Legal Research AI

United States v. Luciano Mosquera

Court: Court of Appeals for the First Circuit
Date filed: 1995-08-28
Citations: 63 F.3d 1142
Copy Citations
89 Citing Cases

October 3, 1995   United States Court of Appeals
                    For the First Circuit

                                         

No. 92-1923

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                   JULIO LUCIANO-MOSQUERA,

                    Defendant, Appellant.

                                         

No. 92-1924

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                       RAUL LUGO-MAYA,

                    Defendant, Appellant.

                                         

No. 92-1925

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                     RAFAEL PAVA-BUELBA,

                    Defendant, Appellant.

                                         


No. 92-1973

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                   CARLOS PAGAN-SAN-MIGUEL,

                    Defendant, Appellant.

                                         

No. 92-1974

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                   EDGAR GONZALEZ-VALENTIN,

                    Defendant, Appellant.

                                         

No. 94-1657

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                   CARLOS PAGAN-SAN-MIGUEL,

                    Defendant, Appellant.

                                         

                         ERRATA SHEET

The opinion of this court issued on August 28, 1995 is amended as
follows:

On page 35, lines 8-9, substitute "This argument is meritless." 
for "This argument was not raised below, is reviewed for plain error,
and is meritless."


                United States Court of Appeals
                    For the First Circuit

                                         

No. 92-1923

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                   JULIO LUCIANO-MOSQUERA,

                    Defendant, Appellant.

                                         

No. 92-1924

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                       RAUL LUGO-MAYA,

                    Defendant, Appellant.

                                         

No. 92-1925

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                     RAFAEL PAVA-BUELBA,

                    Defendant, Appellant.

                                         


No. 92-1973

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                   CARLOS PAGAN-SAN-MIGUEL,

                    Defendant, Appellant.

                                         

No. 92-1974

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                   EDGAR GONZALEZ-VALENTIN,

                    Defendant, Appellant.

                                         

No. 94-1657

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                   CARLOS PAGAN-SAN-MIGUEL,

                    Defendant, Appellant.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

      [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                                   


                                         

                            Before

                   Selya, Boudin and Lynch,

                       Circuit Judges.
                                                 

                                         

Lydia Lizarribar-Masini for appellant Luciano-Mosquera.
                                   
Ramon Garcia for appellant Lugo-Maya.
                        
Rafael Gonzalez Velez for appellant Pava-Buelba.
                                 
Frank A. Ortiz for appellant Pagan-San-Miguel.
                          
Wilfredo Rios Mendez for appellant Gonzalez-Valentin.
                                
Epifanio Morales Cruz, Assistant United States Attorney, with
                                 
whom Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa,
                                                                           
Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant United
                                                        
States Attorney, were on brief, for United States.

                                         

                       August 28, 1995
                                         


          LYNCH, Circuit Judge.  At  2:45  a.m. on  March 27,
                      LYNCH, Circuit Judge.
                                          

1991, in  the darkness of the night over a Puerto Rico beach,

government flares  brightened the  sky as waiting  police and

customs  officers surprised  and arrested six  men offloading

eight bales of cocaine from two  yawls.  The men had  brought

232.8  kilograms of  cocaine to  this country  from Colombia.

Others  involved were  arrested on  land and  on sea.   Those

arrests led ultimately to  these appeals by five of  the men,

Carlos Pagan-San-Miguel, Edgar Gonzalez-Valentin,  Raul Lugo-

Maya, Rafael Pava-Buelba and Julio Luciano-Mosquera.  

          The  appeals  variously  raise  challenges  to  the

sufficiency  of  the  evidence,   to  limitation  of   cross-

examination,   to  the   admissibility  of   one  defendant's

statement, to  remarks made during summation,  to the reading

of the transcript  of trial  testimony to the  jury, to  jury

instructions,   to  the  delay   in  transcribing  the  trial

transcript, and  to  their sentences.    Of these,  only  one

raises serious issues --  the question of the sufficiency  of

the  evidence  to support  the  convictions  for carrying  or

aiding and abetting the  carrying of a firearm during  and in

relation to the drug offense as to certain defendants.

          The convictions of defendants Pava-Buelba and Lugo-

Maya are reversed on  the firearms count (Count 4)  and their

sentences  on  that  count  are  vacated.    We affirm  their

convictions and  sentences on  the drug counts  (Counts 1-3).

                             -4-
                                          4


The convictions and sentences of defendants Pagan-San-Miguel,

Gonzalez-Valentin,  and Luciano-Mosquera are  affirmed on all

counts.

                          I.  FACTS

          The  jury  heard  or   could  properly  infer   the

following facts.   Oscar Fontalvo  arrived in Puerto  Rico in

January 1991  to organize  a scheme  to smuggle cocaine  into

Puerto  Rico.  The scheme involved the drugs being flown from

Colombia, airdropped into the  sea at a prearranged location,

picked up by a waiting boat and then sailed ashore.   In drug

parlance,  this  operation  is  called a  "bombardeo."    The

waiting boat  is called the "mothership."   Fontalvo enlisted

Pagan-San-Miguel and Jose Perez-Perez, who were to be paid in

kind  with   50  kilograms  of  cocaine.     Pagan-San-Miguel

introduced Fontalvo to  Luis Soltero-Lopez,  who agreed  that

his  boat, the F/V Marlyn,  would be used  as the mothership.

Soltero-Lopez  recruited Jonas Castillo-Ramos  to be captain,

and Castillo-Ramos  recruited two  crew members for  the drug

run.

          The operation  was planned at a  number of meetings

in Puerto  Rico in  March 1991.   Fontalvo, Pagan-San-Miguel,

Perez-Perez  and  Soltero-Lopez attended  the  meetings.   At

least two of  these meetings  were at the  home of  Gonzalez-

Valentin and, the jury could have inferred, Gonzalez-Valentin

was there for at least one.

                             -5-
                                          5


          Perez-Perez brought a bag to one of the meetings at

Gonzalez-Valentin's house.  Pagan-San-Miguel  and Perez-Perez

opened  the bag  and  showed Fontalvo  and  the others  there

(including  Gonzalez-Valentin) a  Colt M-16, Model  A-1, 5.56

caliber fully automatic sub-machine  gun with an  obliterated

serial number (the "M-16").  Later during the meeting, Perez-

Perez  brought Fontalvo over to  his pick-up truck and pulled

out from under the front seat an Intratec, Model TEC-9, semi-

automatic .9mm pistol (the  "Intratec pistol").  Referring to

the weapons, Pagan-San-Miguel said they had brought them.  

          Communication  amongst  the  Colombian  and  Puerto

Rican  participants,  the  plane,  and  the  F/V  Marlyn  was

essential.   Pagan-San-Miguel and Fontalvo went  to Miami and

purchased a  radio and antenna.   Pagan-San-Miguel and Perez-

Perez installed them on the F/V Marlyn in Puerto Rico.   Code

names  were  used for  radio  transmissions.   The  Colombian

dispatcher  was "Khadafi"; Pagan-San-Miguel  was "Gigante" or

"Padrino"  or  "Godfather."   Fontalvo  and  Pagan-San-Miguel

handled  radio  communications  and set  up  a  radio in  the

backyard of Gonzalez-Valentin's house, hiding it in a child's

playhouse.

          Soltero-Lopez,  the F/V  Marlyn's  owner,  flew  to

Colombia to board the  plane so that during the  bombardeo he

could identify his boat and  insure the drop was not  made to

the wrong boat  (a not uncommon event).  The  F/V Marlyn went

                             -6-
                                          6


to  the Dominican Republic to  prepare for the  airdrop.  The

Colombian drug owners, assigned a Colombian,  Pava-Buelba, as

a "load watcher" to  observe the operation and report  to the

Colombian suppliers about  the fate of  the delivery.   Pava-

Buelba went to the  Dominican Republic to meet Castillo-Ramos

and the mothership.

