United States v. Rodriguez

United States Court of Appeals
For the First Circuit

No. 99-1030

UNITED STATES,
Appellee,

v.

ISRAEL RODRÍGUEZ,
Defendant, Appellant.

No. 99-1031

UNITED STATES,
Appellee,

v.

JUAN M. SANIEL-CALZADA,
Defendant, Appellant.

No. 99-1032

UNITED STATES,
Appellee,

v.

MANUEL RODRÍGUEZ-SANTANA,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF PUERTO RICO

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

Before

Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and O’Toole, Jr.,* District Judge.

G. Richard Strafer, with whom G. Richard Strafer, P.A. was on
brief, for appellant Israel Rodríguez.
Manuel San Juan, by appointment of the Court, for appellant Juan
M. Saniel-Calzada.
Rafael F. Castro-Lang, by appointment of the Court, for appellant
Manuel Rodríguez-Santana.
W. Stephen Muldrow, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Chief,
Criminal Division, and Camille Vélez-Rivé, Assistant United States
Attorney, were on brief, for appellee.

June 16, 2000

* Of the District of Massachusetts, sitting by designation.
-3-
 O’TOOLE, District Judge. These are consolidated appeals from

judgments of conviction entered upon jury verdicts. The defendants

make a number of arguments. After considering their points carefully,

we are satisfied that there was no reversible error, and accordingly we

affirm the judgments.

I.

The defendants, Israel Rodríguez (“Rodríguez”), Juan Saniel-

Calzada (“Saniel”), and Manuel Rodríguez-Santana (here called “Santana”

to distinguish him from Israel Rodríguez), were charged and convicted

of conspiring to import more than 5,000 pounds of marijuana in

violation of 21 U.S.C. § 952(a) and 21 U.S.C. § 963 (Count One), and of

attempting to import more than 5,000 pounds of marijuana in violation

of 21 U.S.C. § 952(a), 21 U.S.C. § 963, and 18 U.S.C. § 2 (Count Two).

At trial, there was evidence that could have convinced the jury of the

following facts:

In September, 1993, Rodríguez, who lived in Florida, contacted

Francisco Vega Estrada (“Vega”), a resident of Puerto Rico, to enlist

his aid in smuggling illegal drugs into Puerto Rico. Rodríguez was

unaware that Vega was then cooperating with agents of the United States

Customs Service. (Vega eventually became the government’s key witness

at trial.) Rodríguez planned to bring a shipment of marijuana from

Colombia into Puerto Rico by sea. He sought to have both Vega and

Saniel help off-load the marijuana when it arrived.

-4-
 On September 29th or 30th, Vega and Saniel, having agreed to

assist in the drug importation, went to a pier in a location designated

by Rodríguez on the eastern coast of Puerto Rico to await the boat that

was carrying the marijuana.1 Vega brought his pickup truck, onto which

he and Saniel planned to load the marijuana. They waited through the

night, under surveillance by Customs agents, but no boat arrived.

Early in the morning, they heard a radio report that a boat

carrying more than 5,000 pounds of marijuana had been seized that night

by the Coast Guard. Apparently, the boat had been seized about 45

miles off the coast of Colombia, a good distance away from Puerto Rico

and particularly from its eastern coast.2 In any event, Vega testified

that he assumed that the load that was seized was the one he and Saniel

were waiting for, and he went home to bed. He heard later from

Rodríguez that the expected shipment had “fallen through.” Vega

understood that remark at the time to mean that the shipment had been

intercepted.

Rodríguez organized a second attempt to import marijuana

1
The location was identified by various general place names,
including Ceiba, Las Carmelas Beach, and Marinata. These places are
all near enough to each other that there appears no significance to the
variation for present purposes.
2The Coast Guard towed the boat to the Roosevelt Roads Naval Base
in Puerto Rico, where it arrived on October 4, 1993. An agent
testified that it took four days to tow the boat from its point of
seizure, suggesting that it was seized on or about September 30. There
was no evidence as to how long it would have taken the boat to travel
to Puerto Rico under its own power.

-5-
in October, 1993, this time involving not only Vega and Saniel,

but also Santana and a couple of other men. The plan was for the

-6-
marijuana to be received at sea off the island of St. Thomas, not far

from Maternillo on the east coast of Puerto Rico. The men traveled to

St. Thomas in two boats, one of which was captained by Santana, who was

a fisherman working out of Maternillo. In St. Thomas, they stayed at

apartments owned by a man identified only by his first name, “Fred.”

Vega testified that he overheard a conversation in St. Thomas in which,

after some negotiation, Rodríguez agreed to pay Santana $400,000 for

his assistance in bringing the marijuana back to Puerto Rico in his

boat.

