United States v. Cartagena-Carrasquillo

United States Court of Appeals
For the First Circuit

No. 94-1235

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS CARTAGENA-CARRASQUILLO,

Defendant, Appellant.

No. 94-1236

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS LUGO-LOPEZ,

Defendant, Appellant.

No. 94-2127

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE L. FIGUEROA-GARCIA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

[Hon. Morton A. Brody,* U.S. District Judge]

Before

Torruella, Chief Judge,

Lynch, Circuit Judge,

and Watson,** Senior Judge.

Roberto Rold n Burgos, by appointment of the court, for

appellant Cartagena-Carrasquillo.
Miriam Ramos Grateroles, by appointment of the court, for

appellant Lugo-L pez.
Theodore L. Craft, by appointment of the court, for

appellant Figueroa-Garc a.
Nelson P rez-Sosa Cruz, Assistant United States Attorney,

with whom Guillermo Gil, United States Attorney, was on brief,

for appellee.

December 1, 1995

*Of the District of Maine, sitting by designation.
**Of the U.S. Court of International Trade, sitting by
designation.

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LYNCH, Circuit Judge. Cocaine trafficking in
LYNCH, Circuit Judge.

Puerto Rico resulted in the criminal convictions of the three

appellants, who raise issues primarily as to the conduct of

their trials. Two issues -- the exclusion of expert evidence

attempting to establish an insanity defense based on

Posttraumatic Stress Disorder claimed to have resulted from

military service in Vietnam and the prosecutor's ill-

considered reference to religion in his closing argument --

merit close discussion. We affirm, rejecting the defendants'

challenges on these and other grounds.

Facts and Trial Proceedings

In the summer of 1992, Jefferson Mor n, a special

agent with the Drug Enforcement Administration ("DEA"),

learned from a confidential informant, Ram n Malav , that

defendant Carlos Lugo-L pez was interested in selling

kilogram quantities of cocaine. On instruction from Mor n,

Malav confirmed Lugo-L pez' interest in a phone conversation

and later called to negotiate the purchase of two kilograms

of cocaine. Malav told Lugo-L pez that he could page Mor n

(whom Malav said would handle the money) when he was ready

to make the transactions. Lugo-L pez had Mor n paged. Lugo-

L pez left a message for Mor n that the "contracts" were

ready and that he should drop by Lugo-L pez' house to pick

them up.

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Malav went to the Lugo-L pez residence, where he

met the supplier, defendant Luis Cartagena-Carrasquillo.

Cartagena-Carrasquillo left, saying that he would return

right away with the drugs. Cartagena-Carrasquillo later

returned with defendant Jos L. Figueroa-Garc a and a bag.

They went to a room at the rear of the carport where

Cartagena-Carrasquillo opened the bag and took out a kilo of

cocaine.

During phone conversations between Mor n and Malav

while Malav was at Lugo-L pez' house, Malav said two men

had arrived to sell two of the four kilograms of cocaine in

the bag. Lugo-L pez asked Malav to call his partner, Mor n,

to come and put up the money. In a round robin, Lugo-L pez

kept insisting that the money be brought to his house while

Malav , on instructions from Mor n, tried to lure Lugo-L pez

to San Juan (where an arrest would be easier) with promises

he would be paid there. At some point during the series of

pages and telephone calls, Cartagena-Carrasquillo and

Figueroa-Garc a left to sell one of the kilos to another.

When the two returned, Lugo-L pez and Malav were still

sallying about where the sale would take place. Cartagena-

Carrasquillo got upset with the delay and left in a car with

Figueroa-Garc a.

Law enforcement agents shadowed the car, driven by

Figueroa-Garc a, and saw Cartagena-Carrasquillo get out of

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the car carrying a tan bag. When agents approached him, he

got back into the car and fled with Figueroa-Garc a. A car

chase resulted, ending in a public housing project. The two

men fled by foot and were ultimately arrested. Cartagena-

Carrasquillo, who had the tan bag in his hands when he

abandoned the car, did not have it when he was arrested.

Agents later found it in a trash can in the area where he

first fled on foot. It contained three kilograms of cocaine

and $12,900 in cash.

On June 17, 1992, a grand jury returned a four-

count indictment charging that Lugo-L pez, Cartagena-

Carrasquillo, Figueroa-Garc a, and another, aiding and

abetting each other, possessed with intent to distribute some

3303.96 grams of cocaine in violation of 21 U.S.C.

