United States v. Rodriguez-Duran

United States Court of Appeals
For the First Circuit

Nos. 06-1400, 06-1401, 06-1402, 06-1403, 06-1404,
06-1405, 06-1406, 06-1407, 06-1408

UNITED STATES OF AMERICA,

Appellee,

v.

ALCIDES RODRÍGUEZ-DURÁN, et al.

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lipez and Newman,* Circuit Judges,
and Selya, Senior Circuit Judge.

Lorenzo J. Palomares for appellant Rodríguez-Durán; Luis M.
Cháves Ghigliotty for appellant Cabello-Acuno; Johnny Rivera
González for appellant Morelis-Escalona; David W. Roman and Brown
& Ubarri on brief for appellant Minoungou; Gary H. Montilla-Brogan
and Aldarondo & Lopez-Bras, P.S.C. on brief for appellant Okley;
Jorge Luis Gerena-Méndez for appellant De La Rosa; Michael R. Hasse
for appellant González-Valero; Luis A. Guzmán Dupont for appellant
Padilla-Moreno; Guillermo A. Macari-Grillo for appellant Almonte.
Timothy R. Henwood, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and

*
Of the Federal Circuit, sitting by designation.
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.

November 21, 2007
 LIPEZ, Circuit Judge. The nine appellants in this case

were the captain and crew of the Sea Atlantic, a cargo vessel that

drew the attention of the United States Coast Guard as it

rendezvoused with a small boat off the coast of South America in

the middle of an August night in 2005. Officers boarded the ship

and discovered more than 1,800 kilograms of cocaine, worth millions

of dollars, in a hidden storage compartment. The captain and his

crew, along with a tenth defendant who was not on board and remains

a fugitive, were indicted on drug distribution charges. At the end

of their joint trial, which began just forty days after the grand

jury returned the indictment, all nine appellants were convicted of

possessing the cocaine with intent to distribute it; the captain

and first officer also were convicted of conspiracy. They raise a

host of alleged errors in their separate appeals, including a claim

asserted by five defendants that the district court improperly

denied requests for continuances and rushed them to trial. After

careful consideration of each contention, we affirm all nine

convictions and sentences.

I.

The facts underlying this case are largely undisputed; to

the extent they are contested, we view the evidence in the light

most favorable to the jury's verdict. United States v. Downs-

Moses, 329 F.3d 253, 257 (1st Cir. 2003).

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 On the evening of August 25, 2005, a Dutch frigate, the

Van Amstel, was patrolling off the coast of South America near

Curaçao. Among those on board were several members of a tactical

law enforcement team from the United States Coast Guard ("USCG")

specializing in law enforcement boardings on the high seas.1 At

about 10 p.m., one of the team members, Coast Guard Lieutenant

Scott Cieblik, was notified by team members monitoring radar

transmissions that two vessels in the area appeared to have altered

their courses to come in unusually close proximity to each other.

One was a large cargo ship and the other was a small fast-moving

boat. A maritime patrol aircraft also noticed the two vessels on

radar.2 At this point, they were off the coast of Colombia, near

the Venezuelan border.

Surveillance continued, and shortly before midnight,

radar transmissions indicated that the cargo ship – later

identified as the Sea Atlantic – came into direct contact with the

small boat. The small vessel turned off its radar once the two

vessels appeared to merge; it was not seen departing the area. The

next morning, a helicopter was launched with a Coast Guard law

1
Members of the Coast Guard's law enforcement tactical team
are deployed either on U.S. Navy vessels or foreign naval vessels.
Their mission is to detect narcotics smuggling and detain those
involved. Eight team members were on board the Van Amstel.
2
Cieblik testified on cross-examination, based on a written
report he had prepared shortly after the episode at issue here,
that the larger vessel was seen in the area by a maritime aircraft
at 5:45 p.m.

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enforcement member on board; the Sea Atlantic was spotted from the

helicopter and, at about 7 a.m., the Van Amstel approached the

cargo ship. The Sea Atlantic was not flying a flag identifying its

nationality, but Cieblik saw the words "La Paz," the name of

Bolivia's capital, written on the stern of the ship, below the

vessel's name. Cieblik testified that he observed "several things

that stood out to me that [were] not normal for a ship that size."

He noticed discoloration of the paint on the side of the vessel,

which "possibly indicated that another vessel was alongside and it

was trying to cover up its scratch marks." He also noted an

unusually large quantity of communications equipment, including

antennas and radios, that he considered suggestive of smuggling

operations.

Officer Richard Young, a linguist who was part of the

enforcement team, then initiated radio contact with the captain of

the Sea Atlantic, appellant Alcides Rodríguez-Durán. The captain

reported that the vessel was registered in Bolivia, its last port

of call was Curaçao, its next port of call was Vera Cruz, Mexico,

and the purpose of the current voyage was to carry cargo. However,

when asked the nature of the cargo, Rodríguez-Durán explained that

he was bringing the ship to Mexico to be sold. The inconsistencies

in the captain's report raised Cieblik's suspicions, and he told

the USCG Command Center in Miami, Florida – Coast Guard District 7

– that he wanted to board the vessel. The Coast Guard secured the

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necessary permission from the Bolivian government,3 and upon

boarding, Cieblik and his team directed most of the Sea Atlantic

crew members to remain together at the front of the vessel while

the officers conducted their inspection.4

The investigation turned up a variety of information and

items of interest, including a nautical chart of the Caribbean with

two markings, one of which was the approximate location where the

Sea Atlantic and the small boat had appeared to rendezvous. The

USCG officers also noticed that two sets of blueprints for the

vessel showed different uses for one particular area and, upon a

close examination of the ship's layout and measurements, they

detected a space below a berthing room – a crew bedroom – that was

not readily accessible. A strong odor of fresh paint emanated from

the room, which had new carpet and new walls – unlike the other

3
Cieblik explained the standard procedure for obtaining
permission as follows: District 7 contacts Coast Guard headquarters
in Washington, D.C., which then notifies the White House of the
request to board. The White House contacts the Department of
State, which makes contact with the country in which the vessel is
registered. The scope of the permission granted is then
communicated through the same channels back to the officer seeking
to board a suspicious vessel. In this instance, the process took
about ten hours from the time of Cieblik's request at approximately
9 a.m. on August 26 until he received a response at about 7 p.m.
The Van Amstel followed the Sea Atlantic during that time period.
4
The captain, Rodríguez-Durán, remained in the pilot house to
navigate. The other crew members were appellants Reinaldo José
Cabello-Acuno ("Cabello"), Ronald José Morelis-Escalona
("Morelis"), Gandaogo Minoungou, Nii Klaku Okley, Julio César De La
Rosa, Ruberts José González-Valero, Alberto Javier Padilla-Moreno
("Padilla") and Carlos Julio Almonte.

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berthing rooms on the vessel. Officer Young testified that he

removed a drawer from beneath the bottom bunk, revealing sawdust

and fresh paint, "still tacky to the touch," on the floor. After

Cieblik obtained permission from District 7 to perform a "minimally

intrusive search," the team removed wooden boards and the carpet

from under the bed. Cieblik testified that, beneath the carpet,

"the glue was fresh and still sticky and tacky, like the carpet had

just been laid down fairly recently, within the last several

hours." After scraping away paint, they discovered a metal plate

with a hatch that was an entry point to the space below. In that

space were dozens of large bales wrapped in burlap sacks; the bales

contained brick-sized packages of compressed cocaine. Sixty-eight

bales, containing 1,854 kilograms of cocaine, ultimately were

recovered.

An ion scan of the vessel showed traces of cocaine in

various locations,5 including in multiple berthing areas and the

ship's galley, and on a forklift inside the cargo hold. Tests

performed on the crew members and their clothing showed cocaine on

the hands of two of them, Padilla and Cabello. Through testimony

5
Petty Officer Isias Ríos testified that an ion scan machine
can detect minute traces of chemicals, including narcotics and
explosives. Samples for testing were obtained by using circular
pads to swab various surfaces, including clothing and skin. Ríos
placed the samples in a plastic bag to transport them to the ion
scan machine at his home base, which in this instance was the Van
Amstel. When the machine reported that a sample had "failed," it
would identify the substance detected.

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at trial from multiple USCG officers, the government suggested that

the test results may have understated the actual presence of

cocaine. Officer Young testified that, during the surveillance

that occurred before the enforcement team boarded the vessel, he

observed a crew member with a bottle of liquid that resembled

Clorox. Officer Ríos reported that Clorox could prevent the ion

scan machine from detecting residue. The scan also may not be

accurate if an individual handling narcotics wore gloves or changed

his clothes after handling them.

According to Young, when the first bale was brought on

deck, in view of the crew members, their previous lighthearted

demeanor changed and they became silent and seemingly dejected.

The men were detained in the bow area as the USCG officers directed

the ship to Puerto Rico, a trip that took more than a week. On

September 3, 2005, after the Sea Atlantic reached Puerto Rico, a

search of the vessel produced three items of evidence introduced at

trial. First, a piece of paper found in the cabin occupied by

appellant Cabello bore two telephone numbers and the notation "Jose

Luis" – the first names of the tenth defendant in this case, Jose

Luis Tejeiro-García ("Tejeiro").6 A second piece of paper was

found in a cardboard box used as a trash can in Cabello's berth; it

6
As noted earlier, Tejeiro was not on board the ship when it
was detained, and he remains a fugitive. Rodríguez-Durán testified
that Tejeiro, who hired all of the crew members, was the owner of
the Sea Atlantic and three other ships.

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contained the words "code on board," and displayed a list that

identified the code name for Rodríguez-Durán as "Alpha" and the

code name for Cabello as "Charlie." Cabello admitted that he

created the list.

