<head>
<title>USCA1 Opinion</title>
<style type="text/css" media="screen, projection, print">
<!--
@import url(/css/dflt_styles.css);
-->
</style>
</head>
<body>
<p align=center>
</p><br>
<pre> United States Court of Appeals <br> For the First Circuit <br> ____________________ <br> <br> <br>No. 96-1711 <br> <br> UNITED STATES, <br> Appellee, <br> <br> v. <br> <br> EULALIO CANDELARIA-SILVA, A/K/A GATILLO MACHO, <br> Defendant, Appellant. <br> <br> ____________________ <br> <br>No. 96-1712 <br> <br> UNITED STATES, <br> Appellee, <br> <br> v. <br> <br> RAUL ORTIZ-MIRANDA, A/K/A CANO BEEPER, <br> Defendant, Appellant. <br> <br> ____________________ <br> <br>No. 96-1713 <br> <br> UNITED STATES, <br> Appellee, <br> <br> v. <br> <br> MOISES CANDELARIA-SILVA, <br> Defendant, Appellant. <br> <br> ____________________ <br> <br>No. 96-1714 <br> <br> UNITED STATES, <br> Appellee, <br> <br> v. <br> <br> CELENIA REYES-PADILLA, <br> Defendant, Appellant. <br> <br> ____________________ <br> <br>No. 96-2275 <br> <br> UNITED STATES, <br> Appellee, <br> <br> v. <br> <br> JOSE A. ROSADO-ROSADO, <br> Defendant, Appellant. <br> <br> ____________________ <br> <br>No. 96-2362 <br> <br> UNITED STATES, <br> Appellee, <br> <br> v. <br> <br> NELSON MIGUEL ORTIZ-BAEZ, <br> Defendant, Appellant. <br> <br> ____________________ <br> <br>No. 96-2364 <br> <br> UNITED STATES, <br> Appellee, <br> <br> v. <br> <br> ROSA MORALES-SANTIAGO, <br> Defendant, Appellant. <br> <br> ____________________ <br> <br> APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF PUERTO RICO <br> <br> [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br> ____________________ <br> <br> Before <br> <br> Torruella, Chief Judge, <br> <br> Lynch and Lipez, Circuit Judges. <br> <br> _____________________ <br> <br> Raymond L. Snchez-Maceira, by appointment of the Court, for <br>appellant Eulalio Candelaria-Silva. <br> G. Richard Strafer, by appointment of the Court, with whom <br>Quion & Strafer, P.A., was on brief, for appellant Ral Ortiz- <br>Miranda. <br> Enrique Vlez-Rodrguez, by appointment of the Court, for <br>appellant Moiss Candelaria-Silva. <br> Salvador Prez-Mayol, by appointment of the Court, for <br>appellant Celenia Reyes-Padilla. <br> Lydia Lizarribar-Masini, by appointment of the Court, for <br>appellant Jos Rosado-Rosado. <br> Rafael Anglada-Lpez, by appointment of the Court, for <br>appellant Nelson Miguel Ortiz-Bez. <br> Marlene Aponte-Cabrera, by appointment of the Court, for <br>appellant Rosa Morales-Santiago. <br> Lena D. Watkins, Trial Attorney, Narcotic and Dangerous Drug <br>Section, Criminal Division, U.S. Department of Justice, with whom <br>James K. Robinson, Assistant Attorney General, Criminal Division, <br>U.S. Department of Justice, Theresa M.B. Van Vliet, Chief, Narcotic <br>and Dangerous Drug Section, Criminal Division, U.S. Department of <br>Justice, Robert Lipman and Grace Chung Becker, Trial Attorneys, <br>Narcotic and Dangerous Drug Section, Criminal Division, U.S. <br>Department of Justice, were on brief for appellee. <br> <br> <br> ____________________ <br> <br>January 22, 1999 <br> ____________________
TORRUELLA, Chief Judge. Defendant-appellants were charged with <br>conspiracy to possess with intent to distribute and distribution <br>of cocaine base, cocaine, heroin, and marijuana, in violation of <br>21 U.S.C. 841 & 846. In addition, Count 43 of the indictment <br> charged Nelson Ortiz-Bez ("Ortiz-Bez") with engaging in a <br>monetary transaction in criminally derived property, in violation <br> of 18 U.S.C. 1957. Count 46 charged Eulalio and Moiss <br>Candelaria-Silva with possessing cocaine base, cocaine and heroin <br>with intent to distribute, in violation of 21 U.S.C. 841(a)(1). <br>Count 49 alleged the defendants' joint and several liability for <br> forfeiture of $6,000,000, including substitute assets, as <br> authorized by 21 U.S.C. 853. <br> The jury returned guilty verdicts as to all of the defendants in <br>this appeal as well as special forfeiture verdicts. The district <br> court sentenced the defendants to the following terms of <br>imprisonment: (1) 480 months for Ortiz-Bez; (2) 540 months for <br>Ral Ortiz-Miranda ("Ortiz-Miranda"); (3) 210 months for Celenia <br>Reyes-Padilla ("Reyes-Padilla"); (4) 168 months for Rosa Morales- <br> Santiago ("Morales-Santiago"); (5) 660 months for Eulalio <br>Candelaria-Silva; (6) 360 months for Moiss Candelaria-Silva; and <br> (7) 480 months for Jos Rosado-Rosado ("Rosado-Rosado"). The <br> district court also issued a Final Order of Forfeiture <br>encompassing substitute property of Reyes-Padilla, pursuant to 21 <br> U.S.C. 853(p). <br> Defendants base their appeal on numerous evidentiary and <br> procedural grounds. For the following reasons, we AFFIRM the <br> judgment of the district court. <br>BACKGROUND The government presented the testimony of three co- <br>conspirator witnesses, Marcos Hidalgo-Melndez ("Hidalgo"), <br>Carlos Otero-Coln ("Otero-Coln"), and Noem Garca-Otero <br>("Garca-Otero"). Hidalgo pleaded guilty to Count One of the <br>Superseding Indictment. Otero-Coln and Garca-Otero received <br>immunity from prosecution in exchange for their cooperation. In <br>addition, the government presented the testimony of numerous <br>local police officers who executed search warrants or were <br>otherwise involved in the investigation of the defendants and <br>their co-conspirators. The government also presented documentary <br>and forensic evidence and testimony relating to firearms and <br>drugs seized from the co-conspirators, and other pertinent <br>evidence. <br> The co-conspirator witnesses testified that Israel Santiago-Lugo <br> ("Santiago-Lugo") operated several drug distribution points <br>("puntos") at various housing projects in the northern region of <br> Puerto Rico. With the assistance of his co-conspirators, <br> Santiago-Lugo distributed vast quantities of controlled <br>substances including: 1) heroin sold under the name "cristal"; <br>(2) cocaine sold under the names "bolso rojo" and "rolito"; (3) <br> cocaine base; and (4) marijuana.
A. The Virgilio Dvila Punto <br> Hidalgo testified that he, Ortiz-Bez, and Wilfredo and David <br> Martnez-Matta began working for Santiago-Lugo's drug <br> distribution ring sometime after Hidalgo moved to the Virgilio <br> Dvila housing project in 1990. He also testified that Ortiz- <br>Bez and others packaged drugs at two rented apartments in Isla <br> Verde and transported the drugs to various puntos. Hidalgo <br> further testified that Reyes-Padilla, Santiago-Lugo's aunt, <br> distributed drugs from a Virgilio Dvila apartment used by <br> Santiago-Lugo's grandparents. From this apartment, Morales- <br> Santiago supplied Santiago-Lugo's distributors with drugs, <br>including heroin and cocaine, and maintained a ledger to account <br> for the drugs and proceeds. <br> On October 6, 1989, the Police of Puerto Rico ("POPR") executed a <br> search warrant at Virgilio Dvila building 43, apartment 411. <br>Reyes-Padilla was at the apartment with her parents. The search <br> yielded twenty-six grams of cocaine and three grams of heroin <br>packaged in over 250 small bags. Later, on October 17, 1989, the <br> POPR executed a search warrant at the same apartment. When an <br> officer first arrived, a young man was selling a controlled <br> substance through an iron grating on the apartment door. When <br> the officer identified himself, the man fled inside the <br> apartment. A search of the apartment yielded two grams of <br> heroin, less than a gram of cocaine, and over $2000 in U.S. <br> currency. <br> At trial, POPR officer Angel Nieves-Domnguez testified that, <br>pursuant to a tip, he conducted surveillance of Reyes-Padilla at <br>Virgilio Dvila building 43, apartment 412 during the afternoon <br> of October 1 and the morning of October 2, 1991. On the first <br> day, he observed Reyes-Padilla and Santiago-Lugo retrieve two <br>large bags from the trunk of Santiago-Lugo's car. Upon reaching <br>the stairs to building 43, Santiago-Lugo opened one of the brown <br> bags and pulled out several transparent plastic bags that each <br> contained smaller red bags. As Santiago-Lugo distributed the <br> plastic bags to the persons assembled, Reyes-Padilla made <br> notations in a notebook. Additionally, upon receiving the <br>packages, some recipients hid the packages in nearby garbage cans <br> or bushes. Reyes-Padilla took the other large brown bag up to <br> apartment 412. <br> After Santiago-Lugo left, the officer observed one individual -- <br> who had received a package from Santiago-Lugo -- apparently <br> selling some of the smaller red bags to a young woman near <br> building 44. Shortly thereafter, a young man arrived at <br>apartment 412, and Reyes-Padilla sold the man a transparent bag <br> appearing to contain heroin. The next day, the officer saw <br>Santiago-Lugo arrive and deliver yet another brown bag to Reyes- <br> Padilla. <br> Later that month, POPR executed a search warrant at apartment <br>412. At that time, defendants Reyes-Padilla and Morales-Santiago <br>were in the apartment. The search yielded four "decks" of heroin <br> in a Sucrets box, approximately $100,000 in U.S. currency, and <br>two notebooks appearing to contain records of drug deliveries and <br> debts. <br> In November, POPR officers observed Rosado-Rosado and a minor <br>each engage in an apparent sale of controlled substances and give <br> the proceeds from the sale to a heavy-set individual. Rosado- <br> Rosado retrieved the drugs from a brown paper bag in his back <br>pants pocket. When officers entered the housing project, Rosado- <br>Rosado and the minor attempted to flee. Officers caught Rosado- <br> Rosado and seized eighteen aluminum foil packets containing <br> heroin and five bags containing cocaine. <br> Hidalgo testified at trial about the importance of the Virgilio <br> Dvila punto as a drug distribution site. He stated that he <br>personally received packages of cocaine and heroin from Morales- <br> Santiago to distribute on behalf of Israel Santiago-Lugo, and <br>that he observed distributors from Santiago-Lugo's other puntos <br> arrive at Virgilio Dvila and receive packages from Morales- <br>Santiago. He identified four pages of notebook entries under the <br> name "Batman" from the notebook seized in October 1991 that <br> pertained to his distribution of marijuana and cocaine at <br> Virgilio Dvila. <br> Among the entries in the notebook was one pertaining to fifty <br>packets of heroin, referred to as "C" to correspond to "cristal," <br> and one pertaining to fifty packets of cocaine, referred to as <br> "R" because of the brand name "bolso rojo." Expert testimony <br>showed that the entries recorded transactions transpiring almost <br> daily between October 29, 1990 and October 24, 1991. The <br>notebooks contained a "price structure" table which specified the <br> prices of multiple units with a base price of $75 per unit. A <br>conservative estimate of the amount of drugs distributed would be <br>close to 50,000 units having a total value of approximately $3.5 <br> million dollars. <br> B. The Rosario Brothers <br> In 1993, Hidalgo learned that Santiago-Lugo and the Rosario <br>brothers had become adversaries. Santiago-Lugo and the Rosarios <br>previously had agreed to share control of the drug distribution <br>punto at Virgilio Dvila in Bayamn. According to Hidalgo, the <br> enmity between them stemmed from a drug debt owed to Santiago- <br> Lugo by one of the Rosarios. Tensions escalated in early 1993 <br>when a Santiago debt collector and a Rosario associate were both <br> murdered. <br> In June 1993, Hidalgo sustained a gunshot wound when an unknown <br>assailant or assailants fired a barrage of bullets from a moving <br>vehicle near Virgilio Dvila. After recuperating, Hidalgo again <br> rejoined the conspiracy. On December 1, 1993, Hidalgo, Ortiz- <br>Bez, Santiago-Lugo, and co-conspirator Andrs Coln-Miranda were <br>arrested in Bayamn. Ortiz-Bez, Hidalgo, and Coln-Miranda were <br> in possession of firearms without proper permits. Hidalgo <br>testified that they were armed due to the ongoing tensions with <br> the Rosario brothers. <br>C. The Los Murales Punto <br> Otero-Coln testified that, sometime in 1988 or 1989, Santiago- <br>Lugo's brother Ral and Jorge Martnez-Rosado ("Fobi") reached an <br>agreement with Jos Romn Freites ("Josean") for the distribution <br>of cristal heroin at Los Murales. Otero-Coln, who had served as <br>a lookout for Josean for approximately two months, became a <br>runner who picked up drugs from Virgilio Dvila. He testified <br>that he began picking up fifty packages, each containing ten <br>packets of heroin and costing $70. Eventually, he would pick up <br>as many as 100 packages every three of four days, each costing <br>$75. <br> Otero-Coln further testified that, after the POPR searched <br>Reyes-Padilla's Virgilio Dvila apartment, the distribution <br>operation was moved to the apartment of Morales-Santiago, who <br>also kept notebooks reflecting drug deliveries and debts. He <br>stated that Ortiz-Bez and others who worked at the "table" in <br>Isla Verde were right-hand men for Santiago-Lugo. These men <br>would sometimes transport drugs to Los Murales when Otero-Coln <br>could not. When Reyes-Padilla was out of heroin, Santiago would <br>direct Otero-Coln to obtain it from another distribution group <br>and keep the profits. <br> Hidalgo testified that he supervised cocaine and marijuana <br>distribution at the Los Murales housing project in 1991 and 1992, <br>and that during his tenure, all of the drugs distributed there <br>belonged to Santiago-Lugo. He knew Otero-Coln as an individual <br>who would come to the Virgilio Dvila punto to obtain heroin for <br>Santiago-Lugo's punto at Los Murales. <br>D. The Villa Evangelina Punto <br> Otero-Coln identified defendant-appellant Eulalio Candelaria- <br>Silva as "Macho Gatillo," the overseer of the drug point at the <br>Villa Evangelina housing project. Otero-Coln testified that he <br>met the Candelaria-Silvas, including Moiss and Luis, after <br>Josean agreed with Santiago-Lugo to distribute cocaine at Los <br>Murales in exchange for a reduction in the price of heroin <br>distributed there. Otero-Coln stated that he would obtain <br>cocaine from Ral Santiago-Lugo at Virgilio Dvila and transport <br>the drugs to Eulalio and Moiss' house in Manat for processing <br>to sell at Los Murales and Villa Evangelina. Eulalio Candelaria- <br>Silva would pick up the proceeds from Otero-Coln. Moiss <br>assumed Eulalio's role after the latter was incarcerated. <br> Otero-Coln testified that the Candelaria-Silvas began to <br>distribute "cristal" at Villa Evangelina. On two occasions in <br>1990, an undercover police officer made controlled purchases of <br>cocaine from Eulalio Candelaria-Silva at Villa Evangelina. In <br>addition, POPR officers executed search warrants at the <br>Candelaria home in 1993 and February 1995. The 1993 search <br>yielded controlled substances including "cristal" heroin. <br> In addition, the government introduced into evidence a letter <br>that had been seized from the residence of Israel Santiago-Lugo <br>in August 1993. The letter was addressed from "Ral" to "Macho," <br>and indicated that both of them were in jail at the same time. <br>The letter appeared to discuss price negotiations, and refer to <br>members of the Candelaria family. <br>E. The Enrique Catoni Punto <br> Noem Garca-Otero testified that defendant-appellant Rosado- <br>Rosado was introduced to her as "Hormiguita," the supervisor of <br>heroin, cocaine, and marijuana sales at Enrique Catoni. Ral <br>Santiago-Lugo introduced Ortiz-Bez as "Mickey Mouse." On one <br>occasion, Raul Santiago-Lugo drove Ortiz-Bez to the Ramn-Sol <br>housing project in Arecibo and left him there to supervise. On <br>another occasion, Ortiz-Bez and Rosado-Rosado recruited <br>individuals to distribute drugs at the housing project. In <br>addition, Garca-Otero identified defendant-appellant Ral Ortiz- <br>Miranda as someone who would bring drugs to, and pick up money <br>from, the housing project on at least a weekly basis. She <br>testified that she knew Ortiz-Miranda as "Cano Beeper." <br>DISCUSSION <br>I. Jury Selection <br> Defendant-appellants argue that the district court violated the <br>Fifth and Sixth Amendments, the Jury Selection and Service Act of <br>1968 ("the Act"), 28 U.S.C. 1861, Fed. R. Crim. P. 43(b), and <br>the Amended Plan for the Random Selection of Grand and Petit <br>Jurors for the United States District Court for Puerto Rico <br>("District Plan") by ex parte eliminating jurors from the venire. <br> A. The Jury Selection Act <br> The Act was enacted to ensure that potential jurors are selected <br>at random from a representative cross-section of the community <br>and that all qualified citizens have an opportunity to be <br>considered for service. See H.R. Rep. No. 1076 (1968), 1968 U.S. <br>C.C.A.N. 1792. The Act provides that each district court devise <br>a "local plan" for the selection of jurors consistent with the <br>objectives of randomness and nondiscrimination set forth in <br>1861 and 1862. See 1863. The local plan for the District of <br>Puerto Rico was devised and approved pursuant to 1863. <br> The Act sets forth five specific reasons a summoned juror may be <br>excused by the district court. They are: (1) undue hardship; <br>(2) inability to render impartial service; (3) peremptory <br>challenge; (4) good cause shown; and (5) a determination by the <br>court that his service as a juror would be likely to threaten the <br>secrecy of the proceedings, or otherwise adversely affect the <br>integrity of the jury deliberations, that the exclusion is <br>warranted, and that the exclusion is not inconsistent with other <br>provisions of the Act. See 28 U.S.C. 1866(c). Section 1866(c) <br>provides that the court may only exclude a person under (5) in <br>open court. <br> 1. Jury Orientation <br> Of eighty prospective jurors in the panel for this case, only <br>sixty-two appeared for jury orientation on the morning of <br>September 13, 1995. At the orientation, conducted on the record <br>but outside the presence of counsel, the district court gave <br>preliminary instructions regarding jury service and distributed <br>the juror questionnaires. He told the jurors nothing specific <br>about the case except the docket number. The judge then <br>instructed the jurors not to discuss the case with anyone, spoke <br>to them about the importance of jury service, and described the <br>questionnaire. The judge left the courtroom while the jurors <br>viewed the video "Justice by the People" and completed the <br>questionnaires. Upon their completion of the questionnaires, the <br>judge returned and excused the jurors for the day. Because only <br>fifty prospective jurors remained after the morning orientation <br>session on September 13, the court summoned thirteen additional <br>randomly selected prospective jurors from two other panels. <br>These prospective jurors, and one late-arriving member of the <br>original panel, then received substantially the same information <br>and instructions from the judge and completed the questionnaires. <br> During jury selection the next day, it became clear to Ortiz- <br>Miranda's counsel that some of the juror questionnaires were <br>missing. Upon raising the matter with the district court, the <br>judge explained to counsel that the clerk had "highlighted" <br>certain questionnaires as "problematic," and he had "dealt with <br>those obvious cases." 