June 7, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1558
UNITED STATES,
Appellee,
v.
ERIC FLORES-RIVERA,
Defendant - Appellant.
ERRATA SHEET
The opinion of this Court issueed on June 1, 1995, is
corrected as follows:
On page 5, line 4 - change "by" to "be"
On page 5, lines 24-25 - replace "intent to agree and intent
to commit the substantive offense." Garc a, 983 F.2d at 1165
(citation omitted)" with "an intent to agree and an intent to
effectuate the commission of the substantive offense." United
States v. Piper, 35 F.3d 611, 615 (1st Cir. 1994), cert. denied,
115 S. Ct. 1118 (1995)"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1558
UNITED STATES,
Appellee,
v.
ERIC FLORES-RIVERA,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Robert G. Levitt for appellant.
David S. Kris, Attorney, U.S. Department of Justice, with
whom Guillermo Gil, United States Attorney, and Salixto Medina-
Malav , Assistant United States Attorney, were on brief for
appellee.
June 1, 1995
TORRUELLA, Chief Judge. On April 11, 1991, defendant
TORRUELLA, Chief Judge.
Eric Flores-Rivera ("Flores-Rivera"), along with seventeen other
persons not party to this appeal, was named in a thirty-four-
count superseding indictment charging various drug-related
offenses. On April 14, 1993, a jury convicted Flores-Rivera on
one count of conspiracy to import cocaine and to possess cocaine
with intent to distribute it, in violation of 21 U.S.C. 846
and 963 (Count 2), and two counts of assaulting a federal officer
with a deadly weapon, in violation of 18 U.S.C. 111, (Counts 5
and 6). The jury acquitted Flores-Rivera on Counts 3, 4, and 34,
which charged importation of cocaine, possession of cocaine with
intent to distribute, and use of a communication facility to
commit a drug crime, in violation of 21 U.S.C. 952, 841(a)(1),
and 843(b), respectively. The district court sentenced Flores-
Rivera to 324 months' imprisonment, to be followed by a five-year
term of supervised release. Flores-Rivera now appeals. For the
following reasons, we affirm.
I. BACKGROUND
I. BACKGROUND
We recite the facts in the light most favorable to the
government. United States v. Echeverri, 982 F.2d 675, 676 (1st
Cir. 1993). The focus of this case was a large drug trafficking
conspiracy. The conspirators, headed by co-defendant Eusebio
Escobar-de Jes s ("Escobar"), worked with members of the Medell n
and Cali drug cartels to import cocaine from Colombia into Puerto
Rico and New York.
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The linchpin witness for the government's case against
Flores-Rivera was William Cedr s ("Cedr s"), a confidential
informant. Cedr s testified that he infiltrated the conspiracy
and gained the confidence of Escobar. In 1990, Cedr s became the
"number two man" in Escobar's organization. Cedr s testified
that Escobar informed him that Flores-Rivera was a member of the
organization. Cedr s also testified that Flores-Rivera had
accompanied him to the island of Vieques to look for sites where
an airplane could land or drop-off kilogram quantities of cocaine
in the future. Cedr s indicated that the conspirators were
planning to use the new sites to import approximately 1,500
kilograms of cocaine. The Medell n cartel was to supply the
cocaine, and the importation was to be divided into four or five
shipments.
Cedr s also testified that Escobar had instructed
Flores-Rivera to supervise the importation of between 300 and 500
kilograms of cocaine from Colombia. Flores-Rivera was tape
recorded discussing the importation plans with Cedr s and
Escobar. The tape recording, along with Cedr s' testimony,
indicate that Flores-Rivera was to travel to Colombia and return
in a boat loaded with cocaine to one of Escobar's properties.
The government also presented evidence of Flores-
Rivera's involvement in the April 1986 shooting of two U.S.
Customs agents. Two witnesses testified that on April 14, 1986,
they saw Flores-Rivera arrive at the Isla Grande Flying School in
a yellow, flatbed tanker-truck and purchase over 100 gallons of
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aviation fuel. Two U.S. Customs agents followed Flores-Rivera as
he drove the tanker-truck from the flying school to a farm
housing a covert landing strip used by the Escobar organization.
From their surveillance post outside the farm, the Customs agents
observed Flores-Rivera and codefendant Andr s Morales-Cruz enter
the farm. Later that night, the Customs agents saw a small
airplane land at the farm. Shortly thereafter, the Customs
agents witnessed an unidentified man clad in army fatigues exit
the farm in a white van. The Customs agents followed. When the
van got to a small curve in the road, it stopped as if to make a
U-turn. As the Customs agents tried to drive by, the van's
occupants opened fire on them, severely injuring both agents.
The agents were never able to identify the attackers.
