USCA1 Opinion
October 3, 1995 United States Court of Appeals
For the First Circuit
____________________
No. 92-1923
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO LUCIANO-MOSQUERA,
Defendant, Appellant.
____________________
No. 92-1924
UNITED STATES OF AMERICA,
Appellee,
v.
RAUL LUGO-MAYA,
Defendant, Appellant.
____________________
No. 92-1925
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL PAVA-BUELBA,
Defendant, Appellant.
____________________
No. 92-1973
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS PAGAN-SAN-MIGUEL,
Defendant, Appellant.
____________________
No. 92-1974
UNITED STATES OF AMERICA,
Appellee,
v.
EDGAR GONZALEZ-VALENTIN,
Defendant, Appellant.
____________________
No. 94-1657
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS PAGAN-SAN-MIGUEL,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this court issued on August 28, 1995 is amended as
follows:
On page 35, lines 8-9, substitute "This argument is meritless."
for "This argument was not raised below, is reviewed for plain error,
and is meritless."
United States Court of Appeals
For the First Circuit
____________________
No. 92-1923
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO LUCIANO-MOSQUERA,
Defendant, Appellant.
____________________
No. 92-1924
UNITED STATES OF AMERICA,
Appellee,
v.
RAUL LUGO-MAYA,
Defendant, Appellant.
____________________
No. 92-1925
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL PAVA-BUELBA,
Defendant, Appellant.
____________________
No. 92-1973
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS PAGAN-SAN-MIGUEL,
Defendant, Appellant.
____________________
No. 92-1974
UNITED STATES OF AMERICA,
Appellee,
v.
EDGAR GONZALEZ-VALENTIN,
Defendant, Appellant.
____________________
No. 94-1657
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS PAGAN-SAN-MIGUEL,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge] ___________________
____________________
Before
Selya, Boudin and Lynch,
Circuit Judges. ______________
____________________
Lydia Lizarribar-Masini for appellant Luciano-Mosquera. _______________________
Ramon Garcia for appellant Lugo-Maya. ____________
Rafael Gonzalez Velez for appellant Pava-Buelba. _____________________
Frank A. Ortiz for appellant Pagan-San-Miguel. ______________
Wilfredo Rios Mendez for appellant Gonzalez-Valentin. ____________________
Epifanio Morales Cruz, Assistant United States Attorney, with _____________________
whom Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa, _____________ _______________________
Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant United _________________
States Attorney, were on brief, for United States.
____________________
August 28, 1995
____________________
LYNCH, Circuit Judge. At 2:45 a.m. on March 27, LYNCH, Circuit Judge. _____________
1991, in the darkness of the night over a Puerto Rico beach,
government flares brightened the sky as waiting police and
customs officers surprised and arrested six men offloading
eight bales of cocaine from two yawls. The men had brought
232.8 kilograms of cocaine to this country from Colombia.
Others involved were arrested on land and on sea. Those
arrests led ultimately to these appeals by five of the men,
Carlos Pagan-San-Miguel, Edgar Gonzalez-Valentin, Raul Lugo-
Maya, Rafael Pava-Buelba and Julio Luciano-Mosquera.
The appeals variously raise challenges to the
sufficiency of the evidence, to limitation of cross-
examination, to the admissibility of one defendant's
statement, to remarks made during summation, to the reading
of the transcript of trial testimony to the jury, to jury
instructions, to the delay in transcribing the trial
transcript, and to their sentences. Of these, only one
raises serious issues -- the question of the sufficiency of
the evidence to support the convictions for carrying or
aiding and abetting the carrying of a firearm during and in
relation to the drug offense as to certain defendants.
The convictions of defendants Pava-Buelba and Lugo-
Maya are reversed on the firearms count (Count 4) and their
sentences on that count are vacated. We affirm their
convictions and sentences on the drug counts (Counts 1-3).
-4- 4
The convictions and sentences of defendants Pagan-San-Miguel,
Gonzalez-Valentin, and Luciano-Mosquera are affirmed on all
counts.
I. FACTS
The jury heard or could properly infer the
following facts. Oscar Fontalvo arrived in Puerto Rico in
January 1991 to organize a scheme to smuggle cocaine into
Puerto Rico. The scheme involved the drugs being flown from
Colombia, airdropped into the sea at a prearranged location,
picked up by a waiting boat and then sailed ashore. In drug
parlance, this operation is called a "bombardeo." The
waiting boat is called the "mothership." Fontalvo enlisted
Pagan-San-Miguel and Jose Perez-Perez, who were to be paid in
kind with 50 kilograms of cocaine. Pagan-San-Miguel
introduced Fontalvo to Luis Soltero-Lopez, who agreed that
his boat, the F/V Marlyn, would be used as the mothership.
Soltero-Lopez recruited Jonas Castillo-Ramos to be captain,
and Castillo-Ramos recruited two crew members for the drug
run.
The operation was planned at a number of meetings
in Puerto Rico in March 1991. Fontalvo, Pagan-San-Miguel,
Perez-Perez and Soltero-Lopez attended the meetings. At
least two of these meetings were at the home of Gonzalez-
Valentin and, the jury could have inferred, Gonzalez-Valentin
was there for at least one.
-5- 5
Perez-Perez brought a bag to one of the meetings at
Gonzalez-Valentin's house. Pagan-San-Miguel and Perez-Perez
opened the bag and showed Fontalvo and the others there
(including Gonzalez-Valentin) a Colt M-16, Model A-1, 5.56
caliber fully automatic sub-machine gun with an obliterated
serial number (the "M-16"). Later during the meeting, Perez-
Perez brought Fontalvo over to his pick-up truck and pulled
out from under the front seat an Intratec, Model TEC-9, semi-
automatic .9mm pistol (the "Intratec pistol"). Referring to
the weapons, Pagan-San-Miguel said they had brought them.
Communication amongst the Colombian and Puerto
Rican participants, the plane, and the F/V Marlyn was
essential. Pagan-San-Miguel and Fontalvo went to Miami and
purchased a radio and antenna. Pagan-San-Miguel and Perez-
Perez installed them on the F/V Marlyn in Puerto Rico. Code
names were used for radio transmissions. The Colombian
dispatcher was "Khadafi"; Pagan-San-Miguel was "Gigante" or
"Padrino" or "Godfather." Fontalvo and Pagan-San-Miguel
handled radio communications and set up a radio in the
backyard of Gonzalez-Valentin's house, hiding it in a child's
playhouse.
Soltero-Lopez, the F/V Marlyn's owner, flew to
Colombia to board the plane so that during the bombardeo he
could identify his boat and insure the drop was not made to
the wrong boat (a not uncommon event). The F/V Marlyn went
-6- 6
to the Dominican Republic to prepare for the airdrop. The
Colombian drug owners, assigned a Colombian, Pava-Buelba, as
a "load watcher" to observe the operation and report to the
Colombian suppliers about the fate of the delivery. Pava-
Buelba went to the Dominican Republic to meet Castillo-Ramos
and the mothership.