After all the necessary preparations had been made, at some point

Rodríguez announced to the others that the expected shipment had been

“canceled.” The defendants returned to Puerto Rico without completing

the planned importation.

As noted, the chief government witness at trial was Vega. His

evidence was supplemented, and in some respects corroborated, by

testimony of Customs agents and by telephone records which supported an

inference that there had been multiple phone contacts among all the

various participants during the months of September and October, 1993.

-7-
 Vega also was permitted to testify to “other crimes” committed by

the defendants, pursuant to Fed. R. Civ. P. 404(b).3 He described three

other drug importation episodes in which one or more of the defendants

were involved. One occurred in December, 1993, after the events

alleged in the indictment. On that occasion, Vega met with Santana at

“Fred’s” apartment complex in St. Thomas. Together with others, they

put out from St. Thomas in Santana’s boat and picked up approximately

600 kilos of cocaine that was dropped to them from an airplane. They

then brought the drugs to Puerto Rico by sea.4

Vega also testified that he had helped Rodríguez with two prior

importations of marijuana into Puerto Rico from Colombia, one in 1978

or 1979, and the other in 1980. Saniel was also involved in the

second. According to Vega, in the late 1970s he and Rodríguez were

acquainted because both worked at the El Conquistador Hotel. Rodríguez

3
“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon request
by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of
any such evidence it intends to introduce at trial.” Fed. R. Evid.
404(b).
4 Although Vega had previously been cooperating with the government,
he testified that he participated in the December, 1993 episode not as
an informant, but to make money. He was apparently annoyed that the
government had not paid him for his information which had led to the
seizure of marijuana in September, and he decided to make some money by
helping with another drug deal.

-8-
approached him one day and

-9-
solicited his help in bringing a shipment of marijuana from Colombia.

Vega agreed to help, and took vacation time from work to be able to do

so. Following Rodríguez’s instructions, Vega and some others picked up

a shipment of marijuana off the Colombian coast and sailed with it back

to Puerto Rico, where Rodríguez met them and helped unload the

marijuana at a dock in the middle of the night.

The second incident, in 1980, was similar. Vega and Rodríguez

flew to Colombia where they met with a man named “Juan.” Rodríguez and

Juan had some discussions, after which Rodríguez told Vega that he had

to go back to Puerto Rico to take care of a problem with some money.

Vega remained in Colombia for a while, but eventually also returned to

Puerto Rico.5 Rodríguez met him and instructed him to go to a small

island near Tortola, where some of the marijuana involved was hidden.

There was a problem with the quality of the marijuana, and Rodríguez

wanted a sample to take back to Colombia to prove the point to his

supplier. Vega went with Saniel to the place were the marijuana was

kept and took some of it back to Puerto Rico. They “stashed” it at

Saniel’s house. Of the three defendants, only Santana offered

evidence at trial, and that was his own testimony. He testified that

5 Vega had some visa problems, and he had to stay in Colombia to
straighten them out. His airline tickets and some legal documents
pertaining to his visa problems were offered in evidence to corroborate
his testimony about his trip to Colombia. The exhibits themselves
contain no reference to either Rodríguez or Saniel and thus do not
directly corroborate that part of Vega’s testimony.

-10-
he was a fisherman and would occasionally fish in the waters off

St. Thomas. He denied ever having been to St. Thomas with Vega. He

also said that Vega had been at his home performing some construction

work during five days in late September, 1993, and he suggested that

the telephone calls to his house from the other co-conspirators during

that period were probably calls to Vega, not to him.

Upon this evidence, the jury convicted each defendant on each

count.

II.

We consider the defendants’ arguments in turn.

A. Sufficiency of the Evidence

The defendants challenge the sufficiency of the evidence to

convict them.6 We assess whether the evidence viewed in a light most

favorable to the verdict would allow a rational trier of fact to find

guilt beyond a reasonable doubt. See United States v. Morillo, 158

F.3d 18, 22 (1st Cir. 1998). All evidence, both direct and

circumstantial, is to be considered, with conflicts resolved in favor

of the verdict. See United States v. Carroll, 105 F.3d 740, 742 (1st

Cir. 1997).

Conspiracy

To prove the crime of conspiracy under 21 U.S.C. § 963,

6 Saniel and Rodríguez challenge the sufficiency of evidence as to
both counts. Santana only challenges the sufficiency of evidence as to
Count Two.

-11-
the government must prove the existence of an unlawful agreement

between two or more persons and the defendant’s knowledge of and

-12-
voluntary participation in the conspiracy. See Morillo, 158 F.3d at

23. To establish a defendant’s voluntary participation, the government

must show both “intent to agree and intent to commit the substantive

offense.” Id. (citations omitted). The crime is the illegal

agreement; if there was such an agreement, it does not matter that the

purpose of the agreement was not achieved, or even that achieving that

purpose was factually impossible. See United States v. Giry, 818 F.2d

120, 126 (1st Cir. 1987).