II. DISCUSSION
II. DISCUSSION
A. Sufficiency of the Evidence
A. Sufficiency of the Evidence
Flores-Rivera contends that the evidence was
insufficient to support his convictions for conspiracy and
assault on a federal officer.
The standard of review governing a challenge to the
sufficiency of the evidence is well established. An appellate
court must determine whether a rational jury could find guilt
beyond a reasonable doubt. Echeverri, 982 F.2d at 677; United
States v. Garc a, 983 F.2d 1160, 1163-64 (1st Cir. 1993). In
making this determination, the reviewing court must examine the
evidence, together with all inferences that may be reasonably
drawn from it, in the light most favorable to the prosecution.
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Echeverri, 982 F.2d at 677. Furthermore, the reviewing court
does not evaluate witness credibility, but resolves all
credibility issues in favor of the verdict. Garc a, 983 F.2d at
1164 (quoting United States v. Batista-Polanco, 927 F.2d 14, 17
(1st Cir. 1991)). "The evidence may be entirely circumstantial,
and need not exclude every reasonable hypothesis of innocence;
that is, the factfinder may decide among reasonable
interpretations of the evidence." Batista-Polanco, 927 F.2d at
17. Nevertheless, "[i]f the 'evidence viewed in the light most
favorable to the verdict gives equal or nearly equal
circumstantial support to a theory of guilt and a theory of
innocence of the crime charged,' this court must reverse the
conviction. This is so because . . . where an equal or nearly
equal theory of guilt and a theory of innocence is supported by
the evidence viewed in the light most favorable to the
prosecution, 'a reasonable jury must necessarily entertain a
reasonable doubt.'" United States v. S nchez, 961 F.2d 1169,
1173 (5th Cir.) (citations omitted), cert. denied, 113 S. Ct. 330
(1992). With the scope of our review thus defined, we move to
the appellants' claims.
1. Conspiracy
1. Conspiracy
To establish a conspiracy conviction, the prosecution
must prove, inter alia, that the defendant entered an agreement
to commit the substantive offense, and that the defendant was a
voluntary participant in the conspiracy. Echeverri, 982 F.2d at
679. The government must prove that the defendant possessed
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both "an intent to agree and an intent to effectuate the
commission of the substantive offense." United States v. Piper,
35 F.3d 611, 615 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118
(1995). However, "[d]ue to the clandestine nature of criminal
conspiracies, the law recognizes that the illegal agreement may
be either 'express or tacit' and that a '"common purpose and plan
may be inferred from a development and collocation of
circumstance."'" United States v. S nchez, 917 F.2d 607, 610
(1st Cir. 1990)(citations omitted), cert. denied, 111 S. Ct. 1625
(1991). "Mere presence at the scene and close association with
those involved are insufficient factors alone; nevertheless, they
are relevant factors for the jury." S nchez, 961 F.2d at 1174
(5th Cir.) (citation omitted).
Although he does not dispute the existence of the
Escobar drug-trafficking conspiracy, Flores-Rivera maintains that
the evidence fails to establish that he was a member. Given that
we resolve any credibility issues in favor of the verdict, we
find that Flores-Rivera's sufficiency-of-the-evidence challenge
fails because the record contains ample support for his
conspiracy conviction. A reasonable jury could infer from
Cedr s' testimony that Flores-Rivera was deeply involved in the
entire operation. Cedr s testified that Flores-Rivera was a
member of the Escobar conspiracy, and that Flores-Rivera
accompanied him to Vieques to search for appropriate landing
sites for drug drop-offs. Moreover, the evidence against Flores-
Rivera includes a tape-recorded conversation in which Flores-
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Rivera discusses importation plans with Escobar and Cedr s. The
tape recording also indicates that Flores-Rivera agreed to go to
Colombia and return in a boat laden with cocaine. In sum, the
evidence demonstrates clearly and convincingly that Flores-Rivera
was a knowing and voluntary participant in many aspects of the
Escobar drug conspiracy.
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2. Assault on a federal agent
2. Assault on a federal agent
Under the well settled Pinkerton doctrine, members of a
conspiracy may be held liable for the substantive crimes
committed by co-conspirators, provided that the substantive
crimes were committed in furtherance of the conspiracy and while
the defendant was a member of the conspiracy. See Pinkerton v.
United States, 328 U.S. 640, 646-48 (1946); United States v.