On March 25, 1991, the F/V Marlyn and its crew left
the Dominican Republic for its drug rendezvous. The
Colombian load watcher, Pava-Buelba, joined the F/V Marlyn at
sea after it had cleared Dominican Republic customs. The
next morning, March 26, 1991, the boat and the plane made
radio contact. The plane dropped eight bales of cocaine,
which were taken aboard the F/V Marlyn.
Waiting in Puerto Rico, Fontalvo, Pagan-San-Miguel,
Luciano-Mosquera and Gonzalez-Valentin received word that the
airdrop had been successful. A call came in to Pagan-San-
Miguel on a cellular phone in Luciano-Mosquera's car, warning
that the operation had been discovered and that the police
were watching. Pagan-San-Miguel reassured everyone, claiming
he had "informants in the authorities" who would give him
information and that he had a police scanner. Fontalvo went
back to his cabin, leaving the others to proceed.
The F/V Marlyn anchored in Dominican Republic
waters until approximately 5:30 p.m. and then began the trip
to Buoy #8, the designated meeting place for the F/V Marlyn
-7- 7
and the two smaller boats ("yawls"). Around 12:30 a.m. or
1:30 a.m. on March 27, the F/V Marlyn and the yawls, all
operating without running lights in the darkness, met several
miles off the western coast of Puerto Rico at Buoy #8. The
cocaine was roped down into the yawls. Pava-Buelba, Lugo-
Maya, Perez-Perez and Gonzalez-Valentin sailed the yawls to
Guanajibo Beach, near Mayaguez, Puerto Rico.
The landing site on Guanajibo Beach that night was
immediately behind the home of Pagan-San-Miguel's father.
Two men, one fitting the description of Pagan-San-Miguel, the
other of Luciano-Mosquera, approached the landing yawls from
the beach and helped to offload the bales of cocaine.
Law enforcement officials had indeed been silently
monitoring the operation. The airdrop had been observed by
U.S. Customs Service airplanes, which videotaped the
mothership. Coast Guard vessels had tracked the F/V Marlyn
and the yawls. Camouflaged agents, hidden on the beach, had
watched the offloading. Flares went up; arrest signals were
given. The conspirators scattered, leaving bales in a line
from the yawls to the home of Pagan-San-Miguel's father,
along the roughly five-meter wide beach.
Pagan-San-Miguel sprinted and sought refuge under
an abandoned Volkswagen at a house next to the beach. When
found, he was wet and had his jeans rolled up to his knees.
Gonzalez-Valentin, dressed in camouflage pants and black T-
-8- 8
shirt, completely wet and covered with sand, ran to the gate
of Pagan-San-Miguel's father's house. He called out to
Pagan-San-Miguel's father to open up, as the police were
there. He was arrested at the gate.
Luciano-Mosquera and Pava-Buelba were found, about
forty minutes after the flares went up, under a jeep parked
in a carport by the building where bales of cocaine were
left. Pava-Buelba was under the driver's side, Luciano-
Mosquera under the passenger's. Pava-Buelba was wet,
Luciano-Mosquera was dry.
Lugo-Maya headed to sea in one of the yawls and was
intercepted by Coast Guard vessels.1 Perez-Perez was
arrested near the beach. A later search of Lugo-Maya's
escape yawl found a well-hidden box of 50 rounds of
ammunition. That ammunition fit the Intratec pistol, which
was found in the beached other yawl.
The M-16 was later found hidden in the
undercarriage of the jeep where Luciano-Mosquera and Pava-
Buelba had hidden in vain. The M-16 was on Luciano-
Mosquera's side "at the place where the chass[is] and the [ ]
springs of the front of the jeep are located." Two small
beepers were found above the chassis on the same side where
____________________
1. The F/V Marlyn was not forgotten. The U.S.S. Shark, a
Coast Guard vessel, intercepted it, and a boarding party led
by Lt. Wendy Abrisz arrested Castillo-Ramos and the two crew
members. Fontalvo was later arrested in Miami.
-9- 9
the M-16 was found. Two M-16 magazines with twenty bullets
in each of them were found on the side of the Pagan-San-
Miguel house. The machine gun and the pistol were the same
ones Pagan-San-Miguel and Perez-Perez had shown to Fontalvo
earlier.
No weapons were seen during the observation of the
offloading operation and no weapons were found on any of the
defendants. There had been no weapons on the F/V Marlyn.
Neither Luciano-Mosquera nor Pava-Buelba had arrived at the
beach by the jeep. There was no evidence as to who owned the
jeep or how the jeep got there.
After being given his Miranda warnings, Pagan-San- _______
Miguel later bemoaned his arrest to a police officer, saying
he would have been given $300,000 for his role in the deal.
Instead, he was given a sentence of 60 years in prison by the
court. Fontalvo and Castillo-Ramos were key government
witnesses at trial.
The five appellants, Luciano-Mosquera, Lugo-Maya,
Pava-Buelba, Pagan-San-Miguel and Gonzalez-Valentin, were
found guilty of conspiracy to import cocaine, in violation of
21 U.S.C. 960 and 963 (Count 1); importing 232.8 kilograms
of cocaine, in violation of 21 U.S.C. 952 and 18 U.S.C. 2
(aiding and abetting) (Count 2); possessing the cocaine with
intent to distribute, in violation of 21 U.S.C. 841(a)(1)
and 18 U.S.C. 2 (Count 3); and of knowingly carrying or
-10- 10
aiding and abetting the carrying of firearms in relation to
the drug trafficking crime of importing the cocaine, in
violation of 18 U.S.C. 924(c)(1) and 18 U.S.C. 2 (Counts
4 and 5).
The district court sentenced the appellants on
Counts 1, 2, and 3 to terms of imprisonment ranging from 188
to 360 months and to terms of supervised release of five
years. It also sentenced the appellants on Count 4, the
firearms count as to the M-16, to the mandatory minimum of
360 months imprisonment, to be served consecutively to the
terms of imprisonment imposed on Counts 1, 2 and 3. The
court dismissed Count 5, the Intratec pistol count, out of
-11- 11
double jeopardy concerns.2 It also ordered a special
____________________
2. At oral argument a question arose as to whether the
district court had in fact dismissed Count 5 or had simply
not sentenced on that count. We asked the government to
inform us as to the disposition of the convictions for Count
5. In its response, the government represented that Count 5
had not been dismissed and that the district court had simply
not sentenced on that count. Our own review of the docket
sheet, however, reveals plainly an order dismissing Count 5,
which the government acknowledged when the court called the
order to counsels' attention. We take a dim view of the
government's conduct in this matter, even if it is viewed as
nothing more than negligence.
The government now claims that, in any event, the
order dismissing Count 5 is a nullity because the order was
entered on the docket a few days after each appellant had
filed his notice of appeal. Pointing out that as a general
rule the entry of a notice of appeal divests the district
court of jurisdiction to adjudicate any matters related to
the appeal, see United States v. Distasio, 820 F.2d 20, 23 ___ _________________________
(1st Cir. 1987), the government argues that the entry of the
notices of appeal divested the district court of jurisdiction
over the case and that, absent jurisdiction, the order on
Count 5 can have no effect.