841(a)(1) and 18 U.S.C. 2. Lugo-L pez was also charged in

two counts with using a telephone in furtherance of drug

distribution in violation of 21 U.S.C. 843(b).

Trial started on November 30, 1993. After four

days of testimony, defendants requested and were granted a

mistrial. Cartagena-Carrasquillo and Lugo-L pez moved for

dismissal on double jeopardy grounds. The district court's

denial of the motion was appealed.

While that appeal was pending, this case went to

trial for the second time on February 14, 1994. The

defendants were found guilty of all counts. The appeals from

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the conviction were consolidated with the appeals from the

denial of the motion to dismiss on grounds of double

jeopardy.

Post-Traumatic Stress Disorder

Lugo-L pez argues there was error in the exclusion

of his proffered expert testimony that he suffered from

Posttraumatic Stress Disorder ("PTSD") and his attempts to

base an insanity defense on PTSD.1

The insanity defense, set forth at 18 U.S.C. 17,

is an affirmative defense. The burden is on the defendant to

show by clear and convincing evidence, see 18 U.S.C. 17(b),

that:

at the time of the commission of the acts
constituting the offense, the defendant,
as a result of a severe mental disease or
defect, was unable to appreciate the
nature and quality or the wrongfulness of
his acts. Mental disease or defect does
not otherwise constitute a defense.

1. Lugo-L pez is a Vietnam veteran who asserted he was
exposed to Agent Orange, has been hospitalized for mental
illness and had been diagnosed as schizophrenic. He also
asserted that he suffers from PTSD, which is a mental
disorder recognized in the Diagnostic and Statistical Manual

of Mental Disorders 424-29 (4th ed. 1994). PTSD is caused by

exposure to an extreme traumatic stressor involving actual or
threatened death or serious injury or other threat to one's
physical integrity and tends to result in symptoms such as
re-experiencing the traumatic event, a tendency to avoid
stimuli associated with the trauma, numbing of general
responsiveness, and increased arousal. Id. at 424.

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18 U.S.C. 17(a). There is a procedural component to

assertion of the defense as well. Rule 12.2 of the Federal

Rules of Criminal Procedure requires that notice of an

intention to raise the insanity defense must be given by the

defendant to the government "within the time provided for the

filing of pretrial motions or at such later time as the court

may direct." If such notice is not given, the insanity

defense may not be raised.

The trial court excluded the PTSD evidence

primarily because it felt inadequate notice had been given

and secondarily because it thought the evidence was

insufficient in any event. The standard of review for

excluding the testimony under Rule 12.2 is abuse of

discretion. See United States v. Cameron, 907 F.2d 1051,

1059 (11th Cir. 1990); United States v. Weaver, 882 F.2d

1128, 1136 (7th Cir.), cert. denied sub nom. Schwanke v.

United States, 493 U.S. 968 (1989); United States v. Duggan,

743 F.2d 59, 80 (2d Cir. 1984). A district court's decision

to admit or exclude expert testimony is entitled to great

deference and will be reversed only if: (1) the decision was

based on an incorrect legal standard or (2) the reviewing

court has a "'definite and firm conviction that the court

made a clear error of judgment in the conclusion it reached

based upon a weighing of the relevant factors.'" United

States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995) (quoting

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United States v. Benavente Gomez, 921 F.2d 378, 384 (1st Cir.

1990)); see also United States v. Brien, 59 F.3d 274, 277

(1st Cir. 1995) ("[T]rial judges have traditionally been

afforded wide discretion to admit or exclude expert

evidence."), cert. denied, S. Ct. , 94 U.S.L.W. 3316

(1995).

The insanity defense was not raised in the aborted

first trial, nor was it raised when Lugo-L pez asserted and

lost the issue of whether he was competent to stand trial.

One month after the mistrial, Lugo-L pez first filed a

written motion on January 11, 1994, giving notice of a PTSD

defense. The motion indicated that Lugo-L pez would present

the testimony of both Luis Falc n-Torres, his caseworker at

the Puerto Rico Vietnam Veteran's Assistance Program, and an

as yet unnamed expert on PTSD. The motion also said that the

facts surrounding the commission of the crime showed that

defendant was suffering from delusions or a disease or

disorder that affected his conduct. The motion was discussed

in a February 1, 1994 status conference and the judge hearing

that motion "noted" that Lugo-L pez "shall raise at trial the

defense of insanity" and that "[t]he issue whether post

traumatic stress disorder is admissible shall be resolved at

trial."