9/14/95 Tr. at 126. Ortiz-Miranda's <br>counsel objected to the district court's actions on the ground <br>that it "involv[ed] and invok[ed] Fifth and Sixth Amendment <br>rights." Id. The court overruled counsel's objections, but <br>agreed to provide counsel with the questionnaire forms and <br>invited counsel to further object after reviewing them if counsel <br>found that the court had "exercised the [sic] improper <br>discretion," id., in excusing fourteen prospective jurors brought <br>to his attention by the jury clerk. <br> a. Lack of Qualifications Dismissals <br> In order to be deemed qualified to serve as a juror on a petit <br>jury in the United States District Court for the District of <br>Puerto Rico, an individual must be a citizen of the United <br>States, eighteen years of age or older, have resided for a period <br>of one year within the judicial district, and be "able to read, <br>write, speak, and understand the English language with a degree <br>of proficiency sufficient to fill out satisfactorily the Juror <br>Qualification Form and to render satisfactory jury service in <br>this Court." District Plan at 3. <br> The district court dismissed six of the prospective jurors based <br>on a lack of proficiency in English. Juror 16 stated that she <br>had difficulty reading or understanding English and answered the <br>question asking her to describe her work in general terms in <br>Spanish. Juror 17 completed almost all of the questionnaire in <br>Spanish. Juror 18 indicated that she had difficulty with English <br>and also wrote in Spanish that she did not hear well. Juror 45 <br>completed the forms entirely in Spanish. Juror 61 indicated that <br>he had trouble with English and did not give more than a one word <br>response in English to any of the questions requiring more than a <br>yes or no answer. Finally, Juror 93 indicated that he had <br>trouble reading or understanding English, but otherwise completed <br>the questionnaire in English. After examining these <br>questionnaires, we hold that Judge Fust did not err by <br>dismissing these prospective jurors. <br> The District Plan also mandates that "[n]o person shall be <br>qualified to serve . . . if he is incapable, by reason of mental <br>or physical infirmity, to render satisfactory jury service." Id. <br>The district court excused two jurors for medical reasons. Juror <br>13 answered "No" to the question, "Do you have any physical <br>problem (for example, sight, hearing or other medical condition) <br>that would interfere with your ability to serve?" but a note at <br>the bottom of the form states "Eye ongoing medical [illegible]." <br>The government contends that this note was made by the district <br>court, but the author's identity is unclear. The district court <br>did write on the beginning of the form: "See note [page] 3 <br>claimed ongoing eye impediment." Juror 89 stated that he had <br>"Fibrilosis Atrial" and that he was currently taking daily <br>medication. The district court excused him on account of his <br>health and because of his answer to question #9. Question #9 <br>asked the degree of education the prospective juror had achieved. <br>Juror 89 had a law degree, but was retired. Although the <br>district court's actions, with respect to these two jurors, were <br>questionable in that Juror 13 did not state that his medical <br>condition would interfere with his serving as a juror and Juror <br>89 was dismissed in part because he holds a law degree, there was <br>at least some medical reason why both jurors could have been <br>excused. Accordingly, these excusals were not an abuse of <br>discretion. See United States v. Contreras, 108 F.3d 1255, 1269 <br>(10th Cir. 1997) (applying abuse of discretion standard to pre <br>voir dire excusals). <br> b. Undue Hardship Dismissals <br> Both 1866 and the District Plan permit the district court to <br>excuse prospective jurors prior to voir dire on the ground of <br>"undue hardship." Here, the district court excused six jurors on <br>that basis. <br> According to the district court's notes, Juror 3 was excused <br>because he was the only person at his office. Juror 3 stated <br>that he "was the only representative of the company in Puerto <br>Rico. I sell generic medicine to Drug [sic] stores and Hospitals <br>[sic] in P.R[.] My Job [sic] is mostly done by telemarketing for <br>which I can not be away from my work for too long. I m [sic] <br>training a part time employee to assist me due the [sic] increase <br>in sales." The district court excused Juror 32 because she was <br>taking care of her mother, who was in the hospital, and her <br>grandmother, who was at home. Although she was the "only one" <br>who could help them, she stated that she would "be very proud to <br>participate as a juror . . . and to let [her] know what [she] <br>should do." According to his notes, Judge Fust excused Juror 70 <br>because he was a night shift medical technician at Fajardo <br>Hospital. <br> Jurors 35, 63, and 72 indicated that they had various business <br>and personal travel plans that would conflict with the trial. <br>Juror 35 stated that she would be traveling during the trial to a <br>"Consumers Affairs annual meeting" and then "intend[ed] to take <br>my vacations." Juror 63 was excused by the district court on <br>account of a pre-arranged vacation. During the trial, she was <br>scheduled to attend a training session and to leave with her <br>family on a previously planned vacation. Finally, Juror 72 was <br>excused because he had a reservation to go to Nevada and <br>California for a month during the trial. <br> The district court did not abuse its discretion in dismissing <br>Jurors 3 and 32, but did impermissibly excuse Jurors 70, 35, 63, <br>and 72. With regard to Jurors 3 and 32, their questionnaires <br>document that acting as Jurors would work an undue hardship. <br>However, the same cannot be said for the others. <br> With regard to Juror 70, we note that under the District Plan, he <br>could have requested to be excused from jury duty. The District <br>Plan states that jury service by medical laboratory technicians <br>would entail undue hardship or extreme inconvenience, and such an <br>individual "shall be excused from jury service upon individualrequest." District Plan at 5 (emphasis added). However, Juror <br>70 did not request to be excused or object to being a juror. The <br>choice not to serve on the jury at this stage was his and not the <br>court's. The district court acted improperly in unilaterally <br>excusing him from jury service. We cannot be sure whether Juror <br>70 desired to serve or was unaware of the District Plan's <br>provision. Regardless of his desire or knowledge, however, there <br>was no prima facie reason for him to have been dismissed from the <br>pool at this point. <br> We begin by noting with respect to Jurors 35, 63, and 72 that the <br>district court incorrectly described their situation to counsel <br>the next morning at jury selection. The district court stated: <br>"What else was there? And people with paid vacations, which they <br>so said in a note, Judge, I'm leaving on such and such a date. <br>How can I detain those people?" 9/14/95 Tr. at 127. After a <br>very close and careful reading of the questionnaires, we did not <br>find any notes on them stating that any of these jurors had paid <br>vacations. If such a statement was made by any of the jurors to <br>the district court, it was not recorded by the Judge on the <br>questionnaires in the record. Jurors 35 "intend[ed]" to take <br>vacations. For Juror 63, "everything was set." Finally, Juror <br>72 had a "reservation." It appears that the district court <br>interpreted those phrases to mean paid non-refundable, non- <br>changeable tickets although those phrases may well not have meant <br>that at all. <br> Jury duty works a burden on all called to serve. There are <br>instances in which previously-made travel plans would cause jury <br>service to become an undue hardship. However, the district court <br>all too willingly accepted the proposed excuses of these jurors <br>without allowing the parties to examine the prospective jurors in <br>voir dire. Exclusions at this stage approach a ministerial <br>function, which is why 1866 authorizes the clerk of the court <br>under the supervision of the district court -- if the District <br>Plan so authorizes -- to excuse such jurors. See 1866(c). If <br>jurors are excused as a result of a non-ministerial exercise of <br>discretion better left to voir dire itself, as occurred here, the <br>prospects for the defendant obtaining a fair cross-section of the <br>community could be improperly diminished. <br> In general, we think it unwise for district judges to engage in <br>ex parte voir dire beyond purely ministerial functions. <br>Ministerial functions permitted by the Plan and Act are usually <br>performed by the clerk, under supervision of the court. If a <br>judge does no more than what a jury clerk is authorized to do in <br>excusing jurors, that may raise an issue of allocation of court <br>resources but does not raise an issue of impropriety. See United <br>States v. Calaway, 524 F.2d 609, 619 (9th Cir. 1975). When the <br>court, in the absence of counsel, starts questioning jurors and <br>excusing them based on responses which go beyond basic <br>information about qualifications, obvious bias, or hardship, it <br>is all too easy to slip over the line, as happened here. Whether <br>slipping over the line deprives a defendant of statutory or <br>constitutional rights is another question. <br> 2. The Remedy <br> Having established that certain of the exclusions were not <br>justified under the Act, we turn to the question of whether the <br>Act provides appellants with a remedy. By its terms, the Act <br>only provides a remedy -- the stay of proceedings pending the <br>selection of a petit jury in conformity with the Act -- for <br>substantial failures to comply with its provisions. See <br>1867(d); United States v. Calabrese, 942 F.2d 218, 226 (3d Cir. <br>1991). In order to obtain this remedy, a party challenging the <br>jury selection process under the Act must make his challenge <br>"before the voir dire examination begins, or within seven days <br>after the defendant discovered or could have discovered, by the <br>exercise of diligence, the grounds therefor, whichever is <br>earlier." 1867(a). The timeliness requirement "is to be <br>strictly construed, and failure to comply precisely with its <br>terms forecloses a challenge under the Act." United States v. <br>Paradies, 98 F.3d 1266, 1277 (11th Cir. 1996) (citation omitted). <br>"[O]nce voir dire begins, Jury Selection Act challenges are <br>barred, even where the grounds for the challenge are discovered <br>only later." Id. at 1278 (emphasis added) (citations omitted). <br>The Act requires that any motion filed be accompanied by a "sworn <br>statement of facts which, if true, would constitute a substantial <br>failure to comply with provisions of [the Act]." 