United States v. Rivera-Melendez

United States Court of Appeals
For the First Circuit
____________________

No. 98-1808

UNITED STATES,
Appellee,

v.

RAFAEL COLLAZO-APONTE,
a/k/a RAFI, a/k/a RAFAELITO,
Defendant, Appellant.

____________________

No. 98-1933

UNITED STATES,
Appellee,

v.

HERIBERTO ORTIZ-SANTIAGO,
Defendant, Appellant.

____________________

No. 98-1934

UNITED STATES,
Appellee,

v.

ANDRES COLON-MIRANDA,
Defendant, Appellant.

____________________

No. 98-1935

UNITED STATES,
Appellee,
 v.

EDWIN ORTIZ-FIGUEROA,
Defendant, Appellant.

____________________

No. 98-1936

UNITED STATES,
Appellee,

v.

DAVID SAMUEL MARTINEZ-VELEZ,
Defendant, Appellant.

____________________

No. 98-1937

UNITED STATES,
Appellee,

v.

JORGE MERCED-MORALES,
Defendant, Appellant.

____________________

No. 98-1938

UNITED STATES,
Appellee,

v.

RAMON A. RIOS-RIOS,
Defendant, Appellant.

____________________

No. 98-2116

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 UNITED STATES,
Appellee,

v.

EDWIN ROSARIO-RODRIGUEZ,
Defendant, Appellant.

____________________

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 APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

____________________

Before

Torruella, Chief Judge,

Wallace,* Senior Circuit Judge,

and O'Toole, Jr.,** District Judge.

_____________________

Rafael F. Castro-Lang, by appointment of the Court, for appellant
Rafael Collazo-Aponte.
Kevin G. Little, by appointment of the Court, for appellant
Heriberto Ortiz-Santiago.
Johnny Rivera-González, by appointment of the Court, for appellant
Andrés Colón-Miranda.
Jorge L. Arroyo-Alejandro, by appointment of the Court, for
appellant Edwin Ortiz-Figueroa.
Víctor P. Miranda-Corrada, by appointment of the Court, for
appellant David S. Martínez-Vélez.
Ludwig Ortiz-Belaval for appellant Jorge Merced-Morales.
Linda Backiel for appellant Ramón A. Ríos-Ríos.
Rafael Anglada-López, by appointment of the Court, for appellant
Edwin Rosario-Rodríguez.
Lena Watkins, Deputy Associate Chief, Litigation, Narcotic and
Dangerous Drug Section, with whom Catherine Wingfield, and Grace Chung
Becker, Trial Attorneys, Narcotic and Dangerous Drug Section, Criminal
Division, U.S. Department of Justice, were on brief, for appellee.

____________________

June 27, 2000

* Of the Ninth Circuit, sitting by designation.
** Of the District of Massachusetts, sitting by designation.

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____________________

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 TORRUELLA, Chief Judge. This appeal arises from a sixty-six

count criminal indictment charging the eight appellants -- Rafael

Collazo-Aponte, Heriberto Ortiz-Santiago, Andrés Colón-Miranda, Edwin

Ortiz-Figueroa, David S. Martínez-Vélez, Jorge Merced-Morales, Ramón A.

Ríos-Ríos, and Edwin Rosario-Rodríguez -- with numerous offenses

related to a decade-long, multi-drug-dealing conspiracy based in the

Virgilio Dávila public housing project in Bayamón, Puerto Rico. In

addition to the drug conspiracy charges, the indictment also charged

that between April 1993 and June 1994 over a dozen of the originally

named co-conspirators engaged in a war of revenge, triggered by the

February 23, 1993 murder of Richard Muñoz-Candelaria. This drug war

resulted in the murder of at least seven individuals. On February 16,

1998, a jury returned guilty verdicts as to all appellants on all

counts. This appeal followed.

After carefully examining the record and the law, we affirm

in part and reverse and remand in part.

PROCEDURAL HISTORY

On June 26, 1997, a grand jury empaneled in the United States

District Court for the District of Puerto Rico returned a third

superseding indictment in criminal case number 95-029(JAF). Count 1

charged appellants with conspiracy to possess with intent to distribute

cocaine base, cocaine, and heroin. See 21 U.S.C. §§ 841, 846. Count

65 charged appellants with using and carrying a firearm during and in

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relation to a drug conspiracy. See 18 U.S.C. § 924(c). Count 51

charged appellants Colón-Miranda, Ortiz-Santiago, Ortiz-Figueroa, and

Martínez-Vélez with conspiring to kill while engaged in a drug

conspiracy. See 21 U.S.C. §§ 846, 848(e)(1)(A). Additional counts

charged appellants Rosario-Rodríguez (Count 52), Colón-Miranda (Counts

53-59 and 62), Ortiz-Santiago (Count 53), Ortiz-Figueroa (Count 53),

and Martínez-Vélez (Counts 57 and 58) with intentionally killing or

attempting to kill while engaged in a drug conspiracy. See 18 U.S.C.

§ 2; 21 U.S.C. §§ 846, 848(e)(1)(A). These charges also alleged

liability pursuant to Pinkerton v. United States, 328 U.S. 640 (1946).

Finally, Counts 60-64 charged Colón-Miranda with attempting to kill and

then killing Rafael Cotto-Fuentes in order to prevent him from (1)

communicating with law enforcement officers and (2) testifying for the

prosecution. See 18 U.S.C. §§ 2, 1512(a)(1)(A), (C).

On November 5, 1997, the prosecution moved the district court

to empanel an anonymous jury. On November 13, 1997, the court

conducted a "Jury Orientation" without the parties or counsel being

present and excused several prospective jurors. The court then granted

the government's request for an anonymous jury over the objection of

Colón-Miranda. Prior to trial, the court also denied motions to sever

filed by appellants Ríos-Ríos and Collazo-Aponte.

Trial commenced on November 17, 1997. At that time, the

district court ruled that all rulings applied to all defendants and

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motions joining co-defendants' motions were unnecessary. The court

also denied a motion to reconsider its decision to empanel an anonymous

jury.

On February 16, 1998, the jury returned guilty verdicts as

to all appellants on all counts. The court sentenced Ortiz-Santiago,

Ortiz-Figueroa, and Martínez-Vélez to concurrent terms of life

imprisonment on multiple counts and a consecutive ten-year term on

Count 65; Colón-Miranda to concurrent terms of life imprisonment on

multiple counts, a concurrent twenty-year term on Count 66, and a

consecutive ten-year term on Count 65; Rosario-Rodríguez to concurrent

terms of life imprisonment on Count 1 and twenty years on Count 52, as

well as a consecutive ten-year term on Count 65; Collazo-Aponte, Ríos-

Ríos, and Merced-Morales to 151, 293, and 360 months imprisonment,

respectively, on Count 1 and, with respect to Collazo-Aponte and

Merced-Morales, a consecutive ten-year term on Count 65.

FACTUAL BACKGROUND

We review the facts in a criminal case in the light most

favorable to the verdict. See, e.g., United States v. Bartelho, 71

F.3d 436, 438 (1st Cir. 1995).

I. Overview

At trial, the prosecution offered evidence of a drug

distribution organization led by Israel Santiago-Lugo that began in the

Virgilio Dávila housing project in Bayamón, Puerto Rico, and later

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expanded to several drug distribution points in northern Puerto Rico.

The government's evidence included the testimony of five cooperating

witnesses: brothers Wilfredo and David Martínez- Matta, Billy Ramos-

Rodríguez, José Ibáñez-Maldonado, and Marcos Hidalgo-Meléndez. These

witnesses testified that in the mid-1980s Santiago-Lugo cultivated a

group of employees who processed and packaged cocaine and heroin at

apartments, known as "mesas," for delivery to various drug distribution

points. The evidence indicated that trusted operatives managed the

distribution points and lower level employees handled the street-level

distribution. On February 28, 1993, the Santiago-Lugo drug

organization splintered into rival factions when the Rosario-Rodríguez

brothers murdered Richard Muñoz-Candelaria. A series of retaliatory

murders ensued as Santiago-Lugo and those loyal to him engaged in

hunting expeditions ("cacerías") to kill the Rosarios.

II. Drug Packaging at the Mesas

At trial, the witnesses for the prosecution testified as to

their and the appellants' involvement in the Santiago-Lugo drug mesas.

Wilfredo Martínez-Matta stated that in 1986 and 1987 he worked at two

drug mesas located in hotels. At that time, he also packaged cocaine

at his mother's house. Ramos-Rodríguez and David Martínez-Matta

testified that they also packaged drugs at the Martínez-Matta house,

and David Martínez-Matta stated that Santiago-Lugo, Colón-Miranda, and

brothers Ortiz-Santiago and Ortiz-Figueroa participated.

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 Wilfredo Martínez-Matta and Ramos-Rodríguez testified that

in 1989 a condominium in Reina del Mar served as a mesa. Hidalgo-

Meléndez testified that Colón-Miranda, Ortiz-Santiago, and Ortiz-

Figueroa packaged drugs there in the early 1990s. Wilfredo Martínez-

Matta stated that he packaged cocaine there once in 1989, and further

stated that Ortiz-Santiago, a drug user, "tested" drug quality at this

location. Ramos-Rodríguez, who rented the Reina del Mar mesa for four

to five months, indicated that the drug organization packaged one-

eighth-kilogram quantities of cocaine at each session in the Reina del

Mar mesa and that he or Santiago-Lugo would transport the drugs to

Dávila for storage and distribution.

In the early 1990s, Wilfredo Martínez-Matta worked at two

mesas in the Costa del Mar condominium complex. At these locations, he

processed cocaine with Ramos-Rodríguez and heroin with Ríos-Ríos.

Wilfredo Martínez-Matta also stated that (1) the organization packaged

kilogram quantities of cocaine and one-eighth kilograms of heroin at

each session and (2) Ríos-Ríos once obtained one kilogram of cocaine

for Santiago-Lugo from a supplier. Ramos-Rodríguez recalled that the

organization used the Costa del Mar mesas from 1990 to 1991, that he

processed heroin and cocaine once or twice a week for four or five

months there, and that he was paid $150 for each one-eighth kilogram of

cocaine packaged. He added that Ortiz-Santiago delivered drugs to the

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mesa, occasionally with Santiago-Lugo. Ortiz-Santiago also processed

drugs and tested their purity.

Wilfredo Martínez-Matta, David Martínez-Matta, and Ramos-

Rodríguez also testified that Ríos-Ríos rented a mesa at the Los Pinos

condominium complex in Isla Verde. All three witnesses, in addition to

Colón-Miranda, Ortiz-Santiago, Ortiz-Figueroa, and Ríos-Ríos, processed

heroin there. According to the testimony presented at trial, the

organization processed quarter-kilogram quantities of heroin and

kilogram quantities of cocaine there on a weekly basis. Hidalgo-

Meléndez also recalled packaging drugs at Los Pinos and once saw Ríos-

Ríos deliver cocaine there. Further, the rental agreements for the Los

Pinos mesa indicated that Ríos-Ríos rented the apartment and listed

Santiago-Lugo as his employer and reference. Defense witness Marta

Arrondo-Díaz, who owned the Los Pinos apartment, stated that she rented

the apartment to Ríos-Ríos and Santiago-Lugo for a one year term in

March 1991.

The trial testimony identified three additional mesas: an

apartment in Condado where Wilfredo Martínez-Matta worked with Ortiz-

Santiago, a condominium in the Villa del Mar complex in Isla Verde, and

a Coral Beach condominium rented by Colón-Miranda. Wilfredo Martínez-

Matta recalled seeing Santiago-Lugo, Colón-Miranda, Ramos-Rodríguez and

others packaging heroin in bags marked with the name "cristal" at the

Coral Beach condominium. Ramos-Rodríguez testified that Santiago-Lugo

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moved operations to the Coral Beach condominium in 1991. There,

Santiago-Lugo, Colón-Miranda, Ortiz-Santiago, and others packaged two

or three ounces of heroin two or three times each week.

III. Drug Distribution Points

Wilfredo Martínez-Matta testified that by the time the drug

operation was located at the Coral Beach mesa in 1991, the organization

had drug points in Manatí, Vega Baja, Arecibo, Campo Alegre, and Sabana

Seca. Wilfredo Martínez-Matta worked at the Vega Baja drug point where

he sold fifty packages of heroin every ten days; each package, obtained

for $75 and sold for $100, contained ten "decks" of heroin. Colón-

Miranda and Richard Muñoz-Candelaria occasionally supervised the Vega

Baja drug point. Later, Wilfredo Martínez-Matta supervised a drug

point in Manatí where he sold approximately one hundred packages of

heroin every three days and also sold marijuana and vials of crack.

David Martínez-Matta supervised one of the Arecibo drug

points where he sold heroin, cocaine, crack, and marijuana from 1991 to

1995. He testified that Colón-Miranda would deliver the drugs for

distribution. He also stated that on two occasions he saw Colón-

Miranda make deliveries to Luis Rosario-Rodríguez.

In 1990, José Ibáñez-Maldonado began to accompany Colón-

Miranda on drug deliveries to the drug distribution points; later,

Ibáñez-Maldonado also assisted with packaging drugs at Colón-Miranda's

Dorado home and at a mesa in the King's Court condominium.

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 After the Santiago-Lugo/Rosario-Rodríguez conflict erupted

in February 1993, the exchange of drugs and money moved from an

apartment in the Dávila housing project to Merced-Morales' bar,

"Chompa," in Monacillos. Both Wilfredo and David Martínez-Matta

testified that on numerous occasions they delivered money there and

obtained drugs from Merced-Morales and Collazo-Aponte, including

kilogram quantities of crack.

IV. The Rosario-Rodríguez Brothers

The Rosario-Rodríguez brothers, Richard, Edwin, and Luis,

controlled a drug distribution point at the Dávila housing project

outside of Building 17. By mid-1991, the brothers were selling

Santiago-Lugo's heroin. In August 1991, Santiago-Lugo granted the

Rosario brothers exclusive distribution rights for his cocaine at

Dávila.

Ramos-Rodríguez testified that Edwin Rosario-Rodríguez

controlled the crack cocaine distribution at Dávila and was responsible

for getting heroin to the street dealers. He further stated that

during this time he saw Edwin Rosario-Rodríguez in possession of a

firearm at Dávila. Similarly, Hidalgo-Meléndez testified that Edwin

Rosario-Rodríguez went to Rosa Morales-Santiago's apartment to pick up

drugs, and identified numerous drug transactions in the drug ledgers

under Edwin's nickname "Indio."

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 By 1992, however, Edwin Rosario-Rodríguez' ability to run the

drug point was in question, and Santiago-Lugo removed him from his

position as a "point owner." Nevertheless, the Rosarios were still

allowed to sell packages of heroin and cocaine. Hidalgo-Meléndez

testified that the agreement between Santiago-Lugo and the Rosario

brothers continued until February 28, 1993, when the Rosario brothers

murdered Richard Muñoz-Candelaria.

The prosecution also offered evidence of the following

incident involving Edwin Rosario-Rodríguez. On July 3, 1992, a police

officer witnessed Edwin Rosario-Rodríguez holding a Calico pistol in

the Dávila housing project. The officer followed him into Building 17.