          On March 25, 1991, the F/V Marlyn and its crew left

the  Dominican  Republic  for   its  drug  rendezvous.    The

Colombian load watcher, Pava-Buelba, joined the F/V Marlyn at

sea after it  had cleared  Dominican Republic  customs.   The

next morning, March  26, 1991,  the boat and  the plane  made

radio contact.   The  plane dropped  eight bales  of cocaine,

which were taken aboard the F/V Marlyn.

          Waiting in Puerto Rico, Fontalvo, Pagan-San-Miguel,

Luciano-Mosquera and Gonzalez-Valentin received word that the

airdrop  had been successful.   A call came  in to Pagan-San-

Miguel on a cellular phone in Luciano-Mosquera's car, warning

that the  operation had been  discovered and that  the police

were watching.  Pagan-San-Miguel reassured everyone, claiming

he had  "informants in  the authorities" who  would give  him

information  and that he had a police scanner.  Fontalvo went

back to his cabin, leaving the others to proceed.  

          The  F/V  Marlyn  anchored  in  Dominican  Republic

waters until approximately 5:30 p.m. and then began  the trip

to Buoy #8, the  designated meeting place for the  F/V Marlyn

                             -7-
                                          7


and  the two smaller boats  ("yawls").  Around  12:30 a.m. or

1:30 a.m.  on March  27, the  F/V Marlyn and  the yawls,  all

operating without running lights in the darkness, met several

miles  off the western coast of Puerto  Rico at Buoy #8.  The

cocaine was  roped down into  the yawls.   Pava-Buelba, Lugo-

Maya, Perez-Perez  and Gonzalez-Valentin sailed the  yawls to

Guanajibo Beach, near Mayaguez, Puerto Rico.

          The landing site on  Guanajibo Beach that night was

immediately  behind the  home  of Pagan-San-Miguel's  father.

Two men, one fitting the description of Pagan-San-Miguel, the

other  of Luciano-Mosquera, approached the landing yawls from

the beach and helped to offload the bales of cocaine.  

          Law  enforcement officials had indeed been silently

monitoring  the  operation.  The airdrop had been observed by

U.S.   Customs  Service   airplanes,  which   videotaped  the

mothership.   Coast Guard vessels  had tracked the F/V Marlyn

and  the yawls.  Camouflaged agents, hidden on the beach, had

watched the offloading.   Flares went up; arrest signals were

given.  The conspirators  scattered, leaving bales in  a line

from  the yawls  to  the home  of Pagan-San-Miguel's  father,

along the roughly five-meter wide beach.

          Pagan-San-Miguel sprinted and  sought refuge  under

an  abandoned Volkswagen at a house  next to the beach.  When

found, he was  wet and had his jeans rolled  up to his knees.

Gonzalez-Valentin, dressed in  camouflage pants and  black T-

                             -8-
                                          8


shirt,  completely wet and covered with sand, ran to the gate

of  Pagan-San-Miguel's  father's house.    He  called out  to

Pagan-San-Miguel's  father to  open  up, as  the police  were

there.  He was arrested at the gate.

          Luciano-Mosquera and Pava-Buelba were  found, about

forty minutes after the  flares went up, under a  jeep parked

in  a carport  by the  building where  bales of  cocaine were

left.   Pava-Buelba  was  under the  driver's side,  Luciano-

Mosquera  under  the  passenger's.    Pava-Buelba   was  wet,

Luciano-Mosquera was dry.

          Lugo-Maya headed to sea in one of the yawls and was

intercepted  by   Coast  Guard  vessels.1    Perez-Perez  was

arrested  near  the beach.    A later  search  of Lugo-Maya's

escape  yawl  found  a  well-hidden   box  of  50  rounds  of

ammunition.   That ammunition fit the  Intratec pistol, which

was found in the beached other yawl.  

          The   M-16   was   later   found   hidden   in  the

undercarriage  of the  jeep where Luciano-Mosquera  and Pava-

Buelba  had hidden  in  vain.    The  M-16  was  on  Luciano-

Mosquera's side "at the place where the chass[is] and the [ ]

springs of  the front of  the jeep are  located."  Two  small

beepers were found above  the chassis on the same  side where

                    
                                

1.  The F/V Marlyn was not forgotten.  The U.S.S. Shark, a
Coast Guard vessel, intercepted it, and a boarding party led
by Lt. Wendy Abrisz arrested Castillo-Ramos and the two crew
members.  Fontalvo was later arrested in Miami.

                             -9-
                                          9


the M-16 was found.   Two M-16 magazines with  twenty bullets

in each  of them  were found  on the side  of the  Pagan-San-

Miguel house.   The machine gun and the pistol  were the same

ones Pagan-San-Miguel and  Perez-Perez had shown  to Fontalvo

earlier.

          No weapons were seen  during the observation of the

offloading  operation and no weapons were found on any of the

defendants.  There  had been  no weapons on  the F/V  Marlyn.

Neither  Luciano-Mosquera nor Pava-Buelba  had arrived at the

beach by the jeep.  There was no evidence as to who owned the

jeep or how the jeep got there.  

          After being given  his Miranda warnings, Pagan-San-
                                                    

Miguel later bemoaned his arrest to a police officer,  saying

he would have  been given $300,000 for his role  in the deal.

Instead, he was given a sentence of 60 years in prison by the

court.    Fontalvo  and  Castillo-Ramos  were key  government

witnesses at trial.

          The  five appellants,  Luciano-Mosquera, Lugo-Maya,

Pava-Buelba,  Pagan-San-Miguel  and  Gonzalez-Valentin,  were

found guilty of conspiracy to import cocaine, in violation of

21 U.S.C.    960 and 963 (Count 1); importing 232.8 kilograms

of cocaine, in violation of 21 U.S.C.   952 and 18 U.S.C.   2

(aiding and abetting) (Count  2); possessing the cocaine with

intent  to distribute, in violation of  21 U.S.C.   841(a)(1)

and 18  U.S.C.   2  (Count 3);  and of knowingly  carrying or

                             -10-
                                          10


aiding and abetting the  carrying of firearms in  relation to

the  drug  trafficking crime  of  importing  the cocaine,  in

violation of 18 U.S.C.   924(c)(1)  and 18 U.S.C.   2 (Counts

4 and 5).  

          The  district  court  sentenced  the  appellants on

Counts 1, 2, and 3 to terms  of imprisonment ranging from 188

to  360 months  and to  terms of  supervised release  of five

years.   It  also sentenced  the appellants  on Count  4, the

firearms  count as to the  M-16, to the  mandatory minimum of

360 months  imprisonment, to  be served consecutively  to the

terms of  imprisonment imposed  on Counts  1, 2  and 3.   The

court dismissed  Count  5, the Intratec pistol count,  out of

                             -11-
                                          11


double  jeopardy  concerns.2    It  also  ordered  a  special

                    
                                

2.  At oral argument a question arose as to whether the
district court had in fact dismissed Count 5 or had simply
not sentenced on that count.  We asked the government to 
inform us as to the disposition of the convictions for Count
5.  In its response, the government represented that Count 5
had not been dismissed and that the district court had simply
not sentenced on that count.  Our own review of the docket
sheet, however, reveals plainly an order dismissing Count 5,
which the government acknowledged when the court called the
order to counsels' attention.  We take a dim view of the
government's conduct in this matter, even if it is viewed as
nothing more than negligence.
          The government now claims that, in any event, the
order dismissing Count 5 is a nullity because the order was
entered on the docket a few days after each appellant had
filed his notice of appeal.  Pointing out that as a general
rule the entry of a notice of appeal divests the district
court of jurisdiction to adjudicate any matters related to
the appeal, see United States v. Distasio, 820 F.2d 20, 23
                                                     
(1st Cir. 1987), the government argues that the entry of the
notices of appeal divested the district court of jurisdiction
over the case and that, absent jurisdiction, the order on
Count 5 can have no effect.  
          But the government forgets that a criminal judgment
involving multiple counts is not final and appealable unless
the record discloses the precise disposition (e.g., the
sentence) for each count.  See United States v. Wilson, 440
                                                                  
F.2d 1103 (5th Cir.) (no final judgment where the court
imposed sentence on three counts of a six count indictment
and withheld sentence on three counts)(cited with approval in
15B Charles A. Wright, et al., Federal Practice and
                                                               
Procedure,   3918.7 & n.10 (2d ed. 1992)), cert. denied, 404
                                                                   
U.S. 882 (1971).  The district court here had not specified
the disposition of Count 5 by the time the notices of appeal
were docketed.  Absent a disposition on Count 5, there was no
final judgment from which the defendants could appeal. 
Because there was no appealable order at the time the notices
were filed, the notices of appeal could not have divested the
district court of its jurisdiction over the case. 
Accordingly, the district court had jurisdiction and its
order dismissing Count 5 was not a nullity.
          That the notices were premature does not affect
this court's jurisdiction of these appeals.  The notices
simply relate forward to the entry of judgment.  See  Fed. R.
                                                                
App. P. 4(b);  cf. Yockey v. Horn, 880 F.2d 945, 948 n.4 (7th
                                             
Cir. 1989) (where district court inadvertently failed to
dismiss one count of a multi-count complaint, notice of

                             -12-
                                          12


assessment of $50 for each  of Counts 1-4. 