If the jurors believed Vega, they could easily have found within

his testimony evidence supporting the elements of the offense of

conspiracy with respect to each defendant. Rodríguez formed the plan

to import marijuana and recruited the others to help out. Both Saniel

and Santana, by their respective parts as described by Vega, joined in

the conspiracy knowing of its purpose and intending by their

participation to bring about its success. The fact that their effort

failed does not stand in the way of a finding by the jury that the

defendants had conspired together to import marijuana.

Attempt (Aiding and Abetting)

To convict the defendants of attempt, the government had to prove

that they intended to commit the substantive offense of importing

marijuana and that each of them, directly or by aiding or abetting

another, “performed a substantial step towards the completion of the

offense.” United States v. DeMasi, 40 F.3d 1306, 1315 (1st Cir. 1994).

-13-
A “substantial step” is less than what is necessary to complete the

substantive crime, but more than “mere preparation.” See United

States v. Levy-Cordero, 67 F.3d 1002, 1019 (1st Cir. 1995). The

government must prove that the defendants “participated in [the

attempt] as . . . something [they] wished to bring about, and sought by

[their] actions to make it succeed.” United States v. Loder, 23 F.3d

586, 590-91 (1st Cir. 1994) (quoting United States v. Garcia-Rosa, 876

F.2d 209, 217 (1st Cir. 1989)).

Again, Vega’s testimony, if believed, was sufficient to permit a

jury to find the defendants guilty beyond a reasonable doubt.

According to Vega’s account, each of the defendants personally

participated in at least one direct effort to import marijuana. Saniel

went with Vega to the waterfront to await the shipment from Colombia in

September; in October, Santana brought his boat to St. Thomas expecting

to load it with marijuana to be carried back to Puerto Rico; Rodríguez

participated in both efforts. On the evidence, the jury could properly

have found, with respect to each defendant, that his participation went

beyond “mere preparation” and amounted to a “substantial step” toward

the completion of the offense.

Santana points out that the indictment alleged an attempt “in or

about September of 1993.” He argues that, except for records showing

telephone calls to his home from the homes of other co-conspirators,

there was no evidence that he participated in the effort to bring

-14-
marijuana directly from Colombia in September. The only evidence of

his participation was the October trip to St. Thomas. He therefore

says that he cannot be found guilty of the attempt that is alleged in

the indictment. His argument is meritless.

The words “in or about” permit some latitude in proving the time

of the offense alleged, so long as the exact time of the commission of

the act is not an element of the offense. See United States v.

Antonelli, 439 F.2d 1068, 1070 (1st Cir. 1971). The exact time of the

importation effort is not an element of the crime of attempting to

import illegal drugs. Here, in addition to attempt, Santana was

charged with being part of a conspiracy which, according to the

indictment, existed from “in or about September of 1993 to in or about

October of 1993.” Further, in the conspiracy count, there are specific

allegations of “overt acts” that Santana participated in, all of which

are alleged to have taken place in October, 1993.

Moreover, the evidence that during September telephone calls were

made to Santana’s residence from the other alleged co-conspirators also

supported the attempt charge, because from it an inference might have

been drawn not only that Santana had conspired with others to violate

the law, which was the gist of the conspiracy count, but also that he

participated in steps toward the commission of the substantive offense

itself. Certainly, in a prosecution for a completed offense, evidence

of communications among the co-conspirators would be relevant not only

-15-
to prove the existence of the conspiracy but to prove that the

substantive crime was committed as well. The same should be true when,

instead of a completed substantive crime, an attempt is charged.

In any event, proof of Santana’s active participation in October

is sufficient proof of an offense “in or about September” that there is

no error. See United States v. Escobar-de Jesus, 187 F.3d 148, 168

(1st Cir. 1999) (evidence about act occurring near the end of March

supported proof of conspiracy alleged to have begun “on or about”

April); United States v. Portela, 167 F.3d 687, 698 n.7 (1st Cir. 1999)

(evidence of act occurring in early April 1995 could prove crime

alleged to have occurred “on or about March 1995”).

B. Constructive Amendment of the Indictment

The defendants have argued that it is unlikely -- and that the

jury could not have found beyond a reasonable doubt -- that the

marijuana seized off the coast of Colombia at the end of September was

the marijuana that Vega and Saniel were waiting for at the pier at Las

Carmelas. Accordingly, the defendants say, the government failed to

prove a fact alleged in the indictment, and thus the crime proved at

trial was different from the one alleged in the indictment. They

assert that the government’s failure of proof, combined with the

district court’s instruction on the elements of conspiracy, amounted to

a constructive amendment of the indictment.