On a third piece of paper, found on the nightstand in

Rodríguez-Durán's berth, was the word "encuentro," which means

"meeting," and some coordinates that appeared to designate a

location in the ocean. Rodríguez-Durán admitted that the paper

belonged to him.

After their arrival in Puerto Rico, the crew members were

interviewed by Immigration and Customs Enforcement ("ICE") agents.

Special Agent José Rosado-Santiago ("Santiago") testified at trial

that Morelis told him that he had been hired in Venezuela by a man

named Tejeiro to work as a longshoreman on the Sea Atlantic for

$600 per month. Morelis reported that Tejeiro told him the vessel

would travel from Venezuela to Curaçao and that a load of illegal

merchandise would be delivered by boat. Payment for transporting

the contraband would be $40,000. Morelis told the agent that a

"go-fast" boat brought the drugs to the Sea Atlantic after the

vessel left Curaçao.

Rodríguez-Durán was the only defendant to testify at

trial. He reported that he had been hired by Tejeiro in early 2004

to master a vessel named Paola. However, he did not see the ship

until May 2005 when he flew from Venezuela to the Dominican

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Republic, where he met Tejeiro and worked, along with several crew

members hired by Tejeiro,7 on repairing the vessel. He then took

the ship to Puerto Cabello, Venezuela, where the vessel was

painted, more maintenance was performed, and the ship's name was

changed to Sea Atlantic. Three crew members left the ship and new

ones joined.8

In August, Rodríguez-Durán received orders from Tejeiro

to take the vessel to Curaçao to pick up cargo; in Curaçao,

Rodríguez-Durán again met up with Tejeiro, who told him that the

original plan had been to transport drugs from Curaçao in asphalt

drums. That plan fell through and Tejeiro instead gave Rodríguez-

Durán a set of coordinates on the high seas that designated a

meeting point. Tejeiro ordered the captain not to leave the ship

and to conceal the real purpose of the trip from his crew; he was

instructed to tell the others that the vessel was being transported

to Mexico because it had been sold. Rodríguez-Durán testified that

Tejeiro threatened to harm his family if he disobeyed the

instructions.

The Sea Atlantic set off on a course toward Mexico on the

night of August 24, and, according to Rodríguez-Durán's testimony,

about two hours before they reached the designated meeting point,

7
Among the crew members who joined Rodríguez-Durán at that
time were appellants Almonte, De La Rosa, Okley and Minoungou.
8
Appellants who joined the crew in Venezuela were Morelis,
Padilla, González-Valero and Cabello.

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he informed the crew about the threat to his life and about the

rendezvous that was about to occur with the small boat. He further

told them that the small vessel would bring sacks of either drugs

or weapons and warned that, if the crew members refused to

cooperate, they would be turned over to the individuals delivering

the contraband, who would take them to Colombia.

Rodríguez-Durán also testified that, at approximately

midnight, the crew members helped transfer sacks of drugs from the

small boat into the hiding place on the Sea Atlantic. Once the

bales of cocaine were sealed in the space beneath the bunk bed, the

crew members cleaned the area with Clorox. On cross-examination,

Rodríguez-Durán admitted that, while the crew members were gathered

on the deck of the ship after the Coast Guard search, they agreed

that they would all deny knowing when the drugs came on board.

Rodríguez-Durán first reported the alleged threat against his

family at his third meeting with the FBI, in early October 2005.

On September 14, 2005, a federal grand jury returned a

three-count indictment against appellants and Tejeiro. Count One

charged a conspiracy to possess cocaine on board a vessel subject

to the jurisdiction of the United States, with the intent to

distribute, in violation of 46 U.S.C. app. § 1903(a), (c)(1)(C),

(f), (j).9 Count Two charged the defendants with knowingly aiding

9
At the time of the indictment, § 1903(a) was part of the
Maritime Drug Law Enforcement Act ("MDLEA"), which criminalizes the
possession for distribution of controlled substances by persons "on

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and abetting each other, on or about August 26, 2005, in possessing

five or more kilograms of cocaine with intent to distribute, in

violation of 46 U.S.C. app. § 1903(a), (c)(1)(C), (f), and 18

U.S.C. § 2. Count Three was a derivative forfeiture charge.

A five-day jury trial began on October 24. Relying on

Rodríguez-Durán's testimony, appellants defended against the

charges in large part by claiming they participated in the drug

transfer only because they had no choice. Rodríguez-Durán's

closing argument highlighted the threats against his family. The

other eight appellants, who did not testify, emphasized in closing

arguments that they could not leave the ship when they learned at

the last minute about the impending drug transfer and that, if they

refused to cooperate, they faced certain death at the hands of the

Colombians. Appellants requested, and received, a jury instruction

on the defense of duress, and the court also told the jury that the

defendants' mere presence on the ship was insufficient to establish

guilt.

board a vessel subject to the jurisdiction of the United States."
The statute was in all material respects recodified in October 2006
at 46 U.S.C. §§ 70501-70507. A vessel subject to United States
jurisdiction includes "a vessel registered in a foreign nation
where the flag nation has consented or waived objection to the
enforcement of United States law by the United States." 46 U.S.C.
app. § 1903(c)(1)(C) [currently 46 U.S.C. § 70502(c)(1)(C),
defining such a vessel to include "a vessel registered in a foreign
nation if that nation has consented or waived objection to the
enforcement of United States law by the United States"]. In this
case, the Coast Guard obtained the necessary consent from the
Bolivian government to board and search the Sea Atlantic.

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 Rodríguez-Durán and Cabello, the first officer, were

found guilty of both Counts One and Two. The remaining defendants

were acquitted of the conspiracy count, but found guilty of Count

Two's possession charge. Forfeiture was ordered against all nine

defendants. Rodríguez-Durán was sentenced to a term of 292 months

of imprisonment, Cabello was sentenced to a term of 235 months, and

the remaining seven appellants were each sentenced to terms of 121

months.

On appeal, defendants collectively raise nine different

issues concerning their convictions and sentences, with three

recurring most frequently among them: (1) the evidence was

insufficient to support their convictions, (2) they were given

inadequate time to prepare for trial and pursue plea negotiations,

and (3) the district court erred in refusing to grant "safety

valve" credit in sentencing. We begin with these three contentions

and then turn to the remaining six claims of error.

II.

Seven defendants claim that the evidence was insufficient

to support their convictions, including Cabello, the only one of

that group found guilty of both substantive counts.10 All seven

moved for judgment of acquittal, pursuant to Federal Rule of

Criminal Procedure 29, after the presentation of the government's

10
The two who do not make a sufficiency argument are
Rodríguez-Durán and Padilla.

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case in chief and again at the close of all evidence. We review

the district court's denial of these motions de novo, examining the

evidence concerning each defendant in the light most favorable to

the government to determine whether a reasonable jury could find

guilt beyond a reasonable doubt. United States v. Bravo, 489 F.3d

1, 9 (1st Cir. 2007). "The government need not succeed in

'eliminating every possible theory consistent with the defendant's

innocence,'" United States v. Pérez-González, 445 F.3d 39, 48 (1st

Cir. 2006) (quoting United States v. Boulerice, 325 F.3d 75, 79

(1st Cir. 2003)), and circumstantial evidence alone may be

sufficient to provide a basis for conviction, United States v.

Berrios, 132 F.3d 834, 843 (1st Cir. 1998). See also United States

v. Downs-Moses, 329 F.3d 253, 261 (1st Cir. 2003) (noting that the

court does not "favor direct evidence over circumstantial evidence,

as either type of evidence may satisfactorily support a

conviction"); United States v. Hernandez, 218 F.3d 58, 66 (1st

Cir. 2000) ("Given the nature of the crime, '[k]nowledge and intent

in narcotics cases often must be proved largely by circumstantial

evidence.'") (quoting United States v. Valencia, 907 F.2d 671, 678

(7th Cir. 1990)).

Five of the defendants who were convicted only on the

possession charge (Minoungou, Okley, De La Rosa, González-Valero

and Almonte) are factually in like circumstances and make similar

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arguments; we therefore address their sufficiency claims together.11

We separately discuss Cabello's claim, as well as that of Morelis,

whose interview with Agent Santiago was highlighted by the

government at trial.

A. Sufficiency Claim of Minoungou, Okley, De La Rosa, González-
Valero, Almonte

To prove that defendants aided and abetted the cocaine

venture, the government needed to show that they participated in it

and sought by their actions to make it succeed. Downs-Moses, 329

F.3d at 261. "[M]ere association with the principal or presence at

the scene of the crime is insufficient, even with knowledge that

the crime is to be committed." United States v. García-

Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007). A violation of 46

U.S.C. app. § 1903(a) specifically requires proof that (1) the Sea

Atlantic was "'subject to the jurisdiction of the United States';

(2) the material found on the vessel was a controlled substance;

and (3) the defendants knowingly or intentionally possessed the

cocaine with the intent to distribute it." United States v.

Guerrero, 114 F.3d 332, 339 (1st Cir. 1997).

These five appellants challenge only the sufficiency of

the evidence on the third element, asserting that the government

offered no proof of their willing involvement in the cocaine

11
Although their arguments are not identical – for example,
not all of them explicitly invoke the duress defense on appeal – we
choose for convenience to treat them as a group.

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transport. They cite Rodríguez-Durán's testimony that none of the

crew members had knowledge of the purpose of the voyage until

shortly before the rendezvous with the small boat, when it was

impossible for them to refuse to participate. They point out that

they were hundreds of miles offshore and threatened with being

turned over to the Colombians who were delivering the cocaine –

with a likely fatal outcome.12 Several appellants emphasize that

the ion scan showed no traces of cocaine on their persons and that

the drugs were not found in their bedrooms.