                    II.  CONVICTION ISSUES

          A.  Sufficiency of the Evidence
                                                     

          1.  Count 4, the M-16 Firearm Count.
                                                         

          Appellants'  principal focus  is on  the  denial of

their Rule 29 motions at trial for  acquittal on Count 4, the

M-16 firearm  count.   Each appellant  claims that there  was

insufficient evidence to support his conviction under Count 4

for  carrying, or aiding and abetting the carrying of, the M-

16 during and in relation to the drug trafficking offense, in

violation  of 18  U.S.C.    924(c)(1) and  18 U.S.C.    2(a).

Section 924(c)(1) provides, in pertinent part:

          Whoever, during and in  relation to any . .  . drug
          trafficking crime  . . . uses or carries a firearm,
          shall, in  addition to the punishment  provided for
          such . . . drug trafficking  crime, be sentenced to
          imprisonment  for five  years,  . .  .  and if  the
          firearm  is a machine gun . . . to imprisonment for
          thirty years. . . . . 

18 U.S.C.     924(c)(1).   Section 2(a)  provides:   "Whoever

commits an  offense against the United States or aids, abets,

counsels, commands,  induces or  procures its commission,  is

punishable as a principal."  18 U.S.C.   2(a).

                    
                                

appeal that was technically premature related forward after
district court entered an order officially dismissing the
remaining count).  The notices of appeal are treated as if
they were filed on the date the order dismissing Count 5 was
entered on the docket.  
          Count 5 is no longer at issue in this case.  The
government did not cross-appeal from the dismissal, nor has
it requested reversal of the dismissal of Count 5.

                             -13-
                                          13


          The  standard  of  review  for sufficiency  of  the

evidence is familiar.  "Our  task is to review the  record to

determine  whether  the  evidence and  reasonable  inferences

therefrom, taken as a  whole and in the light  most favorable

to the prosecution, would allow  a rational jury to determine

beyond a reasonable doubt that the defendants were  guilty as

charged."  United  States v. Mena-Robles,  4 F.3d 1026,  1031
                                                    

(1st Cir.  1993),  cert. denied  sub  nom. Rivera  v.  United
                                                                         

States, 114 S. Ct. 1550 (1994).
                  

          The  facts of this case do not require us to define

the  precise contours  of the  meaning Congress  intended the

phrase "carries" to have, and we note the variety of views on

both that issue and  the meaning of its companion  term "use"

in 18 U.S.C.    924(c)(1).   See generally  United States  v.
                                                                         

Joseph,  892  F.2d  118,  126  (D.C.  Cir.  1989)  (to  prove
                  

carrying, the government must show that the defendant had the

ability to exercise dominion and control over the firearm and

that  the firearm  was  within  easy  reach  to  protect  the

defendant during the drug trafficking offense); United States
                                                                         

v.  Evans,  888 F.2d  891,  895  (D.C.  Cir. 1989)  (carrying
                     

comprehends more than actually  physically wearing or bearing

a gun  on one's  person), cert.  denied sub  nom.   Curren v.
                                                                         

United States, 494  U.S. 1019 (1990); see  also United States
                                                                         

v. Bailey, 36 F.3d  106, 125 (D.C. Cir. 1994)  (Williams, J.,
                     

dissenting)  (stating that  carrying included  situations (1)

                             -14-
                                          14


where  a weapon was within  easy reach of  the defendant, (2)

where  a defendant had  sufficient control  over confederates

carrying weapons to establish constructive possession, or (3)

where a  defendant had transported a weapon  by motor vehicle

and  had ready  access to  the weapon  as if  it were  in his

pocket), cert.  granted, 115 S.  Ct. 1689 (1995);  Bailey, 36
                                                                     

F.3d 106 at 114-15 & n.1 (stating that what constitutes "use"

depends  upon  the  nature  of   the  underlying  substantive

offense);  United States v. Paulino, 13 F.3d 20, 26 (1st Cir.
                                               

1994) (focussing on whether the firearm was available for use

in connection with the  narcotics trade).  Suffice it  to say

that actual  physical carrying  of the  gun comes  within the

scope of the statute.  See Joseph, 892 F.2d at 126. 
                                             

          The  conclusion is  reasonable  that  at least  one

Puerto  Rico  based   participant  in  the  drug   conspiracy

physically carried the  M-16 to the beach.  The M-16 had been

at  Gonzalez-Valentin's house  a  few days  before the  beach

landing.  It was then found in the undercarriage of the  jeep

in  a carport  near the  beach, next  to a  building entryway

where  bales of cocaine had been brought.  Someone brought it

from Gonzalez-Valentin's  house to the  jeep.  The  fact that

the  jeep  was  not  otherwise connected  to  the  defendants

suggests  that  sometime  before  the  arrest,  the  gun  was

somewhere  on the beach and  was then brought  from the beach

and  placed  under the  jeep to  avoid  detection.   That the

                             -15-
                                          15


bullets  for the  machine  gun were  found behind  Pagan-San-

Miguel's house near the bales of cocaine further supports the

inference  that the  gun was  either carried  onto the  beach

during the offloading or was nearby as part of the operation.

Still, the  gun was not found  in the hands of  anyone at the

beach and there is  no direct evidence as to who  carried the

gun.  None of  the agents watching the offloading  saw anyone

with a weapon of any kind.

          Our initial focus then is on the sufficiency of the

evidence  on  the aiding  and  abetting charge.    Aiding and

abetting  requires  that  "the  defendant  [have]  associated

himself with the venture, participated  in it as in something

he wished to bring about,  and sought by his actions  to make

it succeed."  United States v.  Alvarez, 987 F.2d 77, 83 (1st
                                                   

Cir.), cert. denied, 114 S. Ct. 147 (1993).  Mere association
                               

with the principal, or mere presence at the scene of a crime,

even  when  combined  with  knowledge that  a  crime  will be

committed, is not sufficient to establish aiding and abetting

liability.   Id.;  see  also United  States  v. De  la  Cruz-
                                                                         

Paulino, No. 94-1985  (1st Cir. Aug. 3, 1995).  The defendant
                   

must  have taken  some  affirmative  action that  facilitated

violation of   924(c)(1).3   Of course, knowledge that  a gun

                    
                                

3.  A Pinkerton instruction was never given to the jury, nor
                           
did the government argue at trial or on appeal that Pinkerton
                                                                         
liability should apply.  See Pinkerton v. United States, 328
                                                                   
U.S. 640, 646-47 (1946).  We therefore could not support the
convictions on a Pinkerton theory.  See United States v.
                                                                    

                             -16-
                                          16


would  be carried  is also  required.   See United  States v.
                                                                         

Torres-Maldonado, 14  F.3d 95, 103 (1st  Cir.), cert. denied,
                                                                        

115 S. Ct. 193 (1994); see  also  United States v. DeMasi, 40
                                                                     

F.3d  1306,   1316  (1st  Cir.  1994)   (knowledge  that  co-

conspirators  would  be using  a  gun  may be  inferred  from

defendant's  activity in  planning  and attempting  to rob  a

Brink's  armored truck  guarded by  two armed  guards), cert.
                                                                         

denied  sub nom.  Bonasia v.  United States,  115 S.  Ct. 947
                                                       

(1995).