Torres-Maldonado, 14 F.3d 95, 101 (1st Cir.), cert. denied, 115
S. Ct. 193 (1994). Under Pinkerton, the government was required
to prove that the April 14, 1986, assault on the U.S. Customs
agents was carried out by members of the Escobar conspiracy, in
furtherance of the conspiracy, and at a time when Flores-Rivera
was still a member of the conspiracy. United States v. Mu oz, 36
F.3d 1229, 1234 (1st Cir. 1994), cert. denied, 115 S. Ct. 1164
(1995). We think it met this burden. The jury heard the
following facts: On April 14, 1986, Flores-Rivera brought
airplane fuel to a farm housing a covert landing strip operated
by the conspirators. While the Customs agents were surveilling
the farm, a plane landed at the farm and, shortly thereafter, a
man clad in army fatigues exited in a white van. The Customs
agents followed the van. The van stopped as if to make a U-turn,
and as the Customs agents drove by, they were fired upon by the
van's occupants. In these circumstances, a reasonable jury could
have found that the shooting was committed by members of the
conspiracy, in furtherance of the conspiracy, and while Flores-
Rivera was still a member of the conspiracy. Therefore, we find
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that there was sufficient evidence to convict Flores-Rivera under
Pinkerton liability for assault on a federal officer.
Accordingly, we reject both of his challenges to the
sufficiency of the evidence.
B. Separate Trials
B. Separate Trials
Flores-Rivera alleges that the district court
erroneously denied his Rule 14 motion for severance. See Fed. R.
Crim. P. 14.1 We disagree.
The First Circuit law regarding severance is clear:
As a rule, persons who are indicted
together should be tried together. This
practice helps both to prevent
inconsistent verdicts and to conserve
resources (judicial and prosecutorial).
Thus, when multiple defendants are
named in a single indictment, a defendant
who seeks a separate trial can ordinarily
succeed in obtaining one only by making
a strong showing of evident prejudice.
The hurdle is intentionally high; recent
Supreme Court precedent instructs that "a
district court should grant a severance
under Rule 14 only if there is a serious
risk that a joint trial would compromise
a specific trial right of one of the
defendants, or prevent the jury from
making a reliable judgment about guilt or
innocence."
United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir.
1993)(quoting Zafiro v. United States, 113 S. Ct. 933, 938
(1993))(internal citations omitted).
1 The rule authorizing motions for severance states in pertinent
part: "If it appears that a defendant . . . is prejudiced by a
joinder . . . of defendants . . . for trial together, the court
may . . . grant a severance of defendants, or provide whatever
other relief justice requires." Fed. R. Crim. P. 14.
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The decision to grant or deny a motion for severance is
committed to the sound discretion of the trial court and we will
reverse its refusal to sever only upon a finding of manifest
abuse of discretion. Zafiro, 113 S. Ct. at 938; United States v.
Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir. 1991); United States
v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert. denied, 112
S. Ct. 986 (1992); Boylan, 898 F.2d 230, 246 (1st Cir. 1990).
Essentially, Flores-Rivera contends that severance was
required because of the "spillover" effect of prosecuting him, an
alleged minor participant, alongside the major conspirators.
That is, Flores-Rivera claims that the joint trial "seriously
limited the jury's ability to sift through all the evidence
against each individual defendant and increased the risk that the
jury would base its verdicts on evidence which has no bearing on
the guilt or innocence of defendants with a more limited
involvement in the scheme." United States v. Brandon, 17 F.3d
409, 440 (1st Cir.), cert. denied, Granoff v. United States, 115
S. Ct. 80 (1994). In support of this contention, he points out
that he was named in less than ten percent of the of all the
overt acts charged in the indictment and that his alleged role in
the conspiracy was significantly less than that of his
codefendants. These facts, without more, do not render severance
mandatory. We rejected this argument in O'Bryant, stating:
To be sure, there is some truth to
appellant's complaint that a minnow
(O'Bryant) and a kingfish (Puleo) stood
trial together. It is also true that the
prosecution drew a bead on Puleo and
aimed most of its ammunition in his
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direction. But, these truths, without
more, did not necessitate a separate
trial for O'Bryant. It is well settled
that, "[e]ven where large amounts of
testimony are irrelevant to one
defendant, or where one defendant's
involvement in an overall agreement is
far less than the involvement of others,"
the court of appeals must be "reluctant
to second guess severance denials." Such
reluctance is fully justified here.
O'Bryant, 998 F.2d at 26 (quoting Boylan, 898 F.2d at 246
(collecting cases)).
Moreover, we have held that "'[i]n the context of
conspiracy, severance will rarely, if ever, be required.'"
Brandon, 17 F.3d at 440 (quoting United States v. Searing, 984
F.2d 960, 965 (8th Cir. 1993)); see also O'Bryant, 998 F.2d at
24-26. To convict any of the defendants under a conspiracy
theory, the government had to show the existence of an illicit
scheme to import and distribute cocaine; and because Flores-
Rivera and his codefendants were charged as coconspirators,
virtually all the evidence relating to the other conspirators was
also directly relevant to, and, therefore, independently
admissible in, the prosecution's case against him. See O'Bryant,
998 F.2d at 26 (citing United States v. Riehl, 460 F.2d 454,
457-58 (3d Cir. 1972)). And as we have held, "[w]here evidence
featuring one defendant is independently admissible against a
codefendant, the latter cannot convincingly complain of an
improper spillover effect." Id. (collecting cases).2
2 We also note that the jury acquitted Flores-Rivera on Counts
3, 4, and 34, which charged importation of cocaine, possession of
cocaine with intent to distribute, and use of a communication
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Accordingly, we find that the district court did not abuse its
discretion in refusing to grant Flores-Rivera's motion for
severance.