The primary difficulty with appellants' argument is a

familiar one: the jury may reject even a "reasonable hypothesis

inconsistent with guilt," United States v. Guerrero-Guerrero, 776

F.2d 1071, 1075 (1st Cir. 1985), so long as the evidence also

reasonably supports culpability, see, e.g., United States v. Ortiz,

447 F.3d 28, 33 (1st Cir. 2006) ("[T]he possibility of innocuous

explanations for [a defendant's] behavior does not foreclose the

jury's contrary inferences."); Guerrero-Guerrero, 776 F.2d at 1075

("[T]he jury is free to choose among varying interpretations of the

evidence, as long as the interpretation they choose is

12
The government's drug trafficking expert, Eddie Vidal, a
member of the Drug Enforcement Administration's task force in
Ponce, Puerto Rico, testified on cross-examination that narcotics
dealers in Colombia were among the most violent in dealing with
drug couriers who failed to make deliveries: "In the states, they
kill them in the street or they kill them in their own
homes . . . . In Colombia, they chop them up in pieces or they cut
his head off."

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reasonable."). Here, the jurors were properly instructed that, to

reach a guilty verdict, they needed to find that the defendants

willingly participated in the venture; the jurors were specifically

told that mere presence, and even knowledge of the crime, was

insufficient and that the defendants must have "knowingly and

willfully tak[en] steps to help some other person to commit a

crime." They also were instructed at length on the defense of

duress.13

Despite these explicit instructions, the jury concluded

that the defendants were guilty of aiding and abetting the

possession of the cocaine. Ample evidence supported that

determination. Unquestionably, the jury could have found that all

crew members were involved in transferring the cocaine between the

two vessels; Rodríguez-Durán said as much, and the number of bales

and the nature of the concealment strongly indicated that many

hands were necessary to accomplish the transfer and then seal the

drugs in the hidden compartment during the early morning hours of

13
Toward the end of its duress instruction, the district court
summarized as follows:

To prove a defendant guilty when a duress defense is
raised you must conclude beyond a reasonable doubt that
the defendants participated in the commission of the
offense, that no such threat occurred or that the threat
was not immediate or that the defendants had a reasonable
opportunity to escape or otherwise frustrate the threat,
but did not exercise this opportunity or that the
defendants did not have a well-grounded belief that the
threat would be carried out.

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August 26. According to Officer Young's testimony, it took six or

seven officers some ninety minutes simply to remove the 68 bales

from the storage area; the jury reasonably could conclude that the

effort to move them, store them, construct the bed, paint and lay

carpet would have engaged all of the crew.

In addition, the affirmative evidence suggesting

Cabello's more active involvement and, possibly, prior knowledge –

the "code on board" list and the paper with phone numbers and

Tejeiro's name that were found in his berth – reasonably could be

viewed as discrediting Rodríguez-Durán's testimony that none of the

crew was aware in advance of the purpose of the trip, thus

undermining the duress defense for all of the defendants.14

Rodríguez-Durán's testimony was further discredited by the

captain's admission that he had lied to law enforcement officers on

multiple occasions.15 That fact not only entitled the jury to

reject his testimony, but also to presume that "the fabrication was

14
Agent Cabrera testified that code language often is created
for narcotics operations.
15
For example, when he was first interviewed by federal
agents, he told them that he did not know when the drugs were
loaded onto the Sea Atlantic, but speculated that they were brought
on board in Puerto Cabello. At trial, he testified that the
cocaine was transferred from the go-fast boat at about midnight on
August 25. In addition, in an affidavit dated October 22, 2005,
Rodríguez-Durán stated that he did not see any firearms in the
possession of the men in the small boat; in his direct examination
at trial, he stated that the men were armed. He also admitted
that, after the drugs were found, he and all of the crew members
agreed to lie to the Coast Guard agents about what they knew about
the drugs.

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all the more proof of [defendants'] guilt," United States v.

Jiménez-Pérez, 869 F.2d 9, 11 (1st Cir. 1989); see also United

States v. Marks, 365 F.3d 101, 107 (1st Cir. 2004). Since

defendants chose to present their duress defense through the

testimony of Rodríguez-Durán, his impeachment by the government was

necessarily damaging to them.

In addition, Officer Young's testimony that the crew

members became silent and dejected when they realized the cocaine

had been discovered reinforces the inference of culpable

participation. The jury also heard testimony from Officer Vidal of

the Drug Enforcement Administration task force that persons who

transport shipments of drugs "do it with full knowledge and for

purely economic reasons" and that drug traffickers would not

entrust a multi-million-dollar shipment to anyone in whom they did

not have confidence.

To be sure, this was a case in which the government's

evidence of complicity by these five defendants was wholly

circumstantial and the jury reasonably could have concluded that

they were initially unwitting, and later unwilling, participants in

the venture.16 On this record, however, "the jury could certainly

16
Appellant González-Valero, the crew's cook, offers the most
developed claim of non-involvement. At oral argument, counsel
emphasized that his client's behavior after the discovery of the
drugs was consistent with his reserved demeanor, which Officer
Young acknowledged he displayed. González-Valero also notes that
he was not hired for a cargo-related role that would link his
duties to the illicit cargo, and the only evidence that he was

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have chosen to believe that the converging circumstances pointed

toward a more sinister truth and been persuaded thereby of

appellants' guilt." Jiménez-Pérez, 869 F.2d at 11. We therefore

hold that the evidence was sufficient to support defendants'

convictions for aiding and abetting each other in the knowing

possession of the cocaine found on the Sea Atlantic, with the

intent to distribute it.17

involved at all is the captain's non-specific testimony that "the
crew" helped with the unloading. However, Rodríguez-Durán
confirmed on cross-examination that "every crew member" helped to
unload the cocaine. Moreover, like the other defendants, González-
Valero relied on the duress argument at trial, where counsel
emphasized to the jury that his client "found himself in a
situation where he did what was reasonably necessary to avoid a
greater harm" and "was justified under our law to do what he did
under the circumstances on the high seas." The jury was free to
accept his implicit concession that he was involved with the drugs
and to reject the testimony that his participation was involuntary.
His reliance on Direct Sales Co. v. United States, 319 U.S. 703
(1943), therefore does not assist him. The Court there observed
that "the step from knowledge to intent and agreement" –
establishing a conspiracy for an illicit purpose – requires that a
defendant possess "more than suspicion, more than knowledge,
acquiescence, carelessness, indifference, [or] lack of concern."
Id. at 713. In reaching a guilty verdict on the possession count,
the jury necessarily found that González-Valero did have the
requisite intent, and, as we have explained, the evidence – albeit
circumstantial – was sufficient to support that conclusion.
17
We note that, contrary to the argument of some defendants,
their acquittal on the conspiracy count is not inconsistent with a
finding of willing participation in aiding and abetting possession
of the cocaine. The jury reasonably could conclude that they
sought to facilitate the venture but did not agree to a drug
distribution scheme. See United States v. González-Vélez, 466 F.3d
27, 37 (1st Cir. 2006) (holding that to prove conspiracy, the
government must establish, inter alia, "'that an agreement existed
to commit the underlying offense'" (quoting United States v. Gómez,
255 F.3d 31, 35 (1st Cir. 2001))).

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B. Sufficiency Claim of Morelis

Given the previous sufficiency analysis, Morelis's

sufficiency claim need not detain us. In addition to the evidence

recited above, the jury heard Agent Santiago's testimony that

Morelis had admitted being informed by Tejeiro about the illicit

purpose of the Sea Atlantic's voyage and also had been told that

$40,000 would be paid for the undertaking. The secret compartment

was under the bed in his berth,18 and Rodríguez-Durán testified that

Tejeiro told him to put the sacks of drugs there. As noted above,

the government's narcotics expert, Vidal, testified that a drug

shipment of such a high value would not be entrusted to someone in

whom the ringleader had no confidence. The jury thus could have

drawn the inference that Morelis's proximity to the drugs reflected

Tejeiro's trust in him. In light of Morelis's acceptance of the

job and the inferences that plausibly could be drawn concerning

both the crew as a whole and Morelis individually, the jury

reasonably could conclude that the evidence supported the

"'requisite two-step inference': (1) that the vessel was engaged in

obviously illegal activity, and (2) . . . Appellant was ready to

assist in the criminal enterprise." Bravo, 489 F.3d at 9 (quoting

Jiménez-Pérez, 869 F.2d at 11).

18
Morelis shared the berth with De La Rosa. The concealed
space was directly beneath Morelis's bed.

-21-
 Morelis also contends that his conviction is flawed based

on the government's failure to prove that the Sea Atlantic was

subject to United States jurisdiction. Specifically, he emphasizes

a lack of evidence that the cocaine was directed toward, or

otherwise would affect, the United States. We previously have held

that the MDLEA does not contain such a nexus requirement; the flag

nation's consent to jurisdiction is sufficient. See Bravo, 489

F.3d at 7 (citing cases); see also United States v. Cardales, 168

F.3d 548, 553 (1st Cir. 1999) ("[D]ue process does not require the

government to prove a nexus between a defendant's criminal conduct

and the United States in a prosecution under the MDLEA when the

flag nation has consented to the application of United States law

to the defendants."). The evidence was therefore sufficient to

establish Morelis's aiding and abetting liability.

C. Sufficiency Claim of Cabello

Cabello was found guilty of both substantive counts. To

prove his guilt on the conspiracy charge, the government needed to

show "'that an agreement existed to commit the underlying offense

. . . , that the defendant knew of the agreement, and that he opted

to join in it, intending to commit the substantive offense,'"

United States v. González-Vélez, 466 F.3d 27, 37 (1st Cir. 2006)

(quoting United States v. Gómez, 255 F.3d 31, 35 (1st Cir. 2001)).