But the government forgets that a criminal judgment
involving multiple counts is not final and appealable unless
the record discloses the precise disposition (e.g., the
sentence) for each count. See United States v. Wilson, 440 ___ _______________________
F.2d 1103 (5th Cir.) (no final judgment where the court
imposed sentence on three counts of a six count indictment
and withheld sentence on three counts)(cited with approval in
15B Charles A. Wright, et al., Federal Practice and ______ ____________________
Procedure, 3918.7 & n.10 (2d ed. 1992)), cert. denied, 404 _________ ____________
U.S. 882 (1971). The district court here had not specified
the disposition of Count 5 by the time the notices of appeal
were docketed. Absent a disposition on Count 5, there was no
final judgment from which the defendants could appeal.
Because there was no appealable order at the time the notices
were filed, the notices of appeal could not have divested the
district court of its jurisdiction over the case.
Accordingly, the district court had jurisdiction and its
order dismissing Count 5 was not a nullity.
That the notices were premature does not affect
this court's jurisdiction of these appeals. The notices
simply relate forward to the entry of judgment. See Fed. R. ___
App. P. 4(b); cf. Yockey v. Horn, 880 F.2d 945, 948 n.4 (7th ___ ______________
Cir. 1989) (where district court inadvertently failed to
dismiss one count of a multi-count complaint, notice of
-12- 12
assessment of $50 for each of Counts 1-4.
II. CONVICTION ISSUES
A. Sufficiency of the Evidence ___________________________
1. Count 4, the M-16 Firearm Count. _______________________________
Appellants' principal focus is on the denial of
their Rule 29 motions at trial for acquittal on Count 4, the
M-16 firearm count. Each appellant claims that there was
insufficient evidence to support his conviction under Count 4
for carrying, or aiding and abetting the carrying of, the M-
16 during and in relation to the drug trafficking offense, in
violation of 18 U.S.C. 924(c)(1) and 18 U.S.C. 2(a).
Section 924(c)(1) provides, in pertinent part:
Whoever, during and in relation to any . . . drug
trafficking crime . . . uses or carries a firearm,
shall, in addition to the punishment provided for
such . . . drug trafficking crime, be sentenced to
imprisonment for five years, . . . and if the
firearm is a machine gun . . . to imprisonment for
thirty years. . . . .
18 U.S.C. 924(c)(1). Section 2(a) provides: "Whoever
commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is
punishable as a principal." 18 U.S.C. 2(a).
____________________
appeal that was technically premature related forward after
district court entered an order officially dismissing the
remaining count). The notices of appeal are treated as if
they were filed on the date the order dismissing Count 5 was
entered on the docket.
Count 5 is no longer at issue in this case. The
government did not cross-appeal from the dismissal, nor has
it requested reversal of the dismissal of Count 5.
-13- 13
The standard of review for sufficiency of the
evidence is familiar. "Our task is to review the record to
determine whether the evidence and reasonable inferences
therefrom, taken as a whole and in the light most favorable
to the prosecution, would allow a rational jury to determine
beyond a reasonable doubt that the defendants were guilty as
charged." United States v. Mena-Robles, 4 F.3d 1026, 1031 _____________________________
(1st Cir. 1993), cert. denied sub nom. Rivera v. United ____________ _________ __________________
States, 114 S. Ct. 1550 (1994). ______
The facts of this case do not require us to define
the precise contours of the meaning Congress intended the
phrase "carries" to have, and we note the variety of views on
both that issue and the meaning of its companion term "use"
in 18 U.S.C. 924(c)(1). See generally United States v. ___ _________ _________________
Joseph, 892 F.2d 118, 126 (D.C. Cir. 1989) (to prove ______
carrying, the government must show that the defendant had the
ability to exercise dominion and control over the firearm and
that the firearm was within easy reach to protect the
defendant during the drug trafficking offense); United States _____________
v. Evans, 888 F.2d 891, 895 (D.C. Cir. 1989) (carrying _________
comprehends more than actually physically wearing or bearing
a gun on one's person), cert. denied sub nom. Curren v. _____________ _________ _________
United States, 494 U.S. 1019 (1990); see also United States _____________ _________ _____________
v. Bailey, 36 F.3d 106, 125 (D.C. Cir. 1994) (Williams, J., _________
dissenting) (stating that carrying included situations (1)
-14- 14
where a weapon was within easy reach of the defendant, (2)
where a defendant had sufficient control over confederates
carrying weapons to establish constructive possession, or (3)
where a defendant had transported a weapon by motor vehicle
and had ready access to the weapon as if it were in his
pocket), cert. granted, 115 S. Ct. 1689 (1995); Bailey, 36 ______________ ______
F.3d 106 at 114-15 & n.1 (stating that what constitutes "use"
depends upon the nature of the underlying substantive
offense); United States v. Paulino, 13 F.3d 20, 26 (1st Cir. ________________________
1994) (focussing on whether the firearm was available for use
in connection with the narcotics trade). Suffice it to say
that actual physical carrying of the gun comes within the
scope of the statute. See Joseph, 892 F.2d at 126. ___ ______
The conclusion is reasonable that at least one
Puerto Rico based participant in the drug conspiracy
physically carried the M-16 to the beach. The M-16 had been
at Gonzalez-Valentin's house a few days before the beach
landing. It was then found in the undercarriage of the jeep
in a carport near the beach, next to a building entryway
where bales of cocaine had been brought. Someone brought it
from Gonzalez-Valentin's house to the jeep. The fact that
the jeep was not otherwise connected to the defendants
suggests that sometime before the arrest, the gun was
somewhere on the beach and was then brought from the beach
and placed under the jeep to avoid detection. That the
-15- 15
bullets for the machine gun were found behind Pagan-San-
Miguel's house near the bales of cocaine further supports the
inference that the gun was either carried onto the beach
during the offloading or was nearby as part of the operation.
Still, the gun was not found in the hands of anyone at the
beach and there is no direct evidence as to who carried the
gun. None of the agents watching the offloading saw anyone
with a weapon of any kind.
Our initial focus then is on the sufficiency of the
evidence on the aiding and abetting charge. Aiding and
abetting requires that "the defendant [have] associated
himself with the venture, participated in it as in something
he wished to bring about, and sought by his actions to make
it succeed." United States v. Alvarez, 987 F.2d 77, 83 (1st _________________________
Cir.), cert. denied, 114 S. Ct. 147 (1993). Mere association ____________
with the principal, or mere presence at the scene of a crime,
even when combined with knowledge that a crime will be
committed, is not sufficient to establish aiding and abetting
liability. Id.; see also United States v. De la Cruz- ___ _________ ________________________________
Paulino, No. 94-1985 (1st Cir. Aug. 3, 1995). The defendant _______
must have taken some affirmative action that facilitated
violation of 924(c)(1).3 Of course, knowledge that a gun
____________________
3. A Pinkerton instruction was never given to the jury, nor _________
did the government argue at trial or on appeal that Pinkerton _________
liability should apply. See Pinkerton v. United States, 328 ___ __________________________
U.S. 640, 646-47 (1946). We therefore could not support the
convictions on a Pinkerton theory. See United States v. _________ ___ ________________
-16- 16
would be carried is also required. See United States v. ___ _________________
Torres-Maldonado, 14 F.3d 95, 103 (1st Cir.), cert. denied, ________________ ____________
115 S. Ct. 193 (1994); see also United States v. DeMasi, 40 _________ _______________________
F.3d 1306, 1316 (1st Cir. 1994) (knowledge that co-
conspirators would be using a gun may be inferred from
defendant's activity in planning and attempting to rob a
Brink's armored truck guarded by two armed guards), cert. _____
denied sub nom. Bonasia v. United States, 115 S. Ct. 947 ______ ________ _________________________
(1995).