          The question  here, then, is  whether the  evidence

was  sufficient  to show  that  each  appellant  knew that  a

firearm would be involved in the drug trafficking offense and

took some action in relation to the M-16 that was intended to

cause the firearm to be carried during and in relation to the

drug  trafficking offense.  We believe  that the evidence was

sufficient to convict Pagan-San-Miguel,  Luciano-Mosquera and

Gonzalez-Valentin under this standard, but was not sufficient

to convict Pava-Buelba and Lugo-Maya as to the M-16.

          As  to  Pagan-San-Miguel,   there  was   sufficient

evidence  that  he knowingly  assisted  the  carrying of  the

weapon.  He  was the ringleader of  the importation operation

in  Puerto Rico.  He was a  key participant in the meeting at

                    
                                

Torres-Maldonado, 14 F.3d 95, 101 (1st Cir.) ("On appeal, we
                            
will not infer either that the jury found guilt based on a
theory upon which it was not instructed, or that the jury
would have found guilt had it been given a Pinkerton
                                                                
instruction."), cert. denied, 115 S. Ct. 193 (1994).
                                        

                             -17-
                                          17


Gonzalez-Valentin's  house  during which  he  and Perez-Perez

showed Fontalvo the M-16.   He showed Fontalvo the  weapon at

the meeting  and said they  had brought  it.  The  jury could

certainly infer  that he, or Perez-Perez at  his direction or

with his assistance, procured the  M-16 for purposes of using

it to protect the operation.

          The  evidence  is  also  sufficient  to  show  that

Gonzalez-Valentin  knowingly  assisted  the  carrying  of the

weapon.   Gonzalez-Valentin is  chargeable with  knowledge of

the M-16, since the M-16 was displayed in his presence during

one of  the meetings at  his house  and the jury  could infer

that  he was present.   Moreover, by providing  his house for

the meeting  at which the guns were  displayed and discussed,

Gonzalez-Valentin   assisted   the  substantive     924(c)(1)

offense.

          As  for Luciano-Mosquera, when  viewed in the light

most favorable to the government, the evidence was sufficient

for the  jury to  infer that he  either carried  or aided  in

carrying the weapon  to or  from the beach  and hid the  M-16

under the  jeep at the  time he  hid or had  placed it  there

sometime before the  arrests.  The weapon  was directly above

him  in the undercarriage, no  more than an  arm's span away.

It  was  also placed  up  in  the undercarriage  between  the

chassis and the springs, so clearly someone took  some effort

to  place the weapon there.  He  was at the beach with Pagan-

                             -18-
                                          18


San-Miguel  to meet the yawls;  he arrived at  the beach with

Pagan-San-Miguel, who supplied the weapon; magazines from the

M-16 were nearby; beepers were found near the gun (suggesting

a connection between the  gun and the drug offense);  and the

call  tipping  the  conspirators  off that  the  police  were

watching came into  a car phone  in his  car.  This  evidence

supports the  reasonable inference that his  proximity to the

weapon was more than  a mere fortuity.  A jury could conclude

from these circumstances  that Luciano-Mosquera either placed

the weapon in the  jeep before the arrest signals  were given

or  that he  carried the  weapon from  the beach  and hid  it

underneath  the jeep as he was  hiding from the police.  From

these circumstances,  a jury  could reasonably  conclude that

Luciano-Mosquera had  carried the weapon sometime  during and

in relation to  the offense or at least that  he aided in the

carrying of the  weapon during  and in relation  to the  drug

offense.   See United States v. Olbres, No. 94-2123, slip op.
                                                  

at 17 (1st  Cir. July 26, 1995) (evidence must  be taken as a

whole, in cumulation). 

          All of the appellants  have argued that, regardless

of whether  the evidence  was sufficient  to show  aiding and

abetting  "carrying," it  was insufficient  to show  that any

carrying  was  done "during  and  in  relation to"  the  drug

importation  offense.     They  argue   that,  because  their

importation efforts ended  the moment the flares went up, the

                             -19-
                                          19


subsequently found  M-16 machine gun could  not have "related

to"  the drug trafficking.   That argument  is inventive, but

wrong.  The jury could easily infer from the discovery of the

weapon in  close proximity to the  offloading operation after

the arrest signals were given that  it had been carried at  a

time when the offense was in progress, particularly  in light

of the evidence that it was brought by the conspirators to  a

planning meeting and shown off,  ammunition for it was  found

nearby,  and  it was  found close  to  the bales  of cocaine.

Further, the legislative history  of the 1984 amendment  to  

924(c)  is explicit that where the defendant had a gun during

the  underlying  offense  (even  if  the  gun  had  not  been

displayed),   the   section   is  violated   "if   from   the

circumstances  or  otherwise  it  could  be  found  that  the

defendant intended to use  the gun if a contingency  arose or

to  make his escape."  S. Rep.  No. 225, 98th Cong., 2d Sess.

1, 314 n.10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492
                                            

n.10; see also  United States v. Feliz-Cordero, 859 F.2d 250,
                                                          

254 (2d Cir. 1988).

          In  sum, the  evidence  was  sufficient to  convict

Pagan-San-Miguel,  Gonzalez-Valentin and  Luciano-Mosquera of

carrying  the M-16 on an  aiding and abetting  theory.  Their

convictions on Count 4 are, therefore, affirmed.

          The  evidence  as  to  Lugo-Maya  and  Pava-Buelba,

however, was insufficient to sustain a conviction on Count 4.

                             -20-
                                          20


The only evidence the government  presented linking Lugo-Maya

to  the  M-16  was  the  evidence  that  50  rounds  of  .9mm

ammunition for the  Intratec pistol were found  in the yawls.

Evidence of  his involvement  with the Intratec  pistol might

have  been  enough  to show  knowledge  of  the  M-16 on  the

inference that the two firearms were together when the Puerto

Rico-based participants met  to launch the  yawls to the  F/V

Marlyn, and that knowledge of  one supports the inference  of

knowledge of  the other.   There  was  no evidence,  however,

showing that he took  any step to assist the  carrying of the

M-16 in relation  to the drug offense.  Lugo-Maya  was not at

the  meeting  where  the  M-16 was  shown.    The  government

presented  no  evidence  that  Lugo-Maya took  any  steps  to

procure or  otherwise supply the  weapons or ammunition.   He

was also  nowhere near the weapon at  the time of his arrest.

There  was  simply insufficient  evidence  to  show beyond  a

reasonable doubt that he either carried or  aided and abetted

the carrying of the M-16.

          The  government's  only  evidence connecting  Pava-

Buelba to the M-16 was  the fact that he was found  under the

jeep  in which  the M-16  had been  hidden.   Unlike Luciano-

Mosquera, however,  Pava-Buelba was  on the opposite  side of

the  jeep from where the M-16  was found.  Given the darkness

and the  fact that the gun  was stuck up  between the chassis

and  the springs  it is  not reasonable  to infer  that Pava-

                             -21-
                                          21


Buelba  saw the weapon when he was  under the jeep.  And also

unlike Luciano-Mosquera, there was no evidence linking him to

the activities in Puerto Rico, specifically the activities on

the beach on the evening of the arrest from which it would be

reasonable  to infer  the requisite  knowledge of  the weapon

before  he hid under the jeep.   Indeed, Fontalvo's testimony

never associated Pava-Buelba with any weapons.    Pava-Buelba

was simply a  load watcher  whose job it  was to observe  and

report  back  to the  Colombian  supplier  about whether  the

cocaine was  successfully delivered.  His  interests were not

the same as the interests of the Puerto Rico-based importers.