The jury could have concluded that he conspired with Rodríguez-

Durán and Tejeiro based, among other things, on the piece of paper

-22-
found in his berth on which were written the two phone numbers for

"Jose Luis." The suggestion of ongoing communication with the

crime's mastermind reinforces the significance of Cabello's status

as the first officer on the ship, a position in the crew's

hierarchy that a jury reasonably could consider suggestive of

collaboration with the captain (and Tejeiro). In addition, as

noted above, authorities found the paper in his trash can with the

list of code names and the designation "code on board." Cabello

admitted that he created the list and that it belonged to him, and

both he and Rodríguez-Durán had code names on that list. Together

with the evidence recited above in connection with the other

defendants' sufficiency claims, the documentary and role-in-the-

crew evidence amply supported the jury's conclusion that Cabello

was not only a willing participant but also part of a trio who

planned and managed the venture.

III.

Five defendants assert that the district court abused its

discretion in denying motions for continuance that were made both

by the government and by nearly all of the defendants, allegedly

rushing the defendants to trial at great cost to their ability to

defend the charges against them and pursue plea negotiations.19 In

addition, two of the five defendants claim that they were denied

19
This issue was raised on appeal by Morelis, Rodríguez-Durán,
Padilla, De La Rosa and Almonte.

-23-
the minimum thirty days of pretrial preparation time guaranteed by

the Speedy Trial Act. See 18 U.S.C. § 3161(c)(2).20 We first

assess the district court's discretionary ruling and then consider

the alleged statutory violation.21

A. Denial of the Continuance Motion

The decision whether to grant a continuance is a matter

of discretion for the trial judge, and assessing whether denial of

a request to postpone the start of trial constitutes an abuse of

discretion requires a careful review of the facts of the particular

case. Ungar v. Sarafite, 376 U.S. 575, 589 (1964); see also United

States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995) ("[E]ach case

is sui generis."); United States v. Torres, 793 F.2d 436, 440 (1st

Cir. 1986) ("In deciding whether denial of a continuance

constitutes an abuse of discretion, we cannot apply a mechanical

test, but must evaluate each case on its own facts."). The

relevant factors include the reasons contemporaneously presented in

support of the request, the amount of time needed for effective

preparation, the complexity of the case, the extent of

20
Section 3161(c)(2) provides: "Unless the defendant consents
in writing to the contrary, the trial shall not commence less than
thirty days from the date on which the defendant first appears
through counsel or expressly waives counsel and elects to proceed
pro se."
21
Defendant Almonte also asserts that denial of the
continuance violated his Sixth Amendment right to put on a defense.
However, he fails to cite cases or otherwise develop that claim,
and we therefore deem it waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).

-24-
inconvenience to others if a continuance is granted, and the

likelihood of injustice or unfair prejudice attributable to the

denial of a continuance. Saccoccia, 58 F.3d at 770. We will find

an abuse of discretion only if defendants show that "the court

exhibited an 'unreasonable and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay.'"

United States v. Rodriguez-Marrero, 390 F.3d 1, 21-22 (1st Cir.

2004) (quoting United States v. Rodriguez Cortes, 949 F.2d 532, 545

(1st Cir. 1991)). Identifying prejudice from the ruling is

essential. See, e.g., Saccoccia, 58 F.3d at 770 ("[T]he decision

below must endure unless the party who moved for the continuance

can demonstrate that, in withholding relief, the trial court

indulged a serious error of law or suffered a meaningful lapse of

judgment, resulting in substantial prejudice to the movant.").

In this case, the district court held a status conference

on September 30, 2005 – two weeks after defendants' arraignment –

and told counsel at its conclusion that the trial would begin on

October 24 and that that was a "[f]irm date." On October 13, the

government filed a motion requesting a three-week continuance,

noting that it was still in the process of finalizing discovery

and, to date, had provided approximately 1,000 pages of discovery

to defense counsel. The government also reported that plea

negotiations had begun and expressed its belief that "a brief

extension of time is needed in order for the attorneys to timely

-25-
review the discovery and discuss it with their respective clients."

The court denied the motion the next day without comment and

subsequently denied five additional continuance requests made by

various defendants between October 19 and October 23, also without

explanation.

Meanwhile, activity in the case was proceeding along two

fronts: the government continued to release discovery material, and

it exchanged plea offers with defendants. On October 17, the

government told defense counsel by letter that it would consider

plea offers, and it recommended that a proposed package deal be

submitted by the close of business the next day. The letter also

identified three witnesses the government intended to call at

trial22 and stated that it would provide all of the defendants'

post-arrest statements to all parties on October 18. The record

indicates that three additional discovery packages were provided:

on October 17, defendants received four pages of documents and a CD

that contained nautical charts and deck plans for the Sea Atlantic;

on October 18, they received about 30 pages of materials consisting

22
These witnesses were Officer Ríos, who performed the ion
scans; an unidentified chemist from the Drug Enforcement
Administration; and DEA Task Force Agent Vidal, who had
"specialized knowledge regarding the means and methods undertaken
by drug traffickers." The government explained that Vidal's
testimony involved "the modus operandi of drug traffickers which is
appropriate and relevant and should assist the jury in
understanding other evidence in this case." On October 21, the
government identified the DEA chemist who would testify as Walter
Rodriguez.

-26-
of "Reports of Investigation" concerning each defendant and waiver

of rights forms dated September 3, as well as a CD containing

navigation charts; and on October 22, the government released 150

pages consisting of "Statement of Rights" and "Interview Notes" for

each defendant, as well as ion scan results, a Coast Guard prisoner

log, a photograph of narcotics, and "miscellaneous" documents from

USCG Officers Cieblik and Young.

On October 19, before the defendants were able to respond

to the government's October 17 invitation for plea offers, the

government sent counsel a letter offering to recommend a deal in

which the defendants would plead guilty to both substantive counts

of the indictment in exchange for sentences between 135 and 168

months' imprisonment; the government said it would not oppose a

sentence at the lower end of that range and also invited

"reasonable counter-offers." On October 22 – the Saturday before

the Monday start date for the trial – defendants responded with an

offer to accept seventy months' incarceration in lieu of trial.

The government rejected the offer, noting that "[t]his could have

been a possible recommended sentence if a formal counter-offer had

been received in a timely fashion." However, because trial was

about to begin, a jury panel had been summoned, witnesses had flown

in from San Diego, and "the government has spent valuable time and

resources in preparing for trial," the government rejected the

offer.

-27-
 One final plea attempt was made on the second day of

trial, when the defendants submitted a joint offer in writing for

ninety-six months' imprisonment, with an enhancement to be imposed

on the captain for special skills and knowledge. Additionally on

that day, trial proceedings began with Rodríguez-Durán's counsel

reporting to the judge that defendants wished to enter a straight

plea to a single count of the indictment, while preserving the

option to argue their duress defense at sentencing. The court

engaged in an extended colloquy with counsel and ultimately

concluded that the case was not ripe for a plea, in part because

more than one attorney expressed concern about losing the

opportunity to introduce evidence of the duress defense. In

addition, the court indicated concern that some of the defendants

were being pressured to go along with a plea, "[a]nd counsel may

not even be aware of what the pressures are." The court noted

that, "[i]t seems to me that a lot more talking has to take place

among defendants before I take this plea," but insisted that any

further discussion take place during the lunch recess because

"[t]here is no way I am going to continue wasting time with this."

In arguing that the court abused its discretion in

refusing to delay the trial's start date, defendants point in

particular to their need for more time to complete plea

negotiations – reflected in both the government's refusal to

consider their offer on October 22 and the court's observation that

-28-
more discussion was needed on the October 25 plea offer – and also

emphasize their inability to fully analyze the voluminous discovery

material so that they could prepare effectively for trial.

Although the government originally sought a continuance for those

same purposes, it argues on appeal that the court's refusal to

delay the trial was not an abuse of discretion. It maintains that

the record does not show that defendants had inadequate time to

mount a meaningful defense – citing in support the acquittals of

most of them on the conspiracy charge – and it further argues that

the facts surrounding the plea negotiations demonstrate that more

time would not have been productive.

We recognize that the arrest-to-trial period here was

extraordinarily short, particularly for a case in which nine

separate defense counsel needed to coordinate schedules in order to

collaborate on trial strategy. We also appreciate that counsel may

have felt discomfort at proceeding without greater intimacy with

the many pages of discovery materials. "'The focus, [however], is

on what constitutes a reasonable period of time for preparation,

not on defense counsel's subjective satisfaction with his level of

preparedness.'" United States v. Moore, 362 F.3d 129, 135 n.7 (1st

Cir. 2004) (quoting United States v. Marrero-Ortiz, 160 F.3d 768,

777 (1st Cir. 1998)). Even if we were to conclude that the court

erred in pushing the case to trial so quickly, "[a] defendant is

generally not entitled to a new trial unless he or she can identify

-29-
specific ways in which the court's erroneous denial of a

continuance prejudiced his or her defense." Rodriguez-Marrero, 390

F.3d at 22. Here, in neither the continuance motions themselves,

nor in their appellate briefs – the latter prepared after trial,

with the advantage of time and perspective – have defendants

developed their prejudice claims sufficiently to demonstrate actual

harm from the short pre-trial period.