The question here, then, is whether the evidence
was sufficient to show that each appellant knew that a
firearm would be involved in the drug trafficking offense and
took some action in relation to the M-16 that was intended to
cause the firearm to be carried during and in relation to the
drug trafficking offense. We believe that the evidence was
sufficient to convict Pagan-San-Miguel, Luciano-Mosquera and
Gonzalez-Valentin under this standard, but was not sufficient
to convict Pava-Buelba and Lugo-Maya as to the M-16.
As to Pagan-San-Miguel, there was sufficient
evidence that he knowingly assisted the carrying of the
weapon. He was the ringleader of the importation operation
in Puerto Rico. He was a key participant in the meeting at
____________________
Torres-Maldonado, 14 F.3d 95, 101 (1st Cir.) ("On appeal, we ________________
will not infer either that the jury found guilt based on a
theory upon which it was not instructed, or that the jury
would have found guilt had it been given a Pinkerton _________
instruction."), cert. denied, 115 S. Ct. 193 (1994). ____________
-17- 17
Gonzalez-Valentin's house during which he and Perez-Perez
showed Fontalvo the M-16. He showed Fontalvo the weapon at
the meeting and said they had brought it. The jury could
certainly infer that he, or Perez-Perez at his direction or
with his assistance, procured the M-16 for purposes of using
it to protect the operation.
The evidence is also sufficient to show that
Gonzalez-Valentin knowingly assisted the carrying of the
weapon. Gonzalez-Valentin is chargeable with knowledge of
the M-16, since the M-16 was displayed in his presence during
one of the meetings at his house and the jury could infer
that he was present. Moreover, by providing his house for
the meeting at which the guns were displayed and discussed,
Gonzalez-Valentin assisted the substantive 924(c)(1)
offense.
As for Luciano-Mosquera, when viewed in the light
most favorable to the government, the evidence was sufficient
for the jury to infer that he either carried or aided in
carrying the weapon to or from the beach and hid the M-16
under the jeep at the time he hid or had placed it there
sometime before the arrests. The weapon was directly above
him in the undercarriage, no more than an arm's span away.
It was also placed up in the undercarriage between the
chassis and the springs, so clearly someone took some effort
to place the weapon there. He was at the beach with Pagan-
-18- 18
San-Miguel to meet the yawls; he arrived at the beach with
Pagan-San-Miguel, who supplied the weapon; magazines from the
M-16 were nearby; beepers were found near the gun (suggesting
a connection between the gun and the drug offense); and the
call tipping the conspirators off that the police were
watching came into a car phone in his car. This evidence
supports the reasonable inference that his proximity to the
weapon was more than a mere fortuity. A jury could conclude
from these circumstances that Luciano-Mosquera either placed
the weapon in the jeep before the arrest signals were given
or that he carried the weapon from the beach and hid it
underneath the jeep as he was hiding from the police. From
these circumstances, a jury could reasonably conclude that
Luciano-Mosquera had carried the weapon sometime during and
in relation to the offense or at least that he aided in the
carrying of the weapon during and in relation to the drug
offense. See United States v. Olbres, No. 94-2123, slip op. ___ _______________________
at 17 (1st Cir. July 26, 1995) (evidence must be taken as a
whole, in cumulation).
All of the appellants have argued that, regardless
of whether the evidence was sufficient to show aiding and
abetting "carrying," it was insufficient to show that any
carrying was done "during and in relation to" the drug
importation offense. They argue that, because their
importation efforts ended the moment the flares went up, the
-19- 19
subsequently found M-16 machine gun could not have "related
to" the drug trafficking. That argument is inventive, but
wrong. The jury could easily infer from the discovery of the
weapon in close proximity to the offloading operation after
the arrest signals were given that it had been carried at a
time when the offense was in progress, particularly in light
of the evidence that it was brought by the conspirators to a
planning meeting and shown off, ammunition for it was found
nearby, and it was found close to the bales of cocaine.
Further, the legislative history of the 1984 amendment to
924(c) is explicit that where the defendant had a gun during
the underlying offense (even if the gun had not been
displayed), the section is violated "if from the
circumstances or otherwise it could be found that the
defendant intended to use the gun if a contingency arose or
to make his escape." S. Rep. No. 225, 98th Cong., 2d Sess.
1, 314 n.10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492 ____________
n.10; see also United States v. Feliz-Cordero, 859 F.2d 250, ___ ____ ______________________________
254 (2d Cir. 1988).
In sum, the evidence was sufficient to convict
Pagan-San-Miguel, Gonzalez-Valentin and Luciano-Mosquera of
carrying the M-16 on an aiding and abetting theory. Their
convictions on Count 4 are, therefore, affirmed.
The evidence as to Lugo-Maya and Pava-Buelba,
however, was insufficient to sustain a conviction on Count 4.
-20- 20
The only evidence the government presented linking Lugo-Maya
to the M-16 was the evidence that 50 rounds of .9mm
ammunition for the Intratec pistol were found in the yawls.
Evidence of his involvement with the Intratec pistol might
have been enough to show knowledge of the M-16 on the
inference that the two firearms were together when the Puerto
Rico-based participants met to launch the yawls to the F/V
Marlyn, and that knowledge of one supports the inference of
knowledge of the other. There was no evidence, however,
showing that he took any step to assist the carrying of the
M-16 in relation to the drug offense. Lugo-Maya was not at
the meeting where the M-16 was shown. The government
presented no evidence that Lugo-Maya took any steps to
procure or otherwise supply the weapons or ammunition. He
was also nowhere near the weapon at the time of his arrest.
There was simply insufficient evidence to show beyond a
reasonable doubt that he either carried or aided and abetted
the carrying of the M-16.
The government's only evidence connecting Pava-
Buelba to the M-16 was the fact that he was found under the
jeep in which the M-16 had been hidden. Unlike Luciano-
Mosquera, however, Pava-Buelba was on the opposite side of
the jeep from where the M-16 was found. Given the darkness
and the fact that the gun was stuck up between the chassis
and the springs it is not reasonable to infer that Pava-
-21- 21
Buelba saw the weapon when he was under the jeep. And also
unlike Luciano-Mosquera, there was no evidence linking him to
the activities in Puerto Rico, specifically the activities on
the beach on the evening of the arrest from which it would be
reasonable to infer the requisite knowledge of the weapon
before he hid under the jeep. Indeed, Fontalvo's testimony
never associated Pava-Buelba with any weapons. Pava-Buelba
was simply a load watcher whose job it was to observe and
report back to the Colombian supplier about whether the
cocaine was successfully delivered. His interests were not
the same as the interests of the Puerto Rico-based importers.