The first time he set foot in Puerto Rico  in connection with

this case was when he  arrived at the offloading site  in one

of  the yawls.   There  was no  evidence linking  him to  the

Puerto Rico end of the operation where he would have  been in

a position to know about the specific weapon.  Therefore, the

inference that he knew  about the weapon is much  weaker than

the  inference with  respect to Luciano-Mosquera.   Moreover,

even if there were  evidence sufficient to infer that  he saw

the hidden weapon in  the darkness once he crawled  under the

jeep, given  his disconnection with  the Puerto Rico  side of

the  operation,  such  knowledge   would  have  been  a  mere

fortuity.   Unlike Luciano-Mosquera,  who was  found directly

beneath the  weapon and had substantial  dealings with Pagan-

San-Miguel  during  the hours  before  the  arrest, there  is

                             -22-
                                          22


insufficient evidence to  conclude beyond a reasonable  doubt

that Pava-Buelba  hid under the jeep  to be next  to the M-16

with  the  idea that  he  would  carry  it.   In  short,  the

government did  not present  evidence  that Pava-Buelba  knew

about the weapon sufficient to support a   924(c) conviction,

even on an aiding and abetting theory.

          Furthermore, there was no evidence that Pava-Buelba

ever had  actual  possession of  the weapon.   With  Luciano-

Mosquera  lying underneath the gun, it is far from clear that

Pava-Buelba  was  in  a  position to  exercise  dominion  and

control over the  weapon.  Even if his proximity  to the M-16

under the  jeep gave  him sufficient  possession, at  most, a

theory of constructive possession might have been argued.  In

this  case,   however,   the  district   court   specifically

instructed  the  jury  that  a conviction  for  "carrying"  a

firearm could not  be based on constructive possession of the

firearm.   Such  an  instruction sets  the benchmark  against

which  the  sufficiency of  the  evidence  must be  measured.

United  States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992);
                                   

United  States  v.  Angiulo,  897  F.2d  1169,  1196-97  (1st
                                       

Cir.)(appellate   determination   of   sufficiency  must   be

constrained by  trial court's instructions; "otherwise  . . .

we would be  sustaining a  conviction on appeal  on a  theory

upon which the jury was not instructed below"), cert. denied,
                                                                        

498  U.S.  845   (1990).    While  the  correctness  of  that

                             -23-
                                          23


instruction  might  otherwise   be  open  to  question,   the

government did  not object  to the instruction  at trial  nor

does it  argue on appeal  that the  instruction was error.   

See  Saylor v. Cornelius, 845 F.2d 1401, 1408 (6th Cir. 1988)
                                    

(although reversal  due to  a trial  error normally  does not

raise double jeopardy concerns,  double jeopardy bar would be

triggered  where  government  had  failed to  object  to  the

error).

          Issues   of  the   sufficiency   of  the   evidence

necessarily  involve the  tension  between deference  to  the

jury's  role under  the Seventh  Amendment  as the  finder of

fact,  see Olbres,  No.  94-2123, slip  op.  at 18,  and  the
                             

appellate  court's role  in  providing  meaningful review  of

whether  the government has indeed met its burden of proof of

guilt  beyond   a  reasonable  doubt.       That   burden  is

constitutionally  mandated.   In  re  Winship,  397 U.S.  358
                                                         

(1970).    The  Supreme  Court  has  said that  the  relevant

question is  whether "after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt."   Jackson v.  Virginia, 443 U.S.  307, 319
                                                     

(1979) (emphasis removed).    The    difficulty    of   these

questions of  sufficiency of the evidence  to draw reasonable

inferences is  illustrated  in  the  case law.    See,  e.g.,
                                                                        

Stewart  v. Coalter,  48 F.3d  610 (1st  Cir.) (each  of four
                               

                             -24-
                                          24


courts reviewing a conviction reach  different conclusions as

to sufficiency, culminating in a split decision by a panel of

this  court upholding  the  conviction), petition  for  cert.
                                                                         

filed, No. 94-9742 (U.S. June 19, 1995).
                 

          In sum, we believe there was insufficient evidence,

in  light of  the  government's burden  of proof,  to convict

either  Lugo-Maya or  Pava-Buelba of  carrying or  aiding and

abetting  the  carrying  of  the M-16  and  so  reverse their

convictions  on Count 4.   There is no  direct evidence as to

either and an insufficient basis to  draw inferences of guilt

beyond a reasonable doubt.

          2.  Drug Counts.   
                                     

          Gonzalez-Valentin  and Luciano-Mosquera  also raise

sufficiency  challenges on  the drug  counts.   As the  facts

above amply demonstrate,  there was overwhelming evidence  of

each  appellant's  complicity in  the  scheme  to import  the

cocaine  and   of  their  guilt on  the drug  counts.   Their

convictions on the drug counts are affirmed. 

          B.  Other Issues Going To The Verdict
                                                           

          The appellants4 -- principally  Pagan-San-Miguel --

have raised six other claims of error concerning the district

court's conduct of the  trial:  (1) the limitation  of Pagan-

                    
                                

4.  Appellants Gonzalez-Valentin and Pava-Buelba have
incorporated all arguments made by the other appellants not
inconsistent with those otherwise made in their briefs.  Our
review of the issues applies therefore to their appeals as
well.

                             -25-
                                          25


San-Miguel's cross-examination of  two government  witnesses,

(2)  the  admission of  an  incriminating  statement made  by

Pagan-San-Miguel, (3)  the refusal to grant  a mistrial after

allegedly   improper   remarks  were   made   during  closing

statements, (4) the jury instruction  on   924(c)(1), (5) the

jury  instruction on  the defendants'  flight from  the crime

scene, and (6) the allowance of a read-back of testimony by a

government witness to the jury during its deliberation.  None

of these claims of error provides a ground for reversal.

                             -26-
                                          26


          1.  Cross-Examination.
                                           

          Pagan-San-Miguel complains that the  district court

erred in cutting off his cross-examination into the penalties

Castillo-Ramos would have faced on firearms counts which were

dropped against him.  Pagan-San-Miguel attempted to establish

bias  by showing that the government had been able to procure

Castillo-Ramos'  cooperation  by   deciding  not  to   charge

Castillo-Ramos  under  the  firearms  counts  in  the  second

superseding indictment.    After questioning  on this  topic,

Pagan-San-Miguel  asked  Castillo-Ramos whether  his attorney

had informed  him that if  he had  been "found guilty  of the

possession of  the firearm  during the  commission of  a drug

offense  [he  would be]  sentenced  to  thirty-five years  in

addition to the drug offense."   The district court sustained

an objection  to this question  on the  ground that,  because

defendants  faced  the  same  firearms  charges,  it  was  an

impermissible   attempt  to   inform   the  jury   about  the

defendants' possible punishment on the firearms counts.  

          Pagan-San-Miguel claims that this truncating of his

cross-examination impermissibly interfered with his  right to

confrontation  under  the  Sixth  Amendment.    We  disagree.

Pagan-San-Miguel  had  a  sufficient  opportunity  to  expose

potential  biases,  including  any  bias  resulting from  any

benefit   Castillo-Ramos  received   as   a  result   of  his

cooperation.  Pagan-San-Miguel was able to ask Castillo-Ramos

                             -27-
                                          27


repeatedly  whether  he  had   received  a  benefit  for  his

testimony.   Any  probative  value of  information about  the

precise number  of years Castillo-Ramos would  have faced had

he been charged  for the  firearms offense was  slight.   The

district  court  properly  decided  that  the  value  of  the

information was outweighed by  the potential for prejudice by

having  the jury  learn  what penalties  the defendants  were

facing.  

          Although   cross-examination    is   an   important

component of  a defendant's Sixth Amendment  rights under the

confrontation  clause, a  defendant's right  to cross-examine

witnesses is  not unlimited.   Delaware  v. Van  Arsdall, 475
                                                                    

U.S. 673,  679 (1986).  A  district court is  entitled to cut

off cross-examination that may  create prejudice or confusion

of the issues, or may be harassing or unduly repetitive.  Id.
                                                                         

Assuming  that the minimal  constitutional threshold level of

inquiry was allowed, as here, a trial court has discretion in

limiting cross-examination.  A trial court does not abuse its

discretion if  there is  sufficient evidence before  the jury

(absent  the excluded  evidence)  from which  the jury  could

"make a  discriminating appraisal of the  possible biases and

motivations  of the witnesses."  Brown v. Powell, 975 F.2d 1,
                                                            

5 (1st Cir. 1992),  cert. dismissed, 113 S. Ct.  1035 (1993).
                                               

That was the case here.