The government, aware only of psychiatric

evaluations performed by a Dr. Cabrera earlier on defendant's

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competence to stand trial, on February 4 requested a

preliminary hearing on the admissibility of the proposed PTSD

testimony. On February 9, Lugo-L pez responded and filed a

motion stating his intent to offer a Dr. Santiago as his

expert witness and requesting authorization for this expert's

services. The authorization was granted, and counsel was

"reminded that the admissibility of Dr. Santiago's testimony

[would be] left to the trial judge."

Trial started before a different judge on February

14. At no time did Lugo-L pez file proposed instructions on

an insanity defense, although on the first day of trial he

did file a memorandum of law as to whether PTSD could

constitute an insanity defense. On the fifth day of the six-

day trial, the issue of the PTSD defense came up indirectly,

during colloquy concerning an objection to the social

worker's testimony as to Lugo-L pez' war record and medals.

The court noted at a sidebar conference that such testimony

would be admissible, if at all,2 only if the PTSD defense

was admissible and asked to see psychiatric expert's report.

Later, after review of the report, the trial court excluded

the insanity defense.

2. The trial judge later ruled the war-record testimony
inadmissible for other reasons. Thus, we understand Lugo-
L pez' appeal on the insanity defense issue to be focussed on
the exclusion of the expert testimony of his psychiatrist.
The social worker's testimony was not intended to establish
the defense; at most it would buttress the psychiatric
testimony.

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The defense was, we think, timely raised in light

of the pre-trial rulings of the conference judge noting the

raising of the defense and reserving the admissibility issue

to trial and the later authorization of the retention of the

psychiatric expert. See Cameron, 907 F.2d at 1059. But we

also hold that there was no abuse in excluding the testimony

proffered for certain other reasons stated by the trial

judge. The trial judge found that Dr. Santiago's report was

at best conclusory in that it did "not show in what way the

PTSD syndrome could relieve the defendant of the

responsibility for the crimes charged"; that the testimony

was insufficient as a matter of law in that it did not go to

Lugo-L pez' state of mind on the dates of commission of the

crimes charged, and that it would be unduly prejudicial in

violation of Rule 403 in light of its lesser probative value.

The only witness proffered to establish the defense

was Dr. Santiago. As to PTSD, the expert's report stated, in

pertinent part:

[Lugo-L pez] justifies his behavior with
his special army training and his Viet
Nam experience when his main problem is
his poor judgment -- he cannot anticipate
the consequences of his behavior most of
the time. His schizophrenic make up adds
to his difficulties.

The psychiatrist's diagnosis was that:

[C]ocaine and heroin use and dependency .
. . together with his schizophrenic make
up explain his grandiose and delusional

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behavior, [e]specially in relation to the
informant during investigation.

The report concluded:

There is no doubt that the patient meets
the criteria for a P.T.S.D. patient [and]
was having delusions when he was being
intervened (sic) by a D.E.A. confident
(sic) and it is confirmed in the report
prepared by D.E.A. agents. . . . At the
time of the intervention of the D.E.A.
representatives, Mr. Lugo because of his
delusions of grandeur had a significant
mental disease and was unable to conform
his conduct to the requirements of the
law.

There was no abuse of discretion in excluding the

testimony based on this proffer. The report is singularly

unfocussed and does not address whether at the time of the

commission of the crimes charged, Lugo-L pez "as a result of

a severe mental disease or defect, was unable to appreciate

the nature and quality or the wrongfulness of his act." 18

U.S.C. 17. As the statute itself says, the mere fact of

"mental disease or defect does not otherwise constitute a

defense." Id.

The report does not establish that Lugo-L pez was

suffering from a "severe" mental disorder at the time of

commission of the offenses; at most, it characterizes his

claimed disorder as "significant." Indeed, the report

recounts that by 1992, the year of the crime, Lugo-L pez had

stopped using his drugs of choice, heroin and cocaine. His

hospitalizations for schizophrenia had been more than a

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decade before. His mental status at the time of Dr.