1867(d). <br>When that requirement is not satisfied, the challenge to the <br>selection process must fail, because "Congress left no room for <br>ad hoc review of the usefulness of compliance with [the sworn <br>statement] requirement." Paradies, 98 F.3d at 1278 (citation <br>omitted). <br> Ortiz-Miranda's counsel objected after the district court gave <br>counsel the list of the remaining prospective jurors and his <br>instructions for making challenges. She stated the reasons for <br>her objection and the district court took notice. See 9/14/95 <br>Tr. at 129. Counsel next asked if the transcript was available. <br>See id. The court stated: "The transcript is not available." <br>Id. Counsel next asked for a continuance, which was denied. Seeid. But, the district court told counsel that she "can examine <br>the forms" and that there would be "an accounting made by the <br>jury clerk," id. at 129-30, but that it would not be done "now," <br>id. at 130, because there was "[n]o need to do that now." Id. <br> With a transcript of the above events, it would seem that there <br>would be no quarrel as to what occurred. Unfortunately, that is <br>not the case. In a Memorandum Order dated August 11, 1998, the <br>district court took issue with Ortiz-Miranda's brief, stating: <br>"Contrary to what is stated in the brief on appeal, counsel for <br>all defendants, as well as trial attorneys for the Department of <br>Justice, were given copies of [the original questionnaires of <br>those excused] before jury selection commenced in the case now on <br>appeal." 8/11/98 Memorandum Order at 1 (emphasis added). He <br>continued: "The preparation of the photocopies and sets of <br>documents were turned over to counsel before jury selection was <br>supervised . . . and I made certain that all attorneys of record <br>received a set of the pertinent documents so that they could <br>meaningfully participate in the jury selection process." Id. at <br>2. We note that the parties do not agree with the court's <br>assertion that the materials in the case were turned over to them <br>in the above described fashion. Both the defendant-appellants <br>and the government, relying on the transcript of the proceeding <br>and the materials in the record, state that the materials were <br>turned over to the parties after the commencement of voir dire. <br> Ortiz-Miranda states that the record does not disclose when the <br>questionnaires were actually provided to counsel. The government <br>contends that the record suggests that "the questionnaires were <br>made available sometime after commencement of voir dire, but on <br>September 14, 1995," Government's Resp. to Ortiz-Miranda's Mot. <br>at 3 (based on a memorandum from the district court to the Clerk <br>of the Court and the Jury Administrator dated that day) or the <br>questionnaires were "filed under seal in the Clerk's Office on <br>September 19, 1995, the day after the presentation of evidence <br>began." Id. (based on Doc. 655 which was signed by Judge Fust <br>on September 19, 1995). <br> Under the Act, the challenge along with the signed affidavit must <br>be filed before the commencement of voir dire. Obviously, this <br>was not possible here because the record establishes that jury <br>selection commenced before counsel had any opportunity to <br>discover that prospective jurors had been excused. In any event, <br>we choose not to wrestle with the thorny question of whether the <br>district court's actions mitigated counsel's duty to comply with <br>the Act. Even if all had proceeded ideally, the district court's <br>erroneous exclusions did not constitute a "substantial failure" <br>to comply with the Act. See 1867(d). <br> Congress left the content of this term largely up to the courts. <br>See 1968 U.S. C.C.A.N. at 1794 ("Your committee would leave the <br>definition of 'substantial' to the process of judicial <br>decision."). In determining whether a violation is substantial, <br>"the alleged violations must be weighed against the underlying <br>principles of the Act." United States v. Gregory, 730 F.2d 692, <br>699 (11th Cir. 1984). These principles are: (1) the random <br>selection of jurors; and (2) the determination of <br>disqualifications, excuses, exemptions, and exclusions on the <br>basis of objective criteria only. See id. The inquiry is as <br>follows: <br> <br> For wrongful exclusions, determining whether there has been a <br> substantial violation has both quantitative and qualitative <br> aspects. Quantitatively, a substantial violation generally will <br> not be found if the numbers of errors is small. Qualitatively, <br> the inquiry is whether there has been a frustration of the Act's <br> underlying principle of exclusions on the basis of objective <br> criteria only. <br> <br>Calabrese, 942 F.2d at 227-28 (citation omitted). Here, the <br>number of arguably wrongfully excluded jurors was very small. <br>Further, the Act's principle of exclusions on the basis of <br>objective criteria was not frustrated. In excusing the four <br>individuals, the district court did not engage in qualitatively <br>improper actions such as creating a "new category of exclusions," <br>see id. at 228, or discriminating against a class of persons. <br>See id. Second, the district court did not prevent the jury <br>panel from consisting of a fair cross-section of the community. <br>See United States v. Bearden, 659 F.2d 590, 602 (5th Cir. 1981). <br>His actions, though improper, did not constitute a substantial <br>failure to comply with the Act. <br> B. Other Claims <br> Defendant-appellants also argue that their rights under the Fifth <br>Amendment, the Sixth Amendment, and Fed. R. Crim. P. 43 were <br>violated by the district court's ex parte actions. To the extent <br>that the district court improperly dismissed four prospective <br>jurors, we conclude that the errors were harmless to the <br>defendants. See id. at 1270 n.11 (stating that the error must be <br>sufficiently egregious to constitute a constitutional violation).
II. The Macho Gatillo Alias <br> Eulalio Candelaria-Silva argues that the district court abused <br>its discretion by refusing to strike his alias, "Macho Gatillo," <br>from the Superseding Indictment. He contends that the use of the <br>alias was inflammatory, demeaning and prejudicial. <br> In denying the motion to strike, the district court stated that <br>"Macho Gatillo" served the purpose of a proper name for <br>identification purposes. The record reflects that the POPR <br>officer who conducted two undercover drug purchases from <br>Candelaria-Silva in 1990 knew him only as "Macho Gatillo." In <br>addition, co-conspirator witness Otero-Coln also identified the <br>defendant only by his street name. Furthermore, another POPR <br>officer corroborated these mutually consistent identifications of <br>the defendant by testifying that the defendant was known as <br>"Macho." All of this evidence was probative with respect to <br>identifying Eulalio Candelaria-Silva as the author of the letter <br>seized from Israel Santiago-Lugo's residence -- a letter signed <br>"Macho" that discussed the operations of a punto. <br> It is true that the record reflects the existence of at least one <br>other individual who answered to the name "Macho." For this <br>reason, the POPR undercover officer and Otero-Coln's use of the <br>"Gatillo" portion of the name, which translates as "trigger," was <br>probative to distinguish the defendant. <br> Eulalio Candelaria-Silva's argument fails because the evidence of <br>his alias was relevant, and there was no prejudice. See United <br>States v. Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996) (noting that <br>the use of the name "Monster" was necessary to fully identify the <br>defendant); United States v. Persico, 621 F. Supp. 842, 860-61 <br>(S.D.N.Y. 1985) (stating that aliases and nicknames are proper in <br>an indictment where they will be part of the government's proof <br>at trial). <br>III. Co-Conspirator Testimony <br> Moiss Candelaria-Silva argues that the district court should <br>have excluded the letter seized from the residence of Israel <br>Santiago-Lugo. The court admitted this exhibit pursuant to Fed. <br>R. Evid. 801(d)(2)(E) which defines as non-hearsay a statement by <br>a party's co-conspirator made during and in furtherance of the <br>conspiracy. We find Moiss Candelaria-Silva's argument without <br>merit. <br> The district court conditionally admitted certain evidence <br>pursuant to Fed. R. Evid. 801(d)(2)(E) after making the requisite <br>findings pursuant to United States v. Ciampaglia, 628 F.2d 632, <br>638 (1st Cir. 1980). Later, the court expressly found that the <br>letter met the "in furtherance of" requirement of 801(d)(2)(E). <br>At the end of trial, the court made the requisite determination <br>for unconditional admission of the letter and other evidence. <br> As grounds for exclusion at trial, Moiss Candelaria-Silva argued <br>that there existed a legitimate doubt as to whether Macho Gatillo <br>was a member of this charged conspiracy at the time he wrote the <br>letter. He renews this argument on appeal. <br> Letters can fall within the co-conspirator exception to the <br>hearsay rule. See United States v. Richardson, 14 F.3d 666, 668- <br>70 (1st Cir. 1994). In this case, there is more than sufficient <br>evidence that the statements in the letter were made by a co- <br>conspirator during and in furtherance of the charged conspiracy. <br>First, the seizure of the letter from Israel Santiago-Lugo's <br>residence and references in the letter to the recipient's brother <br>incline toward a finding that the addressee was Israel Santiago- <br>Lugo's brother, Ral. Furthermore, the writer, "Macho Gatillo" - <br>- Eulalio Candelaria-Silva -- refers to the involvement of his <br>mother in the transactions discussed. The 1993 seizure of <br>cristal heroin at the Candelaria-Silva residences occurred in the <br>presence of Eulalio Candelaria-Silva's mother and Moiss <br>Candelaria-Silva. In addition, the testimony of Otero-Coln <br>about the Candelaria-Silvas' roles at Villa Evangelina, and the <br>content of the letter, particularly its reference to the specific <br>brand of heroin constitute strong evidence that the letter was <br>prepared by a co-conspirator during and in furtherance of the <br>charged conspiracy. As this Court stated in United States v. <br>Drougas: <br> The source of the placemats [on which a series of handwritten <br> names and numbers