Edwin Rosario-Rodríguez discarded the weapon by the entrance, and the

officer seized it. In the stairway, the officer also seized a white

bag that had been carried by a second individual that contained

transparent plastic vials commonly used to package crack cocaine. The

bag field-tested positive for cocaine. Edwin Rosario-Rodríguez ran

into an apartment with a metal door (the other apartments on the floor

had wooden doors), and the officer heard the toilet flushing. The

officer entered the apartment by using a balcony and later seized over

$1,000 in cash.

V. Drug Ledgers

Both Wilfredo and David Martínez-Matta testified about drug

transactions at the Dávila apartment of Rosa Morales-Santiago. In his

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testimony, Wilfredo Martínez-Matta stated that Morales-Santiago would

count the heroin proceeds and record them in a notebook. Similarly,

Hidalgo-Meléndez testified that Morales-Santiago recorded drug

transactions in a black school notebook and, later, a brown notebook.

After examining two notebooks seized from Morales-Santiago's Dávila

apartment in 1991, Hidalgo-Meléndez stated that units marked "c" in the

notebooks represented "cristal" and that each package contained ten

bags of heroin. An expert witness testified that the notebooks were

consistent with those kept by an illicit drug organization. He opined

that the "product" was calculated in units and that the "c" units sold

for $75. He noted that together the notebooks reflected sales of at

least $3.5 million during one year.

VI. The Murder of Richard Muñoz-Candelaria

At trial, witnesses for the prosecution offered the following

account of the February 28, 1993 murder of Richard Muñoz-Candelaria.

Wilfredo Martínez-Matta testified that he, Muñoz-Candelaria, and an

individual named Jerry were at the Rosario drug point in Dávila the day

Muñoz-Candelaria was killed. Santiago-Lugo had sent Muñoz-Candelaria

to inform "Liquio" (Luis Rosario-Rodríguez) that he wanted his heroin

and his money back. Liquio was "upset" and told Muñoz-Candelaria to

"forget about it." Edwin Rosario-Rodríguez was there, holding an

automatic pistol. Colón-Miranda and a co-conspirator identified as "El

Gato" arrived, and Colón-Miranda sent Wilfredo Martínez-Matta to

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deliver some money to Santiago-Lugo. When Wilfredo arrived at

Santiago-Lugo's house, Santiago-Lugo answered a ringing telephone. He

heard gun shots over the telephone, and he ordered Wilfredo to return

to the Rosario drug point. Santiago-Lugo then paged Wilfredo and

directed him to pick up Colón-Miranda at a bus stop. When he arrived,

Colón-Miranda told him that Liquio killed Muñoz-Candelaria.

Ramos-Rodríguez testified that he was in Dávila on the

afternoon of the murder. He stated that he had declined to join Colón-

Miranda and Muñoz-Candelaria when they went to talk to Liquio, going

instead to his mother-in-law's apartment. There, he heard a gunshot,

and then a few seconds later, he heard two different series of shots.

He ran out onto a balcony, saw people running away, and heard some

people shout, "Liquio killed him" and "whoever talks, I'll kill them."

Later that day, Colón-Miranda told David Martínez-Matta that

El Gato and Muñoz-Candelaria were talking to Liquio. Muñoz-Candelaria

attempted to hand Liquio his phone when Liquio started to shoot him.

Colón-Miranda and El Gato did not have time to draw their weapons, so

they ran away. At that time, "Indio" (Edwin Rosario-Rodríguez) came

over to where Muñoz lay, and both Edwin and Luis Rosario-Rodríguez shot

Muñoz-Candelaria again.

Officer Sánchez-Ramos testified that he found the victim

lying on top of a cellular telephone that was still turned on. The

autopsy report showed that Muñoz-Candelaria was shot twenty-nine times.

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Blood and urine tests indicated the presence of alcohol, and urine and

nasal swab tests were positive for cocaine and a cocaine metabolite.

A forensics expert testified that the victim had been shot with two

types of bullets, indicating that two guns were used in the murder.

After the murder, Colón-Miranda and Wilfredo Martínez-Matta

attended the first of several meetings to discuss "going to war" over

the Dávila drug point. At these meetings, members of the Santiago-Lugo

organization discussed and planned cacerías to kill the Rosarios. At

a second meeting in Isla Verde, Santiago-Lugo and Colón-Miranda

prepared weapons for the cacerías.

VII. The Hunting Expeditions ("Cacerías")

A. The Murder of Reynaldo Pacheco-Aponte

At a subsequent meeting held in an apartment in Dorado, the

Martínez-Matta brothers, Hidalgo-Meléndez, El Gato, Santiago-Lugo, and

Colón-Miranda planned how they would enter Dávila and kill the

Rosarios. During the meeting, Colón-Miranda telephoned Ortiz-Santiago,

and it was agreed that Ortiz-Santiago and Ortiz-Figueroa would keep

Colón-Miranda informed as to the Rosarios' precise location within

Dávila.

On April 19, 1993, the group drove to Dávila after receiving

a call from Ortiz-Santiago. Colón-Miranda and El Gato, armed with AR-

15 rifles, entered the housing project through the back door of a

business while the others drove into the complex. When they all

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returned to their cars, and at a later meeting, Colón-Miranda talked

about how he killed "El Pacheco." At the scene of the crime, law

enforcement officers recovered 100 casings fired from AR-15 rifles.

A distressed resident informed an officer at the scene that

"they ran off through Paradero 23" and "they had masks." He also said

that one of those who ran off was injured and wearing white pants and

a mask. The officer located Ortiz-Santiago and Ortiz-Figueroa walking

together on a side street near the Paradero and arrested and searched

them. Ortiz-Figueroa had a bag containing firearms and ammunition, a

rock of heroin or cocaine, a cellular telephone, a glove, two masks,

and a firearm on his person. The officer saw blood on one of the masks

and on the clothes of Ortiz-Figueroa who appeared to have a hand

injury.

Wilfredo Martínez-Matta was not at the cacería; instead, he

was obtaining three pounds of marijuana from Merced-Morales' business.

Some of those involved, however, later met at his house. There, Colón-

Miranda admitted to participating in the hunt and El Gato admitted

killing Pacheco-Aponte. At yet another meeting, the co-conspirators

discussed David Martínez-Matta shooting haphazardly during the cacería

and that, as a result, "Erick [Ortiz-Santiago] could not come out."

Hidalgo-Meléndez learned of the murder on the news. He was

informed of the details at a meeting with Colón-Miranda and the

Martínez-Matta brothers at the Las Villas apartments in Dorado.

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Hidalgo-Meléndez testified, "[El Gato] was just like bragging about the

way he had killed Pacheco and explaining, like, he sewed with bullets

the person of Pacheco . . . ." In addition, El Gato told Hidalgo-

Meléndez that "Erick [Ortiz-Santiago] and his brother [Ortiz-Figueroa]

had not been able to come downstairs from the building . . . because

one of the persons that had entered the project to kill the Rosario

brothers were shooting at them."

B. The Murders of Ricardo Rivera-Dide and Samuel Serrano-
Bermúdez

Wilfredo Martínez-Matta began the next cacería with Santiago-

Lugo by driving through the Bayamón area armed and looking for the

Rosarios. After Colón-Miranda joined them, they found and followed

Rivera-Dide and Serrano-Bermúdez, known associates of the Rosarios.

Wilfredo and Colón-Miranda shot and killed both men as they sat in a

car. Hidalgo-Meléndez testified that he later learned that Wilfredo

had killed "Sammy" and Colón-Miranda had killed Sammy's passenger.

C. The Murders of Wilfredo Rivera-Rodríguez and Wilfredo
Guzmán-Morales

A third cacería occurred around Easter in 1994. At that

time, Ibáñez-Maldonado, Colón-Miranda, and Martínez-Vélez met at the

King's Court mesa. There, they planned a cacería in search of the

Rosarios "because of the drug point war." They drove a stolen white

van to look for the Rosarios. While driving, they came across two

people on a motorcycle. They recognized someone they were looking for,

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and Colón-Miranda and someone else began shooting at the individuals on

the motorcycle. Ibáñez-Maldonado testified that he had a Taurus 9mm

firearm, Colón-Miranda had an AK-47 or an AR-15, and Martínez-Vélez had

an M-14 that jammed. There were three other Taurus pistols in the van.

After they shot the driver and the motorcycle crashed, Martínez-Vélez

and Raúl Ortiz-Miranda exited the van and killed the victims. When a

police scanner alerted them that the police were in pursuit, they fled

to a mountainous area, abandoned the van, and hid some of the weapons

under leaves. Ibáñez-Maldonado also testified that Martínez-Vélez had

darker skin than Ortiz-Miranda and that Ortiz-Miranda was wearing a

white cap.

A police officer was following the white van as it pursued

the motorcycle. After driving over the crest of a hill, the officer

saw the bikers on the ground being shot by a tall, dark person and a

tall, white person with a cap. A second officer responded to the

shooting incident and chased the white van, which he eventually found

near a hill. The police found several firearms near the van and a cap.

Officers also seized casings for AR-15 and 9mm firearms within the van.

VIII. The Murder of Rafael Cotto-Fuentes

In 1994, Cotto-Fuentes was arrested for the murder of José

Cruz-Rodríguez. He agreed to cooperate with authorities and was

released on bond. At a meeting with Officer Rodríguez in late April or

early May 1994, Cotto-Fuentes described the Santiago-Lugo drug

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organization. His testimony linked Colón-Miranda to the organization's

activities, including the Cruz-Rodríguez murder. Based on the

information it received from Cotto-Fuentes, the Puerto Rico U.S.

Attorney's Office initiated an investigation. Cotto-Fuentes

subsequently reported that Colón-Miranda, among others, had tried to

kill him on May 20. Based on Cotto-Fuentes' account of the attempted

murder, a judge issued warrants for the arrest of Ortiz-Miranda, Colón-

Miranda, and a co-conspirator. While Ortiz-Miranda was in custody, he

and Colón-Miranda reviewed the complaint, and an officer heard Ortiz-

Miranda comment that Cotto-Fuentes was a "snitch."

Cotto-Fuentes was murdered in June 1994. On July 27, 1994,

Colón-Miranda was arrested. A forensics expert testified that the 9mm

Taurus firearm seized from Colón-Miranda's vehicle at the time of his

arrest had an obliterated serial number; its barrel had been hollowed

out to prevent identifying marking from forming on the bullet; and its

firing pin had been filed down to disguise markings. However, the gun

still produced identifying marks on the casing from the breach face,

which is located at the rear of the gun, and these marks matched the

twenty-four shell casings recovered from the murder scene.

IX. The Arrests of Martínez-Vélez, Collazo-Aponte, and Merced-
Morales

On November 22, 1993, police officers stopped a stolen

vehicle. The passengers fled, but the police arrested the driver,

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Martínez-Vélez, and seized a loaded "submachine gun," two portable

radios, and approximately $1,300 in currency.

On September 29, 1994, a police officer observed Collazo-

Aponte standing beside a car. The officer announced himself, and

Collazo-Aponte threw a bag containing more than 1,000 decks of heroin

into the car. He later stated that the car was his.

At the time Merced-Morales was arrested, law enforcement

officers seized a scale, small ziplock bags, and additional drug

paraphernalia from his residence as well as a list of high-powered

firearms from his vehicle.

DISCUSSION

This case involves eight appellants, each raising a plethora

of arguments. Not surprisingly, several arguments are raised by more

than one appellant. Accordingly, in the interest of clarity, we have

organized this opinion by issue and not by individual appellant. We

begin with the arguments concerning pretrial motions and then proceed

in a rough chronology through sentencing.

I. Severance of the Cases of Ríos-Ríos, Collazo-Aponte, and
Merced-Morales

Severance motions made pursuant to Federal Rule of Criminal

Procedure 14 are addressed to the sound discretion of the trial judge.

This Court will interfere with the exercise of that discretion "only

upon a demonstration of manifest abuse." United States v. Boylan, 898

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F.2d 230, 246 (1st Cir. 1990); see also United States v. Cresta, 825

F.2d 538, 554 (1st Cir. 1987); Talavera v. Peña, 668 F.2d 625, 630 (1st

Cir. 1982). Accordingly, in order to prevail, appellants must "make a

strong showing of prejudice." Boylan, 898 F.2d at 246 (quoting United

States v. Porter, 764 F.2d 1, 12 (1st Cir. 1985)). In this context,

"prejudice means more than just a better chance of acquittal at a

separate trial." United States v. Martínez, 479 F.2d 824, 828 (1st

Cir. 1973). As we have previously stated:

This is a difficult battle for a defendant to
win. There is always some prejudice in any trial
where more than one offense or offender are tried
together -- but such "garden variety" prejudice,
in and of itself, will not suffice. Even where
large amounts of testimony are irrelevant to one
defendant, or where one defendant's involvement
in an overall agreement is far less than the
involvement of others, we have been reluctant to
secondguess severance denials.

Boylan, 898 F.2d at 246 (citations omitted); see also Cresta, 825 F.2d

at 554-55 ("[T]he fact that the defendant plays a minor role and that

a substantial portion of the evidence is not directly related to the

defendant, does not make it ' automatically unlawful to try him with

more important figures.'" (quoting United States v. Mahomud Rawwad, 807

F.2d 294, 295 (1st Cir. 1986)).

Here, Ríos-Ríos, Collazo-Aponte, and Merced-Morales contend

that they suffered prejudicial spillover from the murder evidence

presented in this case. We are well aware of the potential for

-23-
prejudice in a complicated conspiracy trial involving several

defendants. See, e.g., United States v. Smolar, 557 F.2d 13, 21 (1st

Cir. 1977); Gorin v. United States, 313 F.2d 641, 646 (1st Cir. 1963).

Nonetheless, in this case we see "little beyond the type and degree of

prejudice customary in virtually all high-profile trials of multiple

defendants and charges." Boylan, 898 F.2d at 246. Here, as in Boylan,

"[t]here is nothing to suggest that the number of defendants and

charges was so large that the jury could not distinguish among them."

Id.; see also United States v. Luna, 585 F.2d 1, 5 (1st Cir. 1978).

Furthermore, the trial court gave appropriate limiting instructions as

to the admissibility of evidence against particular defendants and as

to the need to determine guilt on an individual basis. See United

States v. Figueroa, 976 F.2d 1446, 1452 (1st Cir. 1992) ("[E]ven

assuming some evidentiary spillover, any prejudice was minimized by the

limiting instructions given before and after the closing arguments.");

see also Boylan, 898 F.2d at 246; Smolar, 557 F.2d at 21.1 Under these

circumstances, we hold that appellants have failed to "make a strong

showing of prejudice." Boylan, 898 F.2d at 246 (quoting Porter, 764

1 At the outset of trial, the judge instructed the jury to separately
consider "each charge and the evidence pertaining to it" and to "give
separate and personal consideration to the case of each individual
defendant." At the close of evidence, the judge reiterated these
instructions and added, "your verdict on any counts to any defendant
should not control your verdict on any other count or as to any other
defendant."

-24-
F.2d at 12). Accordingly, the district court did not abuse its

discretion in denying appellants' Rule 14 motion.

