbery during the prosecution of a different armored car robbery).

However, we conclude that the district court did not abuse its

2
See United States v. Ingraldi, 793 F.2d 408, 411-12 (1st
Cir. 1986) (“[T]he test [for delayed disclosures] is whether
defendant’s counsel was prevented by the delay from using the
disclosed material effectively in preparing and presenting the
defendant’s case.”).

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discretion in determining that a new trial was not warranted. In

determining whether prosecutorial misconduct “so poisoned the well”

as to require a new trial, this circuit considers “(1) whether the

prosecutor’s misconduct was isolated and/or deliberate; (2) whether

the trial court gave a strong and explicit cautionary instruction;

and (3) whether any prejudice surviving the court’s instruction

likely could have affected the outcome of the case.” Id. at 129.

The claimed misconduct in this case was clearly repeated.

However, this is not a close case since the evidence plainly

supported a conviction. Indeed, the appellants do not argue

otherwise, with one exception noted below. Most important, as part

of the jury charge, the district court explicitly, clearly, and

repeatedly instructed the jury

not . . . to consider at all any testimony regarding the
December 8th [events] . . . You are not to make any
connection between that event . . . and the drug
conspiracy charge . . . since the December 8, 2002 events
are not evidence of the conspiracy charge . . . [Y]ou
shall disregard all references by these witnesses to the
December 8 [events].3

3
In full, the court instructed the jury as follows:

The only part [of the five witnesses] testimony that I am
striking has to do with what they testified to about the
December 8, 2002, surveillance in the Aguadilla airport,
December 8, 2002. And this is my instruction to you, Mr.
Foreman and members of the jury: During the presentation
of the government’s case in chief, the following agents,
Task Force Agent Victor Lopez, Special Agent of the FBI,
Miguel Marrero, Task Force Agent Teodoro Lebron and
Special Agent of the FAA, Orlando Gonzalez, as well as
cooperating witness Luis Oscar Escobar Lopez, testified
about an operative [sic] that the FBI conducted on

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During these instructions, the jurors were told twice that the

December 8 events were not part of the charged conspiracy; twice

that the testimony regarding December 8 had been stricken; and

three times that they should not consider the testimony regarding

December 8. We are at a loss as to how the district court, under

these circumstances, could have provided stronger curative

instructions.4

December 8, 2002 at the Rafael Hernandez airport at
Aguadilla. These witnesses described this, the December
8th operative [sic], as an unsuccessful operative [sic]
in which no drugs were seized. During the Court’s formal
charge conference with the attorneys on April 6, 2005, it
came to light that the December 8, 2002, events at the
Aguadilla airport were not part of the conspiracy that is
charged against these defendants in Count 1 of the
indictment. Given this representation by the
government’s counsel, you are instructed not–and I
emphasize not–to consider at all any testimony regarding
the December 8th, 2002, FBI operative [sic] at the
Aguadilla airport. You are not to make any connection
between that event, the surveillance events of December
8, 2002, and the drug conspiracy charge in Count 1 of the
indictment against the four defendants, since the
December 8, 2002, events are not evidence of the
conspiracy charge in Count 1. This evidence was ordered
stricken by the Court; therefore, you shall disregard all
references by these witnesses to the December 8, 2000
[sic] surveillance at the Aguadilla airport.
4
Mangual-Garcia objects to the fact that the district
court did not instruct the jury to disregard photographs of the
airport and airline taken as part of the December 8 operation.
However, since the government used these same photographs, which
were not specific to December 8, in describing the December 22
operation, it was proper for the district court not to instruct the
jury to disregard these exhibits.

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 This court has repeatedly held that a strong, explicit,

and thorough curative instruction to disregard improperly admitted

evidence or improper comments by the prosecutor is generally

sufficient to cure any prejudice from prosecutorial misconduct in

that regard. See, e.g., United States v. Cormier, 468 F.3d 63, 74

(1st Cir. 2006) (finding no prejudice where “the court issued

final instructions to the jury that were strong and clear on their

duty to disregard the improper comments” (internal quotation marks

and alterations omitted)); United States v. Boldt, 929 F.2d 35, 41

(1st Cir. 1991) (finding that “a very strong and thorough curative

instruction [to disregard] . . . sufficed to dispel any prejudice

from the [prosecutor’s] improper comment”). This follows from the

fact that “our system of trial by jury is premised on the

assumption that jurors will scrupulously follow the court’s

instructions . . . .” United States v. Owens, 167 F.3d 739, 756

(1st Cir. 1999).

