United States v. Oviedo-Villarman

United States Court of Appeals
For the First Circuit

No. 01-2197

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

FEDERICO VILLARMAN-OVIEDO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Lynch and Howard, Circuit Judges,

and Shadur,* Senior District Judge.

Marlene Gerdts for appellant.
Thomas F. Klumper, Assistant United States Attorney, with
Sonia I. Torres, Assistant United States Attorney, was on brief for
appellee.

March 21, 2003

*
Of the Northern District of Illinois, sitting by designation.
 SHADUR, Senior District Judge. Federico Villarman-Oviedo

("Villarman") brings this appeal to raise 16 different issues and

errors that he claims necessitate either a new trial or reversal.

We deny all of his claims of error, uphold the rulings of the

district court and affirm his conviction and sentencing.

In a grand jury indictment returned on March 24, 1999,

Villarman together with one or more of his 20 co-defendants were

charged in five drug-related counts, including one count of

conspiracy (1) to possess with intent to distribute and (2) to

distribute five kilograms or more of cocaine, one kilogram of

heroin and multi-pound quantities of marijuana. On April 4

Villarman was arraigned, entered a not guilty plea and was ordered

detained pending trial. That indictment was superseded on

April 21, and again Villarman was arraigned and ordered detained

without bail on April 29. On May 5 the grand jury returned a two-

count second superseding indictment against Villarman and 23 co-

defendants. Then on May 13 he was again arraigned, again pleaded

not guilty and continued to be detained.

On August 25 Villarman submitted an urgent motion

requesting a de novo bail hearing. After conducting such a hearing

on September 17, the district court denied Villarman's motion and

approved the order for detention pending trial.

Ultimately (on April 18, 2000) the grand jury returned a

four-count third superseding indictment against Villarman and eight

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co-defendants. Count One, the only count in which Villarman was

named, charged:

From on or about March, 1998 up to and including the date
of this indictment, in the District of Puerto Rico and
within the jurisdiction of this Court, [named defendants
including Villarman], the defendants herein, and others
to the Grand Jury known and unknown, knowingly,
willfully, intentionally and unlawfully did conspire,
confederate, and agree with each other and with other
persons to the Grand Jury known and unknown, to
knowingly, intentionally, and unlawfully possess with
intent to distribute and distribute:

a. five (5) kilograms or more, the exact
amount being unknown, of a mixture and
substance containing a detectable amount of
cocaine, a Schedule II Narcotic Drug
Controlled Substance;

b. one (1) kilogram or more, the exact
amount being unknown, of a mixture and
substance containing a detectable amount of
heroin, a Schedule I Controlled Substance; and

c. multi-pound quantities, the exact
amount being unknown, of a mixture and
substance containing a detectable amount of
marijuana, a Schedule I Controlled substance.

All in violation of Title 21, United States
Code, Section 846.1

Villarman and other co-defendants then filed multiple

motions to suppress evidence gathered from wiretaps or, in the

alternative, for the conduct of a hearing under Franks v. Delaware,

1
Further statutory citations will simply take the form
"Section," omitting references to Title 21 and to Title 18, the
general criminal code. That dual usage should create no confusion,
because the Title 21 references are in the 800 series, far removed
from the Title 18 section numbers.

-3-
438 U.S. 154 (1978). Those motions call for backtracking somewhat

in reviewing the chronology of the case.

On May 1, 1998, a wiretap application for cellular phones

in Puerto Rico had been authorized by District Judge Daniel R.

Dominguez of the District of Puerto Rico, based on the government's

application and supporting affidavits. Information in the

affidavits originated in a New York investigation into a drug

conspiracy, which expanded to Puerto Rico when the government

learned of telephone calls to New York narcotics distributors from

a Puerto Rican cellular phone. In the wiretap application the

government cited telephone toll records, criminal history records

of the targets, undercover purchases of heroin in New York,

conversations from wiretaps established in New York and information

that the cellular phones continued to be operational. In addition

the government described how traditional investigative techniques

would not be effective in investigating the drug conspiracy within

Puerto Rico because the targets tended to be highly suspicious.

On June 16, 2000 the district court found that there had

been sufficient pre-wiretap investigation to justify denial of any

suppression of the wiretap evidence. After describing some of that

investigation, the district court found that the authorization of

the wiretaps was reasonable because the nature of the conspiracy

made it likely that routine investigatory techniques would fail.

-4-
 In that same opinion the district court also considered

how Villarman's allegations of perjury in the government's

affidavit in support of the wiretap could impact the motion to

suppress the evidence. According to Villarman, the affidavits had

failed to disclose that the government had a confidential informant

who was being debriefed by the government and had provided much of

the information for the wiretap application. In addition,

Villarman contended that the government should have informed

issuing Judge Dominguez about testimony in front of another judge,

Judge Aracelia Acevedo of the Puerto Rico Commonwealth Municipal

Court. Two Drug Enforcement Administration ("DEA") Special Agents,

Julie de Mello ("de Mello") and Iván Rios Grajales ("Grajales"),

had given oral testimony under oath in connection with their

request for an arrest warrant against two co-defendants in this

case, Carlos Soto del Valle ("Soto") and Joaquín Cruz Jiménez

("Cruz"). De Mello and Grajales did not advise Judge Acevedo that

they were conducting a federal investigation and that they had

wiretap communications. Villarman cites Judge Acevedo's affidavit

(describing how agents testified that they had received information

about Soto's and Cruz' activities from a confidential informant) as

evidence of perjury in the affidavit for the wiretap application,

which declared there was no confidential informant who could assist

in the investigation of the Puerto Rico conspiracy.