C. Jury Selection
C. Jury Selection
Defendant asserts two claims regarding jury selection.
First, he contends that the "English only" requirement of the
jury selection system violates his Fifth and Sixth Amendment
rights because it effectively excludes two-thirds of the
population of Puerto Rico.3 This argument is foreclosed by our
decision in United States v. Aponte-Su rez, in which we held that
even if the English-only requirement "[results] in a smaller pool
of eligible jurors and a 'systematic exclusion' in the jury
selection process, the overwhelming national interest served by
the use of English in a United States court justifies conducting
proceedings in the District of Puerto Rico in English and
requiring jurors to be proficient in that language." 905 F.2d
483, 492 (1st Cir.)(citing United States v. Benmuhar, 658 F.2d
14, 19 (1st Cir. 1981), cert. denied, 457 U.S. 1117 (1982)),
facility to commit a drug crime. This suggests that the jury was
able to sift through the evidence in an analytical fashion and
that the alleged spillover effect did not cause the jury merely
to enter a lump conviction against Flores-Rivera. See Brandon,
17 F.3d at 440 (finding acquittals to be a relevant factor in
upholding a district court's denial of a severance)(collecting
cases).
3 Federal law requires that all grand and petit jurors have the
ability to speak English and read, write and understand English
with proficiency sufficient to fill out satisfactorily the juror
qualification form. 28 U.S.C. 1865(b)(2) & (3).
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cert. denied, 498 U.S. 990 (1990). Accordingly, we reject this
contention.
Second, Flores-Rivera maintains that the district court
did not adequately inquire whether the jurors could speak and
understand English as required by 28 U.S.C. 1865(b)(2) & (3),
and that "[p]resumably, there were many . . . jurors who actually
sat on this case who may not have comprehended English." We
disagree.
28 U.S.C. 1865(b) requires that jurors be dismissed
if they cannot demonstrate a minimum proficiency in English. 28
U.S.C. 1867 sets forth the proper procedure for challenging the
district court's compliance with selection procedures, and
requires that the defendant make an appropriate challenge within
seven days "after the defendant discovered or could have
discovered, by the exercise of diligence, . . . substantial
failure to comply with the provisions of this title in selecting
the grand or petit jury." Here, Flores-Rivera did not challenge
the English proficiency of the empaneled jurors within the
prescribed time frame. In similar cases, we have held that where
the defendant failed to raise a timely objection, "later doubts
as to a juror's linguistic competence will not constitute grounds
for relief without a showing of 'manifest' or 'clear' injustice."
United States v. Nickens, 955 F.2d 112, 117 (1st Cir.)(collecting
cases), cert. denied, 113 S. Ct. 108 (1992). Flores-Rivera has
shown no such injustice. In fact, his bald assertion that
"presumably, there were many . . . jurors who actually sat on
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this case who may not have comprehended English" is unaccompanied
by any support whatsoever. Accordingly, we reject his challenge
to the empaneled jury, not only because it was untimely, but also
because it is devoid of factual support.4
D. Double Jeopardy
D. Double Jeopardy
Flores-Rivera maintains that his conviction for
conspiracy to import cocaine and to possess cocaine with intent
to distribute cannot stand because it is inconsistent with his
acquittal on the substantive crimes charged in the indictment
(importation of cocaine, possession of cocaine with intent to
distribute, and use of a telephone to facilitate the importation
of cocaine).5 We have addressed similar claims before and found
4 Flores-Rivera further contends that it was improper for the
district court to conduct a portion of its voir dire in Spanish,
and that this constitutes reversible error. Flores-Rivera fails
to identify any statute or caselaw requiring that the district
courts conduct voir dire entirely in English. Moreover, he has
not explained how he was prejudiced by the bilingual voir dire,
especially in light of the fact that he requested that the
district court perform its voir dire in Spanish. Consequently,
we deem this argument waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir.)(discussing "the settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived)(collecting
cases), cert. denied, 494 U.S. 1082 (1990).