The Supreme Court has said that, in assessing the

circumstances surrounding a continuance request, we should give

particular attention to "the reasons presented to the trial judge

at the time the request is denied." Ungar, 376 U.S. at 589; see

also Torres, 793 F.2d at 440. In addition, because lack of time to

identify supportable defenses or crucial evidence frequently will

be the harm alleged from denial of a continuance in a criminal

case, evidence of prejudice developed during or after trial that is

consistent with the original request for delay also may play a

pivotal role in our review. Indeed, it may only be on appeal,

after counsel has had time to carefully review the record, that the

magnitude of the prejudice can be specifically shown. For example,

when a defendant seeks a continuance because of voluminous

discovery material, his later claim of prejudice from a denial will

be enhanced if he identifies particular significant, exculpatory

evidence that would have been available to him if the continuance

had been granted. Cf. Rodriguez-Marrero, 390 F.3d at 22 ("Although

-30-
[defendant] states that the government produced twenty thousand

pages of documents and tape recordings relating to thirty-five

individuals, he fails to identify (with the one exception already

noted) any material document that he was unable to review due to

the time pressures.").

Here, defendants' motions largely asserted generalities

– the complexity of the case and the thousands of pages to review,

the challenge of preparing a defense for foreign defendants

unfamiliar with the United States' justice system,23 the desire to

continue plea negotiations and the need to find maritime experts.

Even with the benefit of hindsight, they have pointed to no pivotal

evidence or theories that realistically could have made a

difference had they been allotted more time to prepare for trial.

We now briefly address each point that has been raised on appeal,

explaining why we conclude that none merits vacating the judgments.

1. Inability to Complete Plea Negotiations

Defendants cite the government's rejection of their

October 22 plea offer based on the imminent start of trial as

evidence that a postponement in the trial date would have enabled

them to successfully complete plea negotiations. Even assuming,

for argument's sake, that denying or curtailing the time to conduct

plea negotiations can be a basis for a claim of abuse of discretion

23
The crew consisted of three Venezuelans, three Dominicans,
two Africans and one Mexican.

-31-
– a matter on which we do not opine – no such abuse occurred here.

The defendants' and the government's expectations for a deal

remained far apart,24 and, as reflected in the colloquy described

above, at least some defendants remained ambivalent about entering

a plea. Consequently, the possibility that a plea bargain

acceptable to all could have been reached within a reasonable

period of time is too speculative to factor significantly into our

assessment. Defendants had no "right" to negotiate a plea, see

Weatherford v. Bursey, 429 U.S. 545, 561 (1977) ("[T]here is no

constitutional right to plea bargain; the prosecutor need not do so

if he prefers to go to trial."), and even if some of the group had

been able to reach agreement with the government, the court had the

prerogative – which it indicated it might exercise – to reject a

deal that did not embrace all defendants. Cf. United States v.

Ventura-Cruel, 356 F.3d 55, 59 (1st Cir. 2003) ("It is well settled

that a defendant does not have an absolute right to plead guilty.")

(citing Santobello v. New York, 404 U.S. 257, 262 (1971)).

It is apparent that the negotiations were not on the

brink of completion, and defendants' general claim that an

unspecified amount of additional time would have made a difference

24
During Minoungou's sentencing hearing, the prosecutor
confirmed that the government would not agree to a deal under which
the defendants could argue duress at sentencing. Defense counsel
also indicated at that hearing that the government was unwilling to
accept a plea on only the aiding and abetting count.

-32-
falls far short of showing the "substantial prejudice" necessary to

justify a new trial.25

2. Certification of Consent

Defendants Morelis, De La Rosa and Rodríguez-Durán

complain that they needed more time to obtain direct evidence from

Bolivia to challenge the validity of the Coast Guard's consent to

board the Sea Atlantic. However, defendants received copies of the

official certification document on September 29. They concede that

the certification is all that is required under the MDLEA to prove

consent, see 46 U.S.C. app. § 1903(c)(1), and they fail to explain

how more time would have enabled them to challenge the document or

the consent it reflects.

In his brief and at oral argument, Rodríguez-Durán also

contended that the certification contained an incorrect location

for the vessel and that more time was needed to retain a maritime

expert to explore the implications of that mistake. Specifically,

25
Defendant Almonte made a specific request on October 20 for
a one-week continuance to complete plea negotiations and to enable
him to further investigate the duress defense, including through
the hiring of a polygraph expert. His motion states that counsel
had contacted an expert who could produce a written report by
October 27. In his brief and at oral argument, counsel explained
that such evidence was important to convince the government of
Almonte's truthfulness. The apparent intent, therefore, was to
assist plea negotiations. Defendant does not state that a
polygraph test was, in fact, performed and does not explain either
how he would have used the test results at trial or what advantage
could have been derived from them. His expressed desire to obtain
an expert report is thus not a factor of consequence to our
analysis.

-33-
his counsel asserted at argument that he believed the vessel was

located in Panamanian waters and that the Coast Guard thus lacked

jurisdiction to board. Officer Cieblik admitted at trial that the

location description on the certification erroneously indicated

the vessel was boarded northeast of Aruba, rather than northwest,

and attributed the discrepancy to a mistaken notation. To the

extent that error reflected an actual jurisdictional problem – and

we have no basis for thinking it does – we fail to see why

defendants could not have addressed the point in the three weeks

between receiving the certification and the start of trial.

Certainly in the year between trial and the filing of appellate

briefs, any real jurisdictional flaw could have been substantiated.

Consequently, we conclude that the alleged lack of time

to pursue this issue lends no support to defendants' claim that the

court erroneously denied a continuance.

3. Voluntariness of Morelis's Statement

Before Agent Santiago testified about Morelis's statement

admitting that Tejeiro told him that the Sea Atlantic would carry

contraband, the court observed that no voluntariness issue had been

raised with respect to the statement. Morelis's counsel responded

that he had not yet done so, but had filed a continuance motion

because he had not had time "to explore the whole contents of all

the documents." De La Rosa points to this exchange in arguing that

the court's denial of a continuance was an abuse of discretion.

-34-
Neither De La Rosa nor Morelis develops this point, however, by

showing that Morelis's counsel could have raised a viable

voluntariness challenge to the statement if he had had more time to

scrutinize the documents and interview his client. Given counsel's

opportunity to examine the relevant documents since the time of

trial, we can only conclude that the documents, in fact, do not

support a voluntariness challenge and that the district court's

continuance ruling is not vulnerable on that basis.

4. Rodríguez-Durán's Duress Claim

At oral argument on appeal, counsel for Rodríguez-Durán

asserted for the first time that a continuance was necessary so

that he could travel to Venezuela to investigate an alleged

abduction of his client's daughter. Counsel implied that such an

investigation would substantiate Rodríguez-Durán's claim that

Tejeiro had threatened to retaliate against his family if he

refused to cooperate in the drug trafficking scheme. At trial,

Rodríguez-Durán testified that Tejeiro had told him that, in

particular, his daughter and mother-in-law were being watched, and

stated that Tejeiro had made contact with his family in Puerto

Cabello. He further testified that he felt that "serious injury or

death may be placed upon her."26 However, Rodríguez-Durán never

26
The court sustained the government's hearsay objections when
defense counsel asked Rodríguez-Durán if he knew whether Tejeiro
had visited his family and had either offered or delivered money to
them.

-35-
sought a continuance based on the need to travel to Venezuela and

did not raise, let alone explain, the need to do so in his brief on

appeal. Even were the issue not waived, see United States v.

Jiminez, 498 F.3d 82, 88 (1st Cir. 2007) (noting "the well-settled

appellate rule that 'issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived'" (quoting United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990)), we would have no factual basis for assessing its

relevance to the district court's continuance ruling.

5. General Claims of Prejudice

Finally, we find no merit in the miscellaneous

generalities invoked by defendants, including their

characterization of this case as complex and their invocation of

the foreign citizenship of the defendants. Although the

government provided a substantial quantity of discovery, the

factual circumstances were not particularly complicated; the

indictment stemmed from a single episode with a fixed cast of

participants. Cf. Rodriguez-Marrero, 390 F.3d at 5, 9, 22

(considering continuance claim in case involving an alleged four-

year drug conspiracy, four-week trial, more than forty witnesses,

at least 4,500 pages of discovery, and twelve defendants charged in

a twelve-count second superseding indictment). The defendants'

foreign nationalities are likewise without significance absent some

identifiable, particular prejudice from their status, such as a

-36-
language barrier that prevented their meaningful participation in

the proceedings.

In sum, "[w]hile the trial judge held defendants to a

tough schedule, in the absence of a showing of unfair prejudice to

defendants, there was no manifest abuse of discretion." United

States v. Orlando-Figueroa, 229 F.3d 33, 41 (1st Cir. 2000).

B. Speedy Trial Act

Rodríguez-Durán and Morelis also claim that the district

court's trial schedule violated the Speedy Trial Act, which

guarantees that, unless a defendant consents in writing, a trial

may not start sooner than thirty days from the date a defendant

first appeared through counsel or expressly elected to proceed pro

se. See 18 U.S.C. § 3161(c)(2). Although the sanction for a

Speedy Trial Act violation is dismissal of the indictment, id. §

3162(a)(2), the right to dismissal is waived if a defendant fails

to move for dismissal prior to trial, id., and even plain error

review is unavailable, United States v. Spagnuolo, 469 F.3d 39, 46

(1st Cir. 2006). No such motion was filed in this case;

defendants' Speedy Trial Act claim is therefore without merit. See

United States v. Paradis, 802 F.2d 553, 556 (1st Cir. 1986)

(finding waiver where defendant failed to move prior to trial for

dismissal based on violation of the "30-day minimum to trial

-37-
provision"). Given defendants' waiver, we need not evaluate their

calculation of countable days.27

IV.

Defendants Rodríguez-Durán and Cabello assert that the

admission into evidence of Morelis's statement recounting Tejeiro's

offer of a $40,000 payment for the transport of contraband violated

their rights under the Confrontation Clause of the Sixth Amendment.

We exercise de novo review over Confrontation Clause challenges

raising questions of law. United States v. Earle, 488 F.3d 537,

542 (1st Cir. 2007).