There may be some circumstances in which the improper

evidence introduced by the prosecutor so overwhelms the trial as to

make no instruction sufficient to cure the prejudice. However,

this is not such a case. As noted earlier, the record discloses

significant other evidence that could have been the basis for the

jury’s guilty verdict, and the December 8 evidence was not central

to the government’s theory of the case. In fact, there was no

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specific testimony at trial that linked the appellants to the

December 8 events. We conclude that a new trial was not required.

II. Improper Admission of Co-Conspirator Statements

The appellants argue that the district court improperly

admitted statements made by alleged co-conspirator Vélez-García in

tape recorded telephone conversations with cooperating witness

Escobar-Lopez.

While out-of-court statements offered to prove the truth

of the matter asserted would normally be hearsay, Rule 801(d)(2)(E)

explicitly excepts “a statement by a coconspirator of a party

during the course and in furtherance of the conspiracy” from the

definition of hearsay.

In this circuit, out-of-court statements by an alleged

co-conspirator are only admissible if the district court determines

that “it is more likely than not that the declarant and the

defendant were members of a conspiracy . . . and that the statement

was in furtherance of the conspiracy.” United States v.

Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). Such a finding is

called a “Petrozziello” determination. The district court must

consider “all of the evidence” in determining whether the

prosecution has shown by a preponderance of the evidence that the

declarant and the defendant were co-conspirators. See United States

v. Murphy, 193 F.3d 1, 7 (1st Cir. 1999). Thus, while the district

court is generally required to make a conditional admissibility

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determination if the defendant objects to the introduction of an

out-of-court statement under Rule 801(d)(2)(E), this circuit

“require[s] the court to delay its final Petrozziello determination

until the close of all evidence.” Earle v. Benoit, 850 F.2d 836,

841 (1st Cir. 1988); United States v. Ciampaglia, 628 F.2d 632, 638

(1st Cir. 1980). If the district court, having conditionally

admitted the statements, later determines that they are

inadmissible, it should strike the statements and give a curative

instruction or, if no instruction would cure the prejudice, declare

a mistrial. Ciampaglia, 628 F.2d at 638.

In this case, the government sought to introduce a tape

recording and transcript of the conversations between Vélez-García

and Escobar-Lopez at trial during the direct examination of Task

Force Agent López. The defendants objected, asserting that Vélez-

García’s statements were inadmissible hearsay because he was acting

as a government informant at the time and therefore was not a co-

conspirator under United States v. Giry, 818 F.2d 120, 126 (1st

Cir. 1987) (“[G]overnment agents do not count as co-conspirators .

. . [T]he government informer is not a true conspirator.”).

On March 7, 2005, the district court issued its

preliminary admissibility ruling, concluding that “[t]he

preponderance of the evidence so far leads us to conclude that Mr.

Vélez-García was a ‘bona fide’ co-conspirator in the conspiracy

charged and not an informant.” In making this ruling, the district

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court relied on: the allegations of the indictment that the

conspiracy lasted from November 2000 to December 2002, an FBI “302

report” of an interview with Escobar-Lopez in which he said Vélez-

García was a member of the conspiracy, the tape recordings

themselves,5 “the testimony up to this moment of task force agent

Victor López,” and an FBI certification letter that listed the

dates that Vélez-García was a cooperating witness as May 16, 2000

through August 16, 2002, and February 11, 2003 through May 7, 2003.

The appellants take issue with the district court’s reliance on

this last piece of evidence, arguing that the author of the

certification letter, FBI Special Agent in Charge Luis Fraticelli,

did not testify at trial and therefore was not subject to cross-

examination, allegedly in violation of the appellants’ Sixth

Amendment right to confront the witnesses against them.

We find no error in the district court’s reliance on the

Fraticelli letter in making its preliminary admissibility

determination. A court may consider “any evidence it wishes,

unhindered by considerations of admissibility,” in making

preliminary admissibility determinations. Bourjaily v. United

States, 483 U.S. 171, 178 (1987); see also Fed. R. Evid. 104(a).