                             -28-
                                          28


          2. Pagan-San-Miguel's Incriminating Statement.
                                                                   

          Pagan-San-Miguel  argues  that  the district  court

erred by not conducting a hearing out of the jury's presence,

pursuant to Jackson  v. Denno,  378 U.S. 368  (1964), and  18
                                         

U.S.C.    3501(a),5  to  determine the  voluntariness of  his

incriminating  statements.    Police  Officer  Samuel  Jusino

testified that Pagan-San-Miguel,  while being held  following

his  arrest, told Jusino  that he  "would make  three hundred

thousand  dollars out  of [the  drug venture]" and,  once the

arrest  signals  were given,  "that  he ran  and  hid himself

underneath a metal plank, and if he had found a hole he would

have gone through that place."  

          Before the issue of a Jackson v. Denno hearing  may
                                                            

be raised  on appeal,  the issue  of voluntariness  must have

been  placed  before  the  district  court  in  a timely  and

coherent manner.   See  United States  v. Santiago Soto,  871
                                                                   

F.2d  200,  201 (1st  Cir.) (failure  to  raise the  issue of

voluntariness in  a way  that would  have  alerted the  trial

judge that a  Jackson v. Denno  hearing was desirable  waives
                                          

right to  hearing), cert.  denied, 493 U.S.  831 (1989);  see
                                                                         

also  United States  v. Berry,  977 F.2d  915, 918  (5th Cir.
                                         

1992)  (a  generic  objection  to the  admissibility  of  the

                    
                                

5.  Section 3501(a) provides, in pertinent part, that
"[b]efore such confession is received in evidence, the trial
judge shall, out of the presence of the jury, determine any
issue as to voluntariness."  18 U.S.C.   3501(a).

                             -29-
                                          29


confession was insufficient to  put the court on  notice that

defendant sought a Jackson v. Denno hearing and therefore the
                                               

court's  ruling was  reviewed for  plain error).   Pagan-San-

Miguel failed to  place the issue  properly before the  trial

court here.

          Pagan-San-Miguel did not specifically object to the

admissibility of the statements on voluntariness grounds.  He

never  specifically requested a  voluntariness hearing during

trial.  He never  raised the voluntariness issue in  his pre-

trial motion  to suppress statements made  to law enforcement

personnel.  He never raised voluntariness in his objection to

the  statement  at  trial.     His  objection  was  a  narrow

foundational one not  going to voluntariness  -- that at  the

time of Officer  Jusino's testimony no one  had yet testified

that  Miranda  warnings had  been  given  to Pagan-San-Miguel
                         

before  he  made the  incriminating  statements.   The  court

specifically asked Pagan-San-Miguel whether his  objection as

to  foundation was a suppression request and Pagan-San-Miguel

informed  the court  that  it was  not.   Indeed  during  the

colloquy with  the district court over  the testimony, Pagan-

San-Miguel conceded that "there [was] evidence that [Miranda]
                                                                        

warnings were properly made and there was a waiver."  Given

his  disclaimer  that  he  was  seeking  suppression  of  the

statement  and the  total  absence of  any evidence  that the

statements  were made involuntarily, Pagan-San-Miguel did not

                             -30-
                                          30


sufficiently  apprise the  district court  that voluntariness

was an issue.  Thus, Pagan-San-Miguel's claim to a Jackson v.
                                                                         

Denno hearing has been waived.
                 

          There  also is  no  colorable claim  here that  the

district   court   was   nevertheless  obliged   to   hold  a

voluntariness  hearing sua  sponte.   See Santiago  Soto, 871
                                                                    

F.2d at 202  (recognizing, without adopting, a rule that such

a hearing must be given sua sponte under circumstances, "such
                                              

as  a  defendant's  apparent  abnormal  mental   or  physical

condition, obvious ignorance or lack of awareness," raising a

serious  question over  voluntariness).  At  best, Pagan-San-

Miguel's argument  is that he  was so "shell-shocked"  by the

events  that transpired on the beach that the court must have

been alerted  to the possibility  that he did  not understand

the Miranda warnings  that were given  to him and that,  as a
                       

result, his  statements  made hours  later were  involuntary.

Undoubtedly a defendant who suddenly becomes aware the police

are  on  to him  suffers  a  jolt,  but that  jolt  does  not

incapacity make.

          3.  Remarks During Closing Arguments.
                                                          

          Pagan-San-Miguel argues that  certain remarks  made

during  the closing  arguments were  unduly prejudicial.   He

points  to four remarks, one  made by the  attorney for Pava-

Buelba and three  made by  the government.   None provides  a

basis for reversal.

                             -31-
                                          31


          Pava-Buelba's  attorney, in  an apparent  effort to

distinguish  his  client  and  to  distinguish  the  firearms

charges from the drug charges,  made the following remarks to

the jury:

               I ask you to please keep in mind that the fact
          that there  are a number of  defendants here [does]
          not mean that they  were all to be treated  as one.
          And the fact that they were being charged with five
          different counts does not mean that you had to find
          them guilty or  innocent or all the  same, but that
          you could  choose  and pick.   And  that you  could
          discern among  the evidence and determine which, if
          any, were guilty of any of the counts charged.
               Some might  be guilty  of one  or more.   Some
          might be guilty of  none.  And I ask  you to please
          be careful  watching the evidence so  that you will
          be able  to  distinguish  between  each  and  every
          individual and each and every count.

Pagan-San-Miguel  objected  to  these  remarks,  arguing they

implied that  Pava-Buelba was guilty of the drug offenses and

thus  implicated the  other defendants.   The  district court

sustained the objection.  Pagan-San-Miguel's later motion for

a mistrial was  denied, but  the court offered  to provide  a

curative instruction, which all  defendants declined.  Pagan-

San-Miguel argues that a curative instruction would have been

pointless and  that the district court  abused its discretion

in refusing to grant a new trial.

          Fatal to Pagan-San-Miguel's claim, however, is that

to "require a new trial, we must conclude . . . that, despite

the instruction,  the misconduct was likely  to have affected

the trial's outcome."  United States v. Capone, 683 F.2d 582,
                                                          

585-86 (1st Cir. 1982) (internal  citations omitted).  In the

                             -32-
                                          32


context of the full  record, these statements could  not have

had any  impact on the outcome of the trial.  The evidence of

Pagan-San-Miguel's   complicity  on   the  drug   counts  was

overwhelming.   Moreover,  a curative instruction  would have

solved any spillover problem created by the statements.

          Pagan-San-Miguel  also challenges  the government's

statement   that  "Carlos  Pagan-San-Miguel  can't  deny  his

association  with [Fontalvo], that  terrible, terrible person

that was described to you."  Pagan-San-Miguel argues this was

an impermissible  comment from  a prosecutor on  an accused's

failure to testify.  We think it was not.  The government did

not say  that Pagan-San-Miguel "didn't deny his association,"

only  that he  "can't deny his  association."   Even assuming

that this  comment cut too  close to  the line, "there  is no

reason  to  conclude that  the prosecutor  intentionally drew

attention  to  the appellant's  silence  at  trial."   United
                                                                         

States v.  Taylor, 54 F.3d 967, 980 (1st Cir. 1995).  And the
                             

evidence  was  otherwise so  overwhelming  that this  comment

could have had no effect on the jury's judgment.  Id. at 977.
                                                                 

          Pagan-San-Miguel's  next two challenges  are to the

government's statements that the firearm found under the jeep

"would be used  to protect  the very cocaine  that was  being

illegally smuggled into Puerto  Rico" and that "Carlos Pagan-

San-Miguel bragged about having bought the firearms."  Pagan-

San-Miguel argues that  the first was  misleading in that  it

                             -33-
                                          33


suggested  that  the jury  could  convict  the defendant  for

planning on using the  firearm once it had arrived  in Puerto

Rico, an offense  not charged in the  indictment.  Pagan-San-

Miguel's reading  is strained, at best.   The first statement

was consistent with the evidence and the government's theory.