5 Flores-Rivera also maintains that the indictment is
multiplicitous and violates the Double Jeopardy Clause of the
United States Constitution because the substantive crimes charged
in Counts 3, 4 and 34 are "in fact and in law" identical to the
overt acts alleged under the conspiracy Count. This argument
falls short for two reasons. First, the Double Jeopardy Clause
is not implicated here because Flores-Rivera was acquitted of the
substantive crimes charged in the indictment, and therefore the
sentencing court did not impose multiple punishments for the same
offense. See Jones v. Thomas, 491 U.S. 376, 381 (1989)(noting
that the Double Jeopardy Clause affords protection against
multiple punishments for the same offense imposed in a single
proceeding.); Missouri v. Hunter, 459 U.S. 359, 366 (1983)(noting
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them unavailing. See, e.g., United States v. Gonz les-Torres,
980 F.2d 788 (1st Cir. 1992); United States v. L pez, 944 F.2d
33, 41 (1st Cir. 1991). "It is well settled that inconsistency
in a criminal verdict does not require setting the verdict
aside."6 Gonz les-Torres, 980 F.2d at 791 (citing Dunn v. United
States, 284 U.S. 390, 393-94 (1932); United States v. Powell, 469
U.S. 57, 69 (1984); United States v. Bucuvalas, 909 F.2d 593 (1st
Cir.1990)). As we explained in L pez:
Although it may seem inconsistent in this
case to convict on the conspiracy charge,
and acquit the same defendant on the
substantive charge alleged to have been
the object of the conspiracy, the Supreme
Court has made it clear that verdict
inconsistency in itself is not a
sufficient basis for vacating a
conviction.
that "the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the
legislature intended").
Second, the fact that Flores-Rivera's indictment charges both
conspiracy and the substantive crimes involved in the conspiracy
fails to implicate the Double Jeopardy Clause because it has long
been the rule that "a substantive crime, and a conspiracy to
commit that crime, are not the 'same offense' for double jeopardy
purposes." United States v. F lix, 112 S. Ct. 1377, 1384
(1992)(citing United States v. Bayer, 331 U.S. 532, 542
(1947)(noting that "the same overt acts charged in a conspiracy
count may also be charged and proved as substantive offenses, for
the agreement to do the act is distinct from the act itself"));
see also Pinkerton, 328 U.S. at 643 ("[T]he commission of the
substantive offense and a conspiracy to commit it are separate
and distinct offenses . . . [a]nd the plea of double jeopardy is
no defense to a conviction for both offenses.").
6 Even so, the verdicts are not inconsistent. As explained
above, the substantive crime and the conspiracy to commit it are
separate offenses. Callanan v. United States, 364 U.S. 587, 593
(1961).
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Verdict inconsistency does not indicate
that the government necessarily failed to
prove an essential element of its case
beyond a reasonable doubt. We cannot
necessarily assume that the acquittal was
proper -- the one the jury "really
meant." It is equally possible that the
jury, convinced of guilt, properly
reached its conclusion on one offense,
and then through mistake, compromise, or
lenity, arrived at an inconsistent
conclusion on the other offense. As long
as the trial and appellate courts are
convinced on independent review that
there was sufficient evidence to sustain
a rational verdict of guilt beyond a
reasonable doubt, the defendant is
properly protected against any risk of
injustice resulting from "jury
irrationality."
L pez, 944 F.2d at 41 (discussing Powell, 469 U.S. 57)(internal
quotations omitted). Accordingly, because we found that Flores-
Rivera's conspiracy conviction is supported by sufficient
evidence, it must stand.
E. Prosecutorial Misconduct
E. Prosecutorial Misconduct
Flores-Rivera claims that Agent Tejada's grand jury
testimony was replete with perjury, that the government either
cooperated with Agent Tejada or was negligent in allowing him to
testify falsely, that this prosecutorial misconduct rose to the
level of a due process violation, and that, therefore, the
various indictments against him must be dismissed. Specifically,
Flores-Rivera claims that Agent Tejada misled the grand jury when
he testified (1) that the government's informant, William Cedr s,
was a businessman, (2) that Cedr s had been arrested only once,
and (3) that Cedr s had infiltrated the defendant's drug
organization rather than being recruited by authorities from
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within the organization and then "flipping" pursuant to a formal
cooperation agreement with the prosecution. The district court
addressed these issues before trial and found them meritless. In
particular, the district court found (1) that Cedr s was indeed a
businessman, (2) that at the time of Agent Tejada's testimony,
there was only one arrest listed in Cedr s' criminal history, and
(3) that no evidence substantiated the allegation that Cedr s had
"flipped" pursuant to a formal cooperation agreement.
In Bank of Nova Scotia v. United States, 487 U.S. 250
(1988), the Court provided the applicable standard for
determining when errors before the grand jury warrant dismissal
of an indictment: "[A]s a general matter, a district court may
not dismiss an indictment for errors in grand jury proceedings
unless such errors prejudiced the defendants." Id. at 254; see
also United States v. Latorre, 922 F.2d 1, 6-7 (1st Cir.), cert.
denied, 502 U.S. 876 (1991). As we explained in United States v.