Moreover, since a district court is not required to hold a formal

hearing in making this preliminary determination, as the appellants

5
While the alleged co-conspirator statements alone are
insufficient to establish that the declarant and defendant were co-
conspirators, they may be considered. Sepulveda, 15 F.3d at 1182.

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acknowledge, no violation of the appellants’ right to cross-

examination occurred. See United States v. Campbell, 268 F.3d 1,

4-5 (1st Cir. 2001).

The appellants also appear to complain that the evidence

ultimately introduced at trial did not support admissibility of the

statements. Here, the district court erred in failing to make a

final Petrozziello determination at the close of the evidence. As

noted earlier, “[f]or Petrozziello purposes, the critical juncture

is the close of all the evidence.” United States v. Ortiz, 966 F.2d

707, 715 (1st Cir. 1992). However, although the defendants

objected at the time the statements were introduced, leading to the

preliminary determination, they never renewed their objection at

the close of the evidence nor did they request a final Petrozziello

determination. This court has held that “a defendant’s failure to

object to the omission of such an express trial-end determination

bars him from raising the point on appeal in the absence of plain

error.” Ortiz, 966 F.2d at 715 (quoting United States v. Perkins,

926 F.2d 1271, 1283 (1st Cir. 1991)); see also Campbell, 268 F.3d

at 5-6.

We find no plain error on the record of this case. Even

putting to one side the out of court statements on which the

district court relied in making its preliminary determination,6 the

6
We do not have to reach the question of whether evidence
not presented at trial can be considered as part of the final
Petrozziello determination.

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government presented significant admissible evidence at trial that

Vélez-García was a co-conspirator, not a government informant, at

the time of the tape recordings. FBI agent Marrero explicitly

testified at trial that Vélez-García was a cooperating witness for

the FBI only from May 16, 2000, until August 16, 2002, and again

from February 11, 2003, until April 7, 2003. Similarly, Task Force

Agent López testified during cross-examination by one of the co-

defendant’s counsel that while Vélez-García was a government

informant at other times, he was not a government informant in

December 2002 when he made statements at issue. The evidence

relied on by the appellants only shows that Vélez-García was a

government informant at some point in time, not that he was a

government informant, and therefore not a co-conspirator, when the

tape recordings were made. A new trial is not required.

III. Villanueva-Rivera’s Other Alleged Errors

A. Alleged Napue Violation

Villanueva-Rivera argues that his conviction should be

reversed because the prosecution improperly allowed the cooperating

witness, Escobar-Lopez, to testify falsely and then used that false

testimony in its closing argument. At a sidebar conference on

March 11, 2005, the government made the following explicit

admissions: (1) “the government has no intention of prosecuting

[Escobar-Lopez] for these charges at this time”; (2) “the

government has no intention of pursuing charges . . . [because] he

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cannot be prosecuted based only on his own statements”; and (3) “at

this point in time, at no time has the government had any intention

of prosecuting Mr. Escobar, because without his cooperation, we

would not have been able to proceed with this case.” However, on

March 16, 2005, during cross-examination by a co-defendant’s

counsel as to Escobar-Lopez’s motivation for cooperating, Escobar-

Lopez testified to the contrary, stating that “just like the

defendants here, I’m sitting here testifying without a piece of

paper, and because of my testimony, I could also be put in jail.”

Finally, during closing arguments on April 12, 2005, the prosecutor

said:

[Escobar-Lopez] decided let me save my hide and help, and
maybe I’ll get something out of this for me, maybe I’ll
get rid of that case in Boston. But he also told you
there are no promises, no promises. . . . You don’t have
a plea agreement, you don’t have a cooperation agreement,
you don’t have any kind of immunity? No. No. No.

The rules governing this issue were established by the

Supreme Court in Napue v. Illinois, 360 U.S. 264 (1959). There a

government witness, in response to a question by the prosecutor,

testified that “he had received no promise of consideration in

return for his testimony.” Id. at 265. The prosecutor “had in

fact promised him consideration, but did nothing to correct the

witness’ false testimony.” Id. The Supreme Court held that the

prosecutor “may not knowingly use false evidence, including false

testimony, to obtain a tainted conviction” regardless of whether

the prosecutor “solicit[s] false evidence” or, as here, “allows

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[false evidence] to go uncorrected when it appears.” Id. at 269.