There is no plausible argument that this statement was likely

to have affected the outcome of the trial or was so egregious

that a  new trial is needed  as a sanction.   See Capone, 683
                                                                    

F.2d  at 587.   While  the second  statement appears  to have

exaggerated the evidence, there was no  objection and it does

not amount to plain error.  See Taylor, 54 F.3d at 977.  
                                                  

          4.  Jury Instruction on 18 U.S.C.   924(c)(1).
                                                                   

          Pagan-San-Miguel argues that the  court erroneously

instructed the jury  on an essential element  of the firearms

offense,  18 U.S.C.   924(c)(1).   That section requires that

the  defendant  have  carried  the  firearm  "during  and  in

relation  to    .    .   .  [a] drug trafficking crime."  The

district  court, however,  instructed  the jury  that it  was

enough if the defendant knowingly carried the firearm "during

the  commission of  the crime  of drug  trafficking."   In so

doing, the district court appears  to have relied on obsolete

statutory language.   Before 1984,    924(c)(1) provided that

it  was a crime to carry  a firearm "during the commission of

any [federal]  felony."   In 1984, however,  Congress amended

the  language adding the phrase  "during and in relation to,"

                             -34-
                                          34


to  make clear  that  the  firearm  must  be  linked  to  the

underlying  felony to come  within the scope  of the statute.

S.  Rep.  No.  224,  supra,  at  312-13,  reprinted  in  1984
                                                                   

U.S.C.C.A.N. at 3490-92.

          Because  Pagan-San-Miguel  did  not  object  to the

instruction,  the instruction  is reviewed  for plain  error.

See Fed. R. Crim. P. 52(b).  Pagan-San-Miguel argues that the
               

court's use  of  the phrase  "during the  commission of"  was

plain error,  claiming it omitted an essential element of the

offense and it broadened the scope of the conduct under which

the jury could convict.  

          The actual  charge given here  undercuts Pagan-San-

Miguel's argument.6   The district court  emphasized that the

carrying  of  the firearm  must  be  linked to  the  specific

underlying  drug  offense  for  which   the  defendants  were

convicted:  

          First,  it  must  be  proven  that  a[] defendant[]
          committed a crime of  drug trafficking for which he
                                                            
          may  be  prosecuted  in  the United  States.    And
          second, that during the  commission of the crime of
                                                                         

                    
                                

6.  Faced with a similar challenge the Ninth Circuit has held
that the change in statutory language was not substantive and
that the requirement that the firearm be linked to the crime
was already implicit in the statute.  "Though the legislative
history does not say so expressly, it strongly implies that
the 'in relation to' language did not alter the scope of the
statute, explaining that the original section was directed at
persons who chose to carry a firearm as an offensive weapon
for a specific criminal act."  United States v. Stewart, 779
                                                                   
F.2d 538, 539-40 (9th Cir. 1985) (internal quotation
omitted), cert. denied, 484 U.S. 867 (1987).  
                                  

                             -35-
                                          35


          drug trafficking the defendant[]  knowingly carried
                                      
          a firearm.

In light of the  actual instruction given, Pagan-San-Miguel's

attack on the instruction does not rise to the level of plain

error.  

          Pagan-San-Miguel also argues  that the  instruction

allowed the  jury to convict  for a crime not  charged in the

indictment because the firearms charge was limited to Count 2

of  the  three drug  counts.   Pagan-San-Miguel  has  not and

cannot  articulate how, in the  context of this  case, such a

possibility created a "miscarriage  of justice" or "seriously

affect[ed] the fairness,  integrity or  public reputation  of

judicial  proceedings".  See  United States v.  Olano, 113 S.
                                                                 

Ct. 1770, 1779 (1993).    

          5.  Jury Instruction on Flight.
                                                    

          Pagan-San-Miguel  also  argues  that  the  district

court erroneously  instructed the  jury about his  flight and

concealment.  This argument  is meritless.  As long  as there

is an  adequate factual predicate supporting  an inference of

guilt  on the crime charged,  as there was  here, evidence of

the  accused's  flight may  be  admitted  at  trial  to  show

consciousness  of guilt.    See United  States v.  Hernandez-
                                                                         

Bermudez, 857 F.2d 50, 52 (1st Cir. 1988).    
                    

          6.  Read-Back To The Jury.
                                               

          Pagan-San-Miguel  and Luciano-Mosquera  assert that

the district  court committed  error when  it failed  to take

                             -36-
                                          36


certain precautions in  allowing the  testimony of  Castillo-

Ramos, the boat captain, to  be read back to the jury  at the

jury's request, during deliberations.  Counsel did not object

to  the procedures  followed; in fact,  what happened  was by

agreement among  counsel.7  To prevail,  defendants must show

plain error.

          It  certainly would  have been  preferable for  the

district  court to have  taken some precautions.   See, e.g.,
                                                                        

United States v. Hernandez,  27 F.3d 1403, 1408-09 (9th  Cir.
                                      

1994) (reversing a conviction  where district court failed to

take  precautions to  prevent undue  emphasis on  the witness

testimony  that  jury  reviewed during  deliberation),  cert.
                                                                         

denied, 115 S. Ct. 1147 (1995).  But  counsel did  not object
                  

and  the standard set by Olano  is not met.   In light of the
                                          

overwhelming evidence  of guilt on  the drug counts  to which

Castillo-Ramos' testimony went, the read-back did  not result

in  a miscarriage  of justice,  nor did  the absence  of such

precautions  seriously  affect  the  fairness,  integrity  or

                    
                                

7.  The court reporter entered the jury room unsupervised and
read the testimony.  The court gave the jury no cautionary
instructions (i.e., that the testimony was not to substitute
for the jurors' memories, or that the jury should not focus
on one particular aspect of the evidence to the exclusion of
other evidence).  There was no observation of the court
reporter's reading of the testimony to ensure that no
editorializing or slanting was done during the reading.  No
instructions were given to the court reporter to be careful
not to converse with the jurors or otherwise taint their
deliberations and to be careful not to read to the jury
potentially prejudicial side-bar conferences she had recorded
during the course of Castillo-Ramos' testimony. 

                             -37-
                                          37


public  reputation  of judicial  proceedings.    There is  no

evidence that anything untoward happened in the jury room and

no  reason to  think  the reporter  did  anything other  than

properly read the pertinent portions of the record.

          Pagan-San-Miguel  and  Luciano-Mosquera also  argue

they were never consulted by either of their attorneys or the

court about  whether  they  would waive  their  right  to  be

present during the read-back.  Although the defendant's right

to be present at every stage of the proceedings may be waived

by the defendant,  it is less  clear whether the  defendant's

attorney can waive it.  See Taylor v. Illinois, 484 U.S. 400,
                                                          

418  &  n.24  (1988).    Nevertheless,  Pagan-San-Miguel  and

Luciano-Mosquera  were present  at  the  time  Castillo-Ramos

actually  gave his  testimony and  so could  "confront" their

accuser.  There was no plain error.

                   III.  SENTENCING ISSUES

          A.  Pagan-San-Miguel
                                          

          Pagan-San-Miguel  challenges  his  sentence on  two

grounds,  neither of which has  merit.  He  asserts he should

not  have been given  a four  level increase  as a  leader or

organizer of  the activity under  3B1.1(a)  of the Sentencing

Guidelines.    See   United  States  Sentencing   Commission,
                              

Guidelines Manual,  3B1.1(a) (Nov. 1991).   He also argues he
                             

should have  been given a  downward adjustment of  two levels

for acceptance of responsibility under U.S.S.G.  3E1.1(a).  

                             -38-
                                          38


Absent a  mistake of law, the  district court's determination

of a  defendant's role may be set aside only for clear error.

United States v.  Tejada-Beltran, 50 F.3d 105,  111 (1st Cir.
                                            

1995).  There was no error.

