United States v. Julio-Cardales

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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-2383 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      MANUEL JULIO CARDALES, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 97-2384 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                    ROBINSON RAFAEL HERNANDEZ, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 97-2385 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                     ARKEL HAWKINS PETERSON, <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. Juan M. Prez-Gimnez, U.S. District Judge] <br> <br>                       ____________________

                             Before <br> <br>                      Lynch, Circuit Judge, <br> <br>Hall, Senior Circuit Judge, <br> <br>                    and Lipez, Circuit Judge. <br> <br>                      _____________________ <br> <br>     Edgardo Rodrguez-Quilichini, Assistant Federal Public <br>Defender and Vctor P. Miranda-Corrada, by appointment of the <br>Court, with whom Joseph C. Laws, Jr., Federal Public Defender, were <br>on joint brief, for appellants Manuel Julio Cardales and Robinson <br>Rafael Hernndez. <br>     Linda Backiel for Arkel Hawkins Peterson. <br>     Jonathan L. Marcus, Attorney, Department of Justice, with whom <br>Guillermo Gil, United States Attorney, Timothy Faerber, Aixa <br>Maldonado and Jos A. Quiles, Assistant United States Attorneys, <br>were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                       February 26, 1999 <br>                       ____________________

         HALL, Senior Circuit Judge.  Manuel Julio Cardales <br>("Cardales"), Robinson Rafael Hernndez ("Hernndez"), and Arkel <br>Hawkins Peterson ("Peterson") appeal their convictions for aiding <br>and abetting each other in the possession with intent to distribute <br>marijuana on board a vessel subject to the jurisdiction of the <br>United States in violation of 46 U.S.C. app.  1903(a) and 18 <br>U.S.C.  2.  The district court sentenced Cardales to 120 months in <br>prison, Hernndez to 78 months in prison, and Peterson to 121 <br>months in prison.  Peterson appeals his sentence.  We have <br>jurisdiction under 28 U.S.C.  1291 and 18 U.S.C.  3742(a), and we <br>affirm. <br>                              FACTS <br>          At approximately 5:40 p.m. on May 31, 1996, a helicopter <br>crew from the U.S.S. GROVES spotted a "go-fast" boat, the CORSICA, <br>traveling at a very high rate of speed in waters approximately 150 <br>miles south of Puerto Rico.  The helicopter crew attempted to <br>contact the boat by radio and by hand signal, but all efforts to <br>communicate with the CORSICA were unsuccessful even though the <br>CORSICA's radio was working.  The defendants evaded the helicopter <br>for over two hours, turning off the CORSICA's navigation lights <br>when it grew dark.  Eventually, the helicopter crew was able to <br>steer the CORSICA toward the GROVES.  When the defendants spotted <br>the GROVES, they turned the CORSICA in the opposite direction and <br>fled.  When the CORSICA was close enough, the crew from the GROVES <br>launched a rigid hull inflatable boat ("RHIB") to approach the <br>CORSICA, but the RHIB's engine failed before it could make contact.  <br>While the crew from the GROVES launched a second RHIB, the <br>helicopter returned to the GROVES for refueling.  As a result of <br>the first RHIB's breakdown and the helicopter's refueling, the <br>CORSICA was out of sight for approximately fifteen minutes. <br>          When the second boat reached the CORSICA, Peterson <br>identified himself as the captain, and claimed the CORSICA was a <br>Venezuelan vessel that had departed from Colombia to search for a <br>lost boat.  Peterson refused to allow the Coast Guard crew to board <br>the CORSICA until the Venezuelan government consented.  The Coast <br>Guard crew sought authorization to board the CORSICA from <br>Venezuela, but the Venezuelan government was unable to access the <br>ship registry database at that time.  The Coast Guard crew boarded <br>the CORSICA pursuant to a statement of no objection from Coast <br>Guard headquarters, and shortly thereafter the Venezuelan <br>government authorized the Coast Guard to board and search the <br>CORSICA under the unverified assumption that the CORSICA was <br>registered in Venezuela.  