The use of such false testimony violates the defendant’s

constitutional right to due process. Id. “A new trial is required

if the false testimony could in any reasonable likelihood have

affected the judgment of the jury.” Giglio v. United States, 405

U.S. 150, 154 (1972) (internal quotation marks and alterations

omitted).

We first reject Villanueva-Rivera’s assertion that the

prosecutor’s statements during closing argument constituted a Napue

violation. The prosecutor merely said “there [we]re no promises”

and no plea, cooperation, or immunity agreement. Villanueva-Rivera

has pointed to no evidence to the contrary.

Turning to Escobar-Lopez’s testimony itself, the

government argues that no Napue violation occurred because Escobar-

Lopez was unaware that the government did not intend to prosecute

him. We disagree. In light of the government’s prior admission

that “at no time has the government had any intention of

prosecuting Mr. Escobar,” the government clearly knew that Escobar-

Lopez was not going to be put in jail for his testimony. Yet,

Escobar-Lopez was permitted to testify that “because of my

testimony, I could also be put in jail.” Thus, the government

“allow[ed] [false testimony] to go uncorrected when it appear[ed].”

Napue, 360 U.S. at 269.

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 However, the government’s admissions regarding its intent

not to prosecute Escobar-Lopez occurred at a sidebar conference in

the presence of the defense counsel before Escobar-Lopez made the

challenged statements. Villanueva-Rivera’s counsel was thus

equally aware that Escobar-Lopez’s testimony was false. Although

there is some division within the circuits on the issue, we agree

with the majority of circuits that “absent unusual circumstances,

the right of the defendant to disclosure by the prosecutor is

deemed waived if defense counsel with actual knowledge of the

[false testimony] chooses not to present such information to the

jury.” United States v. Iverson, 648 F.2d 737, 739 (D.C. Cir.

1981) (opinion on rehearing) (footnote omitted).7 When the

defendant knows about the false testimony and fails to bring it to

the jury or the court’s attention, the assumption is that he did so

for strategic reasons, and the defendant will not be allowed to

7
See Beltran v. Cockrell, 294 F.3d 730, 736 (5th Cir.
2002); Ross v. Heyne, 638 F.2d 979, 986 (7th Cir. 1980); United
States v. Meinster, 619 F.2d 1041, 1045 (4th Cir. 1980); see also
Jenkins v. Artuz, 294 F.3d 284, 295-96 (2d Cir. 2002) (holding that
Napue violation exists in such circumstances unless there is an
indication that it was a “strategic or tactical omission” by
defense counsel); but see Belmontes v. Brown, 414 F.3d 1094 (9th
Cir. 2005) (“Whether defense counsel is aware of the falsity of the
statement is beside the point. . . . [R]egardless of whether
defense counsel should have known that a state witness testified
falsely, a prosecutor’s responsibility and duty to correct what he
knows to be false and elicit the truth, requires him to act when
put on notice of the real possibility of false testimony.”
(internal citations, quotation marks, and alterations omitted)),
rev’d on other grounds sub nom. Ayers v. Belmontes, 127 S. Ct. 469
(2006).

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question his own strategic choices on appeal. Beltran, 294 F.3d at

736. Nor does this case present unusual circumstances that

undermine this presumption, such as when the failure to object is

the result of defense counsel’s conflict of interest, see Ross, 638

F.2d at 986, or when the defendant was prevented “from raising or

pursuing the issue” at trial by “circumstances essentially beyond

his control,” see Iverson, 648 F.2d at 739. Having had knowledge

that Escobar-Lopez’s testimony was false at the time it occurred

and having chosen not to raise this issue at the time, Villanueva-

Rivera cannot now raise the issue on appeal.