A constructive amendment of the indictment would be a per se

-16-
violation of the Fifth Amendment. See United States v. Fisher, 3 F.3d

456, 463 (1st Cir. 1993); see also Stirone v. United States, 361 U.S.

212, 215-19 (1960). “A constructive amendment occurs when the charging

terms of the indictment are altered” at trial so that

-17-
they are different from those handed up by the grand jury. See

Portela, 167 F.3d at 701 (citations and internal quotations omitted).

There was no such amendment here, even if the government did fail

to prove that the marijuana seized off Colombia was the marijuana that

was the subject of the conspiracy alleged in the indictment, a question

we need not resolve. The conspiracy alleged in Count One was a

conspiracy to import marijuana into Puerto Rico, not a conspiracy to

dispose of the marijuana cargo of a particular vessel. The seizure of

the ship off Colombia was alleged in the indictment not as a necessary

element of the offense charged, and it was not necessary for the

government to prove that the marijuana seized was the marijuana that

Saniel and Rodríguez planned to import.

The government is not required to prove an overt act with respect

to an importation conspiracy under 21 U.S.C. § 963, which contains

language identical to the language of 21 U.S.C. § 846. See United

States v. Shabani, 513 U.S. 10, 11-12 (1994) (holding that no overt act

need be proven with respect to conspiracy charged under § 846); United

States v. Montgomery, 150 F.3d 983, 997-98 (9th Cir. 1998) (applying

Shabani to 21 U.S.C. § 963); United States v. Rangel-Arreola, 991 F.2d

1519, 1522 n.2 (10th Cir. 1993)(noting “21 U.S.C. . . . § 963 [does]

not contain the overt act requirement”); United States v. Burns, 990

F.2d 1426, 1432 (4th Cir. 1993) (same). It was proper for the

-18-
government to argue that the jury did not need to find that the

intercepted shipment was the subject of the conspiracy. The district

court properly instructed the jury on the elements of the offense. See

Portela, 167 F.3d at 702 (approving a jury instruction to disregard

evidence of an overt act in a drug conspiracy indictment). There was

no constructive amendment of the indictment.

C. Admission of Evidence of Other Crimes

The defendants argue that the district court improperly admitted

Vega’s testimony about other drug importation efforts in which one or

more of them participated. They contend that the evidence was not

relevant to a legitimate issue in the case, as required under Rule

404(b), and further, even if it was, the evidence was unfairly

prejudicial and should have been excluded under Rule 403.

Their argument tracks the well-known two-step test for determining

whether “other crimes” evidence may be admitted. First, the evidence

must be “specially probative of an issue in the case -- such as intent

or knowledge -- without including bad character or propensity as a

necessary link in the inferential chain.” United States v.

Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996) (citing United States v.

Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir. 1995)). Second, before

admitting it, the trial court must also determine that “the probative

value of the evidence is substantially outweighed by the danger of

unfair prejudice,” potential confusion of the issues, or the

-19-
possibility that the jury would be misled. See Aguilar-Aranceta, 58

F.3d at 798 (citations and internal quotations omitted).

-20-
 We review the admission of such evidence for an abuse of

discretion. See United States v. Gilbert, 181 F.3d 152, 160 (1st Cir.

1999); United States v. Shea, 159 F.3d 37, 40-41 (1st Cir. 1998).

Probative Value

Rule 404(b) precludes evidence of “other crimes” or “bad acts” to

prove a defendant’s bad character or his propensity to commit the crime

alleged in the indictment. But it permits such evidence for other

purposes, some of which are listed in the Rule.

Evidence of other criminal conduct has often been found “specially

relevant” when it tends to prove one or more of the elements of the

crime of conspiracy. See United States v. Scelzo, 810 F.2d 2, 4 (1st

Cir. 1987); see also 2 Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence, § 404.22[5][b][ii] (Joseph M. McLaughlin

ed., Matthew Bender 2d ed. 2000) (collecting cases admitting 404(b)

evidence in conspiracy cases). In a conspiracy prosecution, it is

essential for the government to prove the defendant’s knowledge of and

voluntary participation in the conspiracy. In particular, the

government’s evidence must overcome the possibility that a particular

defendant’s association with criminal co-conspirators was wholly

innocent or that, if he was with them at the scene of criminal

activity, he was “merely present,” without guilty knowledge or intent.