appear], the circumstances surrounding their <br> seizure, the fact that the information corresponded to other <br> evidence of the participants in the conspiracy, and the extreme <br> unlikelihood that such a list would be prepared by one not privy <br> to the operation of the conspiracy provide a sufficient basis to <br> infer that the writings pertained to the conspiracy alleged and <br> were made in furtherance of that conspiracy. <br> <br>748 F.2d 8, 26 (1st Cir. 1984). <br> Here, as in Drougas, the extreme unlikelihood that such a letter <br>would be prepared by one not privy to the operation of the <br>"cristal" heroin conspiracy provides a sufficient basis to infer <br>that the letter pertained to the conspiracy alleged and that the <br>statements therein were made in furtherance of that conspiracy. <br>See Drougas, 748 F.2d at 26. In light of the overall evidence in <br>the case, the references to the specific brand of heroin and the <br>statements about price and quantity, the district court did not <br>clearly err by admitting the evidence. <br>IV. Motion in Limine <br> A. Evidence of Prior Dispositions <br> Ortiz-Bez, Reyes-Padilla, and Moiss Candelaria-Silva contend <br>that the district court erred in prohibiting them from presenting <br>evidence about the prior dispositions of certain local criminal <br>charges relating to conduct involved in the charged conspiracy. <br>Specifically, the defendants argue that the court's decision <br>prohibited them from presenting a defense. We agree with the <br>district court that the prior dispositions were not admissible. <br> In deciding this issue, the district court explained that the <br>local prosecutions were not relevant to this prosecution because <br>possible explanations for the early dismissals included "lack of <br>evidence, unavailability of witnesses, sloppy presentation by the <br>state prosecutors, irresponsible legal determinations, and the <br>sort." 9/14/95 Order at 3. Furthermore, the district court <br>rejected the defendants' arguments as "a disguised attempt to <br>argue a double jeopardy defense before the jury." Id. at 4. The <br>district court's order was proper and in accordance with this <br>Court's recent decision in United States v. Smith, 145 F.3d 458, <br>461 (1st Cir. 1998), holding that an acquittal instruction is not <br>required when evidence of acquitted conduct is introduced. <br> In Smith, a defendant, indicted for a drug offense and a tax <br>offense, was acquitted of the drug offense after a trial on that <br>charge alone. During the subsequent trial on the tax offense, <br>the government presented evidence of drug trafficking to <br>demonstrate receipt of income that was not reported to the IRS. <br>On appeal, the defendant argued that the trial court erred in <br>refusing to inform the jury of his acquittal on the drug charge <br>and in barring his cross-examination of prosecution witnesses on <br>their knowledge of that acquittal. The defendant in Smith, like <br>the defendants in this case, relied on language in the Supreme <br>Court's decision in Dowling v. United States, 493 U.S. 342 <br>(1990), to support this position. In Dowling, the trial court <br>instructed the jury that the defendant had been acquitted of <br>robbing a witness and the witness's testimony was admitted for a <br>limited purpose. As we noted when rejecting the defendant's <br>argument in Smith, however, "the sentence in Dowling that begins, <br>'Especially in light of the limiting instructions' does not <br>identify the language to which 'limiting instruction' refers." <br>Smith, 145 F.3d at 461. Furthermore, since an instruction was <br>given in Dowling, the Supreme Court did not decide the exclusion <br>issue. See Smith 145 F.3d at 461. <br> The reasons supporting exclusion of evidence about the dismissal <br>of a prior prosecution are even stronger than those that support <br>exclusion with respect to a prior acquittal. As the district <br>court noted, cases are dismissed for many reasons unrelated to <br>the defendant's guilt. The introduction of evidence of a <br>dismissal could well mislead the jury into thinking that a <br>defendant was innocent of the dismissed charge when no such <br>determination has been made. <br> B. Certificate of Good Conduct <br> Moiss Candelaria-Silva argues that, under Fed. R. Evid. 405, the <br>trial court should have admitted a "certificate of good conduct." <br>See Defendant's Br. at 23-30. The district court, describing the <br>certificate as a "negative criminal record" certified by the <br>Puerto Rico Police, excluded the document. We hold that the <br>certificate of good conduct is not admissible character evidence. <br> In United States v. DeJongh, 937 F.2d 1 (1st Cir. 1991), the <br>district court declined to admit what this Court described as a <br>"Good Conduct Certificate." This Court upheld exclusion on the <br>ground of insufficient authentication. <br> Furthermore, the certificate of good conduct does not satisfy <br>Fed. R. Evid. 405, which allows proof of character: (1) by <br>"specific instances of conduct," id., on cross-examination or <br>where "character or a trait of character . . . is an essential <br>element of a charge, claim, or defense," id.; or (2) by <br>"testimony as to reputation or . . . in the form of an opinion." <br>Id. Here, Candelaria-Silva cannot allege that the proffered <br>certificate of good conduct meets either of these requirements. <br>V. Judicial Bias <br> Defendant Moiss Candelaria-Silva contends that the trial court <br>exhibited judicial bias when it: (1) ruled on numerous <br>evidentiary issues during trial; and (2) chastised counsel in <br>front of the jury. See Defendant's Br. at 35-40. On review, <br>this Court considers "isolated incidents in light of the entire <br>transcript so as to guard against magnification on appeal of <br>instances which were of little importance in their setting." <br>United States v. Montas, 41 F.3d 775, 779 (1st Cir. 1994) <br>(internal quotation marks and citations omitted). Furthermore, <br>this Court must "differentiate between expressions of impatience, <br>annoyance or ire, on the one hand, and bias or partiality, on the <br>other hand." Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997). <br>On several occasions, this Court has held that a trial judge's <br>frustration displayed at sidebar does not deprive a defendant of <br>a fair trial. See, e.g., United States v. Polito, 856 F.2d 414, <br>417-19 (1st Cir. 1988) (no bias where, at sidebar, judge warns <br>defense counsel that he is being reported to the State Bar <br>Association for violating rules of professional conduct); Dearyv. City of Gloucester, 9 F.3d 191, 194-96 (1st Cir. 1993) (no <br>bias where, at sidebar, the trial judge told defense counsel his <br>cross-examination of a witness was "very devious"). Here, Moiss <br>Candelaria-Silva has failed: (1) to demonstrate that the trial <br>court's actions rise to the level of bias; and (2) to meet his <br>burden of demonstrating serious prejudice. <br> Moiss Candelaria-Silva complains that a number of evidentiary <br>rulings show bias. We have examined those rulings and find they <br>were all proper in the exercise of the court's discretion. <br>Accordingly, Moiss Candelaria-Silva does not demonstrate <br>judicial bias with his complaints concerning: (1) the use of the <br>charts prepared by the government; (2) the display of photographs <br>of firearms, ammunition and drugs to the jury; (3) the admission <br>of testimony of an expert witness to explain the drug ledgers; <br>(4) the exclusion of evidence of prior acquittals; (5) the <br>exclusion of defense impeachment evidence concerning past <br>instances of untruthfulness; (6) the exclusion of a utility bill <br>to establish Moiss Candelaria-Silva's place of residence as <br>different from his mother's house; (7) the district court's <br>application of Fed. R. Evid. 801(d)(2)(E); (8) its admission of <br>evidence of allegedly unrelated murders and misconduct by <br>defendants; or (9) its alleged approval of the government's use <br>of leading questions. <br> Similarly, Moiss Candelaria-Silva's complaint about the trial <br>court's "facial expressions," Defendant's Br. at 37, falls short <br>of the mark. The transcript indicates that after an extensive <br>discussion among all defense counsel, at least two defense <br>counsel indicated that the district judge did not cover his mouth <br>or make faces when weapons were introduced into evidence. See10/27/95 Tr. at 1861. Perhaps one defense counsel accurately <br>summed up the situation when he remarked: "I would also say for <br>the record, I have been able to perceive a very high tension <br>among all counsel. And that every small incident, in my opinion, <br>is blown out of proportion." Id. at 1883-84. <br> Assuming arguendo that the trial court exhibited frustration from <br>time to time during this rather lengthy, heated trial, the strong <br>instructions given by the trial court during and at the end of <br>the trial should have eliminated any conceivable prejudice. For <br>example, shortly after the bench conference regarding facial <br>expressions, the district court instructed the jury: <br> Remember also what I told you at the beginning, when we started <br> the first day when I impaneled you. Nothing that the court may <br> say or do during the course of this trial is intended to indicate <br> nor should be taken by you as indicating what your verdict should <br> be. Also, as you have perceived, throughout this trial, trial <br> practice is very demanding of judges and attorneys and sometimes <br> there exists at a given trial colloquy between the court and <br> counsel. This colloquy sometimes is easy going and sometimes I, <br> as a judge, have to take a stand to keep proceedings returning in <br> an orderly way. It is very important for all of you to <br> understand that any colloquy between court and counsel is not to <br> be considered by you in determining the issues of this case. <br> <br>Id. at 1995. Such jury instructions are an appropriate means to <br>"allay[] potential prejudice." Logue, 103 F.3d at 1046-47 <br>(citation omitted). <br> Thus, Moiss Candelaria-Silva has failed to meet his burden of <br>showing serious prejudice.