Valencia-Lucena, 925 F.2d 506, 511 (1st Cir. 1991), errors before
the grand jury will often be deemed harmless if the defendants
were subsequently and properly convicted before an impartial
petit jury:
[T]he fact that the defendants were
convicted by a petit jury acts as a cure
for any error which may have resulted
during grand jury proceedings. An
indictment returned by a legally
constituted and unbiased grand jury, if
valid on its face, is enough to call for
trial of the charge on its merits. A
court should not inquire into the
sufficiency of the evidence before the
indicting grand jury, because the grand
jury proceeding is merely a preliminary
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phase and all constitutional protections
are afforded at trial. Once a defendant
has been convicted by a petit jury, the
petit jury's verdict of guilty beyond a
reasonable doubt demonstrates a fortiori
that there was probable cause to charge
the defendants with the offenses for
which they were convicted. At that
point, our review is limited to
determining if the district court abused
its discretion in failing to dismiss the
indictments.
Valencia-Lucena, 925 F.2d at 511 (internal quotations and
citations omitted); cf. United States v. Osorio, 929 F.2d 753,
763 (1st Cir. 1991). Here, Flores-Rivera was properly convicted
by a petit jury after he and his codefendants were afforded ample
opportunity to cross-examine Cedr s at trial. Moreover, Flores-
Rivera has not demonstrated that the alleged misconduct in fact
occurred, much less that it was prejudicial or outrageous.
Accordingly, we find that Flores-Rivera's proper conviction by a
petit jury cures any alleged error before the grand jury.7
7 Nevertheless, we repeat our prior admonishment against
government misconduct, this time in the context of prosecutorial
misconduct before the grand jury:
Before departing from these shores, we
pause to add a qualification: the use of
supervisory power to dismiss an
indictment, in the absence of injury to
the defendant, may not be entirely a dead
letter. The [Supreme] Court's reasoning
in [United States v. Hasting] may be
read to leave open the possibility that
the goal of deterring future misconduct
would justify using the supervisory power
to redress conduct not injuring
defendants if the conduct is plainly
improper, indisputably outrageous, and
not redressable through the utilization
of less drastic disciplinary tools.
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F. Evidentiary matters
F. Evidentiary matters
Flores-Rivera maintains that his trial was marred by
four evidentiary errors, and that each constitutes reversible
error. We address his contentions in turn.
United States v. Santana, 6 F.3d 1, 11 (1st Cir. 1993)(citing
Hasting, 461 U.S. 499, 506 (1983)).
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1. "Other crimes" evidence:
1. "Other crimes" evidence:
Flores-Rivera's first contends that the prosecutor
improperly elicited inadmissible evidence of "other crimes" from
informant Cedr s. Cedr s did allude to the fact that defendant
Escobar had spent time in prison. Counsel for Escobar
immediately objected and demanded a mistrial. Flores-Rivera
joined in this motion. The court denied the defendants' motions
for mistrial, issued curative instructions, and admonished the
government to keep its questions simple to avoid eliciting
further improper testimony. Flores-Rivera insists that the
curative instructions were insufficient and that the court erred
in not granting a mistrial. We disagree.
Generally, "we will presume that juries can and will
follow instructions to disregard inadmissible evidence
inadvertently presented." United States v. Mart nez, 922 F.2d
914 (1st Cir. 1991) (citing United States v. Paiva, 892 F.2d 148,
160 (1st Cir. 1989)). Here, the risk of prejudice to Flores-
Rivera was slim because Cedr s alluded only to codefendant
Escobar's prison time; Cedr s did not indicate that Flores-Rivera
had also served prison time. Moreover, the district court issued
a timely and forceful curative instruction, to which neither
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Flores-Rivera nor Escobar objected.8 Accordingly, we affirm the
district court's refusal to grant a mistrial.
2. Pre-conspiracy evidence:
2. Pre-conspiracy evidence:
Flores-Rivera also contends that the district court
erred in admitting evidence that drugs were imported by
codefendants Escobar and Santos-Caraballo in March of 1986, one
month before the start of the conspiracy alleged in Count 2.
Flores-Rivera notes correctly that the evidence was admissible
against his codefendants, but not against him. He argues that
the court's instruction to this effect was insufficient and
confusing. This contention has little merit and can be disposed
of quickly.
To prevent prejudice to the other defendants, the
district court issued an extensive limiting instruction to the
jury, which included the admonishment:
8 The curative instruction states, in pertinent part:
. . . I have stricken the last statement
made by Mr. Cedres. . . . You are not to
consider it at all during your
deliberation.
[T]he defendants are not on trial today
except for whatever is charged in the
indictment. And you're not to consider,
when deciding the issues of this case,
matters that are outside what is charged
in the indictment.
And I'm admonishing the government to
keep its questions simple . . . so the
witness maintains his answer and
testimony within the confines of the
questions . . . so as not to bring in
facts which are not alleged in the
indictment.