-21-
 The 404(b) evidence admitted against these defendants had

probative value as to such issues. For instance, the jury heard

evidence that in late September Saniel waited through the night with

Vega at a pier. Was this innocent socializing? Even if Vega was

waiting for a drug shipment, as he testified, a conscientious juror

might well hesitate to infer that Saniel also knew of that purpose and

intended to take part. The additional fact that Saniel had previously

helped Vega unload and store marijuana might lead the juror to believe

that Saniel did know what Vega intended and that he, Saniel, had

purposefully decided to lend his assistance. The additional fact thus

advances proof of Saniel’s knowing and willful participation in the

crimes charged in the indictment.

Similarly, the government needed to counter Santana’s claim that

he was just a fisherman who liked the waters off St. Thomas and who was

innocently caught up with others who, if they intended a crime, had not

told him their purpose. By offering evidence of a second incident in

which Santana was involved in a completed drug venture with some of the

same participants, the government gave the jury a reason to view

skeptically Santana’s claim that he was just an innocent bystander who

was “merely present,” but rather to conclude that he was a knowing and

intentional participant in the crimes charged in the indictment.7

7 The common expression notwithstanding, Rule 404(b) does not just
apply to “prior” bad acts, but may include subsequent ones as well.
See United States v. Wright, 573 F.2d 681, 683 (1st Cir. 1978);

-22-
 The parties debate a bit about whether the evidence of the other

crimes tended to show a common “modus operandi” throughout the various

drug ventures. Rule 404(b) does not use the term “modus operandi,” and

it appears the parties themselves may attach different meanings to it.

The government seems to use the term to suggest that common features of

the various episodes tend to establish that the defendants were not

acting naively or innocently, and that any similarity in the pattern of

events was evidence from which the jury could infer that the defendants

knew that, on the occasions charged in the indictment, they were

involved in a drug importation. The defendants, on the other hand,

seem to use the term “modus operandi” to refer to a “signature” crime,

where the identity of the criminal is inferred from the distinctive

manner in which the crime was committed. They then point out,

correctly but irrelevantly, that the identity of the defendants was not

an issue in the case, so the evidence should not have been received for

that purpose. Their point is irrelevant because that was not the

reason the district court admitted the evidence. Rather, the district

court told the jury that the evidence had been admitted as possible

proof of “opportunity, intent, preparation or common plan, knowledge,

or absence of mistake, accident or other innocent reason” for the

Weinstein & Berger, supra, § 404.22[2], at 12.

-23-
defendants’ activities. (Trial Tr., May 12, 1998, at 17.)8 It had

relevance and probative value for such purposes, and it was admissible

under Rule 404(b).

Staleness and Prejudice

The defendants contend that even if the evidence addressed an

issue proper under Rule 404(b), it generated an unfair prejudice9 that

outweighed its probative worth, so it should have been excluded under

Rule 403.10 In particular, the defendants argue that the prior episodes

in which Rodríguez and Saniel were involved were too remote in time to

8 The district court acted carefully in determining to admit the
evidence. Before the trial began, the government advised the court
that it intended to offer such evidence and sought permission to refer
to it in the opening statement. The court declined to rule on the
admission of the evidence in limine, but rather reserved judgment until
the appropriate time in the presentation of the government’s case.
When the government offered the evidence early in its case, the court
again demurred and instructed the government first to elicit evidence
about the crimes charged in the indictment. After that was done, the
government once more sought permission to admit the Rule 404(b)
evidence. Since it was near the end of the trial day, the court
recessed for the day. The following morning, having consulted the
caselaw, the court ruled that the evidence could be admitted. The
court gave an appropriate limiting instruction to the jury when the
evidence was admitted and again in its final instructions at the close
of the case. The defendants claim no error in the instructions.
9 The law does not protect defendants against all evidentiary
prejudice, only that which is unfair. See United States v. Candelaria-
Silva, 162 F.3d 698, 705 (1st Cir. 1998) (citing United States v.
Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995)).
10“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence.” Fed. R. Evid. 403.

-24-
have significant probative worth, and instead

-25-
carried the likely prejudicial effect that the jury would think the

defendants were of bad character.

There is no doubt that the probative value of evidence could be

attenuated by the passage of time.11 See Frankhauser, 80 F.3d at 648;

see also United States v. Fields, 871 F.2d 188, 198 (1st Cir. 1989).

However, there is no per se rule to determine when a prior bad act is

“too old” to be admissible.12 See Fields, 871 F.2d 198 (collecting

cases); see also United States v. Hernandez-Guevara, 162 F.3d 863, 872

(5th Cir. 1998), cert denied, 119 S. Ct. 1375 (1999). This Court

employs a “reasonableness” standard that requires evaluation of the

particular facts of each case. See Fields, 871 F.2d at 198 (citing

United States v. Engleman, 648 F.2d 473, 479 (8th Cir. 1981)).