B. Improper Statements by Prosecution Witnesses

Villanueva-Rivera argues that his conviction should be

reversed because prosecution witnesses made “repeated references to

a larger, and very violent organization,” despite the limited scope

of the charged conspiracy. Since there was no defense objection to

these statements on the specific basis that Villanueva-Rivera

raises on appeal,8 we review only for plain error. See United

States v. Figueroa, 976 F.2d 1446, 1453 (1st Cir. 1992). All of

the statements relied on by Villanueva-Rivera merely provided

background information about the investigation. Almost any large

8
Villanueva-Rivera did not object to any of the
statements, and his co-defendants only objected to three of them.
Two of these objections were for lack of foundation and
speculation. The third was based on United States v. Casas, 356
F.3d 104 (1st Cir. 2004), which held that a government agent could
not testify that the defendants were part of the charged drug
conspiracy based on his “investigation.” Id. at 119.

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drug trial will have references to gangs and violent activities.

Since none of the statements connected Villanueva-Rivera to this

activity,9 we find no plain error.

IV. Mangual-Garcia’s Other Alleged Errors

A. Alleged Constructive Possession Errors

Mangual-Garcia argues that the district court erred in

denying his Rule 29 motion for acquittal as to the second count of

the indictment, charging him with possession with intent to

distribute approximately five kilograms of cocaine, because there

was insufficient evidence on the possession element. We disagree.

“For purposes of the statute of conviction, 21 U.S.C. §

841(a)(1), possession may be either actual or constructive.”

United States v. Del Rosario, 388 F.3d 1, 8 (1st Cir. 2004),

vacated on other grounds sub nom. Pacheo v. United States, 544

U.S. 970 (2005). “Constructive possession exists when a person

knowingly has the power and intention at a given time to exercise

dominion and control over an object, either directly or through

others.” Id. at 8 (internal quotation marks omitted). Mangual-

Garcia argues that “[t]here was no evidence that Mr. Mangual-Garcia

was the owner of the plane, had command of the people transporting

the kilos, or any evidence from which the fact finder could find,

9
This is not a situation like Casas, where a prosecution
witness testified that the appellant was part of a drug
“organization,” which was part and parcel with the charged
conspiracy, based on the results of his investigation. 356 F.3d at
118-20.

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or at least infer, that he had the necessary power and intent to

possess the cocaine.” Appellant Mangual-Garcia Br. 7-8.

To the contrary, there was sufficient evidence at trial

for the jury to conclude that Mangual-Garcia constructively

possessed the requisite amount of drugs during the events of

December 21-22. First, the record contains evidence that the drugs

involved in the conspiracy were owned by Mangual-Garcia. Moreover,

tape recorded conversations introduced at trial and the testimony

of cooperating witness Escobar-Lopez indicated that Mangual-Garcia

was going to pay the person who placed the drugs on the December 22

plane and that the courier on that plane was supposed to deliver

the drugs to Mangual-Garcia in the United States. Finally, other

tape recorded conversations showed Mangual-Garcia scheduling the

shipment of the drugs and coordinating who would place drugs on the

plane. Based on all of this evidence (as well as additional

evidence introduced at trial), we conclude that the district court

did not err in denying Mangual-Garcia’s Rule 29 motion for

acquittal on the possession charge.

Mangual-Garcia makes two other arguments related to

constructive possession. First, he argues that the district

court’s jury instructions should have included a second sentence

from Del Rosario in addition to the one quoted above in the text:

“[i]n a drug case, constructive possession may be inferred from a

defendant’s dominion and control over an area where narcotics are

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found.” 388 F.3d at 8 (internal quotation marks omitted). This

quote is clearly just one example of when constructive possession

can be found in a drug case, and the district court did not err in

refusing to include this language in the instruction.

Second, Mangual-Garcia argues that the prosecutor’s

rebuttal closing argument improperly analogized constructive

possession to when “someone is shipping you something Fed Ex or UPS

and you know it’s coming to you . . . and you’ve got the tracking

number but you haven’t gotten possession of it yet.”10 Certainly,

the facts of this case could be distinguished from the analogy, but

we do not see how this analogy rises to the level of prosecutorial

misconduct.