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[T]his evidence will only be considered
by you in reference to defendants
[Escobar] and [Santos-Caraballo]. This
evidence only relates to them. It
doesn't relate at all whatsoever to
Michael Cruz- Gonz lez, to Eric Flores-
Rivera or to Andr s Morales-Cruz. They
are not involved in that. So if you
consider this evidence, it pertains only
to those two defendants.
This instruction clearly instructed the jury that it was not to
consider the pre-conspiracy evidence against Flores-Rivera.
Accordingly, we reject Flores-Rivera's contention that the
admission of this evidence constituted reversible error.
3. Statements of co-conspirators:
3. Statements of co-conspirators:
Flores-Rivera also contends that the district court
misapplied the co-conspirator exclusion to the hearsay rule and
thus clearly erred when it admitted the out-of-court statements
of codefendant Escobar. Federal Rule of Evidence 801(d)(2)(E)
excludes from the operation of the hearsay rule "a statement by a
coconspirator of a party during the course and in furtherance of
the conspiracy." Fed. R. Evid. 801(d)(2)(E). "To invoke the
exception, a party who wants to introduce a particular statement
must show by a preponderance of the evidence that a conspiracy
embracing both the declarant and the defendant existed, and that
the declarant uttered the statement during and in furtherance of
the conspiracy." United States v. Sep lveda, 15 F.3d 1161, 1180
(1st Cir.)(citing Bourjaily v. United States, 483 U.S. 171,
175-76 (1987); Ortiz, 966 F.2d at 714-15), cert. denied, 114 S.
Ct. 2714 (1994).
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Here, the informant, Cedr s, testified that Escobar had
told him that Flores-Rivera was a member of the narcotics
conspiracy. Flores-Rivera contends that this statement was
improperly admitted under the co-conspirator exclusion because it
was not made in furtherance of the conspiracy. We disagree. As
we have often explained, a damaging statement is admissible under
801(d)(2)(E) if it "tends to advance the objects of the
conspiracy as opposed to thwarting its purpose." United States
v. Fahey, 769 F.2d 829, 839 (1st Cir. 1985); see also United
States v. Masse, 816 F.2d 805, 811 (1st Cir 1987). The evidence
shows that Escobar intended to make Cedr s "the number two man in
his organization." Clearly, such a person would need to know the
identities of the players in the organization, and statements to
this end are certainly in furtherance of the conspiracy. Cf.
Sep lveda, 15 F.3d at 1180 (explaining that "it is common
ground--and common sense--that the reporting of significant
events by one coconspirator to another advances the
conspiracy")(citing United States v. Smith, 833 F.2d 213, 219
(10th Cir. 1987)). Accordingly, we find that the district court
did not clearly err in admitting the statement under the co-
conspirator exclusion to the hearsay rule.
4. Identification testimony:
4. Identification testimony:
Lastly, Flores-Rivera contends that he was prejudiced
by the government's use of photo spreads that were allegedly
impermissibly suggestive. Although his brief is unclear, he
appears to argue that the photo spreads shown to two witnesses
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were so impermissibly suggestive as to render their subsequent
in-court identifications unreliable and inadmissible.
The framework for our appellate review is well settled.
The Supreme Court, in Manson v.
Brathwaite, concluded that reliability is
the "linchpin" in deciding the
admissibility of identification
testimony. The Court directed attention
to the factors indicating reliability
previously set out in Neil v. Biggers,
[including] the opportunity for the
witness to view the defendant at the time
of the crime, the witness's degree of
attention, the accuracy of his prior
description, the level of certainty
demonstrated at the confrontation, and
the time between the crime and the
confrontation.
United States v. Fields, 871 F.2d 188, 195 (1st Cir.)(citing
Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers,
409 U.S. 188, 199-200 (1972)), cert. denied, 493 U.S. 955 (1989);
see also United States v. Guzm n-Rivera, 990 F.2d 681, 683 (1st
Cir. (1993).
Here, Flores-Rivera has not demonstrated how the photo
spreads were impermissably suggestive, except to aver generally
that Flores-Rivera has different facial characteristics than the
other persons featured in the display. The district court judge
rejected this same averment at trial, stating that the photo
spreads were among the fairest he had seen. Moreover, even if
the photo spreads had been impermissibly suggestive, the
circumstances indicate that the subsequent in-court
identifications were reliable.
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Two witnesses testified that they had seen Flores-
Rivera purchase aviation fuel at the Isla Grande Flying School on
April 14, 1986, the day that the Customs agents were shot.