-5-
 Finding that the alleged perjury was simply a

misunderstanding by the state judge of the agents' use of the

Spanish term "confidencia" (meaning only "confidential

information," not a nonexistent Puerto-Rico-based confidential

informant), a misunderstanding that was the product of a federal

gag order forbidding reference to the wiretap (which had indeed

provided the "confidential information"), the district court held

that no illegal activity had occurred. Villarman's request for a

Franks hearing to review the sufficiency of the evidence was also

denied.

On October 10, 2000 the United States informed Villarman

that it anticipated calling DEA Special Agent Reinaldo López

("López") to testify about factual matters and maybe as an expert

witness. Villarman was also informed about López' background and

experience, as well as the general context of his testimony. On

October 12 Villarman submitted a motion to strike expert testimony,

to which the government responded on October 13 and 16.

On October 15, 2000 the case against Villarman began, and

the jury trial lasted nearly two weeks. During the trial the

government presented its case through numerous witnesses, including

López and cooperating witness Isaias Valerio ("Valerio"), as well

as 16 intercepted phone calls that involved Villarman talking

(1) to co-defendants Cruz and Soto (both individually and together)

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and (2) to cooperating witness Valerio, using one of co-defendant

Soto's cellular phones.

López presented testimony about general narcotics

activities in Puerto Rico as well as interpreting coded language in

the intercepted telephone calls. López had listened to over 5000

intercepted calls during the course of this investigation, as well

as having many years of experience and training in narcotics

investigations. Villarman made motions and interposed

contemporaneous objections asking that López not be allowed to

testify as to the content of the taped conversations because he was

not certified as an expert, nor had he been a participant in the

conversations. Finding that López was testifying to his personal

experiences in listening to the tapes, the district court ruled

that the testimony should be considered lay opinion testimony under

Fed. R. Evid. ("Evid. Rule") 701, not expert testimony governed by

Evid. Rule 702.

During the course of the trial, cooperating witness

Valerio testified for the government about his relationship with

Villarman and their narcotics distribution activity. Valerio

discussed how he and Villarman had transported 300 to 350 kilograms

of cocaine from Puerto Rico to New York between 1998 and 1999.

Valerio also testified about how he and Villarman used coded words

to discuss narcotics and also analyzed a taped conversation in

which he and Villarman spoke about several kilograms of cocaine

-7-
that had gotten wet. Valerio also discussed taped conversations

between Villarman and other co-defendants in which wet cocaine was

discussed.

During the trial Villarman moved for a mistrial, arguing

that Valerio's testimony about the 300 to 350 kilogram cocaine

transaction violated Evid. Rule 404(b). In denying the motion, the

district court determined that the conduct formed part of the

charged conspiracy and was therefore not Evid. Rule 404(b)

material. Villarman later moved pursuant to Fed. R. Crim P.

("Crim. Rule") 29 for a judgment of acquittal, which the district

court also denied.

Villarman testified at trial over a span of three days.

Villarman admitted that it was his voice in the taped conversations

and that he had spoken to co-defendants Soto and Cruz about

obtaining cocaine for them. He also admitted to using coded terms

to discuss drug transactions, but he denied that he ever really

agreed or intended to provide narcotics. After his testimony

Villarman again unsuccessfully argued for a judgment of acquittal.

On October 27, 2000 the jury returned a verdict of guilty

as to Villarman with respect to Count One of the third superseding

indictment. By a special jury verdict, the jury found Villarman

guilty of conspiracy to distribute more than one kilogram of

heroin, but it found that he had not engaged in a conspiracy to

distribute any amounts of cocaine or marijuana.

-8-
 On May 11, 2001 the Presentence Investigative Report

("PSI") was released. Under Sentencing Guideline ("U.S.S.G.")

§2D1.1 the PSI recommended a base offense level of 32, then added

a two-level enhancement for obstruction of justice, for a total

offense level of 34. No recommendation for a downward adjustment

for acceptance of responsibility was included. Both the United

States and Villarman submitted motions objecting to the PSI, with

Villarman's objections including (1) a request for a downward

departure for his allegedly minor role in the conspiracy, (2) a

dispute over discrepancies between the amount of heroin found by

the special jury verdict and the testimony presented at trial,

(3) a complaint about the failure to acknowledge Villarman's

acceptance of responsibility and (4) an objection to the inclusion

of a sentencing enhancement for obstruction of justice. Villarman

also asked that the Court apply the holding in Apprendi v. New

Jersey, 530 U.S. 466 (2000) to the indictment and the special jury

verdict.