VI. Rule 16 <br> Ortiz-Miranda argues that the district court should have <br>suppressed Garca-Otero's identification testimony as the fruit <br>of a Rule 16 discovery violation. Although Ortiz-Miranda argued <br>for suppression of the identification on the merits in the <br>district court, see 11/16/95 Tr. at 3449-52, 3479-82, he never <br>sought suppression as a discovery sanction. Therefore, this <br>argument is waived. See United States v. Barnett, 989 F.2d 546, <br>554 (1st Cir. 1993) ("Issues not squarely raised in the district <br>court will not be entertained on appeal."). <br>VII. Jury Instructions <br> Ortiz-Miranda argues that the evidence at trial mandated an <br>instruction explaining the particular concerns attendant to <br>eyewitness identification and explicitly stating that a guilty <br>verdict required a finding of identity beyond a reasonable doubt. <br>See Defendant's Br. at 46. However, we have expressly "declined <br>to adopt . . . a rule of per se reversal [for such an error], <br>choosing not to constrain district courts with yet another <br>mandatory requirement." United States v. Angiulo, 897 F.2d 1169, <br>1206 n.20 (1st Cir.) (citing United States v. Kavanaugh, 572 F.2d <br>9, 13 (1st Cir. 1978)), cert. denied, 498 U.S. 845 (1990). <br> Contrary to Ortiz Miranda's assertion, he was not entitled to a <br>particular instruction on the facts of this case. As this Court <br>further stated in Angiulo: <br> [T]he refusal to give a particular requested instruction, <br> however, is reversible error only if the instruction (1) is <br> substantively correct; (2) was not substantially covered in the <br> charge actually delivered to the jury; and (3) concerns an <br> important point in the trial so that the failure to give it <br> seriously impaired the defendant's ability to effectively present <br> a given defense. <br> <br>897 F.2d at 1205 (internal quotation marks and citations <br>omitted). <br> Here, Ortiz-Miranda has not satisfied the second and third prongs <br>of the Angiulo test. First, the district court's charge <br>substantially covered the identification issue: <br> Let's now discuss the subject of how is it that you gauge or <br> assess the credibility of witnesses . . . . In making that <br> decision, you may take into account a number of factors, <br> including the following: <br> <br> One, was the witness able to see or hear or know the things about <br> which that witness testified? <br> <br> Two, what kind of opportunity did the witness have to observe <br> facts or identify people, including the accused? <br> <br> Three, how well was the witness able to recall and describe those <br> things or persons observed? <br> <br> Four, how positive was the witness' recollection of facts and the <br> identification of people, including those accused? <br> <br> Five, what was the witness' manner while testifying? By <br> "manner," I mean appearance, demeanor. <br> <br> Six, . . . was the witness ever confused as to facts or the <br> identification of persons, or did he or she misidentify or fail <br> to identify a person or the accused on prior occasions? <br> <br>12/1/95 Tr. at 4554-55 (emphasis added). <br> Second, Garca-Otero testified twice at trial, and thus Ortiz- <br>Miranda had ample opportunity to develop the identification <br>defense during cross-examination, the presentation of defense <br>evidence, and closing argument. Since the court's jury <br>instructions addressed the identification issue three times, <br>Ortiz-Miranda's "ability to effectively present" the <br>identification defense was not "seriously impaired." Angiulo <br>897 F.2d at 1205-06. <br>VIII. Failure to Disclose and Newly-Discovered Evidence <br> Ortiz-Miranda argues that the government's failure to disclose <br>during trial its knowledge of Rivera-Melndez's whereabouts, his <br>possession of a green motorcycle, his involvement in certain <br>criminal activity, and his association with the alias "Cano <br>Beeper" in POPR records, constituted a due process violation <br>warranting reversal pursuant to Brady v. Maryland, 373 U.S. 83 <br>(1972), and Kyles v. Whitley, 514 U.S. 419 (1995). Ortiz-Miranda <br>also argues that newly discovered evidence from a witness who <br>began cooperating after conclusion of the trial independently and <br>cumulatively mandates a new trial. Ortiz-Miranda's claims fail <br>because, as the district court correctly concluded, there is no <br>"reasonable probability" that disclosure of the Brady material <br>during trial would have resulted in Ortiz-Miranda's acquittal. <br>See Gilday v. Callahan, 59 F.3d 257, 267 (1st Cir. 1995), cert. <br>denied, 516 U.S. 1175 (1996). Nor, as the district court <br>concluded, does the combination of the Brady material and newly- <br>discovered evidence create such a "reasonable probability." <br> Ortiz-Miranda's motion for a new trial does not specifically cite <br>the failure to disclose Rivera-Melndez's location as grounds for <br>relief. Rather, his counsel placed this information in an <br>"Affirmation" appended to the motion. Thus, although the district <br>court heard evidence on this issue at the hearing, it did not <br>specifically consider it in the Brady analysis. The draft search <br>warrant affidavit did not contain information about the sighting <br>of Rivera-Melndez because that event did not occur until after <br>the prosecutor had declined to authorize Rivera-Melndez's <br>arrest. In its analysis of the draft affidavit, however, the <br>district court assumed the availability of Rivera-Melndez and <br>determined that such availability would not have created a <br>reasonable probability of Ortiz-Miranda's acquittal. First, the <br>court found it improbable that Rivera-Melndez would exculpate <br>Ortiz-Miranda by implicating himself. See United States v. <br>Ortiz-Miranda, 931 F. Supp. 85, 93 (D.P.R. 1996). Furthermore, <br>the court found it improbable that Garca-Otero would recant her <br>identification of Ortiz-Miranda or her failure to identify <br>Rivera-Melndez even if the defense produced Rivera-Melndez. <br>See id. <br> Ortiz-Miranda does not elaborate on how Rivera-Melndez's "very <br>presence in court," Defendant's Br. at 35-36, would otherwise <br>have created a reasonable probability of acquittal. Such a claim <br>is especially questionable because the jury already had the <br>benefit of comparing photographs of the two men when assessing <br>the accuracy of Garca-Otero's identification of Ortiz-Miranda. <br>The government, while conceding the possibility that Rivera- <br>Melndez could also be involved with Israel Santiago-Lugo's <br>organization, reasonably argued in closing arguments that the <br>testimony of Garca-Otero and other evidence nonetheless <br>established the guilt of Ortiz-Miranda. <br> With respect to the draft probable cause affidavit itself, the <br>district court determined that it "favor[ed]" the <br>misidentification claim insofar as it did not contradict the <br>Department of Transportation information about the green <br>motorcycle and suggested Rivera-Melndez's involvement in drug <br>trafficking. It did not, however, exculpate Ortiz-Miranda. SeeOrtiz-Miranda, 931 F. Supp. at 92-93. Similarly, the district <br>court correctly recognized that although the missing page of the <br>criminal history report would have "favored" the defense by <br>attributing the alias "Cano Beeper" solely to Rivera-Melndez, <br>the government perhaps could have established that the POPR <br>database was incomplete. See id. at 93. <br> As the district court recognized, it is the "reasonable <br>probability" standard that distinguishes merely "favorable" <br>evidence from "material" evidence, the intentional or <br>unintentional withholding of which violates a defendant's due <br>process rights. See Gilday, 59 F.3d at 267. On this record, we <br>agree with the district court that "the sum of evidence withheld <br>is hardly of the variety that would undermine our confidence in <br>the outcome of the trial." Ortiz-Miranda, 931 F. Supp. at 94. <br> Finally, Ortiz-Miranda summarily asserts "prosecutorial <br>misconduct" as grounds for reversal. In view of the fact that he <br>neither develops this argument nor cites any supporting <br>authority, we reject this argument out of hand. See United <br>States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[A] litigant <br>has an obligation to spell out its arguments squarely or <br>distinctly, or else forever hold its peace."). <br>IX. Sufficiency of the Evidence <br> First, with respect to Count 46, conspiracy to possess cocaine <br>and other controlled substances with the intent to distribute, <br>Moiss Candelaria-Silva argues that the evidence was insufficient <br>because the POPR investigation that led to the seizure did not <br>link him to the Sabana Seca residence where the seizure occurred. <br>This claim fails because to obtain a conviction, the <br>investigative officers need not identify all the perpetrators <br>prior to arrest. Here, the testimony of Otero-Coln about the <br>Candelaria-Silva family's use of the Sabana Seca residences to <br>process cocaine and other drugs for distribution well supported <br>the jury's verdict as to his involvement in the conduct charged <br>in Count 46. <br> Second, Rosado-Rosado and Moiss Candelaria-Silva argue that the <br>evidence established the existence of separate conspiracies. We <br>find their argument to be without merit. <br> The evidence presented at trial established that there was an <br>overarching conspiracy headed by Israel Santiago-Lugo to <br>distribute controlled substances, including heroin, cocaine, and <br>marijuana. The drugs were distributed at various places and by <br>various people, including members of the Candelaria family. As <br>noted in United States v. Wihbey, "[t]he question whether a given <br>body of evidence is indicative of a single conspiracy, multiple <br>conspiracies, or no conspiracy at all is ordinarily a matter of <br>fact; a jury's determination in that regard is subject to review <br>only for evidentiary sufficiency." 75 F.3d 761, 774 (1st Cir. <br>1996) (citing United States v. David, 940 F.2d 722, 732 (1st <br>Cir.), cert. denied, 502 U.S. 989 (1991)). <br> Here the trial court expressly charged the jury on the multiple <br>conspiracy defense: <br> You must decide whether the conspiracy charged in the indictment <br> existed and, if it did, who at least some of its members were. <br> If you find that the conspiracy charged did not exist, then you <br> must return a not guilty verdict, even though you may find that <br> some other conspiracy existed. Similarly, if you find that any <br> defendant was not a member of the charged conspiracy, then you <br> must find that defendant not guilty, even though that defendant <br> may have been a member of some other conspiracy. <br> <br>12/1/95 Tr. at 4569-70. Thus, the jury verdict can be viewed as <br>a rejection of the multiple conspiracy claim. Wihbey, 75 F.3d at <br>775 n.8 (stating that when the district court gives a multiple <br>conspiracy instruction, a guilty verdict "can be seen as an <br>effective rejection of the multiple conspiracy theory"). <br> As noted in United States v. Twitty, 72 F.3d 228 (1st Cir. 1995), <br>the arguments made by the defendant-appellants are not uncommon: <br> Twitty's argument is a common one in conspiracy appeals. <br> Whenever a conspiracy involves successive transactions and <br> multiple players, it is usually possible to slice the enterprise <br> into discrete portions. Even a single conspiracy is likely to <br> involve subsidiary agreements relating to different individuals <br> and transactions. And more often than not, none of the <br> agreements is explicit; agreement is inferred from conduct; and <br> the conceptual tests used to distinguish between one conspiracy <br> and many are not sharp edged. See, e.g., United States v. <br> Drougas, 748 F.2d 8, 17 (1st Cir.1984). <br> <br>Id. at 231 (emphasis supplied). <br> In Wihbey, this Court, quoting United States