Santiago's examination was described as "mild[ly] to

moderate[ly] depress[ed]," "logical and coherent" but at

times "irrelevant," "well oriented in time, place, and

person," suffering from "poor judgment" and being "insecure."

The legislative history of 18 U.S.C. 17 reveals that:

The concept of severity was added to
emphasize that non-psychotic behavior
disorders or neuroses such as an
"inadequate personality," "immature
personality," or a pattern of "anti-
social
tendencies"donot
constitutethedefense.

S. Rep. No. 98-225, 98th Cong., 2d Sess. 229 (1984),

reprinted in U.S.C.C.A.N. 3182, 3411, quoted in United States

v. Salava, 978 F.2d 320, 323 (7th Cir. 1992).

There is nothing in the psychiatrist's report which

suggests that the defendant did not know or could not

appreciate that selling cocaine was wrong. At best, the

report accepts and repeats Lugo-L pez' statements that he was

suffering delusions at the time that Malav approached him to

ask whether he would sell Malav drugs. Lugo-L pez said he

was "feeling" he was a CIA spy with connections to the police

in Haiti. The report does not link such a delusion with an

incapacity to determine whether selling cocaine is wrong.

Moreover, there is no explanation as to why such delusions

would be associated with PTSD. And there is no evidence in

the report or otherwise that Lugo-L pez was suffering from

any effects, delusional or otherwise, on the dates when the

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crimes -- the drug transaction and the telephone

conversations -- actually took place.

The psychiatrist's testimony is the only evidence

the defendant offered to establish the insanity defense. The

psychiatrist's report is inadequate to establish that as a

result of his PTSD Lugo-L pez was "unable to appreciate the

nature and quality or the wrongfulness of his acts." See 18

U.S.C. 17(a); Duggan, 743 F.2d at 81 (expert affidavit

asserted that "as a result of [PTSD], [defendants] were not

able to conform their conduct to the requirements of the

law," but contained no evidence or clinical findings in

support of these conclusions and was thus inadequate to raise

the insanity defense in compliance with Rule 12.2); see also

United States v. Whitehead, 896 F.2d 432, 435 (9th Cir. 1990)

(jury not permitted to consider defense where testimony could

not establish with convincing clarity that PTSD caused

defendant to be unable to appreciate the wrongfulness of bank

robbery), cert. denied, 498 U.S. 938 (1990).3 The district

court did not apply an incorrect legal standard or make an

error in judgment in excluding the psychiatrist's testimony.

3. We also note, but do not rest our decision on, the trial
judge's concern under Rule 403. Cf. United States v. Shay,

57 F.3d 126, 133 (1st Cir. 1995). The proffered insanity
defense, supported only by vague, weak and conclusory
testimony, could skeptically be viewed as only a pretext to
get before the jury the extremely sad and sympathetic story
of a much decorated Vietnam war hero gone far astray.

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Religious Reference

Cartagena-Carrasquillo, who throughout trial wore

white clothing, a possible marker of adherence to a minority

religious sect, now objects on appeal to the prosecutor's

closing arguments which, in an apparent effort to discredit

the defendant's testimony, embraced Catholicism. While the

prosecutor's argument was improper, that is not enough to win

the day for this defendant, who did not properly make or

preserve his objection, and as to whom the evidence of guilt

was overwhelming.

We know only from assertions of defense counsel on

this appeal, which the government on questioning at oral

argument conceded, that Cartagena-Carrasquillo wore white

clothing at trial and that this manner of dress in Puerto

Rico may symbolize membership in a minority religious group.

We do not know, nor apparently did the jury, whether he was

in fact a member of such a group nor the strength of the

inference that he might be. Nothing was put on the record.

The closing argument, though, is on the record.

The prosecutor argued:

When we live in the same neighborhood, we
go to the same church, when we go to
church, we come out, we talk to
everybody. Now that we are in [L]ent and
this is in "Cuaresma", we do "via crusis"
where we go from house to house and say a
prayer and meet the people there.

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The prosecutor's reference to Lent ("Cuaresma"), to doing the

way of the cross ("via crusis"), to saying prayers, and the

use of the term "we" suggested an alliance between the

government and a church to which, presumably, many of the

jurors, but not the defendant, belonged. Injection of

religion into the case was flatly wrong and contrary to what

the public has a right to expect of government prosecutors.