On July 17, 2001 the district court adopted the factual

findings of the PSI, determined a total offense level of 34 and

sentenced Villarman to imprisonment for 151 months, followed by a

five-year term of supervised release. Villarman filed motions for

new trial and judgment of acquittal under Crim. Rule 29 on the same

day, and on July 20 he filed a notice of appeal. On August 27 the

district court denied Villarman's motions, and on October 18

-9-
Villarman submitted an urgent motion for new trial that was again

denied by the district court.

We turn then to Villarman's numerous issues on appeal.

Some merit only short shrift, while others call for more extended

treatment.

Denial of Bail Pending Trial

Villarman claims that the district court erred in denying

him pretrial bail. We ordinarily apply an "independent review,

tempered by a degree of deference to the determinations made below"

to the district court's pretrial detention order under Section 3145

(United States v. Tortora, 922 F.2d 880, 882-83 (1st Cir. 1990)).

But because Murphy v. Hunt, 455 U.S. 478, 481-84 (1982)(per curiam)

teaches that a defendant's claim to pretrial bail becomes moot once

he is convicted, Villarman's like claim is moot.

Title III Wiretaps

Villarman contends that the district court erred in

denying his motion to suppress all conversations obtained by Title

III wiretaps and in refusing to conduct a Franks evidentiary

hearing before it denied that motion. Villarman relies on what he

describes as "perjured statements, omissions, factual inadequacies

and misrepresentations by the government in the applications for

the original electronic surveillance and its extensions."

Villarman claims (1) that it was unnecessary to have a wiretap

because of the availability of less intrusive techniques and (2)

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that the affidavit in support of the wiretap was tainted by

misleading and false statements and material omissions.

On the first issue Villarman disputes that the government

provided "a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or to be too

dangerous" ("Title III," Section 2518(1)(c)). We have interpreted

that provision to mean that the statement should demonstrate that

the government has made "a reasonable, good faith effort to run the

gamut of normal investigative procedures before resorting to means

so intrusive as electronic interception of telephone calls" (United

States v. Hoffman, 832 F.2d 1299, 1306-07 (1st Cir. 1987)). Before

granting a wiretap authorization the issuing court "must satisfy

itself that the government has used normal techniques but it has

encountered difficulties in penetrating a criminal enterprise or in

gathering evidence--to the point where (given the statutory

preference for less intrusive techniques) wiretapping becomes

reasonable" (United States v. Abou-Saada, 785 F.2d 1, 11 (1st Cir.

1986)). It is not necessary, though, to show that other methods

have been entirely unsuccessful (id.).

Decisions to grant wiretap orders are subject to review

in two different contexts. First the trial judge may consider a

motion to suppress the evidence gathered by the wiretap that the

issuing judge authorized, while later an appellate court may review

-11-
the trial judge's suppression ruling (see United States v. Ashley,

876 F.2d 1069, 1074 (1st Cir. 1989), most recently followed in

United States v. Nelson, 319 F.3d 12, 32 (1st Cir. 2002)). In both

instances the reviewing court examines the face of the affidavit and

"decide[s] if the facts set forth in the application were minimally

adequate to support the determination that was made" (Ashley, 876

F.2d at 1074).

Here the affidavit provided to issuing Judge Dominguez

contained a detailed description of the evidence the investigation

had collected to date, including telephone toll records, background

and criminal history of targets, undercover purchases of heroin in

New York, telephone conversations from wiretaps in New York and

information from the Puerto Rico telephone company that the

telephones were operational. In addition, the affidavit explained

why the continued use of traditional investigative techniques (such

as confidential sources, grand jury subpoenas, search warrants,

surveillance and consensual monitoring) would be ineffective in

uncovering the full scope of the potential crimes under

investigation, as well as the identities of those responsible for

the unlawful manufacture, possession, sale and distribution of

narcotics in Puerto Rico. And the affidavit also included a

description of the investigation's goal of obtaining evidence of the

totality of offenses in which the targets of the investigation were

involved.

-12-
 Against all of that, Villarman claims that the government

had failed to investigate thoroughly in Puerto Rico, so there were

other methods of investigation that should have been pursued before

resorting to the wiretap under Section 2518(1)(c). Moreover, he

plumps for suppression because of nondisclosure to the issuing judge

about how far the New York investigation had proceeded and about the

fact that a confidential informant was the source of much of the

information presented in the application. According to Villarman,

if the issuing judge had been told how far the government had

progressed without the wiretap, he would not have given his approval

for the wiretap.

Title III does require that the affidavit show why

wiretapping is necessary in place of less intrusive investigative

techniques. From the facts provided to him in the affidavit, the

district court here found that normal investigative techniques had

been tried in Puerto Rico, but had failed. Separate electronic

surveillance had been authorized by a New York court and had

resulted in traced calls to and from three telephones owned by a co-

defendant. Additionally, another co-defendant was under physical

surveillance in Puerto Rico, and agents had attempted surveillance

in the vicinity of the homes of two co-defendants.