v. Glenn, 828 F.2d <br>855, 858 (1st Cir. 1987), set forth the framework for analyzing a <br>claim that the evidence was insufficient to allow the jury to <br>find a single conspiracy and that, instead, the evidence showed <br>two separate conspiracies: <br> <br> (1) Is the evidence sufficient to permit a jury to find the <br> (express or tacit) agreement that the indictment charges? (2) If <br> not, is it sufficient to permit a jury, under a proper set of <br> instructions, to convict the defendant of a related, similar <br> conspiracy? (3) If so [i.e., the answer to (2) is yes], does the <br> variance affect the defendant's substantial rights or does the <br> difference between the charged conspiracy and the conspiracy <br> proved amount to "harmless error?" <br> <br>75 F.3d at 773. "Put differently, so long as the statutory <br>violation remains the same, the jury can convict even if the <br>facts are somewhat different than charged -- so long as the <br>difference does not cause unfair prejudice." Id. (internal <br>quotation marks and citation omitted). <br> Analyzing this case under the first prong of the Glenn test, the <br>evidence is clearly sufficient to permit a jury to find that <br>appellants Rosado-Rosado and Moiss Candelaria-Silva joined the <br>overarching conspiracy charged in Count I. Assuming arguendo, as <br>in Wihbey, that there was insufficient proof that appellants <br>Rosado-Rosado and Moiss Candelaria-Silva were members of the <br>overarching conspiracy alleged in Count I, still, the second <br>prong of the Glenn test would be answered in the affirmative. <br>For example, Moiss Candelaria-Silva largely concedes that the <br>evidence was sufficient to convict him of the statutory offense <br>charged in Count I -- engaging in a conspiracy in violation of 21 <br>U.S.C. 846. Likewise, appellant Rosado-Rosado states: "It is <br>the contention of . . . appellant that the overt acts for which <br>evidence was presented against him relate -- if at all [--] to <br>separate and distinct drug operation or conspiracy." Defendant's <br>Br. at 8. Regardless of this assertion, however, both Otero-Coln <br>and Garca-Otero testified as to their involvement in a <br>conspiracy with him. <br> Since the second prong of the Glenn test is answered in the <br>affirmative, to obtain a reversal, appellants must meet their <br>burden under the third prong of the Glenn test -- that as a <br>result of the variance, they were unfairly prejudiced. SeeWihbey, 75 F.3d at 773. In Wihbey, the Court noted that there <br>were at least three ways in which such a variance might prejudice <br>the accused. First, a defendant may receive inadequate notice of <br>the charge against him and thus is taken by surprise at trial. <br>Second, a defendant may be twice subject to prosecution for the <br>same offense. Third, a defendant may be prejudiced by <br>"evidentiary spillover"--the "transference of guilt" to a <br>defendant involved in one conspiracy from evidence incriminating <br>defendants in another conspiracy in which the particular <br>defendant was not involved. See id. at 774. <br> Like the appellants in Wihbey, the appellants here have failed to <br>carry their burden of establishing unfair prejudice. Appellants <br>have clearly failed to establish the applicable test with respect <br>to a claim of prejudicial spillover -- "prejudice so pervasive <br>that a miscarriage of justice looms." Id. at 776 (internal <br>quotation marks and citation omitted). Here, the jury clearly <br>assessed the evidence against each defendant separately. This is <br>demonstrated by the fact that the jury declined to reach any <br>verdict as to defendant Andrades-Marrero. See 12/13/95 Tr. at <br>5093. Thus, appellants have not established unfair prejudice. <br> Accordingly, defendant-appellant's "multiple conspiracy" argument <br>is rejected. <br>X. Factual Findings at Sentencing <br> A. Ortiz-Miranda <br> In challenging his sentence, Ortiz-Miranda argues that the <br>district court erroneously attributed 1.5 kilograms of cocaine <br>base to him based upon extrapolating from an "average" dosage <br>amount. Upon review, we conclude that the record supports the <br>district court's determination. <br> The district court properly considered testimony concerning at <br>least ten total cocaine base deliveries directly involving Ortiz- <br>Miranda at the puntos in Arecibo and Vega Baja. This estimate <br>was based upon the trial testimony of Garca-Otero and testimony <br>at the hearing on the motion for a new trial. In addition, <br>Ortiz-Miranda had been arrested at the Arecibo location with <br>approximately 596 capsules of cocaine base in July 1994, and <br>Ortiz-Bez had been arrested near there in 1995 with over 1200 <br>capsules containing a total amount of 196 grams of cocaine base. <br> Garca-Otero testified that at least 500 capsules of cocaine base <br>were distributed on a weekly basis in Vega Baja, and that Ortiz- <br>Miranda made approximately six deliveries. Thus, a conservative <br>estimate of Ortiz-Miranda's direct involvement with 6,000 <br>capsules at the two locations would yield one kilogram of cocaine <br>base and a higher weight of the total mixture containing it, the <br>capsules. See USCG 2D1.1(c)*(A) ("weight of a controlled <br>substance . . . refers to the weight of any mixture or substance <br>containing [it]"). In addition, the district court could <br>reasonably infer that the additional deliveries of at least 3,000 <br>capsules, yielding approximately another one-half kilogram of <br>cocaine base to the Arecibo location would have been reasonably <br>foreseeable to Ortiz-Miranda as part of the conspiracy. Here, <br>even using a conservative estimate, the district court properly <br>attributed 1.5 kilograms of cocaine base to Ortiz-Miranda. <br> B. Eulalio Candelaria-Silva <br> Eulalio Candelaria-Silva argues that, because the firearms seized <br>from the Sabana Seca buildings were "out of reach," not used, and <br>not definitively linked to him, the district court erred in <br>imposing the two-level increase to his guidelines offense level <br>pursuant to USCG 2D1.1(b)(1). However, at sentencing, <br>Candelaria failed to challenge the link between himself and the <br>firearms. As a result, we reject his claim. See Barnett, 989 <br>F.2d at 554 ("raise-or-waive" rule not relaxed where evidence <br>supports sentencing findings). <br> At sentencing, the district court correctly rejected Candelaria's <br>claim that a relationship between the drugs and the firearms was <br>"clearly improbable." 4/19/96 Tr. at 12. Specifically, the <br>district court determined that "in the context of the evidence . <br>. . there [was] no doubt . . . that the weapons . . . had a <br>definite, clear connection with drug trafficking." Id. at 13-14. <br>The court stated further: <br> [T]hese were not hunting weapons. These were not a collection of <br> weapons. This was not a weapon had, like many people do, to just <br> defend their home in the event some burglar comes in . . .These <br> were loaded AK-47s and Ar-15s, we're talking about assault <br> rifles. <br> <br>Id. After reviewing the record, we uphold the district court's <br>determination. <br> C. Ortiz-Bez <br> At sentencing, Ortiz-Bez acknowledged his involvement as a core <br>member of the conspiracy. Specifically, he acknowledged working <br>at the "table" in Isla Verde and going "out hunting for people to <br>kill them [during the drug war with the Rosarios]." Defendant's <br>App. at 58. In fact, his candor so impressed the judge that the <br>judge adjusted his offense level for acceptance of <br>responsibility. See Ortiz-Bez Sentencing Findings at 2. <br> Ortiz-Bez now maintains, however, that the sentence imposed was <br>"exaggeratedly harsh," and alleges that the government was <br>retaliatory in seeking a three-level, as opposed to two-level, <br>adjustment, pursuant to USCG 3B1.1(b), for his role in the <br>offense. Contrary to his assertions, however, the record <br>reflects that, because Ortiz-Bez's relevant conduct clearly <br>involved five or more participants, he is not eligible for the <br>mere two-level adjustment pursuant to USCG 3B1.1(c). Thus, the <br>district court did not clearly err. <br> D. Reyes-Padilla and Morales-Santiago <br> <br> Reyes-Padilla argues that the district court should have imposed <br>a lower sentence because of her age, medical condition and <br>rehabilitative efforts. See Defendant's Br. at 10-11. At <br>sentencing, however, she raised none of these claims, preferring <br>instead to argue that she had withdrawn from the conspiracy after <br>the 1989 execution of search warrants at her Virgilio Dvila <br>apartment. See Defendant's App. at 66-79. Notwithstanding this <br>waiver, age and health are not ordinarily relevant sentencing <br>factors, see USCG 5H1.1 & 5H1.4, and Reyes-Padilla makes no <br>argument that age and health in this case constitute a <br>"mitigating circumstance of a kind, or to a degree, not <br>adequately taken into consideration by the Sentencing <br>Commission." USCG 5K2.0. Furthermore, her rehabilitation claim <br>is belied by the fact that, at sentencing, she refused to <br>acknowledge participation in the conspiracy after 1989. SeeDefendant's App. at 71. The record supports the sentence <br>imposed. <br> Morales-Santiago also argues that the district court erred in <br>determining her relevant conduct, pursuant to USCG 2D1.1, and <br>in denying her an adjustment for acceptance of responsibility, <br>pursuant to USCG 3E1.1. See Defendant's Br. at 7-8. Although <br>Morales-Santiago has provided no transcript of the sentencing <br>proceedings, the available record supports the district court's <br>determination. The record reflects that, during at least part of <br>the conspiracy, Morales-Santiago was charged with storing large <br>quantities of controlled substances, directly providing Israel <br>Santiago's distributors with those controlled substances, <br>collecting proceeds, and maintaining accounting records. As <br>such, the expansiveness of the distribution conspiracy was <br>reasonably foreseeable to her even though she may not have <br>participated in every transaction. Furthermore, contrary to <br>Morales-Santiago's assertions, the Presentence Report ("PSR") at <br>30-31 does reflect a "thorough explanation of her participation <br>in the case at hand" when viewed in the context of the trial <br>testimony of Hidalgo and Otero-Coln. Thus, Morales-Santiago's <br>claim has no merit. <br>XI. Forfeiture of the Montaez Property <br> Reyes-Padilla makes six separate objections to the inclusion of <br>the Montaez Property in the Final Order of Forfeiture: (1) that <br>there was no evidence that the property was traceable to drug <br>proceeds; (2) that she was denied the opportunity to have the <br>forfeiture determined by a jury; (3) that there was no principal <br>asset for which the Montaez property could properly be <br>substituted; (4) that forfeiture of the property constitutes <br>double jeopardy; (5) that the government waived its right to <br>forfeit the property as a substitute asset when it withdrew it <br>from Count 49; and (6) that her joint and several liability for <br>the full amount realized by the conspiracy violates the Excessive <br>Fines Clause of the Eighth Amendment. None of Reyes-Padilla's <br>arguments is compelling. <br> A. Forfeiture of a Substitute Asset <br> A criminal forfeiture order may take several forms. First, the <br>government is entitled to an in personam judgment against the <br>defendant for the amount of money the defendant obtained as <br>proceeds of the offense. Second, to the extent the government <br>can trace any of the proceeds to specific assets, it may seek the <br>forfeiture of those assets directly pursuant to 21 U.S.C. <br>853(a)(1). Third, if as a result of some act or omission of the <br>defendant, the government cannot trace the proceeds to specific <br>assets, it may seek the forfeiture of "any property, cash or <br>merchandise, in satisfaction