Cartagena-Carrasquillo objected to the reference.

The court responded it would hear the objection later at

sidebar and asked counsel to keep the objection in mind.

During the sidebar conference, the objection was not raised

again and there was no request for a curative instruction or

other curative action.

Cartagena-Carrasquillo argues that even in the

absence of a renewed objection or a request for instruction

that the trial judge was obligated to give a curative

instruction sua sponte. While there may be situations in

which the imposition of sua sponte obligations on trial

judges has been considered, see, e.g., United States v.

Santiago Soto, 871 F.2d 200, 202 (1st Cir.), cert. denied,

493 U.S. 831 (1989), we decline to impose one here. Whether

an instruction will "cure" a problem or exacerbate it by

calling more attention to it than warranted is within the ken

of counsel and part of litigation strategy and judgment. The

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obligation to suggest the appropriate response, if any,

rested on defense counsel.

Balancing, on Cartagena-Carrasquillo's part, the

failure to properly give notice to the trial court of a

desire for remedial instruction, to preserve the issue, or

even to create a proper record, against the isolated but

seemingly deliberate injection of religion into the case by

the prosecutor, we turn to a test adopted by this Court in a

more straightforward case, United States v. Hodge-Balwing,

952 F.2d 607, 610 (1st Cir. 1991). In reviewing whether

improper remarks in a closing argument are grounds for

reversal in that they "so poisoned the well" that the trial's

outcome was likely affected, this court considers the

following factors: "(1) whether the prosecutor's conduct was

isolated and/or deliberate; (2) whether the trial court gave

a strong and explicit cautionary instruction; and (3) whether

it is likely that any prejudice . . . could have affected the

outcome of the case." Id.

As to the first prong, "[d]efendant's religion has

no bearing whatsoever on any legitimate issue in the case."

United States v. Goldman, 563 F.2d 501, 504 (1st Cir. 1977),

cert. denied, 434 U.S. 1067 (1978). But a reference to

religion does not necessarily require reversal. Id. at 505.

Second, while there was no curative instruction here, there

was no request for one, and we do not discount the

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possibility that the failure to make the request was a

tactical choice by defense counsel. See United States v.

Brandon, 17 F.3d 409, 446 (1st Cir. 1994), cert. denied sub

nom. Granoff v. United States, 115 S. Ct. 80 (1994) and Ward

v. United States, 115 S. Ct. 81 (1994).

We turn, then, to the third prong of the Hodge-

Balwing test and ask whether it is likely that any prejudice

could have affected the outcome of the case. The religious

references in the prosecutor's closing were less a direct

appeal to religious prejudice than in other cases we have

considered (such as Goldman) and there is less reason here to

draw an inference of prejudice. On objection, the remarks

stopped.

The instructions given to the jury assisted it in

keeping to the path before it, free from prejudice. The

district court instructed the jury to perform its duty

"objectively without any bias or without any prejudice,"

reminded the jury that the defendants were presumed innocent

unless guilt was established beyond a reasonable doubt, told

the jury that statements of counsel were not evidence, and

explicitly set out the elements of the crimes charged. See

United States v. Giry, 818 F.2d 120, 132-33 (1st Cir.)

(prosecutor's improper closing argument that defendant

"sounds like Peter who for the third time denied Christ" was

deliberate and unprovoked, but was not objected to and did

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not produce plain error in light of overall jury

instructions, even without an instruction specifically

addressed to the prejudicial comment), cert. denied, 484 U.S.

855 (1987).

Further, the evidence of guilt was very strong.

Cartagena-Carrasquillo was introduced by Lugo-L pez as the

supplier. He arrived at the Lugo-L pez house with a bag

containing cocaine. He left the house with the bag, fled

when approached by law enforcement agents, led the agents on

a car chase, left the car with the bag in hand, and the bag

containing cocaine was found soon after the arrests in a

trash can in the area where he had been.

Double Jeopardy

Both the origins and demise of defendants' double

jeopardy claims lie in the termination of the first trial by

mistrial.