According to the affidavit, the surveillance and other

techniques failed because the co-defendants were very suspicious of

potential surveillance and the surveillance would be easily detected

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in the co-defendants' neighborhood. Moreover, such typical

investigatory methods as grand jury subpoenas, search warrants and

pen registers were insufficient to gather information without

alerting the co-conspirators to the surveillance and potential

criminal liability.

Finally, the affidavit also asserted an inability to

infiltrate the drug trafficking organization because there were no

confidential informants who had knowledge of the organization or who

could introduce agents to members of the organization. Even though

a New York confidential informant had enabled the agents to identify

some of the main co-conspirators, that informant lacked sufficient

contacts to develop information about the structure of the

organization in Puerto Rico. Moreover, the lack of a confidential

source in Puerto Rico made it difficult to establish consensual

monitoring. In light of that detailed explanation, the affidavit's

discussion of alternate methods plainly does not fall below the

standard of adequacy for a wiretap (see United States v. Rivera-

Rosario, 300 F.3d 1, 19 (1st Cir. 2002)). With the government still

unaware of the identity of many of the conspiracy's members as well

as the organizational structure of the conspiracy, the district

court could permissibly allow the government to employ electronic

surveillance to uncover the complete range of operations of the

target conspiracy.

-14-
 Villarman seeks to undercut that conclusion by also

arguing that the affidavit was tainted by misleading and false

statements and material omissions in violation of the government's

responsibility under Section 2518(1)(c). Villarman claims that

those omissions amount to perjury, especially in the area of whether

or not the government had a confidential informant in Puerto Rico

able to assist in investigating the drug conspiracy.

We need not lengthen this opinion by addressing

Villarman's numerous theories of how the government assertedly

failed to make a complete and honest statement of facts. We have

examined them carefully just as the district judge did (United

States v. Soto-Del Valle, 102 F. Supp. 2d 57 (D. P.R. 2000)), and

we too find them without merit. Moreover, they are totally

inadequate to have required a Franks hearing under the standards we

have announced in such cases as United States v. Alicea, 205 F.3d

480, 487 (1st Cir. 2000) and United States v. Adams, 305 F.3d 30,

36 n.1 (1st Cir. 2002). It is an understatement to say that the

district court's rejection of the need for a Franks hearing was not

clearly erroneous, the standard announced in such cases as United

States v. Ranney, 298 F.3d 74, 77-78 (1st Cir. 2002).

In sum, the district court's allowance of the Article III

wiretaps was entirely proper. We turn to Villarman's other

arguments.

-15-
 Evid. Rule 404(b)

We review a district court's admission of evidence that

is allegedly Evid. Rule 404(b) material under an abuse of discretion

standard (United States v. Manning, 79 F.3d 212, 217-18 (1st Cir.

1996)). Because here the challenged evidence is not of "other

crimes, wrongs, or acts" (the language of the Rule), but is rather

intrinsic to the crime charged in the indictment (id. at 218), the

standard of review becomes irrelevant: Evid. Rule 404(b) is really

not implicated at all (United States v. Shea, 159 F.3d 37, 39 (1st

Cir. 1998)).

Thus Villarman complains of the testimony of cooperating

witness Valerio about his alleged involvement with Villarman in

several cocaine distribution transactions involving 300 to 350

kilograms of cocaine between 1998 and 1999. Although other evidence

at trial as well as the eventual verdict against Villarman focused

on heroin transactions, the district court found that the evidence

as to cocaine was not Evid. Rule 404(b) material because it formed

part of the charged indictment, in addition to which there was no

contemporaneous objection by Villarman's counsel.

Count One, on which Villarman was convicted, charged him

and his co-defendants with conspiracy to distribute and possess

cocaine, heroin and marijuana from on or about March 1998 up to and

including the date of the third superseding indictment (April 18,

2000). In addition to the challenged testimony, the jury heard

-16-
taped conversations in which Valerio and Villarman discussed still

another cocaine transaction. We cannot say that the district court

abused its discretion in finding that Valerio's testimony at issue

was direct evidence of the conspiracy charged, rather than evidence

of other bad acts subject to Evid. Rule 404(b).2

Villarman also argues that the "District Court failed to

carefully balance the probative value, if any of the proffered

testimony" under Evid. Rule 403. But "[b]alancing these concerns

lies within the broad discretion of the trial Judge and will only

be reversed upon a showing that the Judge abused his discretion"

(United States v. Andiarena, 823 F.2d 673, 677-78 (1st Cir. 1987)).

Again no abuse of discretion has been shown here.

Single Conspiracy v. Multiple Conspiracies

Villarman also complains that a variance exists between

the single conspiracy charged and multiple conspiracies presented

at trial. That poses the issue succinctly described in United

States v. Escobar-de Jesus, 187 F.3d 148, 172 (1st Cir. 1999):

A variance arises when the proof at trial depicts a
scenario that differs materially from the scenario limned
in the indictment.