of the amount of criminal forfeiture <br>to which it is entitled." United States v. Voight, 89 F.3d 1050, <br>1088 (3d Cir. 1996); see 21 U.S.C. 853(p) (authorizing <br>forfeiture of substitute assets). <br> In Voight, the Third Circuit held that a defendant convicted of <br>laundering $1.6 million was required to forfeit that amount as a <br>money judgment. See 89 F.3d at 1084. When the government could <br>not directly trace any forfeitable proceeds to the defendant's <br>current assets, the court held that the government could satisfy <br>the $1.6 million judgment by seeking forfeiture of the <br>defendant's assets as substitute assets. See id. at 1088. <br> Similarly, in this case, the district court ordered forfeiture of <br>the Montaez property as a substitute asset to satisfy, at least <br>in part, the $6,000,000 money judgment set forth in the <br>preliminary order of forfeiture because the government <br>established that it could not trace any of the criminal proceeds <br>into any of the defendant's current assets. <br> In this context, failure to establish any nexus between the <br>MONTAEZ property and the conspiracy is irrelevant. In fact, <br>such a nexus would render forfeiture of the property as a <br>substitute asset unnecessary. See Voight, 89 F.3d at 1086 <br>("[t]he substitute asset provision comes into play only when <br>forfeitable property cannot be identified as directly 'involved <br>in' or 'traceable to' [the criminal activity]"). <br> To obtain an order forfeiting property as a substitute asset, the <br>government need only comply with the requirements of 853(p). <br>In particular, substitute assets may be forfeited if the <br>government shows that, as a result of any act or omission of the <br>defendant, the forfeitable property "(1) cannot be located upon <br>the exercise of due diligence; [or] (2) has been transferred or <br>sold to, or deposited with, a third party." 853(p)(1) & (2). <br> Here, the government complied with 853(p) by submitting a <br>motion and affidavit that recited the efforts the government had <br>made to locate the proceeds of the drug conspiracy that would <br>have been directly forfeitable under 853(a). See Defendant's <br>App. at 121-24 (Affidavit of Special Agent Felicia Ramos-Andino). <br>The affidavit concluded that Reyes-Padilla had "dissipated or <br>otherwise disposed of the proceeds of her drug trafficking," id.at 123, so that the proceeds could not, despite the exercise of <br>due diligence, be located. See id. at 123-24. Based on this <br>record, it was not error for the district court to order the <br>forfeiture of "other property of the defendant," 853(p), up to <br>the amount described in the money judgment. See 853(p); United <br>States v. Hurley, 63 F.3d 1, 23-24 (1st Cir. 1995) (affirming <br>forfeiture of substitute assets under identical provision in 18 <br>U.S.C. 1963(m)). <br> B. Determination of Assets <br> Reyes-Padilla contends that she was denied the right to have the <br>jury determine whether the Montaez Property could be forfeited. <br>She also asserts that there was no "principal asset" for which <br>the Montaez Property could properly be substituted. <br> The forfeiture of substitute assets is a matter left solely to <br>the court. See Hurley, 63 F.3d at 23 ("the statute says that an <br>order substituting assets is to be made by 'the court'"). As <br>this Court explained in Hurley, the defendant has a right to have <br>the amount subject to forfeiture determined, in the first <br>instance, by the jury. See 68 F.3d at 23; see also Fed. R. Crim. <br>P. 31(e) (stating that the initial forfeiture is sought in the <br>indictment and is specified in a special verdict). But the jury <br>has no role in determining, subsequently, whether the property <br>has been dissipated and whether the government is thereby <br>entitled to seek the forfeiture of substitute assets. "Indeed, <br>the government might not even know that substitution is necessary <br>until it seeks to take possession of the property specified in <br>the initial forfeiture order." Hurley, 68 F.3d at 23. <br> In this case, the jury determined -- by rendering the special <br>verdict -- that the conspiracy realized $6,000,000 in proceeds <br>from the commission of the specified offenses, and that the <br>defendant and others were jointly and severally liable for that <br>amount. Thus, the jury determined that the $6,000,000 was the <br>"principal asset" subject to forfeiture. In having the jury <br>determine that amount, the defendant was afforded all of the <br>procedural protections regarding the determination of the <br>forfeiture by the jury to which she was entitled. <br> C. Double Jeopardy and Waiver <br> There is no merit whatsoever in Reyes-Padilla's contention that <br>she was subject to double jeopardy because the government <br>commenced its case with a civil seizure, but concluded it by <br>proceeding under the substitute assets provision of the criminal <br>forfeiture statute. Nor did the government's initial inclusion, <br>and subsequent dismissal, of the Montaez property from Counts 48 <br>and 49 of the Superseding Indictment constitute a waiver of the <br>right to seek forfeiture of the property as a substitute asset. <br> A completed civil forfeiture of property does not constitute <br>"jeopardy" under the Double Jeopardy Clause, and does not bar the <br>subsequent criminal prosecution and punishment of the defendant <br>whose property was forfeited. See United States v. Ursery, 518 <br>U.S. 267, 274 (1996) (stating that the Supreme Court has <br>consistently concluded that "the Clause does not apply to [civil <br>forfeitures] because they do not impose punishment"). A <br>fortiori, a civil forfeiture action that goes no further than a <br>seizure, and never results in the entry of any civil forfeiture <br>judgment cannot constitute jeopardy. Moreover, this Court has <br>recognized that it is "perfectly proper" to begin a forfeiture <br>action with a civil seizure, and then to convert the action to a <br>criminal forfeiture once an indictment is returned. See United <br>States v. Kingsley, 851 F.2d 16, 18 & n.1 (1st Cir. 1988). <br>Indeed, that procedure is commonplace. <br> Nor is it uncommon for the government to shift theories of <br>criminal forfeiture -- from direct forfeiture to substitute <br>assets -- upon return of an indictment. We held in Voight that <br>when the government's attempt to forfeit the defendant's property <br>directly was unsuccessful, the remedy was for the government to <br>seek forfeiture of the same property as a substitute asset under <br> 853(p). See Voight, 89 F.3d at 1088. If, as Voightillustrates, it is proper to seek the forfeiture of property as a <br>substitute asset even after a jury has rejected the government's <br>attempt to forfeit the property directly, then there is no error <br>in allowing the government to dismiss the property from the <br>forfeiture allegation before it goes to the jury and to seek the <br>forfeiture as a substitute asset after trial. In dismissing the <br>Montaez property from the forfeiture allegation in Count 49, the <br>government simply shifted its theory of forfeiture from 853(a) <br>to 853(p). Doing so before submission of the case to the jury <br>was entirely proper in light of the prosecutor's conclusion that <br>there was insufficient evidence to support direct forfeiture <br>under 853(a). <br> D. Excessive Fines Clause <br> It is well-established that criminal defendants are jointly and <br>severally liable for forfeiture of the full amount of the <br>proceeds of their criminal offense, and that the imposition of <br>such a forfeiture judgment does not constitute an <br>unconstitutionally excessive fine. See Hurley, 63 F.3d at 23 <br>("the government can collect [the amount subject to forfeiture] <br>only once but, subject to that cap, it can collect from any <br>appellant so much of that amount as was foreseeable to that <br>appellant"); see also United States v. Simmons, 154 F.3d 765, <br>769-70 (8th Cir. 1998) (holding that each defendant is jointly <br>and severally liable for all foreseeable proceeds of the scheme <br>and that "the government is not required to prove the specific <br>portion of proceeds for which each defendant is responsible"). <br> In Hurley, we affirmed precisely the action taken here: the <br>imposition of an order substituting other property of each <br>defendant up to the value of the criminal proceeds for which the <br>defendant was jointly and severally liable. In that case, each <br>of the defendants, including the relatively minor participants, <br>was ordered to forfeit substitute assets up to approximately $140 <br>million in value. If holding each defendant jointly and <br>severally liable to forfeit that amount in substitute assets did <br>not violate the Excessive Fines Clause, then the forfeiture <br>imposed on Reyes-Padilla does not. <br> It is true, as Reyes-Padilla notes, that the Eighth Circuit has <br>held that holding a "secondary figure" jointly and severally <br>liable for the forfeiture of the full amount of the criminal <br>proceeds may constitute an excessive fine if the defendant <br>"reaped little benefit" from the scheme. See United States v. <br>Van Brocklin, 115 F.3d 587, 602 (8th Cir. 1997). Van Brocklindoes not aid the defendant. <br> First, in Hurley, we upheld the imposition of a substitute assets <br>order for the full amount of the criminal proceeds against <br>relatively low-level participants who reaped little personal <br>benefit from the criminal offense. <br> Second, in its most recent opinion on the matter, the Eighth <br>Circuit relied on Hurley to uphold a forfeiture order holding the <br>defendants jointly and severally liable for the full amount of <br>the proceeds of a bribery offense, whether or not a given <br>defendant received those funds personally. See Simmons, 154 F.3d <br>at 769. <br> Third, it is appropriate to hold Reyes-Padilla accountable. <br>Although the district court determined that she was a minor <br>participant in the offense, she served as an important link <br>between Israel Santiago-Lugo and his distributors at the various <br>housing projects. Because she personally received and stored <br>controlled substances at her apartment and at the apartment of <br>Morales-Santiago, personally provided wholesale quantities of <br>controlled substances to Santiago-Lugo's distributors, and also <br>assisted with maintaining records of these transactions, she is <br>appropriately characterized as being "in charge of Santiago <br>Lugo's drug trafficking business at the Virgilio Dvila Housing <br>Project in Bayamn." Defendant's App. at 121 (Affidavit of <br>Special Agent Felicia Ramos-Andino). Reyes-Padilla was at <br>Morales-Santiago's apartment when POPR officers seized <br>approximately $96,000 in currency and the drug ledgers reflecting <br>over $3,000,000 worth of transactions during a one-year period. <br>Given Reyes-Padilla's role, holding her liable for the full <br>amount of the proceeds of the conspiracy falls well within the <br>bounds we prescribed in Hurley. <br> Finally, Reyes-Padilla does not challenge the $6,000,000 money <br>judgment. Rather, her appeal challenges only the forfeiture of <br>the Montaez property as a substitute asset. The Montaez <br>property has a value of only $169,000. Reyes-Padilla cannot <br>seriously argue that the forfeiture of property valued at that <br>amount is "grossly disproportional" to the gravity of a drug <br>conspiracy that realized millions of dollars in proceeds. See United States v. Bajakajian, 118 S. Ct. 2028, 2036 (1998) <br>(holding that "a punitive forfeiture violates the Excessive Fines <br>Clause if it is grossly disproportional to the gravity of a <br>defendant's offense"). Accordingly, the forfeiture of Reyes- <br>Padilla's Montaez property does not violate the Excessive Fines <br>Clause of the United States Constitution. <br> CONCLUSION <br> For the reasons stated in this opinion, we AFFIRM. <br></pre>
</body>
</html>