The Confrontation Clause guarantees a criminal defendant

the right "to be confronted with the witnesses against him." U.S.

Const. amend. VI. The primary purpose of confrontation is "to

secure for the opponent the opportunity of cross-examination,"

Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (quotation marks

and emphasis omitted), and, in Crawford v. Washington, 541 U.S. 36

(2004), the Supreme Court held that the Clause "bars admission of

testimonial hearsay in a criminal case unless the declarant is

unavailable and the accused has had a prior opportunity for cross-

examination," Earle, 488 F.3d at 542.

When the out-of-court statement at issue was made by the

defendant, it is typically classified as an admission and not

27
We note, however, that a quick review indicates that no
Speedy Trial Act violation occurred.

-38-
hearsay, and ordinarily may be admitted against him. See Fed. R.

Evid. 801(d)(2); United States v. Vega Molina, 407 F.3d 511, 519

(1st Cir. 2005). In the context of a multi-defendant trial,

however, the admission of a non-testifying defendant's inculpatory

extrajudicial statement is carefully limited. Even when such a

statement may be introduced against the declarant as an admission,

it may not be admitted as to the other defendants unless there is

an independent ground for doing so. Vega-Molina, 407 F.3d at 522

(citing Crawford, 541 U.S. at 42-50). Where no alternative basis

for admission exists, the trial court should instruct the jury that

the out-of-court statement may be considered as evidence only

against the declarant and not against his co-defendants. Id.; see

also Richardson v. Marsh, 481 U.S. 200, 211 (1987) (finding no

Confrontation Clause violation where co-defendant's confession was

admitted "with a proper limiting instruction").

But a limiting instruction will not always be adequate to

protect the Sixth Amendment rights of the declarant's co-

defendants. In Bruton v. United States, 391 U.S. 123 (1968), the

Supreme Court concluded that in certain instances – where a non-

testifying defendant's extrajudicial statement is "powerfully

incriminating" against other defendants – the statement may not be

used in a joint trial at all. Id. at 126, 135-36; Vega Molina, 407

F.3d at 518-19; see also Gray v. Maryland, 523 U.S. 185, 192

(1998). In such a case, "the risk that the jury will not, or

-39-
cannot, follow instructions is so great, and the consequences of

failure so vital to the defendant, that the practical and human

limitations of the jury system cannot be ignored." Bruton, 391

U.S. at 135.

Defendants argue that Morelis's statement was "powerfully

incriminating" within the meaning of Bruton and that its admission

into evidence through Agent Santiago's testimony was thus

reversible error. The testimony was given during questioning by

the prosecutor about Santiago's interview with Morelis after the

Sea Atlantic arrived in Puerto Rico. Asked if Morelis indicated

whether Tejeiro had told him the purpose of the trip at the time he

was hired in Venezuela, Santiago answered affirmatively. He then

elaborated:

He stated that they were going from Venezuela
to Curaçao to pick up a load. But Tejeiro
told to him that a load with illegal
merchandise will arrive to the boat, and he
will pay $40,000 for that.

According to Rodríguez-Durán and Cabello, the statement was unduly

prejudicial because it conflicted with the captain's testimony that

the crew members had no knowledge of the drug deal before they

boarded, undermining the duress defense and allowing the jury to

infer intent to participate that was otherwise unsupported by the

evidence.

Bruton, however, applies only to a statement that is

"inculpatory on its face," Vega Molina, 407 F.3d at 520 (citing

-40-
Richardson, 481 U.S. at 207). "Statements that are incriminating

only when linked to other evidence in the case do not trigger

application of Bruton's preclusionary rule." Id.; see also

Richardson, 481 U.S. at 209 (rejecting extension of Bruton to

"confessions incriminating by connection").

The statement at issue here made no explicit reference to

any defendant other than Morelis and Tejeiro, and Rodríguez-Durán

and Cabello point only to prejudicial inferences the jury could

have drawn from the statement in light of other evidence presented

at trial. As our discussion makes clear, this is not a Bruton

problem, and the district court therefore did not err by admitting

Santiago's testimony about Morelis's statement.

However, our conclusion that Bruton is inapt does not

necessarily mean that there was no Sixth Amendment violation as

recognized by Crawford.28 As we have explained, Morelis's statement

was admissible only as to him, and the court should have instructed

the jury not to consider it in assessing the other defendants'

involvement in the charged criminal activity.

28
A Confrontation Clause challenge under Crawford requires two
threshold determinations: whether the out-of-court statement was
hearsay and whether it was testimonial. Earle, 488 F.3d at 542.
No one contests that Morelis's statement in his post-arrest,
custodial interview was testimonial hearsay as to Rodríguez-Durán
and Cabello. See Davis v. Washington, 126 S. Ct. 2266, 2273 (2006)
(noting that "'[s]tatements taken by police officers in the course
of interrogations'" would qualify under any definition of
"testimonial" statements) (quoting Crawford, 541 U.S. at 52-53
(alteration in original)).

-41-
 That Bruton and its progeny do not absolutely
preclude the introduction of a confession
against the declarant-defendant at a joint
trial . . . does [not] suggest condonation of
the use of the declarant's out-of-court
confession against the other defendants.
Indeed, the case law unambiguously requires
the trial court to instruct the jury that an
out-of-court confession may not be considered
as evidence against the declarant's
codefendants.

Vega Molina, 407 F.3d at 522. The government does not urge any

alternative basis for admitting Agent Santiago's testimony against

Rodríguez-Durán and Cabello. Rather, it asserted in its brief and

at oral argument that Santiago's testimony was admitted only as to

Morelis. The record, however, is to the contrary. We have found

no indication that the court gave such a limiting instruction

either when the evidence was admitted or when the government relied

on it in closing. In advance of Santiago's testimony, the court

explicitly sought to avoid a Bruton-Crawford problem by limiting

the evidence that could be introduced about Morelis's statement,29

but it did not advise the jury to consider the evidence only

against Morelis.

29
After noting that "[e]verybody has been warned there can be
no Bruton issue in this questioning," the court stated that it
would not allow the full contents of Morelis's statement to be
introduced. It then said:
There are going to be some questions posed to the agent,
period. And the areas of inquiry will not touch upon
Bruton. There is going to be nothing against the law in
this questioning. I assure you that.

-42-
 The government emphasized the statement during the

rebuttal portion of its closing argument, asserting that the case

was not about duress, but about "a business enterprise" in which

"nine able-bodied seamen [] were hired to transport illegal cargo

by Jose Luis Tejeiro." The prosecutor then said:

Think about the postarrest statement of
Ronald Jose Morelis that was made on September
3rd, 2005. This is very important. This is
before any alleged duress. State the name who
hired you. What does he say. Jose Luis
Tejeiro hired him.

An objection from Morelis's attorney that "[t]hat is not what he

testified" was overruled, and the prosecutor continued:

What was that postarrest statement. He
said that Jose Luis Tejeiro hired him to bring
illegal merchandise for $40,000 while he was
in Curaçao. And that the drugs or the
merchandise were going to be delivered while
he was at sea. That is not duress.

Again, no limiting instruction was given, and the failure to do so

was error. See Vega Molina, 407 F.3d at 521 ("Such an instruction

would have been proper and should have been given.").30 Rodríguez-

30
In both its brief and at oral argument, the government noted
that the court instructed the jury to give individual consideration
to each defendant. That is not the same as instructing the jurors
that they may not consider Morelis's statement against the other
defendants. Indeed, even in its brief on appeal, the government
continues to treat the statement as evidence against all
defendants. In responding to the defendants' sufficiency argument,
the government noted that Tejeiro had hired the whole crew and had
offered Morelis $40,000. The brief then states: "If one crew
member was approached and agreed to participate (which can be
inferred since he boarded the vessel after he was offered money to
transfer contraband), the other co-defendants, who were also all
hired by Tejeiro, were likely approached as well and boarded the

-43-
Durán and Cabello neither requested such an instruction at trial

nor objected to its omission, however, and they are thus entitled

to relief only if they can establish plain error.31 See id.

These two appellants are unable to satisfy that standard.

Accepting that an error occurred and that it was obvious, they

additionally must show impact on their substantial rights. United

States v. Andújar-Basco, 488 F.3d 549, 554 (1st Cir. 2007). If all

three of these prerequisites are satisfied, there is yet a further

prerequisite; we may reverse only to prevent a miscarriage of

justice. Id.; see also United States v. Robinson, 473 F.3d 387,

396-97 (1st Cir. 2007) (explaining that error under the plain error

standard will not be noticed "unless it caused a miscarriage of

justice or seriously undermined the integrity or public reputation

of judicial proceedings" (internal quotation marks omitted)). The

vessel willingly and with the intent to transport the drugs for
profit."
31
Rodríguez-Durán's counsel did object when the government
referred to the statement in the initial portion of its closing
argument. After stating that Tejeiro had hired all of the
defendants, the prosecutor described him as "[t]he man who we know
from Morelis approached him in Curaçao and told him there was going
to be illegal drugs coming on the ship and offered him $40,000."
In response to the objection, the court held a bench conference,
after which Rodríguez-Durán's attorney moved for a mistrial on the
ground that, "based on Bruton," the court had not allowed Morelis's
statement about the $40,000 into evidence. The court reviewed the
transcript of Agent Santiago's testimony – presumably discovering
that the prosecutor's comment was based on admitted testimony – and
then overruled the objection. As articulated, Rodríguez-Durán's
counsel's objection was not a Bruton objection. Instead, he
claimed incorrectly that the evidence cited by the government had
not been admitted.