Such a variance requires reversal only if it "is both material and

prejudicial, for example, if the variance works a substantial

interference with the defendant's right to be informed of the

2
That being so, we need not determine whether Villarman made
a contemporaneous objection to Valerio's testimony so as to impose
a more demanding standard on Villarman's current contention.

-17-
charges laid at his doorstep" (id.). Here Villarman argues that

even though the indictment charged only a single conspiracy, the

proofs at trial focused on multiple conspiracies that were different

with respect to the co-conspirators, the time frame of alleged

activity and the transactions themselves.

That issue of single conspiracy v. multiple conspiracies

is a question of fact for the jury (United States v. LiCausi, 167

F.3d 36, 45 (1st Cir. 1999)). As United States v. Portela, 167 F.3d

687, 696 (1st Cir. 1999) has reiterated:

The question whether a given body of evidence is
indicative of a single conspiracy, multiple conspiracies,
or no conspiracy at all is ordinarily a matter of fact;
a jury's determination in that regard is subject to
review only for evidentiary sufficiency.

Throughout trial the government presented evidence

supporting the theory of a single conspiracy as described in the

indictment. There were telephone calls between Villarman and co-

defendants Soto and Cruz discussing both heroin and cocaine

transactions. Valerio also explained a drug transaction that he had

discussed with Villarman, once when Villarman was using co-defendant

Soto's cellular phone. Villarman himself testified at trial and

admitted that he spoke to co-defendants Soto and Cruz about

providing cocaine, occasionally in coded language. All of that

evidence would suffice for a jury determination that Villarman was

involved in a single conspiracy, including among its members Valerio

and co-defendants Soto and Cruz, to distribute narcotics.

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 Indeed, even if there had been a variance (as there was

not), Villarman would still have to show that it had produced unfair

prejudice and that it was not "harmless error" (United States v.

Candelaria-Silva, 166 F.3d 19, 39 (1st Cir. 1999)). Because the

jury found Villarman guilty only of heroin involvement and not of

cocaine dealing, it apparently did not rely on Valerio's testimony

as to 300 to 350 kilograms of cocaine, looking instead to the tape-

recorded conversations of Villarman discussing heroin transactions.

So even at worst, Villarman's contention of a variance would

constitute harmless error and would thus be insufficient to warrant

reversal.

Testimony by Special Agent López

Next Villarman argues that the district court erred in

allowing Special Agent López to provide expert testimony without

prior notice, assertedly depriving Villarman of the opportunity to

retain his own experts to refute the testimony. Looking to Evid.

Rule 701 as the predicate for doing so, the district court allowed

López to testify about the conspirators' use of coded terms to

denote drugs and about the meaning of those terms. Then Villarman,

electing to testify during the week following López' testimony, took

that opportunity by acknowledging the use of code words but by

stating that "bread" denoted cocaine and not (as López had

testified) heroin. That of course presented a classic occasion for

the jury's determination of credibility, which the jury permissibly

-19-
resolved when it found Villarman guilty of participation in a heroin

conspiracy but not a cocaine conspiracy.

Under the circumstances here, it is unnecessary for us to

decide whether the district court was or was not right in

characterizing López' testimony as lay testimony under Evid. Rule

701 rather than as expert testimony under Evid. Rule 702 (in the

latter respect, see, e.g., Kumho Tire Co. v. Carmichael, 526 U.S.

137 (1999) and the implementing December 1, 2000 amendments to Evid.

Rules 701 and 702). That is so because López was clearly qualified

by experience and the "specialized knowledge" that he had acquired

over the years to opine on the meaning of the code words that had

admittedly been used by Villarman and others (see, e.g., United

States v. Tejada, 886 F.2d 483, 485-86 (1st Cir. 1989), and because

the government's October 11, 2000 discovery letter gave ample notice

of that specialized knowledge to Villarman. In short, Villarman

loses this argument too.

Brady, Giglio and the Jencks Act

Villarman further charges that the district court erred

in allowing Valerio to testify because the government assertedly did

not comply with its discovery obligations. According to Villarman,

the government's asserted failures to disclose (1) Valerio's

identity as a witness, (2) his plea and cooperation agreement,

(3) reports of his debriefings, (4) his criminal history and (5) any

other impeachment material violated Brady v. Maryland, 373 U.S. 83

-20-
(1963), Giglio v. United States, 405 U.S. 150 (1972) and Section

3500 (the Jencks Act). Villarman claims that he was deprived of the

opportunity to use the withheld evidence (a) to conduct

investigation and obtain further discovery, (b) to aid adequately

in the formulation of his defense and (c) to impeach the witnesses

against him during trial.

As to those claims, the issue is one of assertedly delayed

disclosure rather than nondisclosure. Villarman received a copy of

Valerio's plea and cooperation agreement, with nonmaterial

redactions, four days before trial. And for Brady-Giglio purposes,

United States v. Catano, 65 F.3d 219, 227 (1st Cir. 1995) teaches

the application of an abuse of discretion standard, for purposes of

which Catano, id. repeats "the test is whether defendant's counsel

was prevented by the delay from using the disclosed material

effectively in preparing and presenting the defendant's case."