II. The District Court's Jury Screening Procedure

On September 3, 1997, the trial judge stated that he intended

to screen the jury outside the presence of the parties and counsel, as

he did in the related case United States v. Candelaria-Silva, 166 F.3d

19, 31 (1st Cir. 1999). There, the prospective jurors completed

questionnaires and the judge excused those who lacked English

proficiency, suffered from medical problems, or had previously

scheduled travel plans. See id. at 29-31. On November 13, 1997, the

judge screened the jury panel assigned to this case. Between September

3 and November 13, appellants did not object or request reconsideration

of the court's intention to screen the jury. However, on November 17,

Rosario-Rodríguez and Ortiz-Figueroa did object and moved to quash the

panel. The district court denied the motion.

In Candelaria-Silva, we stated, "[i]f a judge does no more

than what a jury clerk is authorized to do in excusing jurors, that may

raise an issue of allocation of court resources but does not raise an

issue of impropriety." Id. at 31. Here, several appellants argue that

the jury screening procedure violated their Fifth and Sixth Amendment

rights, but they fail to provide the Court with any relevant citations

to the record. In fact, appellants do not even allege that the

district court improperly dismissed jurors. Accordingly, we hold that

-25-
Candelaria-Silva controls, and therefore appellants' argument is

without merit. See id.

-26-
III. The District Court's Decision to Empanel an Anonymous Jury2

Ríos-Ríos alleges that the decision to empanel an anonymous

jury constituted an abuse of discretion. We disagree. A district

court may empanel an anonymous jury when "the interests of justice so

require." 28 U.S.C. § 1863(b)(7). In this Circuit, we have held that

an anonymous jury is "a permissible precaution where (1) there are

strong grounds for concluding that it is necessary to enable the jury

to perform its factfinding function, or to ensure juror protection; and

(2) reasonable safeguards are adopted by the trial court to minimize

any risk of infringement upon the fundamental rights of the accused."

United States v. DeLuca, 137 F.3d 24, 31 (1st Cir. 1997). Our review

of this decision is not limited to "the evidence available at the time

the anonymous empanelment occurred," but may include "all relevant

evidence introduced at trial." Id.

2 Martínez-Vélez argues that the district court failed to make
individualized findings regarding the need for an anonymous jury, the
jury may not have been anonymous to the government, and the combination
of anonymity and the mid-trial dismissal of Juror 23 negated the
presumption of innocence. As the government correctly points out,
Martínez-Vélez did not raise these arguments before the district court.
Accordingly, these arguments have been waived. See United States v.
Slade, 980 F.2d 27, 31 (1st Cir. 1992) ("[A] party is not at liberty to
articulate specific arguments for the first time on appeal simply
because the general issue was before the district court."); see also
United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir. 1987) ("[A]n
issue not presented to the trial court cannot be raised for the first
time on appeal."); United States v. Argentine, 814 F.2d 783, 791 (1st
Cir. 1987) (same); Nogueira v. United States, 683 F.2d 576, 580 (1st
Cir. 1982) (same).

-27-
 Here, the indictment charged several defendants with murder,

all defendants with membership in a violent, sprawling drug conspiracy,

and one defendant with intimidation and murder of a cooperating

government witness. Under these circumstances, we hold that the record

"affords sufficient foundation for empaneling an anonymous jury both as

a prudent safety precaution and a means of ensuring unfettered

performance of the factfinding function." Id.; see also United States

v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998).

Furthermore, the trial judge took adequate precautions to

protect the defendants' rights. As he had done in the related case of

Marrero-Ortiz, the trial judge "did not mention any threat to juror

safety, but, rather, informed the jurors that they would remain

anonymous during the trial because of publicity concerns. He then

instructed the jury on the presumption of innocence, and periodically

repeated that instruction as the trial progressed." Marrero-Ortiz, 160

F.3d at 776. Under these circumstances, the trial judge did not exceed

the scope of his discretion when he empaneled an anonymous jury in this

case.

IV. Restriction on Sidebar Participation During Voir Dire

During voir dire, the trial judge restricted participation

by defense counsel in sidebar conferences to "two of you at the most."

Although counsel for Ortiz-Figueroa suggested that all attorneys

participate by using headphones, trial counsel for appellants did not

-28-
object to the limitation. Ríos-Ríos now argues that the restrictions

on sidebar participation during voir dire violated his right to be

present at every critical stage of the trial. See Fed. R. Crim. P.

43(a). We disagree.

This argument is controlled by United States v. Gagnon, 470

U.S. 522, 527 (1985). There, the Supreme Court held:

The mere occurrence of an ex parte conversation
between a trial judge and a juror does not
constitute a deprivation of any constitutional
right. The defense has no constitutional right
to be present at every interaction between a
judge and a juror, nor is there a constitutional
right to have a court reporter transcribe every
such communication.

Id. at 526 (quoting Rushen v. Spain, 464 U.S. 114, 125-26 (1983)

(Stevens, J., concurring)). In addition, the Court stated:

If a defendant is entitled under Rule 43 to
attend certain "stages of the trial" which do not
take place in open court, the defendant or his
counsel must assert that right at the time; they
may not claim it for the first time on appeal
from a sentence entered on a jury's verdict of
"guilty."
.
Id. at 529.

In this case, Ríos-Ríos was restricted from full

participation in a limited number of sidebar conferences that occurred

during voir dire; in all other aspects, appellant was present at, and

fully participated in, his trial. In addition, trial counsel did not

object to the restriction, and counsel subsequently exercised cause and

-29-
peremptory challenges without objecting that there was not enough

information to make those decisions. On these facts, we see no Rule 43

violation.

-30-
V. The Defense's Request to Use the Government's Witness List
During Voir Dire

Ríos-Ríos alleges that the trial court abused its discretion

in refusing the defense's request for disclosure of the prosecution's

witnesses during voir dire. This argument is meritless. In this

Circuit, the law is settled: "[T]here is no constitutional or statutory

requirement that the identity of prosecution witnesses be disclosed

before trial." United States v. Bello-Pérez, 977 F.2d 664, 670 (1st

Cir. 1992); see also United States v. Reis, 788 F.2d 54, 58 (1st Cir.

1986); United States v. Barrett, 766 F.2d 609, 617 (1st Cir. 1985).

VI. Juror 58's Previous Service in an Unrelated Trial

Ríos-Ríos also argues that Juror 58's previous service in an

unrelated trial involving government witness Ibáñez-Maldonado resulted

in bias. We see no merit in this argument. During Ibáñez-Maldonado's

testimony, Juror 58 informed the trial judge of his service in a

previous trial that ended in an acquittal of Ibáñez-Maldonado. The

judge then conducted voir dire outside the presence of the jury. Juror

58 stated that he could serve impartially in this case and, although he

had mentioned his prior service to his fellow jurors, he had not

discussed the details of the case. Upon further inquiry, the court

determined that the prior case involved a drug charge unrelated to the

Santiago-Lugo organization. Exercising an abundance of caution, the

trial judge queried the defense; defense counsel informed the court

-31-
that they did not want Juror 58 dismissed. The judge recalled the

jurors and instructed them that Juror 58 had served in a previous case

in which Ibáñez-Maldonado was accused, but that Juror 58 could

participate in the present case. The judge emphasized that Juror 58

should not discuss the previous case with the jurors and that Juror 58

had to disregard the previous case in considering the present one.

We conclude that the trial judge's careful voir dire of Juror

58 was sufficient to assess his impartiality and the potential taint of

the entire panel. Further, the judge carefully instructed the jury to

disregard the juror's prior service. As we have previously held, "the

trial judge is vested with the discretion to fashion an appropriate and

responsible procedure to determine whether misconduct actually occurred

and whether it was prejudicial." United States v. Ortiz-Arrigoitía,

996 F.2d 436, 443 (1st Cir. 1993); see also Boylan, 898 F.2d at 258.

Therefore, appellant's claim of bias fails.

VII. Statements Made by Co-Conspirator "El Gato" to
Hidalgo-Meléndez

Ortiz-Figueroa alleges that certain statements indicating his

participation in the April 19, 1993 cacería that resulted in the murder

of Pacheco-Aponte were inadmissible hearsay. The trial court admitted

the statements pursuant to Fed. R. Evid. 801(d)(2)(E). This Court

reviews that decision for plain error. See United States v. McCarthy,

961 F.2d 972, 977 (1st Cir. 1992).

-32-
 Hearsay statements are inadmissible as a matter of law. See

Fed. R. Evid. 801(c). However, pursuant to Rule 801(d)(2)(E), "a

statement by a coconspirator of a party during the course and in

furtherance of the conspiracy" is not hearsay. To invoke this

evidentiary exception, the movant "must show by a preponderance of the

evidence that a conspiracy embracing both the declarant and the

defendant existed, and that the declarant uttered the statement during

and in furtherance of the conspiracy." United States v. Sepúlveda, 15

F.3d 1161, 1180 (1st Cir. 1993); see also Bourjaily v. United States,

483 U.S. 171, 175-76 (1987). In other words, the trial court must

conclude that (1) "it is more likely than not that the declarant and

the defendant were members of a conspiracy when the hearsay statement

was made," and (2) that "the statement was in furtherance of the

conspiracy." United States v. McCarthy, 961 F.2d 972, 977 (1st Cir.

1992) (quoting United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.

1977)).

In this case, several of the co-conspirators met at the Las

Villas apartments in Dorado following the April 19, 1993 cacería. At

that meeting, El Gato made several incriminating statements. Hidalgo-

Meléndez testified that El Gato was "just like bragging about the way

he had killed Pacheco and explaining, like, he sewed with bullets the

person of Pacheco." El Gato also told Hidalgo-Meléndez that "Erick

[Ortiz-Santiago] and his brother [Ortiz-Figueroa] had not been able to

-33-
come downstairs from the building . . . because one of the persons that

had entered the project to kill the Rosario brothers were shooting at

them." The district court concluded that these statements were

admissible pursuant to Fed. R. Evid. 801(d)(2)(E). We agree.

First, the record contains ample evidence that (1) the

cacerías were conducted in furtherance of the drug conspiracy, and (2)

the declarant and Ortiz-Figueroa were members of that conspiracy when

the hearsay statements were made. Second, El Gato's information

confirmed for Hidalgo-Meléndez what had transpired within the

organization, who had participated in the cacería, and "the people that

[he ran] a risk with." As we have previously stated, "the reporting of

significant events by one coconspirator to another advances the

conspiracy." Sepúlveda, 15 F.3d at 1180. Accordingly, El Gato's

statements were properly admitted into evidence.

Alternatively, we hold that any error in admitting El Gato's

statements was harmless. Ortiz-Figueroa was arrested as he fled the

murder scene at Dávila. At the time of his arrest, police seized a

plethora of incriminating evidence, including a bag containing firearms

and ammunition, a rock of heroin or cocaine, a cellular telephone, a

glove, two masks, and a firearm he was carrying on his person.

Further, the record also contains co-conspirator and police testimony

indicating Ortiz-Figueroa's participation in the cacería. Accordingly,

-34-
we conclude that the outcome of the trial would have been the same

regardless of whether El Gato's statements were admitted.

VIII. Evidence Regarding Collazo-Aponte, Ortiz-Figueroa, and Ortiz-
Santiago's Income Taxes

Appellants allege that the district court erroneously

admitted income tax certificates for Collazo-Aponte, Ortiz-Figueroa,

and Ortiz-Santiago. In support of their argument, appellants cite Fed.

R. Evid. 401, 403, and 404(b). At trial, the prosecution argued that

the absence of tax returns demonstrated the absence of legitimate

income and, therefore, a motive for engaging in the drug conspiracy.

The trial court agreed, ruling (1) the tax returns were relevant to

determine if a defendant alleged to have drug trafficking income

declared any legitimate income, and (2) the tax certificates did not

concern the crime of failing to file tax returns. We review the

district court's evidentiary rulings for abuse of discretion. See

United States v. Houlihan, 92 F.3d 1271, 1297 (1st Cir. 1996); United

States v. Rivera-Gómez, 67 F.3d 993, 997 (1st Cir. 1995).

Even if the trial court did err by admitting the tax

certificates, we nonetheless conclude that, given the overwhelming

proof of appellants' participation in the drug conspiracy, any error

was harmless. See United States v. Sabatino, 943 F.2d 94, 98 (1st Cir.

1991); United States v. Rodríguez-Cardona, 924 F.2d 1148, 1152 (1st

-35-
Cir. 1991). We therefore reject this argument without further

discussion.

IX. The Search of Merced-Morales' Residence

Merced-Morales alleges that the trial court should have

suppressed the evidence seized from his residence and vehicle because

the arresting officers (1) did not knock and announce their presence

before breaking the gate padlock, (2) entered his home after arresting

him outside, and (3) obtained his consent to search under duress.

Appellant's arguments are without merit.

The trial court conducted a mid-trial suppression hearing.

At that time, the following evidence was presented. Merced-Morales was

arrested by a team of law enforcement officers led by DEA Special Agent

German Blanco. Agent Blanco testified that his officers took extra

precautions when executing the arrest warrant for Merced-Morales due to

the violent nature of the organization. Specifically, the agents broke

the padlock on the driveway entrance gate and entered the driveway

without announcing their presence. According to Agent Blanco, he

believed this was necessary (1) to reduce the risk of a surprise attack

by whoever might be in the house and (2) to reduce the likelihood that

anyone in the house could flee. After the officers proceeded to safer

positions near the main entrance and the sides of the house, Agent

Blanco began knocking on the main entrance gate and announced his

presence. When Merced-Morales came down the stairs inside the house,

-36-
Agent Blanco ordered him to open the gate and the wooden door behind

it.

When Merced-Morales opened the door, the police team entered

his residence and initiated a protective sweep. Contemporaneously,

Agent Blanco advised Merced-Morales of his constitutional rights in

Spanish, using DEA Form 13A. According to Agent Blanco's testimony,

Merced-Morales stated that he understood his rights. Agent Blanco

further testified that there were no guns aimed at Merced-Morales, the

officers did not threaten him, and he did not appear to be under the

influence of drugs or alcohol. Merced-Morales then verbally consented

to a search of his residence, and he signed a written consent form in

Spanish after both he read it and Agent Blanco read it to him. The

officers then seized a revolver, drug paraphernalia, marijuana, and a

list of firearms.

The defense presented contrary testimony. Merced-Morales'

sister testified that the lock on the wooden front door was broken and

there was damage to the door jamb following the arrest. She added that

Merced-Morales had told her that the police entered the house by

forcing open the front door. Merced-Morales testified that he was

awakened by police pounding on his door. When he approached the door,

police aimed a rifle at him through an open window, ordered him not to

move, and then broke in through the door. Merced-Morales alleged he

was then forced to sign a consent form at gunpoint and was informed

-37-
that the searches would proceed even if he refused to sign. He further

stated that as police officers escorted him out of the house, he saw

that the doorlock and the edge of the door were broken. On cross-

examination, Merced-Morales testified that he had seen a crow bar and

a sledgehammer only as officers returned them to a police vehicle and

that the door showed no marks from a sledgehammer.

After hearing all of the evidence, the district court ruled

that (1) the agents lawfully broke the padlock on the driveway gate due

to exigent circumstances, namely the organization's known violence, (2)

agents announced their presence as soon as their safety was less

compromised, and (3) Merced-Morales opened his door with no breaking or

entering by police. While this Court reviews factual determinations

supporting the denial of suppression motions for clear error, see

United States v. Twomey, 884 F.2d 46, 51-52 (1st Cir. 1989), we review

de novo whether exigent circumstances justify entry without notice, cf.