11It might be observed that the passage of time would similarly
attenuate the power of any impermissible suggestion of “propensity” to
commit a crime. The older the evidence that a defendant was a bad
character, the weaker the force of inference about his present
character or propensity. Recall Prince Hal’s rebuke to Falstaff:
“Presume not that I am the thing I was; For God doth know, so shall
the world perceive, That I have turn’d away my former self; . . .”
William Shakespeare, The Second Part Of King Henry The Fourth, act 5,
sc. 5.
12 We note that other circuits have approved Rule 404(b) evidence
that was as remote in time from the crime charged in the indictment as
the evidence involved in this case. See United States v. Martinez, 182
F.3d 1107, 1112 (9th Cir. 1999) (ten-year-old conviction for drug
importation admissible to prove knowledge of drug importation);
Hernandez-Guevara, 162 F.3d at 873 (eighteen-year-old conviction for
exactly the same type of crime as that charged in the indictment
admissible); United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir.
1997) (bad act evidence thirteen years old admitted); United States v.
Terry, 702 F.2d 299, 316 (2d Cir. 1983) (twenty-year-old conviction
admissible to prove intent and guilty knowledge).

-26-
 The judgment whether to admit the evidence at issue is a matter

as to which reasonable minds could differ. However, we cannot say it

was an abuse of discretion for the district court to have admitted the

evidence in question.

There was a striking similarity between the acts alleged in the

indictment and the prior incidents. The similarity of the prior crimes

is a factor tending to support admissibility. See Frankhauser, 80

F.3d at 649; United States v. Arias-Montoya, 967 F.2d 708, 712-13 &

n.6 (1st Cir. 1992). In the events alleged in the indictment,

Rodríguez was the instigator and organizer of the importation efforts.

He was the one who had the contacts with the suppliers of marijuana

outside Puerto Rico, and he planned the details of the smuggling. He

sought out Vega, Saniel and Santana to enlist their help in carrying

out his plans. Rodríguez was also the person most knowledgeable --

when the deals fell apart, it was he who bore the news to the others.

Rodríguez had played a similar role in the prior episodes. In the

earlier incidents, he initially sought out Vega and Saniel to have them

help with an importation of marijuana from Colombia, and he directed

events. When there were problems, whether they involved money or the

quality of the marijuana, he attended to them.

This evidence that Rodríguez, Vega and Saniel had conducted quite

similar operations in the past had a “special relevance” to the present

indictment that justified its admission under Rule 404(b), and the

-27-
relevance was strong enough that the danger of unfair prejudice was

significantly diminished, notwithstanding the passage of time. For

instance, a juror might have wondered why she should believe Vega’s

testimony that Rodríguez unexpectedly called him up and got him

involved, with apparently little cajoling, in an effort to import a

sizable quantity of marijuana. The 404(b) evidence suggested an answer

to that: Vega had previously responded to Rodríguez’s call for help

with a drug deal. It might have been a different matter if the

evidence had suggested an otherwise innocent, on-going relationship

between the two men as of 1993. If there had been evidence of regular,

non-criminal contacts, the inference that there was a nefarious

purpose to their association on any particular occasion would have been

much attenuated. But instead, the very rarity of their association

tended to suggest that when they got together each of them understood

that the purpose was to import drugs.

The subsequent episode in which Santana participated carried far

less danger of prejudice than the older ones. It was close in time to

the crime charged in the event, and it had significant similarity in

details: after a planning meeting with others at “Fred’s” apartment

complex in St. Thomas, Santana took his boat to sea and picked up drugs

to be smuggled into Puerto Rico. Moreover, it was neither set up nor

monitored by the government; it was not an attempt by the government to

create a second opportunity to catch Santana. Rather, Vega testified

-28-
that he participated in it without the government’s knowledge, as a

criminal venture of his own.

We are mindful that the trial judge “has savored the full taste

of the fray, and his considerable discretion must be respected so long

as he does not stray entirely beyond the pale.” United States v.

Tierney, 760 F.2d 382, 388 (1st Cir. 1985). We conclude that the

district court did not abuse its discretion in deciding that the

probative value of the evidence of the defendants’ participation in

other drug offenses was more substantial than its prejudicial effect.

There was no error in the admission of the “other crimes”

evidence.

D. Improper Argument

Failure to Testify

Santana testified at trial; the others did not. Rodríguez and

Saniel argue that during the closing argument, the prosecutor referred

to their failure to testify when commenting on Vega’s veracity. Posing

a rhetorical question, the prosecutor attempted to bolster Vega’s

credibility after it had been attacked by the defendants:

[THE GOVERNMENT] How easy would it have been to
catch [Vega] in a lie if it turned out that Israel
Rodríguez was on vacation somewhere else? He comes
with his American Express record and says, ’Mira. I
was in Spain the whole month of September.’