B. Comments on Failure to Produce Evidence

Mangual-Garcia also alleges that the prosecutor

improperly commented on his silence during the rebuttal closing

10
In full, the prosecutor’s argument was as follows:

Prosecutor: As to Mr. Armenteros and his argument about
the constructive possession, let me kind of give you an
analogy. Say someone is shipping you something Fed Ex or
UPS and you know its coming to you, say it’s jewelry, and
you’ve got the tracking number but you haven’t gotten
possession of it yet.
Defense: Objection as to the example, it doesn’t follow
the law.
Court: Let her continue, I don’t know what she’s going to
say.
Prosecutor: And it goes missing, and you call about the
tracking number because you’re following up on it, you’re
trying to find where it is, because it’s yours, it
belongs to you.

-22-
argument. Mangual-Garcia’s attorney, during his closing argument

noted that the prosecution had not provided any evidence that

Mangual-Garcia was in New Jersey at the time of the charged

conspiracy and noted in particular that the government had failed

to provide a telephone or electric bill to show that Mangual-Garcia

was in Newark. In rebuttal, the prosecutor responded that Mangual-

Garcia had not provided any evidence to the contrary, stating:

Mr. Armenteros suggested, oh, they could have brought the
electric bill, they could have brought the phone bill to
prove who my client was. Defendants also could have done
that; they don’t have to....

Mangual-Garcia objected to this statement, and the district court

immediately gave a curative instruction that the defendant did not

have to present evidence because he was presumed innocent and the

government had to prove guilt beyond a reasonable doubt. The

prosecutor then continued, saying “[a]s the Court explained, they

don’t have to; that doesn’t mean they can’t,” and Mangual-Garcia

objected again. The court instructed the prosecutor to “leave that

subject matter because [it] w[ould] have to re-instruct the jury.”

“[T]he Fifth Amendment . . . forbids either comment by

the prosecution on the accused’s silence or instructions by the

court that such silence is evidence of guilt.” Griffin v.

California, 380 U.S. 609, 615 (1965) (footnote omitted). If the

prosecutor had been the first one to raise the issue by noting

Mangual-Garcia’s failure to produce documents showing he was not in

Newark, the prosecutor’s comments might be seen as a comment on the

-23-
defendant’s failure to testify. See United States v. Stroman, No.

06-2133, ___ F.3d ___, 2007 WL 2377144, at *4 (1st Cir. Aug. 22,

2007); United States v. Hershenow, 680 F.2d 847, 856 (1st Cir.

1982) (noting that documents within a defendant’s personal

possession are protected by the 5th Amendment).

However, the comments were only “made in rebuttal after

defense counsel had [himself] raised the issue” of the government’s

failure to produce an electric or telephone bill. United States v.

Henderson, 320 F.3d 92, 107 (1st Cir. 2003) (emphasis omitted). By

suggesting that the prosecutor could have produced such documents,

the defense attorney indicated that these documents were available

to persons other than the defendant. Under these circumstances,

the “prosecutor’s response was not such that the jurors would

probably interpret it as commentary on the accused’s failure to

take the stand.” Id. (internal quotation marks omitted). Instead,

the government’s comment merely suggested that, if the documents

were generally available (as defense counsel had suggested), either

side could have produced them –- without the defendant’s taking the

stand.

Under the invited reply doctrine, “the prosecutor’s

remarks were ‘invited,’ and did no more than respond substantially

in order to ‘right the scale,’ [and do] not warrant reversing [the]

conviction.” United States v. Young, 470 U.S. 1, 12-13 (1985). In

a similar context in Henderson, “defense counsel suggested that the

-24-
government was hiding something by not producing” a witness to the

drug transaction, and the prosecutor responded in rebuttal by

saying that the defendant could have produced this witness. 320

F.3d at 107. This court rejected the defendant’s claim that this

was an improper comment on his silence, concluding that “defense

counsel invited a response by raising the issue” and “[t]he

prosecutor’s remarks were limited and addressed only the defense

counsel’s own comments.” Id. For the same reason, a new trial is

not warranted in this case.

C. Cumulative Effect of Errors

Mangual-Garcia argues that, even if each individual error

was harmless in its own right, “the total number of incidents in

the case at bar have a cumulative effect that warrant a new trial.”

Appellant Mangual-Garcia’s Br. 34; see United States v. Mooney, 315

F.3d 54, 61 (1st Cir. 2002). As described above, we find only

three non-sentence-related errors in the district court

proceedings: the use of the December 8 testimony, the failure to

make a final Petrozziello determination, and the use of false

testimony of Escobar-Lopez.