United States v. Tibolt, 72 F.3d 965, 969 (1st Cir. 1995) ("[W]hether

a particular set of circumstances gave rise to . . . 'exigent

circumstances' is reviewed de novo and findings of fact are reviewed

for clear error."); United States v. Gooch, 6 F.3d 673, 679 (9th Cir.

1993) ("We review de novo whether exigent circumstances justify a

warrantless arrest or seizure."); United States v. Echegoyen, 799 F.2d

1271, 1277-78 (9th Cir. 1986) ("The ultimate issue of whether exigent

circumstances justify a warrantless entry and/or search is resolved

-38-
under the de novo standard."). "Where, as here, there are no explicit

factual findings, the record below is assessed in the light most

favorable to the trial court ruling." Tibolt, 72 F.3d at 969.

First, we reject Merced-Morales' argument that the search of

his residence and automobile was unlawful in light of the agents'

failure to knock and announce. The Supreme Court has held:

[F]or Fourth Amendment purposes, an arrest
warrant founded on probable cause implicitly
carries with it the limited authority to enter a
dwelling in which the suspect lives when there is
reason to believe the suspect is within.

Payton v. New York, 445 U.S. 573, 603 (1980); see also Steagald v.

United States, 451 U.S. 204, 214 n.7, 221 (1981) ("Because an arrest

warrant authorizes the police to deprive a person of his liberty, it

necessarily also authorizes a limited invasion of that person's privacy

interest when it is necessary to arrest him in his home."). As a

general rule, officers must give notice of their authority and purpose

before entering private premises to make an arrest. See Wilson v.

Arkansas, 514 U.S. 927, 930 (1995) (holding common law

knock-and-announce principle forms part of the Fourth Amendment

reasonableness inquiry). However, the so-called knock-and-announce

rule is not without its exceptions. Specifically, entry without notice

to execute an arrest warrant is permissible when notice would

jeopardize the safety of the officers. See Ker v. California, 374 U.S.

23, 39-40 (1963) (holding Fourth Amendment not violated by failure to

-39-
announce where compliance would have increased officer's peril); cf.

Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st Cir. 1999) ("[T]hreat

to police or the public safety is sufficient to create exigent

circumstances." (internal quotation omitted)). In addition, we note

that "the Supreme Court's standard of reasonableness [for Fourth

Amendment purposes] is comparatively generous to the police in cases

where potential danger, emergency conditions or other exigent

circumstances are present." Roy v. Inhabitants of Lewiston, 42 F.3d

691, 695 (1st Cir. 1994).

Accordingly, Agent Blanco and his officers had a right to

enter Merced-Morales' residence in order to execute the warrant for his

arrest. See Payton, 445 U.S. at 602-03; Steagald, 451 U.S. at 214 n.7,

221. Further, the officers knocked and announced their presence once

they had obtained safe positions near the main entrance and the sides

of the house. If the officers had announced their presence prior to

entering the driveway gate, the officers would have been exposed to any

threat emanating from the house. The record contains ample evidence

that the officers knew Merced-Morales was a member of a well-armed and

extremely violent drug organization. Under these circumstances, we

hold that the authorities' failure to knock and announce prior to

breaking the padlock on the driveway entrance gate was justified by

exigent circumstances. See Ker, 374 U.S. at 39-40; see also Tibolt, 72

-40-
F.3d at 969 (stating exigent circumstances include situations posing a

threat to police).

Next, we turn to Merced-Morales' contention that the police

arrested him outside of his house. This version of events is contrary

to Merced-Morales' testimony before the district court that the police

broke down his door. Accordingly, this argument has been waived. “A

litigant cannot jump from theory to theory like a bee buzzing from

flower to flower. To the precise contrary, when a party fails to raise

a theory at the district court level, that theory is generally regarded

as forfeited and cannot be advanced on appeal.” United States v.

Torres, 162 F.3d 6, 11 (1st Cir. 1998); see also United States v.

Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is a bedrock rule that when

a party has not presented an argument to the district court, she may

not unveil it in the court of appeals.").

Finally, we affirm the district court's finding that the

search of Merced-Morales' residence and vehicle was consensual. The

voluntariness of consent is a question of fact determined by the

totality of the circumstances. See United States v. Mendenhall, 446

U.S. 544, 557 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 227

(1973); United States v. Barnett, 989 F.2d 546, 554 (1st Cir. 1993).

Among other factors, a district court must consider "whether the

consenting party was advised of his or her constitutional rights and

whether permission to search was obtained by coercive means or under

-41-
inherently coercive circumstances." Barnett, 989 F.2d at 555; see also

Schneckloth, 412 U.S. at 226; United States v. Twomey, 884 F.2d 46,

51-52 (1st Cir. 1989). "Although sensitivity to the heightened

possibility of coercion is appropriate when a defendant's consent is

obtained during custody, see Schneckloth, 412 U.S. at 240, n.29,

'custody alone has never been enough in itself to demonstrate . . .

coerced . . . consent to search.'" Barnett, 989 F.2d at 555 (quoting

United States v. Watson, 423 U.S. 411, 424 (1976)). Here, Agent

Blanco's testimony contradicted Merced-Morales' allegation of being

coerced and held at gunpoint. The trial court observed both witnesses

and determined that Agent Blanco's testimony was more credible. Where,

as here, "there are two competing interpretations of the evidence, the

district court's choice of one of them cannot be clearly erroneous."

United States v. Cruz Jiménez, 894 F.2d 1, 7 (1st Cir. 1990); see also

United States v. Zapata, 18 F.3d 971, 974 (1st Cir. 1994) (holding

trial judge's denial of a suppression motion is entitled to

considerable deference because he had opportunity to hear testimony,

observe witness demeanor, and evaluate facts first hand). Accordingly,

we conclude that appellant's arguments on this issue are without merit.

X. Evidence Seized at the Time of Merced-Morales' Arrest

Merced-Morales argues that the evidence seized at the time

of his arrest should have been suppressed because: (1) the drug

-42-
conspiracy ended in 1995 when certain members of the Santiago-Lugo

organization were arrested, and therefore the evidence was inadmissable

pursuant to Fed. R. Evid. 404(b); and (2) the risk of undue prejudice

outweighed the probative value of the evidence pursuant to Fed. R.

Evid. 403. We review for abuse of discretion. See Houlihan, 92 F.3d

at 1297; Rivera-Gómez, 67 F.3d at 997. Finding no error, we affirm the

ruling of the district court.

There is no evidence in the record that the drug conspiracy

involved in this case ended prior to the arrest of Merced-Morales. The

law on this question is settled: "Where a conspiracy contemplates a

continuity of purpose and a continued performance of acts, it is

presumed to exist until there has been an affirmative showing that it

has terminated." E.g., United States v. Elwell, 984 F.2d 1289, 1293

(1st Cir. 1993). Contrary to appellant's assertion, the arrest of some

co-conspirators does not automatically terminate a conspiracy. See,

e.g., United States v. Mealy, 851 F.2d 890, 901 (7th Cir. 1988) ("A

co-conspirator's arrest does not automatically terminate a conspiracy;

the remaining conspirators may continue to carry out the goals of the

conspiracy notwithstanding the arrest of one of their partners.");

United States v. Thompson, 533 F.2d 1006, 1010 (6th Cir. 1976) (same).

In addition, there is no evidence in the record that Merced-

Morales withdrew from the conspiracy prior to his arrest. "To

withdraw, a conspirator must take some affirmative action 'either to

-43-
defeat or disavow the purposes of the conspiracy.'" United States v.

Muñoz, 36 F.3d 1229, 1234 (1st Cir. 1994) (quoting United States v.

Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987)). Since the record does

not indicate that Merced-Morales withdrew from the drug conspiracy, and

since the drug paraphernalia and firearms list were consistent with his

involvement in the conspiracy, the trial court did not err by admitting

these items into evidence.

XI. Withdrawal of the Firearm Seized From Merced-Morales' Vehicle

Merced-Morales argues that the trial court erred when it

denied his motion for a mistrial. Merced-Morales moved for a mistrial

when the court withdrew from evidence a revolver seized from his

vehicle at the time of his arrest. We review a trial court's refusal

to grant a mistrial for abuse of discretion; absent a clear showing of

prejudice, we will uphold the lower court's ruling. See United States

v. Zanghi, II, 189 F.3d 71, 82 (1st Cir. 1999); United States v. Gomes,

177 F.3d 76, 82 (1st Cir. 1999).

We briefly review the facts relevant to this argument. The

police arrested Merced-Morales at his residence. After the authorities

had properly informed him of his constitutional rights, Merced-Morales

consented to a search of his house and vehicle. Pursuant to this

search, the police seized a revolver. At trial, the court initially

admitted the weapon into evidence. However, at the close of the

prosecution's case, the trial judge requested additional information.

-44-
At that time, the prosecution requested that the firearm be withdrawn

from evidence. The court agreed, and the trial judge reversed his

prior admissibility ruling. Merced-Morales then moved for a mistrial,

but the court denied the motion.

Before Merced-Morales' trial counsel began his deferred opening

statement, the judge instructed the jury that rulings on the

admissibility of evidence could change during the course of trial and

that the jury could not consider excluded evidence. With respect to

the revolver, the judge stated:

[T]he gun will not be in evidence any further,
since I have now found that the possession of
this particular revolver is too remote in time to
the conspiracy as to be related to the conspiracy
. . . . [Y]ou cannot consider this gun as
evidence, and I instruct you to disregard that
particular revolver that was seized in his car at
the time of his arrest.

We have previously stated that "[t]rials are expected to be

fair, but not necessarily perfect; and appeals courts are slow to

insist on mistrials, even in cases where [improper evidence] may

actually convey prejudicial information." Gomes, 177 F.3d at 82.

Where, as here, "a curative instruction is promptly given, a mistrial

is warranted only in rare circumstances implying extreme prejudice."

United States v. Torres, 162 F.3d 6, 12 (1st Cir. 1998); see also

United States v. Magana, 127 F.3d 1, 6 (1st Cir. 1997) ("Jurors are

presumed to follow [curative] instructions, except in extreme cases.").

-45-
Here, the judge instructed the jury on the inadmissibility of the

revolver prior to the deferred opening statement of counsel for Merced-

Morales. This allowed the jury to connect the judge's revised ruling

on this one piece of evidence directly with Merced-Morales. The

revolver, moreover, has little significance: the record contains ample

evidence of appellant's guilt, including the testimony of two

cooperating eyewitnesses. See Rivera-Gómez, 67 F.3d at 999 ("[T]he

strength of the government's overall case is frequently a cardinal

factor in evaluating the denial of a mistrial motion."). Under these

circumstances, we conclude that Merced-Morales has not demonstrated

extreme prejudice, and therefore this argument fails. See Torres, 162

F.3d at 12.

XII. Delayed Disclosure that a Government Witness Failed to Identify
Ríos-Ríos in a Pre-Trial Photograph Array

Ríos-Ríos alleges that the district court should have

sanctioned the prosecution for failing to timely disclose that Hidalgo-

Meléndez failed to identify Ríos-Ríos in a pretrial photograph array.

A district court's decision on how to handle delayed disclosure of

Brady material is reviewed for abuse of discretion. See United States

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

Prosecutors have an obligation to furnish exculpatory and

impeachment information to the defense in a timely fashion. See Brady

v. Maryland, 373 U.S. 83, 87 (1963). Where the defense is confronted

-46-
not with complete suppression, but rather with delayed disclosure, "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." United States v. Ingraldi, 793 F.2d 408, 411-12

(1st Cir. 1986); see also Catano, 65 F.3d at 227. In United States v.

Ayres, 725 F.2d 806, 811 (1st Cir. 1984), we held that there was no

prejudice when disclosure of a failed photograph identification

attempt, although delayed, was sufficiently timely for cross-

examination of the witness.

Here, Hidalgo-Meléndez testified that Ríos-Ríos was someone

who once delivered cocaine to Santiago-Lugo. The day after this

testimony was given, the prosecution belatedly disclosed that Hidalgo-

Meléndez had failed to identify Ríos-Ríos in a pretrial photo array.

The judge concluded that although the government should have informed

Ríos-Ríos at the time of the in-court identification, it would not

preclude the government from eliciting the information during Hidalgo-

Meléndez's direct examination. Thereafter, the failed identification

attempt was introduced first by the prosecution on direct examination,

and then again by defense counsel on cross-examination. In addition,

the judge instructed the jury that (1) a prior failure to identify was

relevant to a witness' credibility, and (2) the prosecution had the

burden of proving the identity of the defendant. Under these

circumstances, we conclude that Ríos-Ríos cannot show prejudice from

-47-
the delayed disclosure. Therefore, this argument fails. See, e.g.,

Ayres, 725 F.2d at 811.

XIII. The Prosecution's Failure to Turn Over the Sworn Statement of
Officer Burgos

Ríos-Ríos alleges that the district court erred in concluding

that the prosecution had no obligation to turn over the sworn statement

of Officer Burgos. The district court ruled that Officer Burgos' sworn

statement regarding Ortiz-Santiago's arrest was not discoverable as

Jencks Act material, see 18 U.S.C. § 3500, since the government could

not obtain it from the Commonwealth of Puerto Rico office that had

created and maintained it. We see no error in this determination.

See, e.g., United States v. Durham, 941 F.2d 858, 861 (9th Cir. 1991)

("Under the Jencks Act, the prosecutor is required to disclose only

those statements which are in the possession of the United States.");

United States v. Polizzi, 801 F.2d 1543 (9th Cir. 1986) (same).

XIV. Cooperating Witness Instruction

A. Merced-Morales' Argument

Merced-Morales argues that the trial judge's decision not to

use his proposed jury instruction regarding the cooperating witnesses

Ibáñez-Maldonado, Ramos-Rodríguez, and Hidalgo-Meléndez violated his

right to a fair trial and due process of law. The instruction proposed

by Merced-Morales stated:

It is inappropriate to hold a defendant in prison
for long periods of time pending sentencing while

-48-
 the government extracts information from him
[because] this practice increases the likelihood
that innocent individuals will be implicated by
defendant trying to placate the government.

Merced-Morales did not object at the charge conference or after the

judge instructed the jury.

In this Circuit, "[i]t is reversible error for the court to

refuse a request to instruct as to defendant's theory of the case if

there is evidence to support it." United States v. Thomas, 895 F.2d

51, 55 (1st Cir. 1990) (quoting United States v. Leach, 427 F.2d 1107,

1112-13 (1st Cir. 1970)). However, the refusal to give a particular

requested instruction is reversible error only if "the instruction (1)

is substantively correct; (2) was not substantially covered in the

charge actually delivered to the jury; and (3) concerns an important

point in the trial so that the failure to give it seriously impaired

the defendant's ability to effectively present a given defense."

United States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984) (quoting

United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981)).

Consequently, "[t]he court need not give instructions in the form and

language requested by the defendant." United States v. Morris, 700

F.2d 427, 433 (1st Cir. 1983).

With regard to testimony given by an accomplice, this Court

has stated:

It is well established that an accomplice is
qualified to testify as long as any agreements he

-49-
 has made with the government are presented to the
jury and the judge gave complete and correct
instructions detailing the special care the jury
should take in assessing the testimony.

United States v. Hernández, 109 F.3d 13, 15 (1st Cir. 1997) (internal

quotation omitted).