The first time he set foot in Puerto Rico in connection with
this case was when he arrived at the offloading site in one
of the yawls. There was no evidence linking him to the
Puerto Rico end of the operation where he would have been in
a position to know about the specific weapon. Therefore, the
inference that he knew about the weapon is much weaker than
the inference with respect to Luciano-Mosquera. Moreover,
even if there were evidence sufficient to infer that he saw
the hidden weapon in the darkness once he crawled under the
jeep, given his disconnection with the Puerto Rico side of
the operation, such knowledge would have been a mere
fortuity. Unlike Luciano-Mosquera, who was found directly
beneath the weapon and had substantial dealings with Pagan-
San-Miguel during the hours before the arrest, there is
-22- 22
insufficient evidence to conclude beyond a reasonable doubt
that Pava-Buelba hid under the jeep to be next to the M-16
with the idea that he would carry it. In short, the
government did not present evidence that Pava-Buelba knew
about the weapon sufficient to support a 924(c) conviction,
even on an aiding and abetting theory.
Furthermore, there was no evidence that Pava-Buelba
ever had actual possession of the weapon. With Luciano-
Mosquera lying underneath the gun, it is far from clear that
Pava-Buelba was in a position to exercise dominion and
control over the weapon. Even if his proximity to the M-16
under the jeep gave him sufficient possession, at most, a
theory of constructive possession might have been argued. In
this case, however, the district court specifically
instructed the jury that a conviction for "carrying" a
firearm could not be based on constructive possession of the
firearm. Such an instruction sets the benchmark against
which the sufficiency of the evidence must be measured.
United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992); _______________________
United States v. Angiulo, 897 F.2d 1169, 1196-97 (1st ___________________________
Cir.)(appellate determination of sufficiency must be
constrained by trial court's instructions; "otherwise . . .
we would be sustaining a conviction on appeal on a theory
upon which the jury was not instructed below"), cert. denied, ____________
498 U.S. 845 (1990). While the correctness of that
-23- 23
instruction might otherwise be open to question, the
government did not object to the instruction at trial nor
does it argue on appeal that the instruction was error.
See Saylor v. Cornelius, 845 F.2d 1401, 1408 (6th Cir. 1988) ___ ___________________
(although reversal due to a trial error normally does not
raise double jeopardy concerns, double jeopardy bar would be
triggered where government had failed to object to the
error).
Issues of the sufficiency of the evidence
necessarily involve the tension between deference to the
jury's role under the Seventh Amendment as the finder of
fact, see Olbres, No. 94-2123, slip op. at 18, and the ___ ______
appellate court's role in providing meaningful review of
whether the government has indeed met its burden of proof of
guilt beyond a reasonable doubt. That burden is
constitutionally mandated. In re Winship, 397 U.S. 358 __ __ _______
(1970). The Supreme Court has said that the relevant
question is whether "after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 ____________________
(1979) (emphasis removed). The difficulty of these
questions of sufficiency of the evidence to draw reasonable
inferences is illustrated in the case law. See, e.g., ___ ____
Stewart v. Coalter, 48 F.3d 610 (1st Cir.) (each of four ___________________
-24- 24
courts reviewing a conviction reach different conclusions as
to sufficiency, culminating in a split decision by a panel of
this court upholding the conviction), petition for cert. ____________________
filed, No. 94-9742 (U.S. June 19, 1995). _____
In sum, we believe there was insufficient evidence,
in light of the government's burden of proof, to convict
either Lugo-Maya or Pava-Buelba of carrying or aiding and
abetting the carrying of the M-16 and so reverse their
convictions on Count 4. There is no direct evidence as to
either and an insufficient basis to draw inferences of guilt
beyond a reasonable doubt.
2. Drug Counts. ___________
Gonzalez-Valentin and Luciano-Mosquera also raise
sufficiency challenges on the drug counts. As the facts
above amply demonstrate, there was overwhelming evidence of
each appellant's complicity in the scheme to import the
cocaine and of their guilt on the drug counts. Their
convictions on the drug counts are affirmed.
B. Other Issues Going To The Verdict _________________________________
The appellants4 -- principally Pagan-San-Miguel --
have raised six other claims of error concerning the district
court's conduct of the trial: (1) the limitation of Pagan-
____________________
4. Appellants Gonzalez-Valentin and Pava-Buelba have
incorporated all arguments made by the other appellants not
inconsistent with those otherwise made in their briefs. Our
review of the issues applies therefore to their appeals as
well.
-25- 25
San-Miguel's cross-examination of two government witnesses,
(2) the admission of an incriminating statement made by
Pagan-San-Miguel, (3) the refusal to grant a mistrial after
allegedly improper remarks were made during closing
statements, (4) the jury instruction on 924(c)(1), (5) the
jury instruction on the defendants' flight from the crime
scene, and (6) the allowance of a read-back of testimony by a
government witness to the jury during its deliberation. None
of these claims of error provides a ground for reversal.
-26- 26
1. Cross-Examination. _________________
Pagan-San-Miguel complains that the district court
erred in cutting off his cross-examination into the penalties
Castillo-Ramos would have faced on firearms counts which were
dropped against him. Pagan-San-Miguel attempted to establish
bias by showing that the government had been able to procure
Castillo-Ramos' cooperation by deciding not to charge
Castillo-Ramos under the firearms counts in the second
superseding indictment. After questioning on this topic,
Pagan-San-Miguel asked Castillo-Ramos whether his attorney
had informed him that if he had been "found guilty of the
possession of the firearm during the commission of a drug
offense [he would be] sentenced to thirty-five years in
addition to the drug offense." The district court sustained
an objection to this question on the ground that, because
defendants faced the same firearms charges, it was an
impermissible attempt to inform the jury about the
defendants' possible punishment on the firearms counts.
Pagan-San-Miguel claims that this truncating of his
cross-examination impermissibly interfered with his right to
confrontation under the Sixth Amendment. We disagree.
Pagan-San-Miguel had a sufficient opportunity to expose
potential biases, including any bias resulting from any
benefit Castillo-Ramos received as a result of his
cooperation. Pagan-San-Miguel was able to ask Castillo-Ramos
-27- 27
repeatedly whether he had received a benefit for his
testimony. Any probative value of information about the
precise number of years Castillo-Ramos would have faced had
he been charged for the firearms offense was slight. The
district court properly decided that the value of the
information was outweighed by the potential for prejudice by
having the jury learn what penalties the defendants were
facing.
Although cross-examination is an important
component of a defendant's Sixth Amendment rights under the
confrontation clause, a defendant's right to cross-examine
witnesses is not unlimited. Delaware v. Van Arsdall, 475 _________________________
U.S. 673, 679 (1986). A district court is entitled to cut
off cross-examination that may create prejudice or confusion
of the issues, or may be harassing or unduly repetitive. Id. ___
Assuming that the minimal constitutional threshold level of
inquiry was allowed, as here, a trial court has discretion in
limiting cross-examination. A trial court does not abuse its
discretion if there is sufficient evidence before the jury
(absent the excluded evidence) from which the jury could
"make a discriminating appraisal of the possible biases and
motivations of the witnesses." Brown v. Powell, 975 F.2d 1, _______________
5 (1st Cir. 1992), cert. dismissed, 113 S. Ct. 1035 (1993). _______________
That was the case here.