-44-
statement at issue here – that Tejeiro told Morelis that the Sea

Atlantic would carry an illegal load, for which a $40,000 payment

would be made – overlaps substantially with Rodríguez-Durán's own

testimony that Tejeiro told him both about the original plan to

transport drugs concealed in asphalt drums and the subsequent

change to pick up contraband at sea. The additional fact of a

payment offer to Morelis does not contradict Rodríguez-Durán's

personal duress defense. The captain's compliance could have been

secured by means of threats notwithstanding the offer of a reward

to Morelis to persuade him to join the crew. Moreover, a payoff at

the end even to Rodríguez-Durán is not inconsistent with the

undertaking being performed under duress.

The most damaging aspect of the statement for both

defendants is that it conflicted with Rodríguez-Durán's testimony

that none of the other crew members knew about the drugs until they

were on board. While this inconsistency may have tainted their

duress defense, we cannot conclude that it was a sufficiently

serious defect to satisfy the plain error standard. Morelis's

statement did not directly incriminate either of them. In

addition, the challenged testimony included no indication that

other crew members had similar conversations with Tejeiro or that

Rodríguez-Durán had knowledge of Morelis's conversation. Thus, the

jurors could have credited Santiago's hearsay report of the Morelis

-45-
interview without rejecting the truthfulness of Rodríguez-Durán's

testimony about the crew members' ignorance.

Moreover, the government's case against these two

defendants was otherwise strong. Incriminating papers were found

in each of their berths, and the list of code words found in

Cabello's room contained code names for both him and Rodríguez-

Durán. Their positions as captain and first officer reinforced the

documentary evidence suggesting that they were willing

participants, and the paper found in Cabello's berth with Tejeiro's

first names and phone numbers was particularly significant in

linking him – as well as Rodríguez-Durán – to the crime's

mastermind. Rodríguez-Durán testified, and the jury was thus able

to appraise his credibility directly. This evidence was more than

sufficient for us to conclude that there was no impact on these

defendants' substantial rights.

V.

Six defendants claim that the district court erred in

denying them the benefit of the "safety valve" provision of the

Sentencing Reform Act, 18 U.S.C. § 3553(f)(1)-(5), which allows

courts to impose sentences below the statutory minimum in certain

drug cases.32 The safety valve provision, also set forth at section

5C1.2 of the Sentencing Guidelines, was enacted "to mitigate the

32
Those raising this claim are Morelis, Okley, Padilla,
Cabello, González-Valero and Almonte.

-46-
harsh effect of mandatory minimum sentences on certain first

offenders who played supporting roles in drug-trafficking schemes,"

United States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000).

To qualify for a safety valve reduction, a defendant must satisfy

five criteria, including that he truthfully provided the government

with all information and evidence he possesses about the offense.

18 U.S.C. § 3553(f)(5); see also Bravo, 489 F.3d at 11-12. It is

undisputed that these defendants have satisfied the other safety

valve requirements,33 and the only issue before us is whether the

district court properly found that the defendants failed to make

truthful and complete disclosures to the government, United States

v. Bermúdez, 407 F.3d 536, 542 (1st Cir. 2005).

Whether a defendant is eligible for safety valve relief

is determined by the district court at sentencing, United States v.

White, 119 F.3d 70, 73 (1st Cir. 1997), and we review the district

court's factual findings on that question for clear error, United

States v. Rodríguez-Ortiz, 455 F.3d 18, 25 (1st Cir. 2006). Such

review is "'extremely deferential,'" Bermúdez, 407 F.3d at 542

(quoting United States v. Marquez, 280 F.3d 19, 26 (1st Cir.

2002)), and "'an appellate court ought not to disturb either

33
The four other requirements are that the defendants not have
more than one criminal history point, did not use violence or a
dangerous weapon in the offense, no death or serious bodily injury
resulted from the offense, and defendants were not in a supervisory
role (or engaged in a continuing criminal enterprise). 18 U.S.C.
§ 3553(f)(1)-(4).

-47-
findings of fact or conclusions drawn therefrom unless the whole of

the record compels a strong, unyielding belief that a mistake has

been made,'" id. (quoting United States v. Matos, 328 F.3d 34, 40

(1st Cir. 2003)). It is the defendants' burden to prove that

safety valve relief is warranted. Id.

The district court conducted nine back-to-back

sentencing hearings for the defendants, for the most part relying

in the later proceedings on the explanations that it previously had

given for its conclusions. At the first hearing, Almonte's, the

government argued that the defendants were not entitled to the

safety valve benefit because they had clung to the same duress

story they presented at trial. Quoting from the Seventh Circuit's

decision in United States v. Thompson, 106 F.3d 794 (7th Cir.

1997), the government asserted that defendants' adherence to "a

false version of events and disput[ing] their own culpability, up

to and including the sentencing hearing, is a sufficient basis for

refusing to invoke the safety valve provision." Id. at 801.

Almonte's counsel responded that the defendants did not change

their story because it was true, and he argued that the acquittals

on the conspiracy count meant that "the jury believed that

[defendants] learned about the drugs when they were in the high

seas" – thus validating what the defendants said in their

debriefings.

-48-
 The district court rejected the defense view of the

jury's verdict, telling counsel: "I don't think your argument holds

water." The court concluded that, "[u]nder these circumstances"

and in light of the government's "solid argument," it would not

grant either the safety valve reduction or an adjustment for

acceptance of responsibility under U.S.S.G. § 3E1.1. It repeated

that ruling for each of the other defendants who sought safety

valve benefits, elaborating on its conclusion in response to

Minoungou's argument that the jury's rejection of the duress

defense did not foreclose the court from reaching a different

outcome:

But the problem with this is what the
7th Circuit said in that case. It is simply
this, the safety valve cannot be an automatic
two point downward adjustment for the mere
fact that be[cause] someone goes to an
interview and sits down and says exactly what
the theory of the defense was that was not
accepted. There must be something more than
that. There must be some acceptance of the
facts and some explanation and recital of how
is it that it happened. Some sort of mini
confession, if you will. That is what the
guidelines require. It is not a full
cooperation. It is not expected that he will
go and give all the information that nobody
would expect him to have, but there must be
that.
. . .

. . . I am not going to make a mockery
out of the safety valve situation. The truth
of the record is there is nothing on the
record that suggests to me that I should grant
the safety valve [] when there is not even a
minimal contribution of the facts of how this
happened with what is consistent of what I

-49-
 heard happened in this trial. A small boat, a
small number of crew members. It is
unbelievable.

On appeal, defendants argue that the government presented

no evidence establishing that they did not provide full, truthful

information in their debriefings and that the court likewise failed

to particularly identify instances of false or inconsistent

statements or omissions. In effect, defendants argue that the

court did not make the required independent factual assessment of

their proffers to the government.

Although safety valve cases may involve detailed

examination of a defendant's trial testimony and proffer, and

specific factual findings comparing the consistency of various

statements, see, e.g., Bermúdez, 407 F.3d at 542-43; Marquez, 280

F.3d at 23; White, 119 F.3d at 74, such specificity is not always

required. We have observed that, while particular factual findings

are preferable, "a district court may rest its decision on

conclusory statements if those conclusions have 'easily

recognizable support in the record,'" Bravo, 489 F.3d at 12

(quoting United States v. Miranda-Santiago, 96 F.3d 517, 529 (1st

Cir. 1996)). In addition, the government is not required to offer

objective rebuttal evidence to show that a defendant has been

"untruthful or unforthcoming." Marquez, 280 F.3d at 24.

In this case, the district court's ruling was undetailed,

but specific. It found the defendants' trial defense of duress,

-50-
which was repeated in their safety valve proffers, not credible,

and thus concluded that it had no basis for awarding them credit

for full, truthful disclosure. Although the defendants assert that

the jury's verdict supported their defense, we already have noted

the flaw in that assumption. See supra note 17. Having heard all

of the evidence presented at trial, the court had intimate

familiarity with the case. It not only was aware of the

inconsistencies in the information provided at various times by

Rodríguez-Durán – on whose credibility the case turned – but it

also could take into account the expert testimony that drug

traffickers would not entrust such a valuable cargo to unknowing

collaborators. Thus, the factual background developed at trial

provided both context and an adequate foundation for the court's

rejection of defendants' credibility. Indeed, all of the evidence

that allowed the jury to find defendants guilty of aiding and

abetting the drug transport implicitly played a role in the court's

disposition of the safety valve issue. We therefore find no error

in its refusal to grant the safety valve reduction.34

34
Defendants Padilla and Almonte also argue that the court
erred in denying their request for a sentence reduction based on
acceptance of responsibility under U.S.S.G. § 3E1.1(a). In
rejecting defendants' assertion of duress – a conclusion that, as
we have explained, was supported by the evidence – the district
court effectively found that they had not accepted responsibility
for their participation in the crime. Cf. United States v. Bello,
194 F.3d 18, 28 (1st Cir. 1999) ("An assertion of self-defense is
a denial of an essential factual element of guilt for the purposes
of [§ 3E1.1]."). We therefore detect no clear error in its ruling
that Padilla and Almonte did not establish entitlement to an

-51-
 VI.

Defendants Cabello and González-Valero each raise two

additional claims of error, none of which warrants extended

discussion. We address each in turn.

A. Cabello's Claims

1. Failure to Admit Proof of Certification

Cabello claims that the document certifying Bolivia's

consent to the Coast Guard's boarding of the Sea Atlantic was

marked as an exhibit but never formally introduced into evidence.