Here, the trial judge instructed the jury to examine the

testimony of an alleged accomplice "who provides evidence against a

defendant for personal advantage under a plea agreement . . . with

greater care and caution than the testimony of an ordinary witness."

The judge further instructed the jury (1) that they must consider such

a witness's sentencing expectations and (2) that it is improper to

convict any defendant "upon the unsupported testimony of such witness

unless you believe the testimony beyond a reasonable doubt." We

conclude that the judge properly instructed the jury on issues of

credibility and reject appellant's allegation of error. See, e.g.,

Hernández, 109 F.3d at 15; Gibson, 726 F.2d at 874.

B. Collazo-Aponte's Argument

Collazo-Aponte raises a closely related argument regarding

the testimony of Wilfredo and David Martínez-Matta. Namely, Collazo-

Aponte contends that the Martínez-Mattas' post-conviction cooperation

agreements violated 18 U.S.C. § 201(c)(2), and therefore the district

court should have excluded their testimony. This Court has squarely

rejected this argument: "We hold, without serious question, that 18

-50-
U.S.C. § 201(c)(2) does not bar the government from promising leniency

or the like to cooperating witnesses." United States v. Lara, 181 F.3d

183, 198 (1st Cir. 1999); see also United States v. Falú-González, 205

F.3d 436, 445 (1st Cir. 2000). Accordingly, the district court did not

err in admitting the contested testimony.

XV. Multiple Conspiracy Instruction

Collazo-Aponte and Merced-Morales allege that they suffered

prejudice because the trial judge did not give a multiple conspiracies

instruction. As appellants correctly indicate, this case involved two

conspiracies -- the first was the drug conspiracy (Count 1), the second

was the conspiracy to kill the Rosario-Rodríguez brothers (Count 51).

Appellants were not charged in Count 51, and no evidence linked either

Collazo-Aponte or Merced-Morales to the cacerías undertaken to kill the

Rosario-Rodríguez brothers.

As we indicated above, "[i]t is reversible error for the

court to refuse a request to instruct as to defendant's theory of the

case if there is evidence to support it." Thomas, 895 F.2d at 55.

However, "the defendant must tender an instruction that is appropriate

in form and substance. Where he fails to accomplish this, the court is

not obligated to give an instruction unless a particularly sensitive

defense is involved, or the facts adduced at trial are so complex and

confusing that an understanding of the issues would be beyond the grasp

of the jury." Id.

-51-
 Here, the record shows that neither Collazo-Aponte nor

Merced-Morales proposed a multiple conspiracies instruction. Further,

this is not a case involving "a particularly sensitive defense . . . or

. . . issues . . . beyond the grasp of the jury." Id. Accordingly,

"our review will be confined to determining whether the judge's

omission to instruct on multiple conspiracies constituted plain error."

Id. We stated in Thomas that "[t]he test for such error is whether

there was a variance between the conspiracy charged in the indictment

and the one implicating the defendant according to the evidence adduced

at trial which prejudiced the substantial rights of the accused." Id.

Under the test we formulated in Thomas, the essential inquiry "is

whether the evidence is sufficient to permit a jury to find the

agreement that the indictment charges." Id. at 56.

In this case, the record contains ample evidence of

appellants' involvement in the drug conspiracy charged in Count 1.

This evidence has no relation to the cacerías and is more than

sufficient to convict appellants. In addition, the evidence involving

the cacerías and the ensuing murders directly implicates appellants in

the drug conspiracy. As the prosecution correctly indicates, the

cacerías were initiated to restore and maintain the integrity of the

drug conspiracy. Although the defendants who participated in the

cacerías also reached an agreement to murder in violation of 21 U.S.C.

§ 848(e), those murders were inextricably linked to and committed in

-52-
furtherance of the drug conspiracy. See United States v. Miller, 116

F.3d 641, 682 (2d Cir. 1997). Finally, the judge appropriately

instructed the jury to separately consider each defendant's case. See,

e.g., United States v. Brandon, 17 F.3d 409, 449 (1st Cir. 1994);

United States v. Boylan, 898 F.2d 230, 244 (1st Cir. 1990). Under

these circumstances, we conclude that appellants have failed to

demonstrate any prejudice arising from the lower court's decision not

to give a multiple conspiracy instruction.

XVI. Sufficiency of the Evidence

In this Circuit, "[o]ne who challenges the sufficiency of the

evidence bears a heavy burden: he must show that no rational jury

could have found him guilty beyond a reasonable doubt." United States

v. Rodríguez, 162 F.3d 135, 141 (1st Cir. 1998). In evaluating a

sufficiency of the evidence claim, we review "the evidence as a whole,

in a light most favorable to the verdict, taking into consideration all

reasonable inferences." United States v. Scantleberry-Frank, 158 F.3d

612, 616 (1st Cir. 1998). Further, "[w]e resolve all credibility

issues in favor of the verdict." Id.; see also United States v. Hahn,

17 F.3d 502, 506 (1st Cir. 1994); United States v. Batista-Polanco, 927

F.2d 14, 17 (1st Cir. 1991). Accordingly, "[t]he evidence may be

entirely circumstantial, and need not exclude every hypothesis of

innocence; that is, the factfinder may decide among reasonable

-53-
interpretations of the evidence." Scantleberry-Frank, 158 F.3d at 616

(quoting Batista-Polanco, 927 F.2d at 17).

A. Martínez-Vélez's Conviction on Count 1

Martínez-Vélez alleges that there was insufficient evidence

to support his conviction on Count 1. Specifically, he argues that his

participation in the 1994 Easter cacería that resulted in the murder of

two motorcyclists did not establish his participation in the drug

conspiracy. In making this argument, Martínez-Vélez attacks the

credibility of government witness Ibáñez-Maldonado. We conclude that

this argument is without merit.

"To prove a drug conspiracy charge under 21 U.S.C. § 846, the

government is obliged to show beyond a reasonable doubt that a

conspiracy existed and that a particular defendant agreed to

participate in it, intending to commit the underlying substantive

offense." United States v. Sepúlveda, 15 F.3d 1161, 1173 (1st Cir.

1993). "Due to the clandestine nature of criminal conspiracies, the

law recognizes that the illegal agreement may be either express or

tacit and that a common purpose and plan may be inferred from a

development and collocation of circumstances." United States v.

Sánchez, 917 F.2d 607, 610 (1st Cir. 1990) (internal quotation

omitted). Accordingly, we have previously stated that "proof may

consist of circumstantial evidence, including inferences from

surrounding circumstances, such as acts committed by the defendant that

-54-
furthered the conspiracy's purposes." United States v. Gómez-Pabón,

911 F.2d 847, 853 (1st Cir. 1990).

Here, Ibáñez-Maldonado testified that Martínez-Vélez

participated in the meeting at the King's Court mesa, the ensuing

cacería, and the murder of the two motorcyclists in April of 1994. The

evidence, consequently, shows that (1) appellant met with other

conspirators at a Santiago-Lugo drug mesa, (2) appellant willingly

joined members of the Santiago-Lugo organization in planning a cacería

against the Rosario-Rodríguez brothers, and (3) during this cacería,

appellant participated in killing two individuals who were members of

a rival drug organization. As we have stated, the record contains

abundant evidence that the cacerías were undertaken in order to regain

control over the Dávila drug distribution point. Accordingly, we

conclude that the jury could reasonably infer that Martínez-Vélez was

a member of the Count 1 drug conspiracy and was prepared to kill to

protect the conspiracy's interests. See United States v. Mangual-

Corchado, 139 F.3d 34, 44 (1st Cir. 1998) ("[T]he jury is entitled to

rely on a chain of reasonable inferences, as long as each constituent

inference is rooted in the evidence."). In reaching this result, we

note that "proof of direct participation in the sale of drugs is not

required to convict in a drug conspiracy case." United States v.

Marrero-Ortiz, 160 F.3d 768, 773 (1st Cir. 1998).

-55-
 We also reject the challenge to Ibáñez-Maldonado's

credibility. We have previously stated, "[c]redibility is not an issue

for the appellate court." United States v. Aponte-Suárez, 905 F.2d

483, 489 (1st Cir. 1990). Here, Ibáñez-Maldonado's testimony, even if

uncorroborated, was sufficient to support appellant's conviction

because "it was not incredible or insubstantial on its face." Id.

Accordingly, we conclude that Martínez-Vélez has failed to demonstrate

that no rational jury could have found him guilty beyond a reasonable

doubt.

B. The Statute of Limitations Argument Raised by Ríos-Ríos

Ríos-Ríos alleges that the evidence adduced at trial

established his involvement in the drug conspiracy only in 1990-91,

which is outside the statute of limitations period. Ríos-Ríos did not

raise this argument before the trial court. Consequently, this

argument is waived. See United States v. Barnett, 989 F.2d 546, 554

(1st Cir. 1993) ("Issues not squarely raised in the district court will

not be entertained on appeal."); United States v. Haggert, 980 F.2d 8,

10-11 (1st Cir. 1992) (collecting cases).

Even if this argument had been properly preserved for appeal,

we see no merit in it. Martínez-Matta and Hidalgo-Meléndez testified

that Ríos-Ríos participated in the drug conspiracy while it operated at

the Costa del Mar and Los Pinos mesas in 1990 and 1991. There is no

-56-
evidence in the record that Ríos-Ríos subsequently withdrew from the

conspiracy. Accordingly, this argument fails as a matter of law:

A mere cessation of activity in furtherance of a
conspiracy does not constitute withdrawal. To
withdraw, a conspirator must take some
affirmative action either to defeat or disavow
the purposes of the conspiracy. Typically, we
have required evidence either of a full
confession to authorities or a communication by
the accused to his co-conspirators that he has
abandoned the enterprise and its goals.

Muñoz, 36 F.3d at 1234 (quotations and citations omitted). Since Ríos-

Ríos did not withdraw from the conspiracy, the statute of limitations

did not begin to run. See United States v. Rogers, 102 F.3d 641, 644

(1st Cir. 1996).

C. Rosario-Rodríguez's Motion for Judgment of Acquittal

Rosario-Rodríguez alleges that the district court erroneously

denied his motion for judgment of acquittal because the evidence was

insufficient to sustain his conviction for conspiracy to distribute

narcotics. See 21 U.S.C. §§ 841, 846. We review the denial of a

motion for judgment of acquittal de novo. See United States v.

Hernández, 146 F.3d 30, 32 (1st Cir. 1998). Having carefully reviewed

the record, we conclude that this argument is meritless.

First, the record is replete with evidence of Rosario-

Rodríguez's role in controlling the crack cocaine distribution at the

Dávila housing project. Second, his role in obtaining heroin for

street dealers was established not only through the testimony of Ramos-

-57-
Rodríguez but also through the Santiago-Lugo drug ledgers. Third,

Ramos-Rodríguez testified that Rosario-Rodríguez carried a firearm to

protect the Dávila drug point. Finally, at the time of Rosario-

Rodríguez's arrest, police seized from his person a Calico pistol, over

$1,000 cash, and a bag filled with transparent vials which field-tested

positive for cocaine.

As the prosecution indicates, this evidence is more than

sufficient for a rational jury to find that (1) the charged conspiracy

existed, (2) Rosario-Rodríguez agreed expressly or tacitly to

participate in it, and (3) he had the requisite intent to possess

narcotics with the intent to distribute. See Sepúlveda, 15 F.3d at

1173; Sánchez, 917 F.2d at 610.

D. Colón-Miranda's Sufficiency of Evidence Claims

Colón-Miranda argues that there was insufficient evidence to

establish the existence of a drug conspiracy, his participation in a

drug conspiracy, or his participation in the Pacheco-Aponte or Cotto-

Fuentes murders.3 As we have already indicated, a sufficiency of the

evidence claim is reviewed "in [the] light most favorable to the

verdict, taking into consideration all reasonable inferences."

3 Colón-Miranda also argues that the evidence was insufficient to
convict him of murdering Muñoz-Candelaria and violating 21 U.S.C. §
848. The record indicates that he was not charged with either offense.

-58-
Scantleberry-Frank, 158 F.3d at 616. Here, even a cursory examination

of the record demonstrates that appellant's arguments are disingenuous.

First, there is ample evidence in the record of the Count 1

drug conspiracy. Five co-conspirators described the Santiago-Lugo

organization and its extensive drug processing, packaging, and

distribution activities. These witnesses gave a detailed account of

the quantity of drugs involved, and one drug ledger established that

sales totaled $3.5 million for a single year. Second, the witnesses

all testified that they worked with Colón-Miranda at various times

during the conspiracy. In addition, Wilfredo Martínez-Matta testified

that Colón-Miranda rented the Coral Beach mesa, and Ramos-Rodríguez

described Colón-Miranda as a supervisor of the organization. Three

other witnesses indicated that Colón-Miranda made armed deliveries of

drugs to the distribution points. Third, the testimony of Hidalgo-

Meléndez, Wilfredo Martínez-Matta, and David Martínez-Matta contradicts

Colón-Miranda's claim that he was not at the Pacheco-Aponte murder

scene. Finally, ballistic evidence established that the firearm found

by the police in Colón-Miranda's car was the firearm used to kill

Cotto-Fuentes.

E. Insufficiency of Evidence Arguments Raised by Ortiz-
Figueroa and Ortiz-Santiago4

4 Because the insufficiency of the evidence arguments raised by Ortiz-
Figueroa and Ortiz-Santiago involve the same set of facts, we have
elected to address these two arguments together.

-59-
 Ortiz-Figueroa argues that there is insufficient evidence to

uphold his conviction on Counts 51, 53, and 65. See 21 U.S.C. §§ 846,

848(e)(1)(A); 18 U.S.C. §§ 2, 924(c). Specifically, he states that no

evidence linked him to the planning of the cacería that resulted in the

murder of Pacheco-Aponte, and no evidence linked the firearms seized

from him at the time of his arrest with the actual murder or the drug

conspiracy.

Similarly, Ortiz-Santiago raises an insufficiency of the

evidence argument against his conviction on Count 53. See 21 U.S.C. §

848(e)(1)(A); 18 U.S.C. § 2. He contends that (1) the Pacheco-Aponte

murder was neither reasonably foreseeable nor in furtherance of the

conspiracy to kill the Rosario-Rodríguez brothers, and consequently

Pinkerton liability does not apply; and (2) the evidence did not show

that he aided and abetted the Pacheco-Aponte murder because he did not

assist with it or actively seek its occurrence. Neither appellant

raises a colorable claim.

Hidalgo-Meléndez testified that Ortiz-Santiago spoke to

Colón-Miranda by telephone while Colón-Miranda and other co-

conspirators planned the cacería that resulted in the murder of

Pacheco-Aponte. At that time, Ortiz-Santiago agreed that he and Ortiz-

Figueroa would act as scouts, informing Colón-Miranda of the location

of the Rosario-Rodríguez brothers "for the time that we were going to

go into the housing project to kill them." This testimony was

-60-
partially corroborated by David Martínez-Matta. Further testimony

given by various government witnesses indicated that Ortiz-Santiago and

Ortiz-Figueroa were present at the cacería and that fellow co-

conspirator David Martínez-Matta mistakenly shot at them. In addition,

Ortiz-Santiago and Ortiz-Figueroa were arrested as they fled from the

crime scene. Appellants' clothing matched a bystander's description of

the culprits, and the arresting officer seized firearms, ammunition, a

cellular telephone, narcotics, and two masks (one stained with blood)

from Ortiz-Figueroa.