          The  facts  outlined  earlier establish  Pagan-San-

Miguel's  leadership  and   organizational  role.    Fontalvo

testified  that  Pagan-San-Miguel  was "the  land  person  in

charge  of all the merchandise."   Indeed, his  code names in

the  operation were  "Gigante,"  "Padrino," and  "Godfather."

Pagan-San-Miguel's argument  that the court  made no specific

finding that at  least four others were under  his leadership

and control  does not help  him.   It was  obvious that  nine

others, at the least, were involved in addition to Pagan-San-

Miguel.  And "retention of  control over other participants .

.  . is  not  an essential  attribute  of organizer  status."

Tejada-Beltran, 50 F.3d at 113.
                          

          As   to   acceptance   of    responsibility,   "the

determination of  the sentencing  judge is entitled  to great

deference on review."  U.S.S.G.  3E1.1,  comment. (n.5).  The

fact  that  Pagan-San-Miguel  in  pre-trial  plea  bargaining

unsuccessfully offered to plead guilty  to the drug counts if

certain  conditions were  met does  not provide  a sufficient

basis  to  reverse  the  district court's  decision.    "This

adjustment is not intended  to apply to a defendant  who puts

the government to its burden of proof at trial by denying the

                             -39-
                                          39


essential factual  elements of guilt, is  convicted, and only

then admits  guilt and expresses remorse."   U.S.S.G.  3E1.1,

comment.  (n.2).  His argument  is not enough  to reverse the

district    court's   determination   that   he   failed   to

"demonstrate[]  a recognition  and affirmative  acceptance of

personal responsibility for his  criminal conduct."  U.S.S.G.

 3E1.1(a);  see also United States  v. Curran, 967  F.2d 5, 7
                                                         

(1st Cir. 1992).

          B.  Gonzalez-Valentin
                                           

          Gonzalez-Valentin argues he was a minor participant

and thus  entitled to  a two level  reduction under  U.S.S.G.

 3B1.2(b).   The trial judge's determination  was not clearly

erroneous.  See  United States v.  Lopez-Gil, 965 F.2d  1124,
                                                        

1131 (1st Cir.), cert. denied, 113 S. Ct. 484 (1992).
                                         

          Gonzalez-Valentin was at the beach to assist in the

offloading; his  house was  used regularly  to plan the  drug

smuggling; weapons were shown and  discussed at his house;  a

communications  radio was  hidden and  used in  his backyard.

There  was  ample  evidence he  was  more  culpable than  the

average  participant.      See  U.S.S.G.    3B1.2,   comment.
                                          

(backg'd.).

          C.  Lugo-Maya
                                   

          In addition  to the mandatory sentence  of 30 years

on  Count 4, Lugo-Maya was sentenced  under the Guidelines on

the drug counts,  Counts 1-3.  Lugo-Maya challenges on appeal

                             -40-
                                          40


the district court's  calculation of his guidelines  sentence

on the  drug counts.  He argues the court erred in not giving

him two-level reductions each  for being a minor participant,

pursuant   to  U.S.S.G.   3B1.2(b),  and  for  acceptance  of

responsibility,  pursuant to  U.S.S.G.   3E1.1(a).    As  the

district  court properly  found,  Lugo-Maya was  not a  minor

participant -- he supplied  the yawls, sailed one out  to the

mothership, helped to unload the drugs from  the boat, sailed

the drugs to shore and helped unload them to the land.  As to

acceptance of responsibility, Lugo-Maya's claim is factbound,

and  the district  court's resolution  of  it is  not clearly

erroneous.  See United States v. Royer, 895 F.2d  28, 29 (1st
                                                  

Cir. 1990).  His sentence on the drug counts is affirmed.

                IV. SECTION 2255 MOTION ISSUES

          While  these  consolidated  appeals  were  pending,

Pagan-San-Miguel filed  in the district court  a motion under

28 U.S.C.    2255 to vacate and  set aside his  conviction on

the ground that the  court reporter's delay in providing  him

with a transcript  denied him  his right to  a timely  appeal

and, therefore, deprived  him of  due process of  law.8   The

                    
                                

8.  Pagan-San-Miguel filed his notice of appeal on August 3,
1992.  Around that time, the court reporter agreed to furnish
the necessary transcripts to Pagan-San-Miguel.  The court
reporter, however, did not provide any transcripts to Pagan-
San-Miguel until mid-1994.  Largely due to the court
reporter's failure to prepare the transcripts, this court
extended the period for briefing the case sixteen times.  On
at least three occasions this court entered Orders to Show
Cause threatening the court reporter with contempt if she did

                             -41-
                                          41


district  court denied  the motion.9   On  appeal, Pagan-San-

Miguel argues that this was error.

          Although  extreme delay  in  the processing  of  an

appeal may  amount  to a  due process  violation, and  delays

caused by court reporters  are attributable to the government

for  purposes of  determining  whether a  defendant has  been

deprived of  due process, see, e.g., United States v. Wilson,
                                                                        

16 F.3d  1027, 1030 (9th  Cir. 1994), mere  delay, in and  of

itself will not give rise  to a due process infraction.   The

defendant must show prejudice.   See United States v. Tucker,
                                                                        

8 F.3d 673, 676-77  (9th Cir. 1993) (en banc),  cert. denied,
                                                                        

114 S. Ct. 1230  (1994).  Whether an appellate  delay results

in  prejudice sufficient  to warrant  reversing  a conviction

rests, most  importantly, on a  showing that it  has impaired

the appeal or  the defense in the event of  retrial.  See id.
                                                                         

at 676.

                    
                                

not produce the transcripts.

9.  We have held that absent extraordinary circumstances a
district court should not entertain a   2255 motion while a
direct appeal from the same conviction is still pending. 
United States v. Gordon, 634 F.2d 638 (1st Cir. 1980). 
                                   
Nevertheless, instead of dismissing Pagan-San-Miguel's motion
as being premature, the district court denied the motion.  In
such a case, we may elect to reach the merits of the   2255
motion.  See United States v. Buckley, 847 F.2d 991, 993 n.1,
                                                 
1000 n.6 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989);
                                                  
see also Rule 5, Rules Governing Proceedings in the United
                    
States District Courts Under Section 2255 of Title 28, United
States Code, advisory committee note (1976).

                             -42-
                                          42


          There  was no  prejudice.   Although  there was  an

appalling  delay in  preparing the  transcripts, there  is no

argument  they are incomplete  or unreliable.  This  is not a

situation  in  which  the  court  reporter  has  prepared  an

unusable transcript.  Compare Wilson, 16 F.3d at 1031 (record
                                                

had portion missing or was unintelligible so  that record was

totally  unreliable).   Indeed, Pagan-San-Miguel  only argues

that the delay impaired his ability to present "the strongest

possible evidence  in support  of the appellant's  version of

the  facts"  surrounding  the  read-back  of  Castillo-Ramos'

testimony   to  the  jury.    As  Pagan-San-Miguel  concedes,

however,  no  objection  was  made to  the  district  court's

handling of  the read-back.   And since  Pagan-San-Miguel has

not  shown plain error in this regard, this argument does not

make a difference to his appeal.10

          The order  of the district court denying his   2255

motion is affirmed.

                          CONCLUSION

          The  convictions   and  sentences   of   appellants

Luciano-Mosquera, Pagan-San-Miguel, and Gonzalez-Valentin are

affirmed on  all counts.   The  convictions of  Lugo-Maya and

Pava-Buelba are reversed  on Count 4  and their sentences  on

                    
                                

10.   Alternatively, Pagan-San-Miguel requests that we set
aside his conviction pursuant to our supervisory powers. 
This is not an appropriate case for this court to exercise
its supervisory powers.  See Tucker, 8 F.3d at 676.  
                                               

                             -43-
                                          43


that  count  are  vacated.    Lugo-Maya's  and  Pava-Buelba's

convictions and sentences on the drug counts, Counts 1-3, are

affirmed.   The  district  court's order  denying  Pagan-San-

Miguel's   2255 motion is affirmed.  It is so ordered.
                                                                 

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                                          44