The mistrial was declared by the judge after the

government's first witness, Malav , was observed going into a

witness room with DEA special agent Mor n. Mor n had been

assigned to protect the witness, a confidential informant and

the only witness to the drug transaction. The court had

given a general instruction to all witnesses not to talk

about their testimony. Although there was no evidence of

violation of that instruction, an objection by defense

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counsel to the two talking precipitated a defense motion for

mistrial, which was allowed. The trial court specifically

held that there was no misconduct by the prosecutor and no

intent to goad a mistrial. Those fact findings are subject

to a clearly erroneous standard of review. United States v.

Serra, 882 F.2d 471, 473 (11th Cir. 1989). The trial court's

denial of defendants' motion to dismiss based on double

jeopardy is subject to de novo review. United States v.

Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir.), cert. denied,

113 S. Ct. 105 (1992).

Defendants contend that the conduct of the

government's witness and the DEA agent was designed to

produce a mistrial. This is based on a theory that the

witness felt he had not testified well, that he attempted to

signal his discomfort to the prosecution in full view of the

defense, and that the hostility expressed by the DEA agent to

defense counsel when they confronted him about meeting with

the witness all were intended to goad defendants into moving

for a mistrial. The government's hypothesized gain would be

a second chance for its key witness to do a better job.

Theory is not fact and the trial court specifically rejected

the theory as not based on the facts. Nothing in the record

suggests its findings were clearly erroneous.

Because the defendants consented to the mistrial

declaration and because there was no basis to conclude that

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the conduct giving rise to the mistrial was intended to

provoke the defendant into moving for a mistrial, there was

no double jeopardy bar to reprosecution. Oregon v. Kennedy,

456 U.S. 667, 675-76 (1982); United States v. Perez Sanchez,

806 F.2d 7, 8 (1st Cir. 1986), cert. denied, 480 U.S. 922

(1987). "Only where the governmental conduct in question is

intended to 'goad' the defendant into moving for a mistrial

may a defendant raise the bar of double jeopardy to a second

trial after having succeeded in aborting the first on his own

motion." Kennedy, 456 U.S. at 676.

Filing of Information Under 21 U.S.C. 851

Late on February 10, 1994, the day before jury

selection started for the second trial, the government filed

and faxed to counsel for Lugo-L pez an information under 21

U.S.C. 851(a)(1) seeking an enhancement of penalties.

While such cliff-hanging practices are not wise, the filing

was made before jury selection, and that is all that was

required. Kelly v. United States, 29 F.3d 1107, 1110 (7th

Cir. 1994) (citing cases). That the information was not

filed during the first trial did not bar the government from

seeking an enhanced penalty during the second, unless the

government sought to punish the defendant for exercising a

constitutional or statutory right. See United States v.

Goodwin, 457 U.S. 368, 384 (1982). Lugo-L pez alleges that

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the prosecution made the last minute filing of the

information out of prosecutorial vindictiveness arising from

earlier dealings in the case. Even if seeking an enhancement

before the second trial that was not sought before an earlier

trial were sufficiently likely to be vindictive so as to

warrant a presumption of vindictiveness, the prosecutor here

rebutted that presumption. See United States v. Marrapese,

826 F.2d 145, 149 (1st Cir.), cert. denied, 484 U.S. 944

(1987). The district court, after hearing the government's

reasons for the eve-of-trial filing, determined that there

was no vindictiveness. There is no reason to disturb that

finding.

Lugo-L pez also contends that the information was

signed by an unauthorized person and contained certain

mistakes of fact. This contention is unavailing. Even

assuming that an Assistant United States Attorney was not

authorized to sign the information, that and the other

mistakes could be and were corrected prior to pronouncement

of the sentence, as permitted under the statute.

Sufficiency of the Evidence

The claims by Cartagena-Carrasquillo and Figueroa-

Garc a that the evidence was insufficient to support their

convictions are without merit, as the description of the

facts of record amply demonstrates.

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Chain of Custody

Cartagena-Carrasquillo challenges the chain of

custody of the cocaine. Chain of custody arguments usually

go to the weight of the evidence and not admissibility.

United States v. Ortiz, 966 F.2d 707, 716 (1st Cir. 1992),

cert. denied, 113 S. Ct. 1005 (1993); United States v. Luna,

585 F.2d 1, 6 (1st Cir.), cert. denied, 439 U.S. 852 (1978).

Review is for abuse of discretion. Ortiz, 966 F.2d at 716.