-28- 28
2. Pagan-San-Miguel's Incriminating Statement. __________________________________________
Pagan-San-Miguel argues that the district court
erred by not conducting a hearing out of the jury's presence,
pursuant to Jackson v. Denno, 378 U.S. 368 (1964), and 18 _________________
U.S.C. 3501(a),5 to determine the voluntariness of his
incriminating statements. Police Officer Samuel Jusino
testified that Pagan-San-Miguel, while being held following
his arrest, told Jusino that he "would make three hundred
thousand dollars out of [the drug venture]" and, once the
arrest signals were given, "that he ran and hid himself
underneath a metal plank, and if he had found a hole he would
have gone through that place."
Before the issue of a Jackson v. Denno hearing may ________________
be raised on appeal, the issue of voluntariness must have
been placed before the district court in a timely and
coherent manner. See United States v. Santiago Soto, 871 ___ _______________________________
F.2d 200, 201 (1st Cir.) (failure to raise the issue of
voluntariness in a way that would have alerted the trial
judge that a Jackson v. Denno hearing was desirable waives ________________
right to hearing), cert. denied, 493 U.S. 831 (1989); see _____________ ___
also United States v. Berry, 977 F.2d 915, 918 (5th Cir. ____ _______________________
1992) (a generic objection to the admissibility of the
____________________
5. Section 3501(a) provides, in pertinent part, that
"[b]efore such confession is received in evidence, the trial
judge shall, out of the presence of the jury, determine any
issue as to voluntariness." 18 U.S.C. 3501(a).
-29- 29
confession was insufficient to put the court on notice that
defendant sought a Jackson v. Denno hearing and therefore the ________________
court's ruling was reviewed for plain error). Pagan-San-
Miguel failed to place the issue properly before the trial
court here.
Pagan-San-Miguel did not specifically object to the
admissibility of the statements on voluntariness grounds. He
never specifically requested a voluntariness hearing during
trial. He never raised the voluntariness issue in his pre-
trial motion to suppress statements made to law enforcement
personnel. He never raised voluntariness in his objection to
the statement at trial. His objection was a narrow
foundational one not going to voluntariness -- that at the
time of Officer Jusino's testimony no one had yet testified
that Miranda warnings had been given to Pagan-San-Miguel _______
before he made the incriminating statements. The court
specifically asked Pagan-San-Miguel whether his objection as
to foundation was a suppression request and Pagan-San-Miguel
informed the court that it was not. Indeed during the
colloquy with the district court over the testimony, Pagan-
San-Miguel conceded that "there [was] evidence that [Miranda] _______
warnings were properly made and there was a waiver." Given
his disclaimer that he was seeking suppression of the
statement and the total absence of any evidence that the
statements were made involuntarily, Pagan-San-Miguel did not
-30- 30
sufficiently apprise the district court that voluntariness
was an issue. Thus, Pagan-San-Miguel's claim to a Jackson v. __________
Denno hearing has been waived. _____
There also is no colorable claim here that the
district court was nevertheless obliged to hold a
voluntariness hearing sua sponte. See Santiago Soto, 871 ___ ______ ___ ______________
F.2d at 202 (recognizing, without adopting, a rule that such
a hearing must be given sua sponte under circumstances, "such ___ ______
as a defendant's apparent abnormal mental or physical
condition, obvious ignorance or lack of awareness," raising a
serious question over voluntariness). At best, Pagan-San-
Miguel's argument is that he was so "shell-shocked" by the
events that transpired on the beach that the court must have
been alerted to the possibility that he did not understand
the Miranda warnings that were given to him and that, as a _______
result, his statements made hours later were involuntary.
Undoubtedly a defendant who suddenly becomes aware the police
are on to him suffers a jolt, but that jolt does not
incapacity make.
3. Remarks During Closing Arguments. ________________________________
Pagan-San-Miguel argues that certain remarks made
during the closing arguments were unduly prejudicial. He
points to four remarks, one made by the attorney for Pava-
Buelba and three made by the government. None provides a
basis for reversal.
-31- 31
Pava-Buelba's attorney, in an apparent effort to
distinguish his client and to distinguish the firearms
charges from the drug charges, made the following remarks to
the jury:
I ask you to please keep in mind that the fact
that there are a number of defendants here [does]
not mean that they were all to be treated as one.
And the fact that they were being charged with five
different counts does not mean that you had to find
them guilty or innocent or all the same, but that
you could choose and pick. And that you could
discern among the evidence and determine which, if
any, were guilty of any of the counts charged.
Some might be guilty of one or more. Some
might be guilty of none. And I ask you to please
be careful watching the evidence so that you will
be able to distinguish between each and every
individual and each and every count.
Pagan-San-Miguel objected to these remarks, arguing they
implied that Pava-Buelba was guilty of the drug offenses and
thus implicated the other defendants. The district court
sustained the objection. Pagan-San-Miguel's later motion for
a mistrial was denied, but the court offered to provide a
curative instruction, which all defendants declined. Pagan-
San-Miguel argues that a curative instruction would have been
pointless and that the district court abused its discretion
in refusing to grant a new trial.
Fatal to Pagan-San-Miguel's claim, however, is that
to "require a new trial, we must conclude . . . that, despite
the instruction, the misconduct was likely to have affected
the trial's outcome." United States v. Capone, 683 F.2d 582, _______________________
585-86 (1st Cir. 1982) (internal citations omitted). In the
-32- 32
context of the full record, these statements could not have
had any impact on the outcome of the trial. The evidence of
Pagan-San-Miguel's complicity on the drug counts was
overwhelming. Moreover, a curative instruction would have
solved any spillover problem created by the statements.
Pagan-San-Miguel also challenges the government's
statement that "Carlos Pagan-San-Miguel can't deny his
association with [Fontalvo], that terrible, terrible person
that was described to you." Pagan-San-Miguel argues this was
an impermissible comment from a prosecutor on an accused's
failure to testify. We think it was not. The government did
not say that Pagan-San-Miguel "didn't deny his association,"
only that he "can't deny his association." Even assuming
that this comment cut too close to the line, "there is no
reason to conclude that the prosecutor intentionally drew
attention to the appellant's silence at trial." United ______
States v. Taylor, 54 F.3d 967, 980 (1st Cir. 1995). And the _________________
evidence was otherwise so overwhelming that this comment
could have had no effect on the jury's judgment. Id. at 977. ___
Pagan-San-Miguel's next two challenges are to the
government's statements that the firearm found under the jeep
"would be used to protect the very cocaine that was being
illegally smuggled into Puerto Rico" and that "Carlos Pagan-
San-Miguel bragged about having bought the firearms." Pagan-
San-Miguel argues that the first was misleading in that it
-33- 33
suggested that the jury could convict the defendant for
planning on using the firearm once it had arrived in Puerto
Rico, an offense not charged in the indictment. Pagan-San-
Miguel's reading is strained, at best. The first statement
was consistent with the evidence and the government's theory.