Based on this evidence, Ortiz-Figueroa cannot show that "no

rational jury could have found him guilty beyond a reasonable doubt."

Rodríguez, 162 F.3d at 141. As we have already stated, "the

factfinder may decide among reasonable interpretations of the

evidence." Scantleberry-Frank, 158 F.3d at 616 (quotation omitted).

Here, there is sufficient circumstantial evidence to raise a reasonable

inference that Ortiz-Figueroa was a knowing and voluntary participant

in the conspiracy to kill the Rosario-Rodríguez brothers. See id.

Accordingly, we reject appellant's claim of mere presence and uphold

his conviction on Count 51. See, e.g., United States v. Echeverri, 982

F.2d 675, 678 (1st Cir. 1993) ("The attendant circumstances tell the

tale -- and the culpability of a defendant's presence hinges upon

whether the circumstances fairly imply participatory involvement. In

other words, a defendant's 'mere presence' argument will fail in

-61-
situations where the 'mere' is lacking."); Batista-Polanco, 927 F.2d at

18 ("[I]t runs counter to human experience to suppose that criminal

conspirators would welcome innocent nonparticipants as witnesses to

their crimes.").

The evidence outlined above is equally conclusive as to both

of these appellants' convictions on Count 53 for the murder of Pacheco-

Aponte. While the government argues that aider and abettor liability

is applicable, we rely on Pinkerton v. United States, 328 U.S. 640,

645-48 (1946). In Pinkerton, the Supreme Court held that a conspirator

may be held vicariously liable for a substantive crime committed by a

co-conspirator if that crime is reasonably foreseeable and committed in

furtherance of the conspiracy. See id.; see also United States v.

Shea, 150 F.3d 44, 50 (1st Cir. 1998); United States v. Tse, 135 F.3d

200, 206 (1st Cir. 1998); United States v. White, 116 F.3d 948, 951

(1st Cir. 1997).

Count 51 alleged an agreement to kill the Rosario-Rodríguez

brothers "and other individuals whom the defendants herein believed to

be associated with [them]." Ortiz-Santiago concedes his participation

in the Count 51 conspiracy. And, as we have just concluded, there is

sufficient circumstantial evidence to tie Ortiz-Figueroa to this

conspiracy as well. The record, moreover, is conclusive that (1) the

cacería that resulted in the murder of Pacheco-Aponte was undertaken to

kill the Rosarios, (2) Ortiz-Santiago and Ortiz-Figueroa were present

-62-
and participated in this cacería, (3) the murder victim, Pacheco-

Aponte, was an associate of the Rosarios, and (4) during the cacería,

appellants and their co-conspirators were heavily armed. (Witnesses

for the prosecution testified that some co-conspirators were armed with

AR-15 rifles, and police responding to the scene recovered over 100

casings fired from AR-15 rifles.) Under these circumstances, a

rational jury could conclude that the Pacheco-Aponte murder was

reasonably foreseeable and committed in furtherance of the conspiracy

to kill the Rosarios and their associates. Accordingly, we uphold

appellants' convictions on Count 53.5

Finally, with respect to the 18 U.S.C. § 924(c) charge, the

record reflects that (1) the cacerías were undertaken as part of the

drug war over the Dávila drug distribution point, (2) Ortiz-Figueroa

participated in the cacería that resulted in the murder of Pacheco-

Aponte, and (3) Ortiz-Figueroa was arrested immediately after Pacheco-

Aponte was murdered in the vicinity of the crime with multiple firearms

on his person. Ortiz-Figueroa does not contest his possession of the

firearms or challenge the sufficiency of the evidence linking him to

the Count 1 drug conspiracy. Contrary to appellant's belief, it is

irrelevant that the firearms in his possession were not used to kill

5 We note that appellants' convictions for Count 53 could also be
affirmed by applying Pinkerton liability to the Count 1 drug
conspiracy. We need not determine whether the appellants could also be
held guilty for aiding and abetting as the government urges.

-63-
Pacheco-Aponte. It is enough that appellant carried the firearms

during the cacería and therefore used the weapons in furtherance of

the drug conspiracy. See 18 U.S.C. § 924(c). Accordingly, we affirm

Ortiz-Figueroa's conviction under Count 65.

F. Merced-Morales and Collazo-Aponte's Sufficiency of the
Evidence Arguments Regarding Pinkerton Liability under
18 U.S.C. § 924(c)

There is no dispute that Pinkerton liability may apply to a

violation of 18 U.S.C. § 924(c). See, e.g., United States v. Shea, 150

F.3d 44, 50 (1st Cir. 1998) ("Pinkerton liability attaches to the

use-or-carrying-of-a-firearm offense proscribed in § 924(c).").

Merced-Morales, however, alleges that the district court erred in

denying his Rule 29 motion on Count 65 because there is no evidence

that he used or carried a firearm at any time or that a co-conspirator

did so during Merced-Morales' membership in the conspiracy. Similarly,

Collazo-Aponte contends that there is no direct evidence that he

possessed a firearm or was aware that any other co-conspirator used or

carried a firearm. Collazo-Aponte raises two additional arguments

against his conviction on Count 65: (1) Pinkerton liability violates

his due process rights because he was a minor participant in the drug

conspiracy, and (2) the trial judge improperly instructed the jury on

aiding and abetting as an alternative theory of liability. Neither

appellant raises a viable argument.

-64-
 The record contains considerable evidence that both

appellants belonged to the Santiago-Lugo drug conspiracy when other

members of the organization carried firearms in furtherance of the

conspiracy and that such conduct was reasonably foreseeable to

appellants. First, Wilfredo Martínez-Matta testified that the

organization began storing heroin and cocaine at Merced-Morales' bar

when the Rosario conflict began in early 1993. The record is replete

with evidence that various members of the organization were armed

during the subsequent drug war that took place between May 19, 1993 and

June 22, 1994. Second, both of the Martínez-Matta brothers testified

that Merced-Morales was involved in routine drug deliveries and

pickups. (Wilfredo also placed Merced-Morales at the bar with

Santiago-Lugo on many occasions prior to the Rosario conflict and at

the 1992 funeral of Santiago-Lugo's father.) Third, Wilfred Martínez-

Matta testified that Collazo-Aponte was involved in various drug

transactions that occasionally involved up to a kilogram of cocaine.

Unlike the stricter "practical certainty" standard applied

in aider and abettor liability, under Pinkerton, the defendant need

only have reasonably foreseen that one of his co-conspirators would use

a firearm during the commission of the conspiracy. See Shea, 150 F.3d

at 50. It is well settled that "the illegal drug industry is, to put

it mildly, a dangerous, violent business." United States v. Díaz, 864

F.2d 544, 549 (7th Cir. 1988). As a corollary, the use of firearms is

-65-
foreseeable in trafficking offenses involving substantial quantities of

drugs. See id.; United States v. Cummings, 937 F.2d 941, 945 (4th Cir.

1991).

In this case, there is no evidence that appellants were

unaware of the quantities of drugs delivered to Merced-Morales' bar.

In contrast, Wilfredo and David Martínez-Matta testified that both

Merced-Morales and Collazo-Aponte were frequently involved in drug

transactions involving, for example, kilogram quantities of cocaine and

crack. Further, at the time of his arrest in September 1994, Collazo-

Aponte possessed over 1,000 decks of heroin. (Wilfredo Martínez-Matta

testified that ten decks of heroin sold for $100; therefore, the 1,000

decks Collazo-Aponte possessed would have sold for $10,000.)

Accordingly, we hold that the use of firearms was foreseeable to the

appellants, and we affirm their convictions on Count 65.6

In reaching this conclusion, we reject Collazo-Aponte's due

process argument. We agree with appellant that "due process constrains

the application of Pinkerton where the relationship between the

defendant and the substantive offense is slight." United States v.

Castañeda, 9 F.3d 761, 766 (9th Cir. 1993); see also United States v.

6 We note that there is also sufficient evidence in the record to
support a reasonable inference that both Merced-Morales and Collazo-
Aponte were aware that the drug war with the Rosarios was the impetus
behind the move to Merced-Morales' bar. For this reason as well, we
affirm appellants' Count 65 conviction because it was foreseeable that
firearms would be used to facilitate and protect the Santiago-Lugo drug
operation during the drug war with the Rosarios.

-66-
Chorman, 910 F.2d 102, 112 (4th Cir. 1990); United States v. Alvarez,

755 F.2d 830, 850-51 (11th Cir. 1985); United States v. Moreno, 588

F.2d 490, 493 (5th Cir. 1979). However, contrary to appellant's

assertion, "[t]he foreseeability concept underlying Pinkerton is also

the main concern underlying a possible due process violation."

Castañeda, 9 F.3d at 766 (quoting United States v. Christian, 942 F.2d

363, 367 (6th Cir. 1991)). Accordingly, the relevant inquiry is, "was

it reasonably foreseeable to the defendant that a firearm would be used

in relation to the predicate offense?" Id. at 766.

In support of his argument, Collazo-Aponte relies on United

States v. Castañeda. In Castañeda, the Ninth Circuit reversed

appellant Leticia Castañeda's conviction under 18 U.S.C. § 924(c) on

due process grounds. There, as here, the § 924(c) conviction was based

on Pinkerton liability. The court reasoned, "a conspirator may be held

vicariously responsible for her co-conspirator's carrying of a firearm

in relation to a specified drug trafficking offense," id. at 765,

however, given the specific facts of the case, "we cannot conclude,

without violating the fundamental precepts of due process, that Leticia

could have foreseen the other conspirators' use of firearms in relation

to the predicate offenses," id. at 768. The court's analysis is

informative.

Where a defendant has little or no connection to
the predicate drug offense, another conspirator's
use of a firearm in relation to the predicate

-67-
 drug offense may, in some fact situations, be
unforeseeable. In those cases, it would violate
due process to find the defendant vicariously
liable for the firearm's use under § 924(c).
Leticia's situation is a paradigm example of such
an unforeseeable use.

As the sentencing court emphasized, Leticia
played, at best, a small part in the overall
conspiracy. The government contends, however,
that six telephone conversations between Leticia
and other conspirators demonstrate that she acted
as her husband's "assistant" or "confidante" in
the conspiracy. Not so. Although she was married
to Uriel, a major player, there is no evidence
that she played more than a passive role in the
drug operation. . . .

Taken together, [the] phone calls demonstrate
that Leticia "assisted" Uriel only insofar as she
acted as his spouse: answering her home phone,
taking messages from callers and answering his
questions when he called. The evidence does not
show that she knew much about Uriel's or Barron's
organizations, that she knew the low-level
distributors involved, that she had any knowledge
of Angulo-López's organization, or that she ever
had more than a marginal role in the conspiracy.

Id. at 767.

The dissimilarities between Castañeda and this case are

readily apparent. Here, appellants were personally involved in

numerous transactions involving large quantities of cocaine, crack, and

other illegal drugs. Unlike Castañeda, this is not a case involving an

attenuated relationship between the conspirator and the substantive

crime. Accordingly, we hold that it was reasonably foreseeable to

appellants that a firearm would be used in relation to the predicate

-68-
drug trafficking offense, see Díaz, 864 F.2d at 549, and reject

Collazo-Aponte's due process argument, see, e.g., United States v.

Johnson, 886 F.2d 1120, 1123 (9th Cir. 1989).

Finally, Collazo-Aponte alleges that the jury could have

erroneously convicted him under an aiding and abetting theory. The

trial judge instructed the jury as to Count 65 on two alternate

theories of liability: aiding and abetting and Pinkerton co-conspirator

liability. Contrary to appellant's assertion, it is settled that where

there is insufficient evidence with respect to one theory of liability,

the jury's verdict is presumed to rest on the theory that the evidence

supported. See Griffin v. United States, 502 U.S. 46, 59 (1991);

United States v. Nieves-Burgos, 62 F.3d 431, 434-35 (1st Cir. 1995).

Since the evidence against Merced-Morales and Collazo-Aponte on the 18

U.S.C. § 924(c) charge is sufficient pursuant to Pinkerton, we affirm

their convictions.

-69-
XVII. Rosario-Rodríguez's Double Jeopardy and Collateral Estoppel
Arguments

Rosario-Rodríguez raises a double jeopardy challenge to his

conviction based on his acquittal in United States v. Solano-Moreta,

Cr. No. 95-160 (SEC). The Double Jeopardy Clause provides that no

person shall "be subject for the same offense to be twice put in

jeopardy of life or limb." U.S. Const. amend. V. This guarantee is

expressed, in pertinent part, as a prohibition against multiple

prosecutions for the "same offense." United States v. Booth, 673 F.2d

27, 29 (1st Cir. 1982). In the First Circuit, we examine five criteria

to determine whether two conspiracies are the "same offense" for double

jeopardy purposes: "(1) the time during which the activities occurred;

(2) the persons involved in the conspiracies' (3) the places involved;

(4) whether the same evidence was used to prove the two conspiracies;

and (5) whether the same statutory provision was involved in both

conspiracies." Id.; see also United States v. Hart, 933 F.2d 80, 85-6

(1st Cir. 1991); United States v. Gómez-Pabón, 911 F.2d 847, 860-61

(1st Cir. 1990). Once a defendant has established a non-frivolous

double jeopardy claim, the burden shifts to the government to prove by

a preponderance of the evidence that the indictments charge separate

offenses. See Booth, 673 F.2d at 30-31.

Applying the Booth test here, we are satisfied that the

narcotics conspiracy prosecuted in case 95-160 and the narcotics

-70-
conspiracy involved in this case are not the same offense. First, the

two conspiracies involve different time periods. The indictment in

this case alleges a conspiracy beginning in 1988, from which Rosario-

Rodríguez withdrew by early 1993. In contrast, in case 95-160,

Rosario-Rodríguez was charged with participating in a drug conspiracy

that existed at "divers[e] times between January 1, 1992 until on or

about June 7, 1995." Second, the participants were not the same.

Among the thirty-seven defendants in case 95-160 and the forty-nine

defendants named in the various indictments in this case, only the

Rosario-Rodríguez brothers are common to both. Third, the evidence

that the government used to prove each conspiracy was substantially

different. Most notable, not a single witness was common to both

trials. Although the location of both conspiracies and the statutory

provisions charged, 21 U.S.C. §§ 841 and 846, were the same, this alone

is not dispositive. See, e.g., Hart, 933 F.2d at 85-86. Accordingly,

we hold that the conspiracies charged in each indictment are legally

distinct and the prosecution in this case did not offend the Double

Jeopardy Clause.

Rosario-Rodríguez also raises a collateral estoppel argument.

Collateral estoppel is a part of the Fifth Amendment's guarantee

against double jeopardy. It provides that "when an issue of ultimate

fact has once been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future

-71-
lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). Although first

developed in civil litigation, collateral estoppel is an "established

rule of federal criminal law." Id. at 443. Further, the Supreme Court

has stated that in criminal cases collateral estoppel is to be applied

"with realism and rationality." Id. at 444.