Bolivia's consent was necessary to establish United States

jurisdiction over the vessel, and Cabello argues that, without the

certification, there was insufficient evidence to support his

conviction. Because Cabello did not raise this issue in the

district court, it is subject to review only for plain error. See

United States v. Pratt, 496 F.3d 124, 127 (1st Cir. 2007). We find

no such error.

acceptance-of-responsibility decrease in their offense levels. See
generally United States v. Baltas, 236 F.3d 27, 38 & n.7 (1st Cir.
2001) (affirming denial of § 3E1.1(a) reduction where defendant
persisted through appeal in denying that he agreed to participate
in the drug conspiracy for which he was convicted).

-52-
 Even if the document was technically not admitted,35 its

content was introduced into evidence through the testimony of USCG

Officer Cieblik, who identified the document as the "agreement

between the government of Bolivia and the United States government

to allow us to board the vessel Sea Atlantic." The defendants had

the opportunity to cross-examine Cieblik concerning the document's

authenticity, but did not. The issue of jurisdiction was for the

district court to decide, 46 U.S.C. app. § 1903(f); Bravo, 489 F.3d

at 8. We have no doubt that, given Cieblik's testimony and the

availability – if not admission – of the certification, no plain

error occurred.

2. Failure to Impose Reasonable, Individualized Sentence

Cabello, who was convicted of both the conspiracy and

aiding and abetting counts, was sentenced to 235 months'

imprisonment, which was the low end of the applicable guidelines

range. His counsel requested a three-year sentence based on his

particular circumstances. On appeal, Cabello argues that the

district court erred in failing to give him the benefit of various

mitigating factors, including his status as both an alien and

first-time offender, and his age (63), arguing that these

35
Although no explicit statement admitting the certification
appears in the transcript, the court's exhibit list indicates that
it was admitted on the first day of trial. The court told the
jurors during its closing instructions that they would have the
exhibits for their deliberations, and the certification presumably
was included among them.

-53-
conditions make a lengthy prison term less appropriate or more

arduous than in other cases.36 He asserts that the court's strict

application of the guidelines, without giving him credit for these

factors, denied him an individualized sentence and thus was

unreasonable and in contravention of 18 U.S.C. § 3553(a)(2).37

Challenges to the reasonableness of a sentence are

reviewed with deference to the district court's determination.

United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006). If the

court has made no legal error and "has offered a plausible

explication of its ultimate sentencing decision, we are quite

respectful of that decision." Id. Although Cabello's sentence is

substantial, it reflects the seriousness of the crimes of which he

was convicted. He was found guilty of two charges involving

transport of nearly 2,000 kilograms of cocaine, and significant

inculpatory evidence was found in his berth. The court noted that

the amount and type of narcotics involved triggered a base offense

36
For example, he contends that his age makes him more
vulnerable to abuse from other prisoners and his alien status
denies him opportunities for early release, community confinement
and minimum security placement.
37
Section 3553(a) directs courts to impose a sentence
"sufficient, but not greater than necessary" to comply with the
purposes of sentencing listed in the statute, including deterrence,
protecting the public from the defendant's further criminal
behavior and reflecting the seriousness of the offense. 18 U.S.C.
§ 3553(a)(2).

-54-
level of 38,38 and there were no adjustments to which Cabello was

entitled. Finding no justification for varying from the

guidelines, the court imposed the bottom term within the applicable

range. Although even that low-end sentence could result in his

incarceration to age 82, advanced age typically is deemed relevant

in determining whether a departure is warranted only when the

offender is "elderly and infirm and where a form of punishment such

as home confinement might be equally efficient as and less costly

than incarceration." U.S.S.G. § 5H1.1. We do not consider a 63-

year-old to be "elderly" for purposes of sentencing, and there is

no indication that Cabello is infirm or that home confinement would

be an appropriate substitute for incarceration. Consequently,

section 5H1.1 is inapplicable.

In sum, the district court imposed a sentence that

reflects the severity of the crime and reasonably rejected any

deviation from the guidelines. We find no reversible error.

38
Cabello argues that the court should have sentenced him
under 21 U.S.C. § 960(b)(2)(B)(ii), which provides for a statutory
minimum sentence of five years rather than the ten years provided
by § 960(b)(1)(B)(ii). Section 960(b)(2)(B)(ii) is triggered when
the crime involves 500 grams or more of cocaine and §
960(b)(1)(B)(ii) is triggered when the violation involves five
kilograms or more of cocaine. Here, more than 1,800 kilograms were
at issue, and there is no basis for attributing less than the full
amount to Cabello.

-55-
B. González-Valero's Claims

1. Courtroom Seating

Throughout the trial, the defendants were seated in the

first two rows of the courtroom rather than at the defense table

with their attorneys. On the second day of trial, González-Valero

submitted an emergency motion stating that he could not communicate

effectively with his attorney and requesting that he be seated

beside counsel so that he could "interact and communicate regarding

the evidence presented to fully exercise his rights to effectively

confront and cross-examine testimony presented against him." The

next day, González-Valero's counsel asked the court if another

table could be obtained because "[i]t is difficult to communicate."

The judge responded that he already had spoken with the marshals

and that another table would not fit. The court then said:

"Counsel, you can communicate."

González-Valero contends that his distance from his

attorney deprived him of his Sixth Amendment right to the effective

assistance of counsel, and he argues that the district court abused

its discretion in failing to either probe his claim of inadequate

communication or make alternative arrangements. See United States

v. Balsam, 203 F.3d 72, 82 (1st Cir. 2000) (noting that courtroom

seating arrangements for defendants and counsel are reviewed for

abuse of discretion).

-56-
 We previously have concluded that seating five co-

defendants in the first row of a courtroom's spectator section

because of limited space in the courtroom did not significantly

impede the defendants' Sixth Amendment right to consult with

counsel. Id.; see also United States v. Larson, 460 F.3d 1200,

1216 (9th Cir. 2006)39; United States v. Sorrentino, 726 F.2d 876,

887 (1st Cir. 1984) ("Where special circumstances, such as the

number of defendants, make it impractical for defendants to sit at

the counsel table, 'as is ordinarily the case,' the seating

arrangement is necessarily 'a matter best left to the discretion of

the trial court.'" (quoting United States v. Turkette, 656 F.2d 5,

10 (1st Cir. 1981))). Although we noted in Balsam that the court

had "assured the defendants that they could consult freely with

their attorneys as they wished, either by walking the short

distance to the defense table, or passing written notes," 203 F.3d

at 82, defendant does not complain that he was prevented from using

such techniques here. He identifies no particular instance in

which he was unable to communicate effectively with counsel. With

nine defendants and nine separate counsel, and in the absence of

any indication of actual prejudice, we cannot conclude that the

39
The Ninth Circuit reheard the Larson case en banc, but
adopted the three-judge panel's disposition of this issue. See
United States v. Larson, 495 F.3d 1094, 1099 n.4 (9th Cir. 2007)
(en banc).

-57-
court abused its discretion in seating the defendants immediately

behind, rather than beside, their attorneys.

2. Prison Clothing

González-Valero also claims that he was compelled to wear

prison clothing for the first three days of the five-day trial,40

in violation of his constitutional right not to be forced to wear

"identifiable prison garb" in court, United States v. Pina, 844

F.2d 1, 8 (1st Cir. 1988). See also Estelle v. Williams, 425 U.S.

501, 512 (1976) (holding that an accused may not be compelled to

stand trial before a jury while dressed in identifiable prison

clothes); Moore v. Ponte, 186 F.3d 26, 35 (1st Cir. 1999)

(explaining that compelling a defendant "to attend trial in prison

or jail clothing . . . could impair the presumption of innocence")

(citing Williams, 425 U.S. at 504-05). Defendant asserts that he

first filed a motion asking that he be allowed to wear civilian

clothing on October 23, 2005 – the day before the trial started.

Receiving no response, he filed a second motion on October 25,

after trial had started. That motion was granted the same day.

A due process violation occurs not from an accused's

appearance in prison clothes but from the compulsion that he so

appear. Williams, 425 U.S. at 512-13. Neither in his motions nor

on appeal has González-Valero established or argued that he was

40
The assertion of "three days" is apparently incorrect;
defendant reports that he received permission to wear civilian
clothing on the second day of trial.

-58-
forced to wear prison clothing; his second motion simply

"request[ed] that he be provided the opportunity to appear . . . in

civilian dress." He equates the court's failure to respond to his

initial motion with a compulsion that he wear prison attire, but

there is no basis for a conclusion that he was prevented from

wearing the clothing of his choice. Moreover, his second motion

noted that the defendants wore khaki pants and "shirts provided by

the marshals," clothing that is neither stereotypical prison attire

nor - so far as the record indicates – indicative of his prisoner

status. Cf. Felts v. Estelle, 875 F.2d 785, 785-86 (9th Cir. 1989)

(finding due process violation where defendant compelled, during

the first six days of trial, to wear a jumpsuit labeled in two

places "L.A. County Jail"). Thus, defendant has failed to

establish constitutional harm from the clothing he wore at trial.

VII.

Unquestionably, counsel for the nine defendants in this

case faced a formidable challenge: to prepare for a trial that

began less than two months after their clients were arrested on

serious drug trafficking charges. Despite the challenge, we cannot

conclude that the district court abused its discretion in refusing

to postpone the trial; defendants have identified no particular

prejudice from the denial of their motions for continuance. The

related claim that the trial court's schedule violated the Speedy

Trial Act was waived. Nor did we find a lack of evidence to

-59-
support the jury's verdicts of guilt. The defendants placed their

fates largely in their captain's hands, and the jury evidently

doubted his credibility and the duress defense that he presented.

Although Morelis's statement to Agent Santiago was improperly

admitted without a limiting instruction, no request or objection

was made by the defendants and no plain error occurred. The

district court supportably found that defendants were not entitled

to the safety valve benefit in sentencing in light of their

adherence to the discredited duress defense. Nor did we find merit

in any of the other claims.

Affirmed.

-60-