There is no plausible argument that this statement was likely
to have affected the outcome of the trial or was so egregious
that a new trial is needed as a sanction. See Capone, 683 ___ ______
F.2d at 587. While the second statement appears to have
exaggerated the evidence, there was no objection and it does
not amount to plain error. See Taylor, 54 F.3d at 977. ___ ______
4. Jury Instruction on 18 U.S.C. 924(c)(1). _________________________________________
Pagan-San-Miguel argues that the court erroneously
instructed the jury on an essential element of the firearms
offense, 18 U.S.C. 924(c)(1). That section requires that
the defendant have carried the firearm "during and in
relation to . . . [a] drug trafficking crime." The
district court, however, instructed the jury that it was
enough if the defendant knowingly carried the firearm "during
the commission of the crime of drug trafficking." In so
doing, the district court appears to have relied on obsolete
statutory language. Before 1984, 924(c)(1) provided that
it was a crime to carry a firearm "during the commission of
any [federal] felony." In 1984, however, Congress amended
the language adding the phrase "during and in relation to,"
-34- 34
to make clear that the firearm must be linked to the
underlying felony to come within the scope of the statute.
S. Rep. No. 224, supra, at 312-13, reprinted in 1984 _____ _____________
U.S.C.C.A.N. at 3490-92.
Because Pagan-San-Miguel did not object to the
instruction, the instruction is reviewed for plain error.
See Fed. R. Crim. P. 52(b). Pagan-San-Miguel argues that the ___
court's use of the phrase "during the commission of" was
plain error, claiming it omitted an essential element of the
offense and it broadened the scope of the conduct under which
the jury could convict.
The actual charge given here undercuts Pagan-San-
Miguel's argument.6 The district court emphasized that the
carrying of the firearm must be linked to the specific
underlying drug offense for which the defendants were
convicted:
First, it must be proven that a[] defendant[]
committed a crime of drug trafficking for which he ____________________________
may be prosecuted in the United States. And
second, that during the commission of the crime of ____________
____________________
6. Faced with a similar challenge the Ninth Circuit has held
that the change in statutory language was not substantive and
that the requirement that the firearm be linked to the crime
was already implicit in the statute. "Though the legislative
history does not say so expressly, it strongly implies that
the 'in relation to' language did not alter the scope of the
statute, explaining that the original section was directed at
persons who chose to carry a firearm as an offensive weapon
for a specific criminal act." United States v. Stewart, 779 ________________________
F.2d 538, 539-40 (9th Cir. 1985) (internal quotation
omitted), cert. denied, 484 U.S. 867 (1987). ____________
-35- 35
drug trafficking the defendant[] knowingly carried ________________
a firearm.
In light of the actual instruction given, Pagan-San-Miguel's
attack on the instruction does not rise to the level of plain
error.
Pagan-San-Miguel also argues that the instruction
allowed the jury to convict for a crime not charged in the
indictment because the firearms charge was limited to Count 2
of the three drug counts. Pagan-San-Miguel has not and
cannot articulate how, in the context of this case, such a
possibility created a "miscarriage of justice" or "seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings". See United States v. Olano, 113 S. ___ _______________________
Ct. 1770, 1779 (1993).
5. Jury Instruction on Flight. __________________________
Pagan-San-Miguel also argues that the district
court erroneously instructed the jury about his flight and
concealment. This argument is meritless. As long as there
is an adequate factual predicate supporting an inference of
guilt on the crime charged, as there was here, evidence of
the accused's flight may be admitted at trial to show
consciousness of guilt. See United States v. Hernandez- ___ _____________________________
Bermudez, 857 F.2d 50, 52 (1st Cir. 1988). ________
6. Read-Back To The Jury. _____________________
Pagan-San-Miguel and Luciano-Mosquera assert that
the district court committed error when it failed to take
-36- 36
certain precautions in allowing the testimony of Castillo-
Ramos, the boat captain, to be read back to the jury at the
jury's request, during deliberations. Counsel did not object
to the procedures followed; in fact, what happened was by
agreement among counsel.7 To prevail, defendants must show
plain error.
It certainly would have been preferable for the
district court to have taken some precautions. See, e.g., ___ ____
United States v. Hernandez, 27 F.3d 1403, 1408-09 (9th Cir. __________________________
1994) (reversing a conviction where district court failed to
take precautions to prevent undue emphasis on the witness
testimony that jury reviewed during deliberation), cert. _____
denied, 115 S. Ct. 1147 (1995). But counsel did not object ______
and the standard set by Olano is not met. In light of the _____
overwhelming evidence of guilt on the drug counts to which
Castillo-Ramos' testimony went, the read-back did not result
in a miscarriage of justice, nor did the absence of such
precautions seriously affect the fairness, integrity or
____________________
7. The court reporter entered the jury room unsupervised and
read the testimony. The court gave the jury no cautionary
instructions (i.e., that the testimony was not to substitute
for the jurors' memories, or that the jury should not focus
on one particular aspect of the evidence to the exclusion of
other evidence). There was no observation of the court
reporter's reading of the testimony to ensure that no
editorializing or slanting was done during the reading. No
instructions were given to the court reporter to be careful
not to converse with the jurors or otherwise taint their
deliberations and to be careful not to read to the jury
potentially prejudicial side-bar conferences she had recorded
during the course of Castillo-Ramos' testimony.
-37- 37
public reputation of judicial proceedings. There is no
evidence that anything untoward happened in the jury room and
no reason to think the reporter did anything other than
properly read the pertinent portions of the record.
Pagan-San-Miguel and Luciano-Mosquera also argue
they were never consulted by either of their attorneys or the
court about whether they would waive their right to be
present during the read-back. Although the defendant's right
to be present at every stage of the proceedings may be waived
by the defendant, it is less clear whether the defendant's
attorney can waive it. See Taylor v. Illinois, 484 U.S. 400, ___ __________________
418 & n.24 (1988). Nevertheless, Pagan-San-Miguel and
Luciano-Mosquera were present at the time Castillo-Ramos
actually gave his testimony and so could "confront" their
accuser. There was no plain error.
III. SENTENCING ISSUES
A. Pagan-San-Miguel ________________
Pagan-San-Miguel challenges his sentence on two
grounds, neither of which has merit. He asserts he should
not have been given a four level increase as a leader or
organizer of the activity under 3B1.1(a) of the Sentencing
Guidelines. See United States Sentencing Commission, ___
Guidelines Manual, 3B1.1(a) (Nov. 1991). He also argues he _________________
should have been given a downward adjustment of two levels
for acceptance of responsibility under U.S.S.G. 3E1.1(a).
-38- 38
Absent a mistake of law, the district court's determination
of a defendant's role may be set aside only for clear error.
United States v. Tejada-Beltran, 50 F.3d 105, 111 (1st Cir. ________________________________
1995). There was no error.