(Trial Tr., May 15, 1998, at 74-75.)

-29-
Rodríguez and Saniel objected, arguing that the remark suggested the

jury should draw an inference from Rodríguez’s silence. The district

court agreed and immediately gave a curative instruction reminding the

jurors that the defendants had a right not to testify and that they had

no burden of proof.13 In addition, the court gave similar instructions

during its final charge to the jury.14

We agree that the prosecutor’s remark amounted to an impermissible

comment on the defendants’ decision not to testify. “Even an indirect

or inferential comment on a defendant’s silence can transgress the

Fifth Amendment.” United States v. Taylor, 54 F.3d 967, 978 (1st Cir.

13 [THE COURT] “Members of the jury, although I will be instructing
you in a minute about a number of items, including the item that I’m
going to talk about now, I just want to advance an instruction, if you
will, which perhaps I should do to avoid any misinterpretation of what
I will say later, which is the fact that the defendants have no burden
to produce any evidence or to testify. They are presumed innocent, and
because of that reason, the law says that they have no burden to
testify or to produce evidence.
So with that in mind, I will ask [the Government] to continue .
. . .” (Trial Tr., May 15, 1998, at 77.)
14[THE COURT] “Remember that the defendants have the right not to
testify or to call any witness. Each defendant has the right to remain
silent, and no adverse inference or suggestion of guilt could be drawn
if their evidence -- from their silence -- I’m sorry -- or from their
choice of witnesses.” (Trial Tr., May 15, 1998, at 92.)
“The presumption of innocence until proven guilty means that the
burden of proof is always on the Government to satisfy you that a
defendant is guilty of the crime with which he is charged beyond a
reasonable doubt. . . .
This burden never shifts to the defendant. It is always the
government’s burden to prove each of the elements of the crime or
crimes charged beyond a reasonable doubt by the evidence and the
reasonable inferences to be drawn from the evidence.” Id. at 96.

-30-
1995). To determine whether there was error requiring reversal of the

verdict, however, we must also assess “(1) whether the prosecutor’s

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

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

prejudice surviving the court’s instruction likely could have affected

the outcome of the case.” United States v. Palmer, 203 F.3d 55, 58 (1st

Cir. 2000)(quoting United States v. Auch, 187 F.3d 125, 129 (1st Cir.

1999)).

As to the first question, we think the prosecutor’s comment so

obviously pointed out that Rodríguez had not produced evidence

contradicting the government’s case that it had to have been

deliberate. It was not just a slip of the tongue.

Nevertheless, the district court promptly gave an instruction that

told the jury not to consider the inference suggested by the

prosecutor. The court repeated the caution in its final instructions.

The defendants can get no support from United States v. Hardy, 37 F.3d

753, 757 (1st Cir. 1994), which they cite. The district court’s

response in this case was direct and complete, unlike the elliptical

instruction we disapproved of in Hardy.

The prosecutor’s remark was brief, and the court’s response was

immediate and clear. In the circumstances, we are confident the remark

did not deprive the defendants of a fair trial.

Witness Vouching

-31-
 The defendants also argue that the prosecutor improperly vouched

for Vega’s credibility in his closing argument in three ways by: (1)

suggesting that Vega needed to move his family from Puerto Rico to keep

them safe from possible reprisals for his testimony;15 (2) arguing that

in a prior case, where Vega had been a cooperating witness, the trial

judge had given Vega a sentence that was more lenient than what the

Government had recommended;16 and (3) arguing that Vega was “a free

man,” who, if lying about the guilt of the co-conspirators could “go to

jail for a long, long, long time.”17 (Trial Tr., May 15, 1998, at 78-

15[THE GOVERNMENT] “If you would believe that Francisco Vega Estrada
would come to testify so that he would be forced to move his family
from the house that he --
[COUNSEL FOR RODRIGUEZ] Objection, Your Honor.
[THE COURT] Overruled.
[THE GOVERNMENT]--that he had lived in for over 20 years just so
that he could come here and tell lies about these defendants, I submit
is absolutely not believable.” (Trial Tr., May 15, 1998, at 78.)
16[THE GOVERNMENT] “[I]n 1995, Francisco Vega testifies against
Pocholo, and then on May 17th of 1996 he is punished. He is sentenced
to ten months; five months in jail and five months in home confinement.
He told you the Government told the judge he should go to jail for
longer. The Government recommended a longer sentence than ten months,
but it was the judge who looked at Mr. Francisco Vega, looked at the
fact that he had testified, looked at the risks he had placed himself
and his family under.
[COUNSEL FOR RODRIGUEZ] Objection. Objection.
[THE COURT] Overruled.” (Trial Tr., May 15, 1998, at 79.)
17
[THE GOVERNMENT] “Why would a person who has already come out of
jail -- he’s in his house, he’s free. He’s paid his debt to society,
the punishment imposed by the judge. . . . What possible motive would
[Francisco Vega] have?
. . . .