We conclude that these three errors together are

insufficient to warrant the remedy of a new trial, which “is rarely

used [and] is warranted only where there would be a miscarriage of

justice or where the evidence preponderates heavily against the

verdict.” Id. As discussed above, we cannot say that the

-25-
“evidence preponderates heavily against the verdict” on either the

conspiracy or the possession charges. We have already concluded

that there was legally sufficient evidence that Mangual-Garcia

possessed the requisite amount of drugs and significant evidence

(aside from the December 8 events) of his involvement in the

conspiracy. Nor can we say that the cumulative effect of the

alleged errors, given the curative instructions that were given and

the strength of the other evidence, constitutes a miscarriage of

justice.

V. Sentencing

The appellants raise two types of sentencing issues.

Villanueva-Rivera argues that the district court erred in its

calculation of his guideline sentencing range. Villanueva-Rivera

raises two objections to the calculation of his range. He first

argues that the district court erred in failing to adjust his

offense level for minor participation. We find no “clear error” in

the district court’s refusal to give Villanueva-Rivera a minor role

adjustment. See United States v. Cassiere, 4 F.3d 1006, 1026 (1st

Cir. 1993). Given the evidence of Villanueva-Rivera’s role

described above, the district court could have reasonably concluded

that his role was more than that of a minor participant. Second,

Villanueva-Rivera argues that the district court’s factual finding

that the drug quantity involved in the conspiracy was over 50

kilograms of cocaine was erroneous. We again find no clear error,

-26-
as there was testimony that the conspiracy shipped four kilograms

of cocaine to the United States every 2-3 weeks for the period of

the conspiracy (November 2000 through December 2002). See United

States v. Pizarro-Berrios, 448 F.3d 1, 6 (1st Cir. 2006). Although

Villanueva-Rivera argues that the drug quantities belonging to

alleged government informant Vélez-García should not be counted for

purposes of sentencing, this issue was not raised below and we find

no plain error given the lack of evidence that Vélez-García was the

only member of the conspiracy to possess these drugs.11

Finding no error in the calculation of the Villanueva-

Rivera’s guideline sentencing ranges, we turn to the contention by

both appellants that the district court failed adequately to

explain its reasons for imposing the particular sentence within the

range. Because the appellants failed to object at sentencing, we

review for plain error. See United States v. Vazquez-Molina, 389

11
Villanueva-Rivera also argues, and the government does
not dispute, that the district court failed to state its ultimate
guidelines calculation and sentencing range in open court.
However, the presentence report assigned a base offense level of 36
with a two-level upward adjustment for obstruction of justice.
Villanueva-Rivera objected to the upward adjustment, and the
district court sustained this objection. He also objected to the
base offense level and sought a downward adjustment for minor
particpation, both of which the district court rejected. From
this, it can be inferred that the guidelines calculation was a
level 36 (with a criminal history category I), which results in a
sentencing range of 188 to 235 months. See United States v.
Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc)
(holding that a district court’s sentencing reason can be inferred
from the pre-sentence report and the parties’ arguments); see also
United States v. Scherrer, 444 F.3d 91, 94 (1st Cir. 2006) (en
banc).

-27-
F.3d 54, 57 (1st Cir. 2004), vacated on other grounds, 544 U.S. 946

(2005).

Mangual-Garcia’s sentencing range was 324 to 405 months,

and the district court sentenced him to 364 months. Villanueva-

Rivera’s sentencing range was 188 to 235 months, and the district

court sentenced him to 192 months. Since both of these ranges

exceeded twenty-four months, “the court, at the time of sentencing,

[was required to] state in open court . . . the reason for imposing

a sentence at a particular point within the [Guidelines Sentencing]

range.” 18 U.S.C. § 3553(c)(1). In explaining why it chose the

sentence it did for each defendant, the district court merely

recited that it had considered the factors it was required to

consider under 18 U.S.C. § 3553(a).12 It did not “specifically

identify some discrete aspect of the defendant’s behavior and link

12
In sentencing Mangual-Garcia, the court recited as
follows:

The Court has considered all the applicable adjustments
under the now advisory Federal Sentencing Guidelines, as
well as the other sentencing factors set forth in 18 U.S.
Code, Section 3553(a), that is, the nature and
circumstances of the offenses, defendant’s history and
characteristics, the need to promote respect for the law
and to provide just punishment in light of the
seriousness of the offenses, deterrence, the protection
of the public from further crimes of defendant,
rehabilitation, and the need to avoid unwarranted
disparities among defendants with similar records who
have been found guilty of similar conduct.