The facts outlined earlier establish Pagan-San-
Miguel's leadership and organizational role. Fontalvo
testified that Pagan-San-Miguel was "the land person in
charge of all the merchandise." Indeed, his code names in
the operation were "Gigante," "Padrino," and "Godfather."
Pagan-San-Miguel's argument that the court made no specific
finding that at least four others were under his leadership
and control does not help him. It was obvious that nine
others, at the least, were involved in addition to Pagan-San-
Miguel. And "retention of control over other participants .
. . is not an essential attribute of organizer status."
Tejada-Beltran, 50 F.3d at 113. ______________
As to acceptance of responsibility, "the
determination of the sentencing judge is entitled to great
deference on review." U.S.S.G. 3E1.1, comment. (n.5). The
fact that Pagan-San-Miguel in pre-trial plea bargaining
unsuccessfully offered to plead guilty to the drug counts if
certain conditions were met does not provide a sufficient
basis to reverse the district court's decision. "This
adjustment is not intended to apply to a defendant who puts
the government to its burden of proof at trial by denying the
-39- 39
essential factual elements of guilt, is convicted, and only
then admits guilt and expresses remorse." U.S.S.G. 3E1.1,
comment. (n.2). His argument is not enough to reverse the
district court's determination that he failed to
"demonstrate[] a recognition and affirmative acceptance of
personal responsibility for his criminal conduct." U.S.S.G.
3E1.1(a); see also United States v. Curran, 967 F.2d 5, 7 ________ ________________________
(1st Cir. 1992).
B. Gonzalez-Valentin _________________
Gonzalez-Valentin argues he was a minor participant
and thus entitled to a two level reduction under U.S.S.G.
3B1.2(b). The trial judge's determination was not clearly
erroneous. See United States v. Lopez-Gil, 965 F.2d 1124, ___ ___________________________
1131 (1st Cir.), cert. denied, 113 S. Ct. 484 (1992). ____________
Gonzalez-Valentin was at the beach to assist in the
offloading; his house was used regularly to plan the drug
smuggling; weapons were shown and discussed at his house; a
communications radio was hidden and used in his backyard.
There was ample evidence he was more culpable than the
average participant. See U.S.S.G. 3B1.2, comment. ___
(backg'd.).
C. Lugo-Maya _________
In addition to the mandatory sentence of 30 years
on Count 4, Lugo-Maya was sentenced under the Guidelines on
the drug counts, Counts 1-3. Lugo-Maya challenges on appeal
-40- 40
the district court's calculation of his guidelines sentence
on the drug counts. He argues the court erred in not giving
him two-level reductions each for being a minor participant,
pursuant to U.S.S.G. 3B1.2(b), and for acceptance of
responsibility, pursuant to U.S.S.G. 3E1.1(a). As the
district court properly found, Lugo-Maya was not a minor
participant -- he supplied the yawls, sailed one out to the
mothership, helped to unload the drugs from the boat, sailed
the drugs to shore and helped unload them to the land. As to
acceptance of responsibility, Lugo-Maya's claim is factbound,
and the district court's resolution of it is not clearly
erroneous. See United States v. Royer, 895 F.2d 28, 29 (1st ___ ______________________
Cir. 1990). His sentence on the drug counts is affirmed.
IV. SECTION 2255 MOTION ISSUES
While these consolidated appeals were pending,
Pagan-San-Miguel filed in the district court a motion under
28 U.S.C. 2255 to vacate and set aside his conviction on
the ground that the court reporter's delay in providing him
with a transcript denied him his right to a timely appeal
and, therefore, deprived him of due process of law.8 The
____________________
8. Pagan-San-Miguel filed his notice of appeal on August 3,
1992. Around that time, the court reporter agreed to furnish
the necessary transcripts to Pagan-San-Miguel. The court
reporter, however, did not provide any transcripts to Pagan-
San-Miguel until mid-1994. Largely due to the court
reporter's failure to prepare the transcripts, this court
extended the period for briefing the case sixteen times. On
at least three occasions this court entered Orders to Show
Cause threatening the court reporter with contempt if she did
-41- 41
district court denied the motion.9 On appeal, Pagan-San-
Miguel argues that this was error.
Although extreme delay in the processing of an
appeal may amount to a due process violation, and delays
caused by court reporters are attributable to the government
for purposes of determining whether a defendant has been
deprived of due process, see, e.g., United States v. Wilson, ___ ____ _______________________
16 F.3d 1027, 1030 (9th Cir. 1994), mere delay, in and of
itself will not give rise to a due process infraction. The
defendant must show prejudice. See United States v. Tucker, ___ _______________________
8 F.3d 673, 676-77 (9th Cir. 1993) (en banc), cert. denied, ____________
114 S. Ct. 1230 (1994). Whether an appellate delay results
in prejudice sufficient to warrant reversing a conviction
rests, most importantly, on a showing that it has impaired
the appeal or the defense in the event of retrial. See id. ___ ___
at 676.
____________________
not produce the transcripts.
9. We have held that absent extraordinary circumstances a
district court should not entertain a 2255 motion while a
direct appeal from the same conviction is still pending.
United States v. Gordon, 634 F.2d 638 (1st Cir. 1980). _______________________
Nevertheless, instead of dismissing Pagan-San-Miguel's motion
as being premature, the district court denied the motion. In
such a case, we may elect to reach the merits of the 2255
motion. See United States v. Buckley, 847 F.2d 991, 993 n.1, ___ ________________________
1000 n.6 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989); ____________
see also Rule 5, Rules Governing Proceedings in the United ________
States District Courts Under Section 2255 of Title 28, United
States Code, advisory committee note (1976).
-42- 42
There was no prejudice. Although there was an
appalling delay in preparing the transcripts, there is no
argument they are incomplete or unreliable. This is not a
situation in which the court reporter has prepared an
unusable transcript. Compare Wilson, 16 F.3d at 1031 (record _______ ______
had portion missing or was unintelligible so that record was
totally unreliable). Indeed, Pagan-San-Miguel only argues
that the delay impaired his ability to present "the strongest
possible evidence in support of the appellant's version of
the facts" surrounding the read-back of Castillo-Ramos'
testimony to the jury. As Pagan-San-Miguel concedes,
however, no objection was made to the district court's
handling of the read-back. And since Pagan-San-Miguel has
not shown plain error in this regard, this argument does not
make a difference to his appeal.10
The order of the district court denying his 2255
motion is affirmed.
CONCLUSION
The convictions and sentences of appellants
Luciano-Mosquera, Pagan-San-Miguel, and Gonzalez-Valentin are
affirmed on all counts. The convictions of Lugo-Maya and
Pava-Buelba are reversed on Count 4 and their sentences on
____________________
10. Alternatively, Pagan-San-Miguel requests that we set
aside his conviction pursuant to our supervisory powers.
This is not an appropriate case for this court to exercise
its supervisory powers. See Tucker, 8 F.3d at 676. ___ ______
-43- 43
that count are vacated. Lugo-Maya's and Pava-Buelba's
convictions and sentences on the drug counts, Counts 1-3, are
affirmed. The district court's order denying Pagan-San-
Miguel's 2255 motion is affirmed. It is so ordered. ________________
-44- 44