Defendant argues that the deal was for 2 kilograms

of cocaine while the amount found in the tan bag was 3

kilograms, that one bag of cocaine was opened while at the

Lugo-L pez house, but that no bags were opened when the DEA

agents found them, and that the bags were found abandoned in

a high crime area. From this, the defendant says, there is a

chance of altered or substituted evidence. This is a classic

weight of the evidence argument.

The government agents testified as to proper

custodial procedures and the evidence suggests plausible

explanations for the discrepancies noted. One such

explanation is that there were four kilograms originally,

that the opened one kilogram bag of cocaine was sold to

another when Cartagena-Carrasquillo left Lugo-L pez' house to

make a sale, thus accounting for the remaining 3 kilograms of

cocaine and the $12,900 in cash found in the bag later.

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Other Evidentiary Rulings

Lugo-L pez complains that the trial court erred in

curtailing the cross-examination of an informant.

Limitations on the cross-examination of a witness are

reviewed for abuse of discretion. United States v. Boylan,

898 F.2d 230, 254 (1st Cir.), cert. denied, 498 U.S. 849

(1990). Although a defendant does have a constitutional

right to cross-examine witnesses against him, U.S. Const.

amend. VI, that right is not unlimited. United States v.

Corgain, 5 F.3d 5, 8 (1st Cir. 1993). Here, the district

court refused to allow cross-examination as to the

confidential informant's failure to file income tax returns.

The informant's motive and potential bias had already been

established. Defense counsel also had already pointed out

many inconsistencies in his trial testimony as well as

discrepancies between the informant's testimony at trial and

his earlier testimony both before the grand jury and at the

mistrial. The jury had ample information from which to gauge

the credibility of this witness. See, e.g., United States v.

Rodriguez, 63 F.3d 1159, 1168 (1st Cir. 1995). The trial

court did not abuse its discretion in limiting cross-

examination on the failure to file income tax returns.

Lugo-L pez also complains about the district

court's allowance of the withdrawal of a number of pages of a

trial transcript that had previously been admitted. There

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was no objection to this withdrawal by Lugo-L pez at the

time; he waited until after the verdicts had been returned.

Even assuming that we should consider this issue given the

late objection, the error, if any, was harmless. The

district court ruled that this portion of the transcript was

inadmissible as irrelevant and confusing to the jury. Such

was well within its discretion. Moreover, the only purpose

defendant gives to be served by the portion of the transcript

that was withdrawn was to further undermine the credibility

of the confidential informant. Because the jury had enough

information to determine such credibility, there was no

prejudice.

Cartagena-Carrasquillo argues that the district

court erred in allowing a DEA agent to give his opinion that

annotations on the back of a business presentation card were

related to a drug transaction. Cartagena-Carrasquillo argues

that the annotations were simply the addition of numbers,

facially innocent. This court has previously held that it

was well within a trial court's discretion to admit expert

testimony identifying a similar document -- a column of

numbers added together -- as a drug ledger and explaining its

contents. United States v. Echeverri, 982 F.2d 675, 680-81

(1st Cir. 1993). There was similarly no abuse of discretion

here.

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Sentencing

Figueroa-Garc a asserts he should not have received

any more than the mandatory minimum sentence of 60 months,

because, he asserts, there was never any evidence of his

guilt or, at least, hardly any evidence. The jury found

otherwise. He was sentenced to 78 months after the court

found he had not accepted responsibility and so was

ineligible for a two-level decrease under U.S.S.G.

3E1.1(a). He claims he was entitled to a reduction as a

minor participant under U.S.S.G. 3B1.2(a).

The defendant has the burden of showing that he is

entitled to a reduction in his offense level under

3B1.2(a). United States v. Ocasio, 914 F.2d 330, 332 (1st

Cir. 1990). On appeal, the defendant must establish that the

district court's determination was clearly erroneous. Id. at

333. Defendant has not met that burden. The evidence

clearly shows that he was more than a minor participant in

the criminal venture. He and Cartagena-Carrasquillo arrived

at the Lugo-L pez house together with kilogram quantities of

cocaine. They left together to sell a kilogram to someone

else and returned together. When the transaction with the

confidential informant failed, Figueroa-Garc a drove

Cartagena-Carrasquillo away. Figueroa-Garc a then led the

agents in a car chase and fled from the law. The district

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court did not clearly err by denying a reduction under

3B1.2(a). Figueroa-Garc a was not a minor participant.

Affirmed.

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