Where a previous judgment of acquittal was based
upon a general verdict, as is usually the case,
this approach requires a court to examine that
record of a prior proceeding, taking into account
the pleadings, evidence, charge, and other
relevant matter, and conclude whether a rational
jury could have grounded its verdict upon an
issue other than that which the defendant seeks
to foreclose from consideration. The inquiry
must be set in a practical frame and viewed with
an eye to all the circumstances of the
proceedings. Any test more technically
restrictive would, of course, simply amount to a
rejection of the rule of collateral estoppel in
criminal proceedings, at least in every case
where the first judgment was based upon a general
verdict of acquittal.

Id. (internal quotations and citations omitted). The defendant bears

the burden of demonstrating "that the issue whose relitigation he seeks

to foreclose was actually decided in the first proceeding." See

Dowling v. United States, 493 U.S. 342, 350 (1990).

Here, Rosario-Rodríguez states that Count 1 of the indictment

describes the individuals murdered after the Rosarios exited the

Santiago-Lugo drug conspiracy as "associates of the Rosario-Rodríguez

brothers." According to appellant, his acquittal in case 95-160 barred

the government from alleging that he was "associated" with any of the

-72-
murder victims in this case. This argument is not only confusing, but

meritless.

Quite simply, there is no evidence indicating that the jury

in case 95-160 concluded that appellant was not associated with the

murder victims in this case. To the contrary, as the record stands,

there is nothing that even suggests that appellant's association with

these individuals was at issue, let alone determined in appellant's

favor, at the prior trial. Equally important, the evidence attacked by

appellant was not offered against him. The government introduced

evidence of Rosario-Rodríguez's association with certain murder victims

to establish the motive of other defendants, who murdered those

individuals because of their affiliation with the Rosario-Rodríguez

brothers. Consequently, appellant has not carried his burden of proof

and this argument fails.

XVIII. Ortiz-Santiago, Rosario-Rodríguez, and Colón-Miranda's Double
Jeopardy Argument

Ortiz-Santiago, Rosario-Rodríguez, and Colón-Miranda argue

that their convictions for the Count 1 drug conspiracy, charged

pursuant to 21 U.S.C. § 846, and the drug-related murders, charged

pursuant to 21 U.S.C. § 848(e), violate the Double Jeopardy Clause

because the former is a lesser included offense of the latter.

Appellants are mistaken.

-73-
 In Blockburger v. United States, 284 U.S. 299, 304 (1932),

the Supreme Court set out the test for "separate offenses" under the

Double Jeopardy Clause, stating:

The applicable rule is that, where the same act
or transaction constitutes a violation of two
distinct statutory provisions, the test to be
applied to determine whether there are two
offenses or only one is whether each provision
requires proof of an additional fact which the
other does not.

The Court, however, has clarified that "[t]he Blockburger test is a

'rule of statutory construction,' and because it serves as a means of

discerning congressional purpose the rule should not be controlling

where, for example, there is a clear indication of contrary legislative

intent." Missouri v. Hunter, 459 U.S. 359, 367 (1983) (quoting

Albernaz v. United States, 450 U.S. 333, 344 (1981)); see also Garrett

v. United States, 471 U.S. 773, 779 (1985) ("[T]he Blockburger rule is

not controlling when the legislative intent is clear from the face of

the statute or the legislative history."); Albrecht v. United States,

273 U.S. 1, 11 (1927) ("There is nothing in the Constitution which

prevents Congress from punishing separately each step leading to the

consummation of a transaction which it has power to prohibit and

punishing also the completed transaction.").

Here, Count 1 charged appellants with engaging in a drug

conspiracy under 21 U.S.C. § 846, which is punishable under 21 U.S.C.

§ 841(b)(1)(A). Counts 52-59 charged appellants with murder under 21

-74-
U.S.C. § 848(e)(1), which outlaws, in relevant part, intentional

killing while engaged in an offense punishable under § 841(b)(1)(A).

The statutory language of 21 U.S.C. § 848(e)(1) clearly indicates that

a drug-related murder conviction is a separate offense from the

predicate drug conspiracy offense:

(1) In addition to the other penalties set forth
in this section--

(A) any person engaging in or working in
furtherance of a continuing criminal enterprise,
or any person engaging in an offense punishable
under section 841(b)(1)(A) of this title or
section 960(b)(1) of this title who intentionally
kills or counsels, commands, induces, procures,
or causes the intentional killing of an
individual and such killing results, shall be
sentenced to any term of imprisonment, which
shall not be less than 20 years, and which may be
up to life imprisonment, or may be sentenced to
death.

21 U.S.C. § 848(e)(1). Significantly, the first sentence of

§ 848(e)(1) begins "[i]n addition to the other penalties set forth in

this section," thereby making it clear that Congress intended to permit

a defendant to be convicted and sentenced separately for murder under

848(e)(1) and a predicate drug conspiracy punishable under 21 U.S.C. §

841(b)(1)(A). The case law is in accord and we need not give this

argument any further consideration. See United States v. McCullah, 76

F.3d 1087, 1104-05 (10th Cir. 1996); United States v. Snow, 48 F.3d

198, 200 (6th Cir. 1995); see also United States v. Villarreal, 963

F.2d 725, 728 (5th Cir. 1992) ("We are convinced that Congress created

-75-
a substantive offense in 21 U.S.C. § 848(e)(1)(B) and that its

'language, structure, and . . . history . . . show in the plainest way

that Congress intended [it] to be a separate criminal offense which was

punishable in addition to, and not as a substitute for, the predicate

offenses.'" (quoting Garrett, 471 U.S. at 779)); cf. United States v.

NJB, 104 F.3d 630, 632-33 (4th Cir. 1997) (holding conviction for CCE

murder, 21 U.S.C. § 848(e)(1), is a separate offense from a CCE, 21

U.S.C. § 848(c)).

-76-
XIX. Sentencing Arguments Raised by Ríos-Ríos Regarding His Base
Offense Level and the Denial of a Mitigating Role Adjustment

In the First Circuit, appellate review of a district court's

application of the Sentencing Guidelines is a two-part process. See

United States v. Cali, 87 F.3d 571, 575 (1st Cir. 1996); United States

v. Joyce, 70 F.3d 679, 681 (1st Cir. 1995). First, we determine the

applicability and interpretation of a sentencing guideline de novo.

See Cali, 87 F.3d at 575; United States v. McCarthy, 77 F.3d 522, 535

(1st Cir. 1996); United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.

1992). Second, after determining the guideline's scope and meaning, we

review "the district court's factual determinations for clear error,

'giv[ing] due deference to the district court's application of the

guidelines to the facts.'" Cali, 87 F.3d at 575 (quoting Joyce, 70 F.3d

at 681); see also McCarthy, 77 F.3d at 535; St. Cyr, 977 F.2d at 701.

Here, Ríos-Ríos contends that the district court erred by (1)

failing to make individualized findings regarding the drug quantity

attributed to him, (2) incorrectly calculating the drug quantity, and

(3) failing to apply Sentencing Guidelines § 2D1.1 comment note 14 and

§ 3B1.2 to his case. These arguments are without merit.

In a drug distribution case, "a key datum in constructing a

defendant's sentence is the quantity of narcotics attributable to him

for sentencing purposes . . . ." United States v. Bradley, 917 F.2d

601, 604 (1st Cir. 1990); see also United States v. García, 954 F.2d

-77-
12, 15 (1st Cir. 1992). In the context of a drug conspiracy, a

defendant is also accountable for the conduct of others if that conduct

is (1) reasonably foreseeable to the defendant and (2) committed in

furtherance of a jointly undertaken criminal activity. See U.S.S.G. §

1B1.3(a)(1)(B); see also United States v. O'Campo, 973 F.2d 1015, 1026

(1st Cir. 1992) ("We are of the view that the base offense level of a

co-conspirator at sentencing should reflect only the quantity of drugs

he reasonably foresees it is the object of the conspiracy to distribute

after he joins the conspiracy."); García, 954 F.2d at 15 (same). As a

corollary, we have held that in order to properly calculate a

defendant's base level for sentencing, a trial judge must make

individualized findings regarding the foreseeability of conduct

undertaken by co-conspirators. See, e.g., United States v. Balogun,

989 F.2d 20, 22 (1st Cir. 1993).

In this case, the evidence established that Ríos-Ríos was

actively involved in the Costa del Mar and Los Pinos mesas for

approximately eighteen months during 1990 and 1991. As a matter of

law, Ríos-Ríos is accountable for his co-conspirators' conduct during

that time so long as that conduct was reasonably foreseeable and in

furtherance of the conspiracy. See U.S.S.G. § 1B1.3(a)(1)(B); O'Campo,

973 F.2d at 1026; García, 954 F.2d at 15. In sentencing Ríos-Ríos, the

trial court determined that the conduct of his co-conspirators was

reasonably foreseeable, stating those who were "dealing with the mesas,

-78-
taking care of the apartments, renting places, people who were in the

trust of Santiago-Lugo, in that sense are responsible for that amount

of drug." The trial court then relied on the various drug ledgers

deciphered by Agent Clouse at trial as a "conservative way of

determining how much drug is involved," and concluded that Ríos-Ríos

was subject to a base offense level of thirty-eight.

The district court's findings are not clearly erroneous. See

Cali, 87 F.3d at 575. To the contrary, there is ample evidence in the

record to support the trial court's determination of a base offense

level of thirty-eight. David Martínez-Matta testified that the

Santiago-Lugo organization processed quarter-kilogram quantities of

heroin and kilogram quantities of cocaine at the Los Pinos mesa weekly.

Over a one-year period, that would result in thirteen kilograms of

heroin and fifty-two kilograms of cocaine. The Sentencing Guidelines

convert heroin and cocaine quantities to marijuana equivalents. See

U.S.S.G. § 2D1.1 cmt. note 10. Pursuant to the drug equivalence

tables, one gram of heroin equals one kilogram of marijuana and one

gram of cocaine equals two hundred grams of marijuana. Accordingly,

during 1991, the Santiago-Lugo organization processed the equivalent of

23,400 kilograms of marijuana at the Los Pinos mesa (13,000 kilograms

attributable to the heroin production and 10,400 kilograms attributable

to the cocaine). Ríos-Ríos actively participated in the mesas at Costa

del Mar and Los Pinos for eighteen months, which makes him accountable

-79-
for a year and a half's worth of narcotics production amounting to the

equivalent of 35,100 kilograms of marijuana. The prosecution needed

only to show that the defendant was responsible for 30,000 kilograms of

marijuana to support a base level of thirty-eight.

In addition, the trial court properly declined to apply

Sentencing Guidelines §§ 2D1.1 comment note 14 and 3B1.2 to this case.

Application Note 14, authorizing a downward departure for certain less

culpable defendants, is dependent on the applicability of § 3B1.2,

authorizing an offense level reduction for mitigating role. The burden

to show that the facts merit the adjustment falls on the defendant.

See García, 954 F.2d at 18 ("[W]hen a defendant seeks to show that his

role was so tangential as to justify a downward adjustment in an

otherwise-applicable offense level, he must carry the devoir of

persuasion."). Moreover, we have often held, and today reaffirm, that

role-in-the-offense determinations, if based on reasonable inferences

drawn from undisputed facts, cannot be clearly erroneous. See, e.g.,

id. at 18; United States v. DiIorio, 948 F.2d 1, 5 (1st Cir. 1991);

United States v. Rosado-Sierra, 938 F.2d 1, 1-2 (1st Cir. 1991).

In this case, the judge ruled, "from the evidence I have

heard, . . . those who had access to [the mesas], indeed were by no

means minor, minimal, or in between participants." There is no dispute

that Ríos-Ríos had access to the drug mesas. Accordingly, we reject

-80-
appellant's argument that he played a minor role and affirm his

sentence of 293 months.

-81-
XX. Sentencing Argument Raised by Collazo-Aponte Regarding Enhancement
of His Sentence Pursuant to 18 U.S.C. § 924(c)(1)(B)(i)

Collazo-Aponte alleges that the district court improperly

enhanced his sentence for Count 65 (charging appellant with use of a

firearm during a drug trafficking offense pursuant to 18 U.S.C. §

924(c)(1) and Pinkerton) to ten years pursuant to 18 U.S.C.

§ 924(c)(1)(B)(i). The statute provides, in relevant part:

(c)(1)(A) Except to the extent that a greater
minimum sentence is otherwise provided by this
subsection or by any other provision of law, any
person who, during and in relation to any crime
of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime
that provides for an enhanced punishment if
committed by the use of a deadly or dangerous
weapon or device) for which the person may be
prosecuted in a court of the United States, uses
or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in
addition to the punishment provided for such
crime of violence or drug trafficking crime --

(i) be sentenced to a term of imprisonment of not
less than 5 years;

. . . .

(B) If the firearm possessed by a person
convicted of a violation of this subsection--

(i) is a short-barreled rifle, short-barreled
shotgun, or semiautomatic assault weapon, the
person shall be sentenced to a term of
imprisonment of not less than 10 years.

Id. § 924(c). Appellant argues that (1) the use or carrying of

semiautomatic firearms occurred prior to his joining of the conspiracy,

-82-
and (2) he could not have foreseen the use of such firearms. Neither

argument has merit.

In the sentencing context, "we review factbound matters for

clear error, and such facts need only be supported by a preponderance

of the evidence." United States v. McCarthy, 77 F.3d 522, 535 (1st

Cir. 1996); see also United States v. Andújar, 49 F.3d 16, 25 (1st Cir.

1995). Here, a preponderance of the evidence establishes that Collazo-

Aponte joined the conspiracy shortly after the murder of Richard Muñoz-

Candelaria, who was killed on February 23, 1993. At that time, the

organization began storing drugs at Merced-Morales' bar. Collazo-

Aponte does not contest that he was employed by Merced-Morales at this

location, and Wilfredo Martínez-Matta testified that Collazo-Aponte was

personally involved with the drug trafficking that took place there.

Collazo-Aponte also does not contest that the evidence presented by the

government at his sentencing reflected the organization's use of

semiautomatic firearms during the Easter 1994 cacería that resulted in

the murder of Wilfredo Rivera-Rodríguez and Wilfredo Guzmán-Morales.

Consequently, appellant's first argument fails because the record

reveals no clear error.

Collazo-Aponte failed to raise his reasonable foreseeability

argument before the district court, and therefore appellant's second

argument is waived. See, e.g., United States v. Candelaria-Silva, 166

F.3d 19, 40-41 (1st Cir. 1999); United States v. Barnett, 989 F.2d 546,

-83-
554 (1st Cir. 1993). Moreover, even if this argument had been properly

preserved, the record contains ample evidence that the use of

semiautomatic weapons was reasonably foreseeable. Collazo-Aponte had

personal knowledge of the significant drug quantities involved in the

conspiracy, see, e.g., United States v. Díaz, 864 F.2d 544, 549 (7th

Cir. 1988), and it stretches the imagination to suggest that Collazo-

Aponte was somehow unaware of the drug war with the Rosarios.

Accordingly, this argument fails.

XXI. Sentencing Arguments Raised by Rosario-Rodríguez

A. Criminal History

Rosario-Rodríguez alleges that the district court improperly

calculated his criminal history category pursuant to Sentencing

Guidelines § 4A1.2 because the court treated his local convictions for

first-degree murder and the related firearms offenses committed on

April 2, 1994 as a "prior sentence." Appellant argues that contrary to

the district court's determination, these convictions constitute

conduct that is part of the instant offense pursuant to the definition

of relevant conduct contained in Sentencing Guidelines § 1B1.3.