Relatedly, Congress has prescribed the defendant's ability to

conduct effective cross-examination as the Jencks Act standard.

Here Villarman did employ the relevant material--whether

assertedly exculpatory as to Villarman or impeaching as to Valerio

or both--during the Valerio cross-examination (as was done in United

States v. Valencia-Lucena, 925 F.2d 506, 514 (1st Cir. 1991)). And

as to the claimed inadequacy of that use, another branch of

Villarman's complaints, he has not pointed credibly to specific

objections that he might have lodged (but let pass), or to

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particular arguments that he might have advanced (but did not), if

he had received the information earlier. As United States v. Devin,

918 F.2d 280, 290 (1st Cir. 1990) says:

A defendant who claims that his hand was prematurely
forced by delayed disclosure cannot rely on wholly
conclusory assertions but must bear the burden of
producing, at the very least, a prima facie showing of a
plausible strategic option which the delay foreclosed.

Indeed, no better demonstration of the adequacy of the use of the

material provided to Villarman could be made than the actual result

at trial: Valerio testified only about cocaine transactions with

Villarman, and by special verdict the jury found Villarman not

guilty of cocaine distribution.

Right of Confrontation

Again dwelling on the Valerio testimony, Villarman claims

that the district court prevented him, in violation of his Sixth

Amendment rights, from cross-examining Valerio effectively.

Although that added contention could also be dispatched swiftly in

terms of the result reached at the end of the preceding section,

Villarman also loses that claim analytically.

Confrontation Clause challenges are reviewed de novo to

determine whether defense counsel was afforded a reasonable

opportunity to impeach adverse witnesses. But when that threshold

is reached, any constraints imposed by the trial court on the extent

and manner of cross-examination are reviewed only for abuse of

discretion (United States v. Gonzalez-Vazquez, 219 F.3d 37, 45 (1st

-22-
Cir. 2000)). On that score Stephens v. Hall, 294 F.3d 210, 226 (1st

Cir. 2002)(citations and quotation marks omitted, emphasis in

original) sets forth the relevant standard:

In order to safeguard the defendant's rights under the
Confrontation Clause, we have held that the trial judge
may not so restrict cross-examination as to deprive the
defendant of the constitutionally required threshold
level of inquiry, and must give the accused sufficient
leeway to establish a reasonably complete picture of the
witness's veracity, bias, and motivation.

* * *
[T]he Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the
defense might wish.

In this instance the district court curbed Villarman's

cross-examination of Valerio as inappropriate on just three

occasions: (1) when Villarman attempted to use a version of facts

attached to Valerio's plea and cooperation agreement when that

guilty plea was unrelated to this case, (2) when Villarman accused

Valerio of violating his cooperation agreement by allegedly

soliciting information from other defendants and (3) when Villarman

asked Valerio about his citizenship and place of birth. Before us

Villarman has failed to address any of those instances, but in any

event our reading of the trial transcript discloses that the

district court did not abuse its discretion in any of those

respects.

Instead Villarman simply repeats his nondisclosure (or

delayed disclosure) contention that we have just rejected in terms

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of Brady-Giglio and the Jencks Act, attempting to transmute that

into a violation of his Sixth Amendment right to confront witnesses.

Because the argument does not gain force either through repetition

or by wrapping it in a new garment, we reject it again for the same

reasons.

Motion for Mistrial

In still another effort to ring changes on the same bells

of Valerio's testimony, Villarman urges that allowing that witness

to testify about 300 to 350 kilograms of cocaine deprived Villarman

of an opportunity to investigate the veracity and nature of--and

thus to defend against--that testimony, so that a mistrial should

be declared for the asserted violation of Evid. Rule 404(b). Any

refusal to declare a mistrial is measured against a manifest abuse

of discretion yardstick, so that we will uphold the court's ruling

unless the movant demonstrates a clear showing of prejudice (United

States v. Rullan-Rivera, 60 F.3d 16, 18 (1st Cir. 1995)).

What we have said earlier on the subject of Evid. Rule

404(b) defeats Villarman on this score as well. Every step in that

analysis applies here with equal force, and the standard of review

here is even more demanding.

Motion for New Trial

We deal next with Villarman's assertion that the district

court erred in denying his motion for new trial because the evidence

presented at trial by the government did not justify the jury's

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special verdict finding him responsible for more than one kilogram

of heroin. That decision is reviewed in manifest-abuse-of-

discretion terms (United States v. Rodriguez-DeJesus, 202 F.3d 482,

485 (1st Cir. 2000)) in light of Crim. Rule 33, which authorizes the

grant of a new trial if required in the interests of justice and

"where the evidence preponderates heavily against the verdict"

(United States v. Andrade, 94 F.3d 9, 14 (1st Cir. 1996)).

During the trial Special Agent López testified about two

specific transactions, each involving one-eighth kilogram of heroin.

As Villarman would have it, the jury could look only to that

evidence and therefore convict him for no more than that quantity.