When the officers searched the CORSICA, <br>they noted that the CORSICA's radio was working, the forward cabin <br>smelled of fuel, the carpet had indentations in it as if heavy <br>objects had been resting on it, and pieces of what appeared to be <br>burlap were woven into the carpet.  However, the officers did not <br>find any contraband, and returned to the GROVES. <br>          Shortly after the officers returned to the GROVES, <br>lookouts on board the GROVES noticed over twenty bales floating in <br>the water.  The crew from the GROVES recovered seventeen of the <br>bales, which contained over 1080 pounds of marijuana.  The <br>marijuana was held in cardboard boxes, wrapped in plastic and tape, <br>and marked with a yellow dye.  The officers returned to the <br>CORSICA, reboarded pursuant to the Venezuelan government's previous <br>consent, and conducted a second search. <br>          During the second search, officers found packing material <br>that matched the material found in the bales recovered by the <br>GROVES, yellow dye stains on the carpet that matched the yellow dye <br>markers on the marijuana, and what appeared to be a marijuana stem <br>that tested positive for THC, a chemical found in marijuana.  The <br>officers arrested the defendants, and the CORSICA was piloted to <br>Puerto Rico.  The officer who piloted the CORSICA noticed that the <br>CORSICA skipped across the water as he drove it, which contrasted <br>sharply to the CORSICA's bow-heavy condition during the chase. <br>          On June 5, 1996, the Venezuelan government notified the <br>State Department that the CORSICA was indeed of Venezuelan <br>registry, reauthorized the boarding and search of the CORSICA, and <br>authorized the arrest of and application of U.S. law to the <br>CORSICA's crew.  Cardales, Hernndez, and Peterson were convicted  <br>of aiding and abetting each other in possessing with the intent to <br>distribute marijuana while on board a vessel subject to the <br>jurisdiction of the United States in violation of 46 U.S.C. app. <br> 1903(a).  The defendants appealed. <br>                            DISCUSSION <br>                                I <br>          The Maritime Drug Law Enforcement Act ("MDLEA") makes it <br>"unlawful for any person . . . on board a vessel subject to the <br>jurisdiction of the United States . . . to possess with intent to <br>manufacture or distribute, a controlled substance."  46 U.S.C. app. <br> 1903(a).  One of the MDLEA's definitions of a vessel subject to <br>the jurisdiction of the United States is "a vessel registered in a <br>foreign nation where the flag nation has consented or waived <br>objection to the enforcement of United States law by the United <br>States."  Id.  1903(c)(1)(C). <br>          In this case, the defendants were convicted of aiding and <br>abetting each other in the possession with intent to distribute <br>marijuana on board a vessel, the CORSICA, subject to the <br>jurisdiction of the United States.  The CORSICA was registered in <br>Venezuela, and the government of Venezuela consented to the <br>application of United States law to the defendants.  The government <br>therefore satisfied the jurisdictional requirements of the MDLEA. <br>          The defendants contend that the Fifth Amendment Due <br>Process Clause requires the government to prove a nexus between <br>their criminal conduct and the United States in a prosecution for <br>violating the MDLEA.  Although the MDLEA does not explicitly <br>contain a domestic nexus requirement, the Ninth Circuit has read <br>into the MDLEA a nexus requirement with respect to foreign- <br>registered vessels.  See United States v. Klimavicius-Viloria, 144 <br>F.3d 1249, 1257 (9th Cir. 1998) (requiring government to prove that <br>offense conduct is likely to have effects in United States); United <br>States v. Davis, 905 F.2d 245 (9th Cir. 1990) (requiring sufficient <br>nexus between criminal conduct and United States such that <br>application of U.S. law would not be arbitrary or unfair).  This <br>nexus requirement, however, was specifically rejected by the Third <br>Circuit.  See United States v. Martnez-Hidalgo, 993 F.2d 1052 (3d <br>Cir. 1993) (reasoning that statute does not contain nexus <br>requirement, and that Congress intended MDLEA to override <br>international law to extent nexus might be required).  