Appellant is mistaken.

Section 4A1.2(a)(1) states that in calculating a defendant's

prior criminal history a judge may count as a "prior sentence" only a

"sentence previously imposed . . . for conduct not part of the instant

offense." (Emphasis added). Conduct that is part of the instant

-84-
offense "means conduct that is relevant conduct to the instant offense

under the provisions of § 1B1.3" U.S.S.G. § 4A1.2 cmt. note 1.

Unfortunately, the applicable definition found in § 1B1.3 is not a

model of clarity. Section 1B1.3 defines relevant conduct as "the same

course of conduct or common scheme or plan as the offense of

conviction." U.S.S.G. § 1B1.3(a)(2); see also United States v.

Skrodzki, 9 F.3d 198, 201 (1st Cir. 1993). Thankfully, the commentary

to § 1B1.3 is more helpful:

(A) Common scheme or plan. For two or more
offenses to constitute part of a common scheme or
plan, they must be substantially connected to
each other by at least one common factor, such as
common victims, common accomplices, common
purpose, or similar modus operandi. . . .

(B) Same course of conduct. Offenses that do not
qualify as part of a common scheme or plan may
nonetheless qualify as part of the same course of
conduct if they are sufficiently connected or
related to each other as to warrant the
conclusion that they are part of a single
episode, spree, or ongoing series of offenses.
Factors that are appropriate to the determination
of whether offenses are sufficiently connected or
related to each other to be considered as part of
the same course of conduct include the degree of
similarity of the offenses, the regularity
(repetitions) of the offenses, and the time
interval between the offenses. When one of the
above factors is absent, a stronger presence of
at least one of the other factors is required.

U.S.S.G. § 1B1.3 cmt. note 9.

The case law is in accord, adopting a "severable and distinct

test." See, e.g., Unites States v. Copeland, 45 F.3d 254, 256 (8th

-85-
Cir. 1995) ("Although conduct that is part of the current offense

should be counted as relevant conduct rather than as a prior sentence,

conduct is not part of the instant offense when it is a 'severable

distinct offense.'") (quoting United States v. Blumberg, 961 F.2d 787,

792 (8th Cir. 1992). As the Guidelines indicate, "[t]his is

necessarily a fact-specific inquiry that involves more than just a

consideration of the elements of the two offenses. Factors such as the

temporal and geographical proximity of the two offenses, common

victims, and a common criminal plan or intent also must be considered."

United States v. Beddow, 957 F.2d 1330, 1338 (6th Cir. 1992) (internal

citation omitted).

Here, the district court properly concluded that Rosario-

Rodríguez exited the Santiago-Lugo conspiracy on February 28, 1993 by

taking part in the murder of Richard Muñoz-Candelaria. Consequently,

appellant's local convictions for murder and the related firearms

offenses do not constitute relevant conduct for sentencing purposes in

this case. First, the local offenses occurred on April 2, 1994, more

than a year after Rosario-Rodríguez exited the conspiracy charged in

the present indictment. Second, although appellant claims that the

1994 murder was "relevant conduct" of his participation in the

Santiago-Lugo organization, there was no evidence of the 1994 murder

presented during trial. Third, appellant fails to provide the Court

with any details of the 1994 murder. We are left to speculate as to

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both the circumstances involved and the identity of the victim. The

little information about this murder that is in the record merely

suggests that it was a double murder committed to avenge the execution

of appellant's fourteen-year-old brother. Accordingly, there is no

evidence of common victims, accomplices, criminal plans or intent. See

Copeland, 45 F.3d at 256; Beddow, 957 F.2d at 1338. Therefore, we hold

that the district court did not err in finding the 1994 murder was not

relevant conduct to the instant offense.

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 B. Downward Departure for Superb Prison Behavior

Rosario-Rodríguez argues that the district court should have

departed downward, pursuant to Sentencing Guidelines § 5K2.0, because

of his "superb prison behavior" during prior and ongoing periods of

incarceration. In United States v. Saldaña, 109 F.3d 100 (1st Cir.

1997), we explained:

Under 18 U.S.C. § 3742(a), a defendant may appeal
from his sentence . . . if it was imposed "in
violation of law" or by "an incorrect application
of the sentencing guidelines"; but the defendant
may not appeal from a sentence within the
guideline range if there was no legal error and
the only claim is that the district court acted
unreasonably in declining to depart.

Id. at 102; see also United States v. Tucker, 892 F.2d 8, 10 (1st Cir.

1989). Here, appellant does not allege any error of law. Accordingly,

this claim is not subject to review.

C. Consecutive Sentences

Rosario-Rodríguez alleges that the district court should have

"exercised its discretion" under 18 U.S.C. § 3584(a) and Sentencing

Guidelines § 5G1.3(c) to run his sentence in this case concurrent to

that imposed for his local first-degree murder and related firearms

convictions.

The applicable statute, 18 U.S.C. § 3584(a), states:

[I]f a term of imprisonment is imposed on a
defendant who is already subject to an
undischarged term of imprisonment, the terms may
run concurrently or consecutively . . . .

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 Multiple terms of imprisonment imposed at
different times run consecutively unless the
court orders that the terms are to run
concurrently.

Since the district court did not specify concurrent sentences, the

terms of appellant's federal and local convictions run consecutively

pursuant to the last sentence of Section 3584(a).

As Sentencing Guidelines § 5G1.3(c) makes clear, and as

Rosario-Rodríguez admits, the district court has "full discretion" to

decide whether to run the sentences concurrently or consecutively:

[T]he sentence for the instant offense may be
imposed to run concurrently, partially
concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.

U.S.S.G. § 5G1.3(c). Appellant does not allege any error of law, but

merely contends that the court should have exercised its discretion

differently. For the reasons set forth above, this argument is not

subject to review. See Saldaña, 109 F.3d at 102 ("Under 18 U.S.C. §

3742(a), a defendant . . . may not appeal from a sentence within the

guideline range if there was no legal error and the only claim is that

the district court acted unreasonably in declining to depart.");

Tucker, 892 F.2d at 10 (same).

D. Acceptance of Responsibility

In light of his allocution at the sentencing hearing,

Rosario-Rodríguez argues that the trial court erred in declining to

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reduce his offense level for acceptance of responsibility pursuant to

Sentencing Guidelines § 3E1.1(a). In this Circuit, "[a] defendant

bears the burden of proving entitlement to decreases in the offense

level, including downward adjustments for acceptance of

responsibility." United States v. Gonzáles, 12 F.3d 298, 300 (1st Cir.

1993); see also United States v. Morillo, 8 F.3d 864, 871 (1st Cir.

1993); United States v. Bradley, 917 F.2d 601, 606 (1st Cir. 1990).

"Whether a defendant clearly demonstrates a recognition and affirmative

acceptance of personal responsibility is a fact-dominated issue, and

the district court's decision to withhold a reduction in the offense

level will not be overturned unless clearly erroneous." E.g., United

States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990); see also U.S.S.G. §

3E1.1 cmt. note 5 ("The sentencing judge is in a unique position to

evaluate a defendant's acceptance of responsibility. For this reason,

the determination of the sentencing judge is entitled to great

deference on review.").

Section 3E1.1 requires a defendant to "clearly" demonstrate

acceptance of responsibility for his offense. Accordingly, "a

defendant who falsely denies, or frivolously contests, relevant conduct

that the court determines to be true has acted in a manner inconsistent

with acceptance of responsibility." U.S.S.G. § 3E1.1 cmt. note 1(a).

Although a defendant who goes to trial may still qualify for acceptance

of responsibility, such an occurrence is "rare." Id. at cmt. note 2.

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The Guidelines explain: "This adjustment is not intended to apply to

a defendant who puts the government to its burden of proof at trial by

denying the essential factual elements of guilt, is convicted, and only

then admits guilt and expresses remorse." U.S.S.G. § 3E1.1 cmt. note

2. Accordingly, "a determination that a defendant has accepted

responsibility will be based primarily upon pre-trial statements and

conduct." Id.

In this case, the record reflects that Rosario-Rodríguez made

no pretrial statements accepting responsibility. Further, although

appellant talked at length about his distribution of narcotics at his

sentencing hearing, he did not accept responsibility for the murder of

Muñoz-Candelaria. To the contrary, he stated:

[T]he only reason I went to trial in this case
was because I was being charged with the death of
Richard Muñoz-Candelaria . . . . I would have
accepted my responsibilities but I could never
accept that I killed Richard Muñoz-Candelaria.
I could never accept something that was not true.

Based on these statements, the district court correctly found:

What I am saying is that the jury made a finding
that your client participated in the murder.
There has been no admission. No acceptance of
responsibility by your client as to that and that
is at odds with the evidence at trial and the
jury verdict. In which case I don't think that
I should second guess what happened in the jury
room or how the jury interpreted the evidence by
granting an acceptance of responsibility . . . .

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 As the trial court indicated, the record reflects that

Rosario-Rodríguez denied murdering Muñoz-Candelaria in direct

contravention of the jury's verdict on Count 52. Accordingly, we see

no reason to reverse the lower court's determination on this question.

[T]he district judge had firsthand knowledge of
the circumstances surrounding the defendant's
actions and had the opportunity to see [the
defendant], listen to him, and assess his
credibility. The judge determined that appellant
had not forthrightly acknowledged the extent of
his involvement and thus had failed meaningfully
to shoulder responsibility. Because the court
had a plausible basis for arriving at the
conclusion, no more was required.

United States v. Royer, 895 F.2d 28, 30 (1st Cir. 1990).

E. Credit for Time Served

Rosario-Rodríguez alleges that he should have received credit

for time served on a previous federal sentence pursuant to 18 U.S.C. §

3585(b). Appellant's previous sentence was for possession of a firearm

with an obliterated serial number. According to appellant, this

offense was "inextricably related and inextricably intertwined" with

the offenses in this case. The Supreme Court has disposed of this

argument

We do not accept [appellant's] argument that
§ 3585(b) authorizes a district court to award
credit at sentencing . . . . Congress has
indicated that computation of the credit must
occur after the defendant begins his sentence. A
district court, therefore, cannot apply § 3585(b)
at sentencing.

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United States v. Wilson, 503 U.S. 329, 333 (1992). The computation of

credit for time served must be made in the first instance by the

Attorney General, through the Bureau of Prisons. See id. at 335.

Prisoners may then seek administrative review of the computation of

their credits, see 28 C.F.R §§ 542.10-.16 (1990), and, if necessary,

"seek judicial review of these computations after exhausting their

administrative remedies." Id. Accordingly, appellant's contention of

error is without merit.

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 F. Imposition of a Consecutive Ten-Year Sentence for
Violation of 18 U.S.C. § 924(c)(1)

Finally, Rosario-Rodríguez argues that he was improperly

sentenced under 18 U.S.C. § 924(c)(1). As we previously indicated, the

statute provides:

[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime
(including a crime of violence or drug
trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person
may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime -- be sentenced to a term of
imprisonment of not less than 5 years . . . . If
the firearm possessed by a person convicted of a
violation of this subsection – is a
short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon, the person shall be
sentenced to a term of imprisonment of not less
than 10 years . . . .

Id. § 924(c)(1). Here, the district court imposed the mandatory,

consecutive ten-year sentence for violations involving a semiautomatic

assault weapon. We see no error in this determination. The record

establishes that on July 3, 1992 Rosario-Rodríguez was arrested with a

Calico 9mm firearm capable of holding fifty rounds of ammunition. In

addition, Wilfredo Martínez-Matta testified that shortly before the

murder of Richard Muñoz-Candelaria, appellant was holding an automatic

pistol. Moreover, the prosecution's expert witness, Dr. Brugal,

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testified that Muñoz-Candelaria was shot twenty-nine times, which

suggests that a semiautomatic weapon of some sort was employed in his

murder. Accordingly, the ten-year mandatory sentence imposed by the

district court was appropriate pursuant to 18 U.S.C. § 924(c)(1).

XXII. Colón-Miranda's Sentence for Tampering with a Witness in
Violation of 18 U.S.C. § 1512

In Counts 60 and 61 of the indictment, Colón-Miranda was

charged with attempting to kill Rafael Cotto-Fuentes with the intent to

prevent Cotto-Fuentes from (1) communicating with a United States law

enforcement officer and (2) testifying in an official proceeding --

both in violation of 18 U.S.C. § 1512. Colón-Miranda was convicted on

each count, and the district court imposed life sentences. We agree

with appellant that these sentences are improper. The statute provides

that in the case of attempted murder, imprisonment shall be for no more

than twenty years. See 18 U.S.C. § 1512(a)(2)(B). Accordingly, we

reverse and remand the sentence imposed on Colón-Miranda under Counts

60 and 61 for re-sentencing in accordance with 18 U.S.C. §

1512(a)(2)(B).

XXIII. Ineffective Assistance of Counsel Argument Raised by Ríos-Ríos

Ríos-Ríos alleges that his trial counsel was ineffective.

In this Circuit, "[w]e have held with a regularity bordering on the

monotonous that fact-specific claims of ineffective assistance cannot

make their debut on direct review of criminal convictions, but, rather,

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must originally be presented to, and acted upon by, the trial court."

United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993); see also

United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991); United States

v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991); United States v.

Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989); United States v. Costa,

890 F.2d 480, 482-83 (1st Cir. 1989); United States v. Hoyos-Medina,

878 F.2d 21, 22 (1st Cir. 1989); United States v. Carter, 815 F.2d 827,

829 (1st Cir. 1987); United States v. Kobrosky, 711 F.2d 449, 457 (1st

Cir. 1983). It is true that we have made an occasional exception to

this rule where, for example, "the critical facts are not genuinely in

dispute and the record is sufficiently developed to allow reasoned

consideration of an ineffective assistance claim." Natanel, 938 F.2d

at 309. This, however, is not such a case, and therefore we decline to

review this claim.

Appellant is free to raise this argument collaterally under

28 U.S.C. § 2255. See, e.g., United States v. Martínez-Martínez, 69

F.3d 1215, 1225 (1st Cir. 1995); United States v. Daniels, 3 F.3d 25,

27 (1st Cir. 1993).

XXIV. Appellants' Remaining Arguments

Appellants' remaining claims have been considered but do not

require discussion. This Court has previously stated:

[W]e understand the practical pressure on
lawyers--especially in criminal cases--to resolve
doubts in favor of including doubtful claims

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 along with stronger ones. But cases with
difficult issues now crowd the dockets. At least
in opinion writing, the court's time is best
reserved for colorable claims.

United States v. Bennett, 75 F.3d 40, 49 (1st Cir. 1996). We reaffirm

this principle today.

In addition, we decline to reach any arguments merely alluded

to by appellants because "we see no reason to abandon the settled

appellate rule that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived." E.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990). As we have previously reasoned, "[j]udges are not expected to

be mindreaders," and therefore "a litigant has an obligation to spell

out its arguments squarely and distinctly." Rivera-Gómez v. de Castro,

843 F.2d 631, 635 (1st Cir. 1988) (quotation omitted).

CONCLUSION

For the reasons stated above, we reverse and remand the

sentence imposed on Colón-Miranda under Counts 60 and 61 for re-

sentencing in accordance with 18 U.S.C. § 1512(a)(2)(B). We reject all

other arguments raised by appellants, and therefore we affirm

appellants' convictions and sentences in all other aspects.

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