[H]e doesn’t have to provide any information to the Government

-32-
82.)

It is improper for a prosecutor to make an argument that “places

the ’prestige of the government behind a witness by making

about these people. He’s a free man. He’s a free man.
So by pointing the fingers at these gentlemen (indicating), he does
several things. One, if the Government believes that he’s lying about
that, he can go to jail for a long, long, long time. Two, he’s making
enemies out of the friends that he once had. And if you believe his
testimony, they’re drug traffickers. And making enemies of drug
traffickers is not something that people go around --
[COUNSEL FOR SANTANA] Objection, Your Honor.
[COUNSEL FOR RODRIGUEZ] Objection.
[THE COURT] Overruled.” (Trial Tr., May 15, 1998, at 81-82.)

-33-
personal assurances about the witness’ credibility.’” United States v.

Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir. 1996) (quoting United States v.

Neal, 36 F.3d 1190, 1207 (1st Cir. 1994)). However, an argument that

does no more than assert reasons why a witness ought to be accepted as

truthful by the jury is not improper witness vouching. See Cruz-

Kuilan, 75 F.3d at 62 (citing United States v. Dockray, 943 F.2d 152,

156 (1st Cir. 1991)). While it can sometimes be difficult to tell the

difference between a proper argument about the witness’ credibility and

improper witness vouching, see United States v. Wihbey, 75 F.3d 761,

772 (1st Cir. 1996) (citing United States v. Innamorati, 996 F.2d 456,

483 (1st Cir. 1993)), in this case the first two objectionable

arguments made by the government are clearly proper arguments. These

arguments were responses to the defendants’ claims that Vega was paid

for his testimony and that Vega manipulated prosecutors so that he

could continue his illegal activities.

The third portion of the argument, that Vega would be sentenced

to jail if he were lying, presents a closer case, but we think it was

a proper response to defense arguments that Vega tailored his testimony

to please the prosecutors. The jury had in evidence the agreements

Vega made with the government, and those agreements did provide that he

could be punished if he testified falsely. The argument properly

addressed that point, and did so in response to specific defense

arguments.

-34-
 E. Santana’s Sentence

Santana argues that the district court erred in determining his

offense level under the United States Sentencing Guidelines because it

applied a two-level enhancement under USSG § 2D1.1(b)(2)(B) (Nov.

1998), which requires such an enhancement if “the defendant [has]

acted as a . . . captain . . . aboard any craft or vessel carrying a

controlled substance.” Santana argues that the enhancement would only

have been appropriate if he had actually carried out the act of

transporting drugs, but is not appropriate for mere conspiracy and

attempt.

The argument is frivolous. The offense level for the crimes of

conspiracy and attempt is “[t]he base offense level from the guideline

for the substantive offense, plus any adjustments from such guideline

for any intended offense conduct that can be established with

reasonable certainty.” USSG § 2X1.1(a) (Nov. 1998) (emphasis added).

The adjustment in § 2D1.1(b)(2)(B) plainly is to be applied to

convictions for conspiracy and attempt, so long as the necessary

factual predicate for the enhancement exists. Santana does not argue

that the district court could not fairly have concluded that he was the

captain of a boat intended to be used to carry marijuana. His argument

is simply that the substantive crime was not committed. It simply does

not matter whether he actually carried the controlled substance; his

conspiring and his attempt to do so warrant the application of the

-35-
enhancement.

At oral argument, Santana argued that there was insufficient basis

for the district court to determine, for sentencing guideline purposes,

what quantity of marijuana should be attributed to him. He did not

raise this objection below, and omitted it from his brief. We consider

it waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (“It is not enough merely to mention a possible argument in the

most skeletal way, leaving the court to do counsel's work . . . .”);

see also United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.

1991) (“perfunctory and undeveloped arguments . . . are waived.”)

(collecting cases).18

III.

Having considered all the defendants’ arguments, we find no error.

The judgments entered by the district court are AFFIRMED.

18Santana’s other argument that the cooperating witness’ testimony
violated 18 U.S.C. § 201(c)(2) was considered and rejected in United
States v. Lara, 181 F.3d 183, 197-98 (1st Cir.), cert. denied, 120 S.
Ct. 432 (1999).

-36-