But that contention glosses over the fact that López also testified

about another attempted transaction that involved two kilograms of

heroin (with the drug reference sought to be disguised by the use

of coded words). Because that evidence too could be credited by the

jury to support its special verdict of more than one kilogram of

heroin, the district court did not abuse its discretion in denying

Villarman's Crim. Rule 33 motion.

Villarman next argues that the district court erred in

denying his Crim. Rule 29 motion for a new trial because the

evidence did not support the special verdict in which the jury found

him guilty of conspiracy with intent to distribute more than one

kilogram of heroin. Denial of a Crim. Rule 29 motion for judgment

of acquittal is reviewed de novo, and we will affirm Villarman's

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conviction if 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" (United

States v. Donnat, 311 F.3d 99, 103 (1st Cir. 2002)).

As we have just said in the preceding section, López

testified about transactions totaling 2-2/8 kilograms of heroin.

All credibility determinations are left for resolution by the jury

for Crim. Rule 29 purposes (United States v. Hernandez, 146 F.3d 30,

32 (1st Cir. 1998)). And that scotches Villarman's claim to a

judgment of acquittal for any asserted insufficiency of the

evidence.

Calculation of Drug Quantity for Sentencing Purposes

Just as the jury's determination of the quantity of heroin

involved has withstood attack, so too does the district judge's

sentencing determination of Villarman's U.S.S.G. base offense level

as 34. U.S.S.G. findings of the sentencing court are overturned

only for clear error (United States v. Zuleta-Alvarez, 922 F.2d 33,

37 (1st Cir. 1990)), and that cannot be said as to the offense level

in this case, based as it was on at least one but not more than

three kilograms of heroin.

Other Sentencing Issues

Villarman advances three other sentencing issues: (1) that the

district court erred in granting a two-level increase under U.S.S.G.

§3C1.1 for obstruction of justice because, he says, there was no

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specific reliable evidence that Villarman gave material false

testimony at trial; (2) that the district court erred in not

granting his motion for a two-level downward departure based on his

minor role in the conspiracy; and (3) that the district court

engaged in a lack of parity in sentencing Villarman to a longer term

than other co-defendants.3 We deal with those contentions in turn.

As to the first of those issues, whether Villarman's

conduct is within the scope of U.S.S.G. §3C1.1 is subject to de novo

review, but fact-bound determinations are reviewed for clear error

(United States v. Thomas, 86 F.3d 263, 263 (1st Cir. 1996)(per

curiam)). In the latter respect, if the record supports at least

two permissible inferences, the factfinder's choice between or among

them cannot be clearly erroneous (United States v. Veilleux, 949

F.2d 522, 525 (1st Cir. 1991)).

U.S.S.G. §3C1.1 requires the imposition of a two-level

increase in offense level if a defendant "willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of

justice during the course of the investigation, prosecution, or

sentencing of [an] offense." For a defendant's perjury to support

3
Although Villarman's initial brief also indicates, in the
title to the subsection discussing these issues, that the district
court erred in "failing to grant a downward departure for
acceptance of responsibility," there is no discussion of any such
contention in the text of that brief or of his reply brief. Even
if that argument had been presented, however, Villarman's continued
denial that he conspired to distribute narcotics justifies the
district court's refusal to grant him credit for acceptance of
responsibility.

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such an enhancement, he or she must have provided "false testimony

concerning a material matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake, or

faulty memory" (United States v. Rowe, 202 F.3d 37, 43 (1st Cir.

2000)).

At trial Villarman acknowledged numerous telephone

conversations with co-defendants about providing drugs, but he

claimed that he never agreed to provide or intended to provide them

with any type of drug. Instead Villarman said that he spoke with

the co-defendants only because he was owed money and feared for his

life. If that testimony had been believed, the jury would

consequently have concluded that he did not intend to distribute

drugs, rendering him guiltless of any conspiracy to distribute

narcotics. In reaching the opposite conclusion as to his guilt

beyond a reasonable doubt regarding a heroin conspiracy, the jury

must perforce have determined that Villarman's testimony was

false--not the product of mistake, confusion or faulty memory, but

rather stemming from Villarman's desire to convince the jury of a

fabricated theory to excuse himself from liability. In turn, the

district court could not have been clearly erroneous in deciding

that Villarman had provided materially false information, thus

justifying the two-level increase for obstruction of justice.

As for Villarman's role in the conspiracy, U.S.S.G.

§3B1.2(b)'s cmt. 5 identifies a minor participant as one "who is

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less culpable than most other defendants, but whose role could not

be described as minimal." We will reverse a sentencing court's

finding that a defendant is not a minor participant only if it is

clearly erroneous (United States v. Ortiz-Santiago, 211 F.3d 146,

148-49 (1st Cir. 2000)), so that the defendant bears a substantial

burden of proving entitlement to such a downward adjustment for his

or her role in the offense (id. at 148). As United States v.

Brandon, 17 F.3d 409, 460 (1st Cir. 1994) has put it:

The sentencing court has broad discretion in determining
whether this downward departure is appropriate and we
will reverse only if the evidence overwhelmingly
demonstrates that the defendant played a part that makes
him substantially less culpable than the average
participant such that the court's decision was clearly
erroneous.