We decide <br>today that due process does not require the government to prove a <br>nexus between a defendant's criminal conduct and the United States <br>in a prosecution under the MDLEA when the flag nation has consented <br>to the application of United States law to the defendants.   <br>     To satisfy due process, our application of the MDLEA must <br>not be arbitrary or fundamentally unfair.  See Davis, 905 F.2d at <br>248-49; see also Martnez-Hidalgo, 993 F.2d at 1056.  In <br>determining whether due process is satisfied, we are guided by <br>principles of international law.  See Davis, 905 F.2d at 249 n.2.  <br>Under the "territorial principle" of international law, a "state <br>has jurisdiction to prescribe and enforce a rule of law in the <br>territory of another state to the extent provided by international <br>agreement with the other state."  United States v. Robinson, 843 <br>F.2d 1, 4 (1st Cir. 1988).  In Robinson, we decided that the United <br>States had jurisdiction over a Panamanian vessel stopped over 500 <br>miles off shore because the Panamanian government authorized the <br>United States to apply U.S. law to the persons on board the vessel.  <br>See id. (recognizing informal authorization as valid agreement for <br>purposes of territorial principle, and affirming conviction under <br>21 U.S.C.  955a, statutory precursor to MDLEA).  In this case, the <br>Venezuelan government authorized the United States to apply United <br>States law to the persons on board the CORSICA.  Therefore, <br>jurisdiction in this case is consistent with the territorial <br>principle of international law. <br>     In addition, under the "protective principle" of <br>international law, a nation is permitted "to assert jurisdiction <br>over a person whose conduct outside the nation's territory <br>threatens the nation's security."  Robinson, 843 F.2d at 3; seeUnited States v. Romero-Galue, 757 F.2d 1147, 1154 (11th Cir. <br>1985); United States v. Pizzarusso, 388 F.2d 8, 10 (2d Cir.) <br>(characterizing protective principle as applying only to conduct <br>generally recognized among nations as a crime), cert. denied, 392 <br>U.S. 936 (1968).  Consistent with this principle, Congress <br>specifically found in the MDLEA that "trafficking in controlled <br>substances aboard vessels is a serious international problem and is <br>universally condemned[, and] . . . presents a specific threat to <br>the security . . . of the United States."  46 U.S.C. app.  1902.  <br>Therefore, application of the MDLEA to the defendants is consistent <br>with the protective principle of international law because Congress <br>has determined that all drug trafficking aboard vessels threatens <br>our nation's security.  See Martnez-Hidalgo, 993 F.2d at 1056 <br>("Inasmuch as trafficking of narcotics is condemned universally by <br>law-abiding nations, we see no reason to conclude that it is <br>'fundamentally unfair' for Congress to provide for the punishment <br>of persons apprehended with narcotics on the high seas."); cf.Church v. Hubbart, 6 U.S. (2 Cranch) 187, 234-35 (1804) ("[A <br>nation's] power to secure itself from injury may certainly be <br>exercised beyond the limits of its territory."). <br>     We therefore hold that when individuals engage in drug <br>trafficking aboard a vessel, due process is satisfied when the <br>foreign nation in which the vessel is registered authorizes the <br>application of United States law to the persons on board the <br>vessel.  When the foreign flag nation consents to the application <br>of United States law, jurisdiction attaches under the statutory <br>requirements of the MDLEA without violation of due process or the <br>principles of international law because the flag nation's consent <br>eliminates any concern that the application of United States law <br>may be arbitrary or fundamentally unfair. <br>                                II <br>     The defendants contend that the district court removed <br>from the jury's consideration the jurisdictional element of the <br>MDLEA.  Although the district court stated during the defendant's <br>opening statements that there was jurisdiction, the court corrected <br>itself in its jury instructions.  The district court instructed the <br>jury that it was required to find jurisdiction beyond a reasonable <br>doubt.  In addition, the district court explicitly corrected its <br>earlier mistake, instructing the jury that it had "to make an <br>independent final determination as to whether there is jurisdiction <br>or not in this case" regardless of the court's earlier comments.  <br>Cf. Richardson v. Marsh, 481 U.S. 200, 206 (1987) (assuming that <br>jurors follow instructions); Arthur D. Little, Inc. v. Dooyang <br>Corp., 147 F.3d 47, 53 (1st Cir. 1998) (same).  Therefore, the <br>district court did not take from the jury the MDLEA's <br>jurisdictional element. <br>                               III <br>     The defendants contend that the district court erred by <br>denying their Rule 29 motions for judgment of acquittal based on <br>the sufficiency of the evidence.  We will reverse the district <br>court's denial of the defendants' Rule 29 motions only if, viewing <br>the evidence in the light most favorable to the government and <br>drawing all reasonable inferences in support of the verdict, no <br>rational jury could find guilt beyond a reasonable doubt.  SeeUnited States v. Marrero-Ortiz, 160 F.3d 768, 772 (1st Cir. 1998).  <br>The government presented sufficient evidence to prove that all <br>three defendants (1) were on board a vessel subject to the <br>jurisdiction of the United States, (2) knowingly or intentionally <br>possessed marijuana, and (3) intended to distribute that marijuana.  <br>See Guerrero, 114 F.3d at 339.   <br>     First, the government introduced evidence from which the <br>jury reasonably could have found that the United States had <br>jurisdiction over the defendants.  The government introduced <br>testimony that the Venezuelan government authorized the Coast Guard <br>crew to board and search the CORSICA.  In addition, the Venezuelan <br>government authorized the United States to apply United States law <br>to the CORSICA's crew.  See 46 U.S.C. app.  1903(c)(1)(C). <br>     Second, the government introduced evidence from which the <br>jury reasonably could have found that the crew of the CORSICA had <br>possessed the bales of marijuana found floating in the ocean.  The <br>government introduced evidence that (1) there were impressions in <br>the CORSICA's carpet that matched the shape of the marijuana bales; <br>(2) there was yellow dye on the CORSICA's carpet that matched <br>yellow dye found in the bricks of marijuana; (3) there were <br>cardboard pieces and packing tape on board the CORSICA that matched <br>the materials used to package the marijuana; (4) the pieces of <br>plastic removed from the CORSICA's carpet matched the thickness and <br>type of plastic used to package the bales; (5) there was a piece of <br>what appeared to be a marijuana stem on the CORSICA that tested <br>positive for THC; and (6) a narcotics dog aboard the CORSICA <br>alerted Coast Guard officers to the presence of drugs.  In <br>addition, the government introduced testimony that traced the bales <br>found floating in the water to the location of the CORSICA at the <br>time the bales were allegedly thrown overboard. <br>     In addition, the government introduced sufficient <br>evidence from which the jury reasonably could infer that the <br>defendants knowingly possessed the marijuana.  The government <br>demonstrated that the defendants evaded the Coast Guard helicopter <br>for over two hours, turning off their navigation lights when it got <br>dark, failing to respond to radio contact even though their radio <br>was working, and refusing to allow the Coast Guard crew to board <br>when finally stopped.  See United States v. Leuro-Rosas, 952 F.2d <br>616, 622 (1st Cir. 1991); United States v. Piedrahita-Santiago, 931 <br>F.2d 127, 131 (1st Cir. 1991); United States v. Passos-Paternina, <br>918 F.2d 979, 985 (1st Cir. 1990).  The government demonstrated <br>that the CORSICA was riding low in the water, suggesting that the <br>CORSICA was laden with illegal cargo.  See Piedrahita-Santiago, 931 <br>F.2d at 131.  The government demonstrated that the defendants tried <br>to mask the presence of the marijuana by pouring gasoline on the <br>CORSICA's deck.  See United States v. Romero, 32 F.3d 641, 645 (1st <br>Cir. 1994). The government demonstrated that the CORSICA was <br>carrying a large amount of marijuana relative to its size.  SeePiedrahita-Santiago, 931 F.2d at 131; United States v. Cueva- <br>Esquivel, 905 F.2d 510, 515 (1st Cir. 1990).  The government <br>demonstrated that the defendants had traveled a great distance to <br>reach the location where they were spotted.  See Piedrahita- <br>Santiago, 931 F.2d at 131; United States v. Corpus, 882 F.2d 546, <br>550 (1st Cir. 1989).  