Awilda Torres de Reyes, the owner of the flying school, testified
that Flores-Rivera had arrived in a flatbed tanker-truck and
purchased over 100 gallons of aviation fuel, an unusually large
amount. She stated that it required between one and two hours to
complete the transaction, thus giving her ample time to view the
defendant. She testified further that the transaction stuck in
her mind because the defendant had purchased an unusually large
amount of fuel, and that she suspected that the purchase was
connected to a drug trafficking scheme because she knew that drug
traffickers often required large quantities of aviation fuel.
She indicated that the transaction became especially memorable
the following day when she read that two U.S. Customs agents had
been shot while investigating a narcotics operation. She called
the Customs office and informed them that she had sold a
suspiciously large quantity of aviation fuel on the same day as
the shooting, and that she thought that the two incidents might
be connected. The second witness who identified Flores-Rivera as
the April 14 fuel-purchaser was Ra l Jim nez, who was then
working as a pilot for the Puerto Rico Department of Justice. He
testified that the incident was memorable to him because he was
forced to wait for over an hour while Flores-Rivera was filling
the tanks on the flatbed truck. Mr. Jim nez also indicated that
he contacted Customs agents after he heard rumors that a flatbed
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tanker truck had been involved in the shooting of two Customs
agents on the night of the fuel purchase. Accordingly, the
circumstances indicate that the attention of both witnesses was
sufficiently focused on Flores-Rivera, both at the time of the
viewing and shortly thereafter.
At trial, both witnesses evinced certainty that Flores-
Rivera was in fact the April 14 fuel-purchaser. The only
troubling factor is that their in-court identifications did not
occur until February 23, 1993, nearly seven years after their
initial viewing at the flying school. Nevertheless, we find that
the other reliability criteria were sufficiently persuasive to
overcome any unreliability engendered by the delay. Accordingly,
the district court did not err in admitting the identification
evidence.
G. Sentencing challenge
G. Sentencing challenge
Flores-Rivera contends that the district court
improperly determined his appropriate base offense level ("BOL").
The district court determined Flores-Rivera's BOL to be 40 after
it concluded that between 500 and 1500 kilograms of cocaine were
attributable to Flores-Rivera for sentencing purposes. See
U.S.S.G. 2D1.1(c)(2). Flores-Rivera contends that the evidence
does not support this conclusion.
The determinative factor for sentencing under the
guidelines is the quantity of drugs. United States v. Reyes, 3
F.3d 29, 31 (1st Cir. 1993). That quantity is the sum of the
charged conduct for which defendant is convicted plus his
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"relevant" uncharged conduct. United States v. Bradley, 917 F.2d
601, 604 (1st Cir. 1990). "The drug quantity is to be derived
from all acts 'that were part of the same course of conduct or
common scheme or plan as the offense of conviction.'" United
States v. Garc a, 954 F.2d 12, 15 (1st Cir. 1992)(quoting
U.S.S.G. 1B1.3 (a)(2)). In the case of jointly undertaken
criminal activity -- whether or not charged as a conspiracy --
relevant conduct includes all acts reasonably foreseeable by the
defendant and committed in furtherance of the jointly undertaken
activity. U.S.S.G. 1B1.3, comment. (n.1); United States v.
Castellone, 985 F.2d 21, 24 (1st Cir. 1993); Garc a, 954 F.2d at
15. To include disputed transactions as relevant conduct, the
government must prove by a preponderance of the evidence a
sufficient nexus between the conduct underlying the disputed
transaction and the offense of conviction. See Castellone, 985
F.2d at 24; United States v. Sklar, 920 F.2d 107, 110 (1st Cir.
1990). We accord considerable deference to the district court's
determination of whether a given drug transaction forms part of
the same course of conduct as counts of conviction and, absent
mistake of law, will set aside its finding only if clearly
erroneous. Castellone, 985 F.2d at 24; Garc a, 954 F.2d at 15.
Here, the evidence clearly supports the district
court's conclusion that between 500 and 1,500 kilograms of
cocaine were attributable to Flores-Rivera for sentencing
purposes. Cedr s testified that Escobar ordered Flores-Rivera to
supervise the importation of between 300 and 500 kilograms of
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cocaine from Colombia. The district court could reasonably have
attributed this quantity to Flores-Rivera for sentencing
purposes, and Flores-Rivera concedes as much. Cedr s also
testified that the Escobar Organization was conspiring to import
approximately 1,500 kilograms of cocaine from Colombia for
distribution in New York, and that Flores-Rivera had accompanied
Cedr s to look for appropriate "drop zones" on the island of
Vieques. From this evidence, the district court could have
reasonably concluded that there was a sufficient nexus between
Flores-Rivera's conspiracy conviction and the importation efforts
of the other members of the conspiracy to attribute to him
between 500 and 1500 kilograms of cocaine for sentencing
purposes. Accordingly, we find no error in the district court's
determination of Flores-Rivera's BOL.
We have considered the other issues raised by Flores-
Rivera and find them to be similarly meritless.
Affirmed.
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