Villarman fails that test. He discussed with his co-

conspirators not only the sale of drugs but also the need to find

people to transport those drugs. Importantly, Villarman also

supplied co-defendant Cruz with heroin and expressed worry about the

loss of two kilograms of heroin transported by the conspiracy. Even

without regard to Valerio's testimony about Villarman's asserted

role in transporting 300 to 350 kilograms of cocaine, Villarman

plainly has not shown clear error in the district court's

determination that he was not a minor participant in the conspiracy

to distribute more than one kilogram of heroin.

Finally as to the comparative length of Villarman's

custodial sentence, the district judge imposed a term of 151 months'

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imprisonment, longer than the 121-month term imposed on each of co-

defendants Soto and Cruz. But Villarman cannot complain on that

ground, because a court cannot depart from the U.S.S.G. just to

correct an asserted disparity in the sentencing of co-conspirators

(Ortiz-Santiago, 211 F.3d at 150).

In this case Villarman's U.S.S.G. calculation was

predicated on a very different situation from that of his co-

defendants. Both Soto and Cruz pleaded guilty and otherwise

qualified for a three level reduction in their offense levels under

U.S.S.G. §3E1.1. By contrast, the district court properly

determined that Villarman was not entitled to a like reduction for

acceptance of responsibility. And relatedly (for the U.S.S.G. teach

a customary linkage between these factors, see U.S.S.G. §3E1.1's

cmt. 4), we have already upheld the district court's appraisal of

Villarman's testimony as justifying an enhancement for obstruction

of justice. In sum, the asserted disparity in sentencing vanishes

because it was entirely the product of appropriate applications of

the U.S.S.G.

Apprendi Considerations

Villarman's penultimate objections stem from his counsel's

view of the fallout from the Supreme Court's decision in Apprendi.

Neither of those objections withstands analysis.

For one thing, Villarman contends that clear error was

involved in sentencing Villarman without having the jury specify the

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type and quantity of drug, the enhancement for obstruction of

justice and Villarman's role in the offense. Villarman seeks to

invoke Apprendi to urge that those factors must be determined by a

jury and not by the sentencing judge.

Apprendi's applicability as a question of law is reviewed

de novo (United States v. Chemetco, Inc., 274 F.3d 1154, 1158 (7th

Cir. 2001); United States v. Candelario, 240 F.3d 1300, 1306 (11th

Cir. 2000)). This Circuit has already addressed and rejected this

first Apprendi argument in United States v. Collazo-Aponte, 281 F.3d

320, 324 (1st Cir. 2002)(citations and quotation marks omitted):

We have consistently held that the Apprendi doctrine does
not apply to defendants who are sentenced to terms less
than the otherwise applicable statutory maximum. Most
succinctly, Apprendi does not require that all sentencing
factors be submitted to the jury and proven beyond a
reasonable doubt, rather only those that increase the
penalty for a crime beyond the prescribed statutory
maximum.

In this instance the combined effect of Sections

841(a)(1), 841 (b)(1)(C) and 846 is that Villarman's adjudicated

guilt of a conspiracy to distribute heroin sets a maximum statutory

penalty of 20 years' imprisonment (it will be recalled that the

jury's special verdict found him guilty beyond a reasonable doubt

of a drug conspiracy involving more than one kilogram of heroin).

Villarman's actual custodial sentence of 151 months is more than

seven years below the 20-year statutory maximum that would apply if

the jury had failed to identify any specific amount of heroin.

Enough said.

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 Villarman's other Apprendi-premised argument is that his

conviction should be vacated because the statute under which he was

convicted (Section 846), when combined with the sentencing factors

under Section 841, is unconstitutional in light of Apprendi. But

here too this Circuit has found that same argument wanting, this

time in Collazo-Aponte, 281 F.3d at 325. We adhere of course to

that decision.

Villarman concludes with the kitchen-sink contention that

the cumulative effect of the putative errors already discussed in

this opinion operated to violate his constitutional right to a fair

trial. We have already shown that few of the matters to which

Villarman points may fairly be labeled as errors--even harmless

ones. And even as to those, the familiar teaching of Delaware v.

Van Arsdall, 475 U.S. 673, 681 (1986) is that "the Constitution

entitles a criminal defendant to a fair trial, not a perfect one."

United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993)

concluded a like review of a laundry list of purported trial court

errors with this explanation:

Of necessity, claims under the cumulative error doctrine
are sui generis. A reviewing tribunal must consider each
such claim against the background of the case as whole,
paying particular weight to factors such as the nature
and number of errors committed; their interrelationship,
if any, and combined effect; how the district court dealt
with the errors as they arose (including the efficacy--or
lack of efficacy--of any remedial efforts); and the
strength of the government's case.

-32-
We have engaged in just such a review, and it mandates the denial

of Villarman's claim of cumulative error as well.

Conclusion

We AFFIRM Villarman's conviction and sentence.

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