The government demonstrated that the <br>defendants shared close relationships with each other because the <br>three of them were on board a boat that was only forty-two feet <br>long, they were all Colombians, and they worked closely together to <br>operate the CORSICA.  See Cuevas, 905 F.2d at 515.  Finally, the <br>government demonstrated that the marijuana recovered had a street <br>value of up to $8 million.  See Passos-Paternina, 918 F.2d at 985. <br>     Third, the government introduced evidence from which the <br>jury reasonably could infer that the defendants intended to <br>distribute the marijuana.  The government demonstrated that <br>lookouts aboard the GROVES spotted over twenty bales floating in <br>the water.  The crew of the GROVES recovered seventeen of the <br>bales, which contained over 1080 pounds of marijuana.  The jury <br>reasonably could infer from the quantity of marijuana recovered <br>that the defendants intended to distribute the marijuana.  SeeGuerrero, 114 F.3d at 344; United States v. Echeverri, 982 F.2d <br>675, 678 (1st Cir. 1993). <br> <br>                                IV <br>     Peterson contends that the district court erred by <br>denying his motion for a mistrial under Rule 16 of the Federal <br>Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 <br>(1963), based on the government's failure to disclose pretrial a <br>laboratory report that showed that the CORSICA's carpet tested <br>negative for marijuana and THC.  During the government's direct <br>examination of one of its witnesses, the witness disclosed for the <br>first time the existence of a laboratory test showing that the <br>CORSICA's carpet tested negative for the presence of marijuana and <br>THC.  The defendants objected to this testimony, but the test was <br>admitted into evidence and the defendants were provided with a copy <br>of the test for the first time. <br>     We will reverse the district court's denial of Peterson's <br>motion for a mistrial based on the alleged Brady violation only if <br>the district court abused its discretion.  See United States v.Devin, 918 F.2d 280, 289-90 (1st Cir. 1990).  In the case of <br>delayed disclosure, we examine whether Peterson's "'counsel was <br>prevented by the delay from using the disclosed material <br>effectively in preparing and presenting'" Peterson's case.  SeeUnited States v. Catano, 65 F.3d 219, 227 (1st Cir. 1995) (quoting <br>United States v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir. 1986)).  <br>We find that the district court did not abuse its discretion <br>because Peterson's counsel effectively used the report during the <br>presentation of Peterson's case. <br>     Peterson's counsel effectively cross-examined the <br>government witness who disclosed the report, and used the test <br>results in its closing argument.  See Catano, 65 F.3d at 227.  <br>Peterson's counsel did not attempt to recall any of the <br>government's earlier witnesses.  In addition, Peterson's counsel <br>failed to request a continuance, indicating that she was not <br>prejudiced by the delayed disclosure.  See United States v.Innamorati, 996 F.2d 456, 480 (1st Cir. 1993); Ingraldi, 793 F.2d <br>at 411-12.   <br>                                V <br>     Peterson contends that the district court erred by <br>failing to ask all potential jurors about any positive bias they <br>might have held toward the testimony of law enforcement officers.  <br>However, this bias inquiry was requested with respect to only two <br>prospective jurors, and the district court made the requested <br>inquiry in both instances.  Because Peterson failed to make this <br>request with respect to all prospective jurors, we review this <br>issue only for plain error.  See United States v. Olano, 507 U.S. <br>725, 732 (1993). <br>     We decline to adopt a rule requiring trial courts to make <br>a routine inquiry into the possible bias all prospective jurors <br>might have toward law enforcement testimony because it would <br>"establish a per se rule that is simply inconsistent with the broad <br>deference traditionally and wisely granted trial courts in their <br>conduct of voir dire."  See United States v. Lancaster, 96 F.3d <br>734, 740-41 (4th Cir. 1996) (en banc); see also United States v.Gonzlez-Soberal, 109 F.3d 64, 69 (1st Cir. 1997) (giving <br>substantial deference to district court's conduct of voir dire); <br>United States v. Medina, 761 F.2d 12, 20 (1st Cir. 1985) (giving <br>trial court broad discretion in conduct of voir dire).  