The court made a nearly identical statement at Villanueva-Rivera’s
sentencing.

-28-
that aspect to the goals of sentencing” as is required under §

3553(c)(1). Vazquez-Molina, 389 F.3d at 58. Thus, as the

government admits, “the court’s statement was deficient as a matter

of law.” Govt. Br. at 66.

However, we must determine whether it constituted plain

error sufficient to warrant resentencing. To vacate a sentence

under plain error review, four prerequisites must be established:

(1) an error occurred; (2) the error was clear and obvious; (3) the

error affected the defendant’s substantial rights; and (4) the

error impaired the fairness, integrity, or public reputation of the

judicial proceedings. United States v. Turbides-Leonardo, 468 F.3d

34, 38 (1st Cir. 2006).

We conclude that a clear and obvious error occurred but

that this error did not affect Mangual-Garcia and Villanueva-

Rivera’s substantial rights. This court has addressed plain error

review under United States v. Booker, 543 U.S. 220 (2005), i.e.,

where the district court, in a trial conducted before Booker was

decided, treated the sentencing guidelines as mandatory. In that

context, this circuit has held that “[t]he burden is on the

defendant to convince us on specific facts” that there is a

“reasonable probability of a different sentence” in the absence of

the error. United States v. Antonakopoulos, 399 F.3d 68, 80 (1st

Cir. 2005) (emphasis added).

-29-
 This court has applied the same standard in reviewing a

district court’s failure to comply with § 3553(c), holding that a

reversal under plain error review requires “a reasonable

probability that, but for the error, the district court would have

imposed a different, more favorable sentence.” United States v.

Gilman, 478 F.3d 440, 447 (1st Cir. 2007) (quoting Turbides-

Leonardo, 468 F.3d at 39).

The purpose of § 3553(c) is to enable appellate review of

district court sentencing decisions to insure that the district

court’s choice of a particular sentence was reasonable. See

Jimenez-Beltre, 440 F.3d at 519; see also H.R. Rep. No. 98-1030, at

60 (1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3243. Our

sister circuits have held that a sentence may be unreasonable

if a sentencing court fails to consider a relevant factor
that should have received significant weight, gives
significant weight to an improper or irrelevant factor,
or considers only appropriate factors but nevertheless
commits a clear error of judgment by arriving at a
sentence that lies outside the limited range of choice
dictated by the facts of the case.

United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005); see

also United States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006).

Thus, to establish a reasonable probability of a different sentence

in the context of a § 3553(c)(1) error, the appellant has the

burden of identifying specific facts that convince us that the

district court considered a significant improper factor, failed to

-30-
consider a significant proper factor, or made a significant error

in balancing the factors.

Here, Villanueva-Rivera was sentenced near the low end of

the applicable range and Mangual-Garcia was sentenced near the

midpoint. The appellants do not identify anything in the record

suggesting that an improper factor was considered or a proper

factor was not considered, nor do they identify any error in the

balancing of the factors. The reasonable probability test is not

satisfied by the mere assertion that the sentence could have been

different if not for the error. See Antonakopoulos, 399 F.3d at

80. Instead of pointing to “specific facts” to convince us that

there is a reasonable probability of a different sentence, id., the

appellants seem to urge a per se rule that the failure to provide

an adequate explanation under § 3553(c)(1) constitutes plain error.

As noted, such a per se rule was specifically rejected in Gilman.

Since the appellants have not carried their burden to identify

specific facts that support a conclusion that there is a reasonable

probability of a different sentence, we find no plain error and no

basis for resentencing.13

13
To the extent that Villanueva-Rivera makes a separate
argument that the district court failed adequately to explain his
sentence (other than his § 3553(c)(1) argument), we find no plain
error for the same reasons described in the text.

-31-
 CONCLUSION

For the reasons explained above, the appellants’

convictions and sentences are affirmed.

It is so ordered.

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