Because the <br>district court did not err, there was no plain error. <br>     Peterson's reliance on United States v. Victoria-Peguero, <br>920 F.2d 77 (1st Cir. 1990), United States v. Anagnos, 853 F.2d 1 <br>(1st Cir. 1988), and United States v. Pappas, 639 F.2d 1 (1st Cir. <br>1980), is misplaced because in each of those cases the defendant's <br>counsel specifically requested the judge to make the bias inquiry, <br>and the judge refused to do so.  As stated above, Peterson's <br>counsel made that request with respect to only two jurors, and the <br>district court complied with both requests. <br>                                VI <br>     Peterson contends that the district court erred by <br>refusing to instruct the jury not to give greater credibility to <br>the testimony of government agents than to the testimony of <br>nongovernment witnesses.  We review the district court's jury <br>instructions for abuse of discretion, "to determine whether the <br>charge, taken as a whole fairly and adequately submit[s] the issues <br>in the case to the jury."  United States v. Roberts, 119 F.3d 1006, <br>1016 (1st Cir. 1997) (citation omitted).  The district court did <br>not err. <br>     Peterson never proposed a jury instruction on the <br>credibility of law enforcement witnesses.  Cardales, however, <br>orally requested that the court give "the pattern instruction for <br>the Fifth Circuit or the one in Devitt & Blackmar for law <br>enforcement witnesses."  Neither one of these two sources, however, <br>contains an instruction on the credibility of law enforcement <br>witnesses.  The district court could not have erred by refusing to <br>give a nonexistent instruction. <br>     Even if one of the defendants had submitted a credibility <br>instruction, the district court would not have abused its <br>discretion by denying it.  The district court instructed the jury <br>that it was the sole judge of the credibility of the witnesses, and <br>that in evaluating the credibility of a witness it should consider <br>whether the witness had any relationship with the government or the <br>defense.  Taken as a whole, the district court's instructions <br>fairly and adequately submitted the case to the jury.  See United <br>States v. Angiulo, 897 F.2d 1169, 1208 (1st Cir.), cert. denied, <br>498 U.S. 845 (1990).  The district court's instructions were <br>therefore proper. <br>                               VII <br>     Peterson contends that the district court abandoned its <br>role of judicial neutrality and therefore deprived him of his right <br>to a fair trial by striking the defendant's opening statement and <br>by asking witnesses misleading and one-sided questions.  We will <br>find judicial bias only if a reading of the entire record leaves us <br>with an abiding impression that the judge substantially intervened. <br>See Cruz-Paulino, 61 F.3d 986, 997 (1st Cir. 1995); United States <br>v. Twomey, 806 F.2d 1136, 1141 (1st Cir. 1986).  Upon a careful <br>review of the entire record, we are left with no abiding impression <br>of judicial bias. <br>                               VIII <br>     Peterson contends that the district court made a series <br>of erroneous evidentiary rulings, the cumulative effect of which <br>denied Peterson his right to a fair trial.  We review each of the <br>district court's evidentiary rulings for abuse of discretion, and <br>then examine Peterson's cumulative error claim.  See Williams v.Drake, 146 F.3d 44, 46 (1st Cir. 1998).  The district court did not <br>abuse its discretion. <br>     First, Peterson contends that the district court erred by <br>denying his motion in limine to exclude evidence of his prior <br>deportation from Puerto Rico.  Peterson's unlawful entry into <br>Puerto Rico was relevant to show Peterson's character for <br>truthfulness, and was therefore admissible to impeach Peterson on <br>cross-examination.  See Fed. R. Evid. 608(b); cf. United States v.Cambindo-Valencia, 609 F.2d 603, 633-34 (2d Cir. 1979).  The <br>district court, therefore, did not err by denying Peterson's motion <br>in limine. <br>     Second, Peterson contends that the district court erred <br>by preventing his trial counsel from refreshing the recollection of <br>one of the government's witnesses.  However, the district court <br>merely prevented Peterson's counsel from repeatedly and improperly <br>asking, "Has your recollection been refreshed?" to impeach the <br>government's witness when the witness had never indicated that he <br>did not recall his previous statements.  The district court did not <br>otherwise prevent Peterson's counsel from legitimately refreshing <br>the recollection of this witness. <br>     Third, Peterson contends that the district court erred by <br>permitting the government to refresh the recollection of one of its <br>witnesses during redirect examination.  The district court did not <br>abuse its discretion when, after Officer Epps testified that his <br>report did not mention a field test on a marijuana stem, it allowed <br>the government to refresh Epps' recollection by showing Epps his <br>report indicating that he had field tested a marijuana stem.  Cf.United States v. Williams, 105 F.3d 740, 742 (1st Cir.) (refreshing <br>recollection by reading reports of interviews given to FBI agents), <br>cert. denied, 117 S. Ct. 2424 (1997). <br>     Fourth, Peterson contends that the district court erred <br>by not permitting Peterson to refresh the recollection of one of <br>the government's witnesses during cross examination.  The district <br>court did not abuse its discretion when it denied Peterson's <br>request to refresh Officer Langevin's recollection with log books <br>Langevin did not prepare when Langevin could not recall whether <br>Epps had field tested a piece of cardboard or some other material.  <br>See United States v. Boyd, 606 F.2d 792, 794 (8th Cir. 1979); cf.NLRB v. Federal Dairy Co., 297 F.2d 487, 489 n.3 (1st Cir. 1962) <br>(forbidding misuse of written aids).  <br>     Fifth, Peterson contends that the district court erred by <br>allowing one of the government's witnesses to testify about <br>corroborating evidence of the defendant's guilt.  The district <br>court did not err by permitting Officer Taravela to testify about <br>the corroborating evidence because Cardales' counsel asked Taravela <br>about the cause for the defendants' arrests, thereby opening the <br>door for the government to explore on redirect the grounds for the <br>arrests.  Cf. United States v. Ariza-Ibarra, 605 F.2d 1216, 1226 <br>(1st Cir. 1979). <br>     Because we find that the district court did not err in <br>any of the evidentiary rulings challenged on appeal, Peterson's <br>cumulative error argument necessarily fails. <br>                                IX <br>     Peterson contends that the district court erred by <br>enhancing his sentence under U.S.S.G.  3C1.1 for obstruction of <br>justice based on a finding of perjury.  We will reverse the <br>district court's obstruction of justice sentencing enhancement only <br>if the district court clearly erred in finding that Peterson <br>committed perjury.  See United States v. McKeeve, 131 F.3d 1, 15 <br>(1st Cir. 1997).  The district court did not err. <br>     The district court found that Peterson had committed <br>perjury when he testified that he had been hired to search for a <br>lost boat in the area where the helicopter crew spotted the <br>CORSICA.  The court found unbelievable the story that Peterson, who <br>claimed to be a salesman, had been hired to travel such a great <br>distance to conduct a less-than-two-hour search for the allegedly <br>missing boat, that the missing boat happened to get lost in an area <br>conducive to drug trafficking, and that Peterson's knowledge of the <br>CORSICA was deficient.  See United States v. Matiz, 14 F.3d 79, 84 <br>(1st Cir. 1994) (defining elements of perjury as "falsity, <br>materiality, and willfulness").  Thus, the district court did not <br>err by enhancing Peterson's sentence for obstruction of justice.  <br>See U.S.S.G.  3C1.1, application note 1 (including as obstruction <br>of justice "a denial of guilt under oath that constitutes <br>perjury"). <br>     Peterson's argument that the district court enhanced his <br>sentence merely for being convicted after testifying in his defense <br>is without merit.  The district court specifically stated that it <br>was not enhancing Peterson's sentence on that improper basis, and <br>engaged in a detailed discussion of the perjurious nature of <br>Peterson's testimony. <br>                            CONCLUSION <br>     Based on the foregoing, we affirm the judgment of the <br>district court.</pre>

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