United States v. Llinas

United States Court of Appeals
For the First Circuit

No. 01-1799

UNITED STATES OF AMERICA,

Appellee,

v.

WANDA LLINAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Rafael F. Castro Lang for appellant.
Thomas F. Klumper, Assistant United States Attorney with
whom H.S. Garcia, United States Attorney and Sonia I. Torres-Pabón,
were on brief, for appellee.

June 18, 2004
 HOWARD, Circuit Judge. Following a five-day trial, a

jury convicted defendant-appellant Wanda Llinas of both conspiracy

to possess narcotics with intent to distribute and intentional use

of a communication device in facilitating the conspiracy. Llinas

now appeals these convictions, alleging that there was

(1) insufficient evidence to support the verdicts and (2)

reversible error arising out of the district court's decision to

admit certain evidence in violation of Rule 12.1(b) of the Federal

Rules of Criminal Procedure. We affirm.

I.

We recite the relevant facts in the light most favorable

to the verdicts. See United States v. Echeverri, 982 F.2d 675, 676

(1st Cir. 1993).

Daniel Sanchez and Wilson Martínez Cotto became friends

in or about January 2000, and, within a few days, Sanchez began

selling heroin to Martínez for distribution. Soon thereafter,

Sanchez told Martínez about a recent encounter he had had with a

man called "Guillermo," who had proposed that Sanchez visit Puerto

Rico to conduct some drug deals. Martínez was interested. Neither

Sanchez nor Martínez was aware that Guillermo was a government

informant.

In June 2000, Sanchez and Martínez traveled together to

Puerto Rico, where Sanchez was to introduce Martínez to Guillermo.

For his part, Martínez tended to the lodging details, initially

-2-
arranging for the pair to stay at a relative's house. After

arriving in Puerto Rico, however, these initial arrangements fell

through. In search of a place to stay, Martínez then phoned

Llinas's stepfather, a family friend, and arranged for the men to

stay at his house. Llinas lived with her stepfather.

On June 16th, Llinas drove Sanchez and Martínez to a

nearby bakery. While Llinas waited in her car with her stepfather,

Sanchez and Martínez entered the bakery and met with Guillermo and

his partner, Carrasquillo, an undercover agent for the Drug

Enforcement Administration. There, the men negotiated a

transaction in which Martínez agreed to provide, on a later date,

two kilograms of heroin in exchange for eleven kilograms of

cocaine.

Approximately one-half hour after entering the bakery,

Sanchez and Martínez exited, and Llinas drove them back to her

stepfather's home. Having earned his commission by introducing

Martínez to Guillermo, Sanchez departed Puerto Rico.

Martínez did not hear from Carrasquillo until June 30th,

when they spoke via cellular telephone. During the course of this

coded-language conversation, Martínez informed Carrasquillo that

"at hand, I have one and a half . . . then by Sunday, I'll have

another two . . . it would be three and a half." The men agreed to

-3-
exchange the drugs –- or, as Martínez put it, "cook the goose" –-

on July 3rd.1

On the morning of July 3rd, Martínez contacted

Carrasquillo to arrange the meeting for that day. A few hours

later, in Llinas's presence, Martínez again phoned Carrasquillo and

informed him that he "went by the office and [] picked the papers

up there with the, the, stamps on them and all that . . . ." The

men then agreed to meet at the parking lot of El Comandante

racetrack between 4:00 and 4:30 p.m. At this point in the

conversation, Martínez handed Llinas the cellular phone to receive

directions to the racetrack.

According to Llinas, Martínez had asked her to drop him

off at the racetrack, where he was to meet a friend who would pick

him up. After dropping Martínez off, Llinas and her boyfriend,

José Arroyo, planned on driving to the beach for the Fourth-of-July

holiday.

On the way to the racetrack, Llinas and Martínez picked

up Arroyo in a rental car that Arroyo allegedly had rented for the

weekend. They subsequently made a quick stop at a supermarket to

purchase provisions for the beach. While Llinas and Arroyo were

1
Pointing to background voices that can be heard on Agent
Carrasquillo's tape-recording of the June 30th conversation, the
government repeatedly asserts in its brief that Llinas was present
during this dialogue. We cannot conclude that this assertion is
supported by the record; accordingly, we will not consider it.

-4-
inside, Martínez waited in the parking lot and made two additional

calls to Carrasquillo.

Having completed this errand, the trio set off for the

rendezvous at the racetrack. Martínez was driving; Arroyo was in

the passenger seat and Llinas was in the back. Next to Llinas in

the backseat were two cellular telephone boxes stacked inside a

large plastic bag. The boxes contained plastic bags filled with

1787 grams of heroin.

At approximately 4:30 p.m., they arrived at the

racetrack's parking lot. Martínez parked the car, exited, and

approached Carrasquillo. Llinas and Arroyo remained inside.

According to Llinas's testimony, Martínez had asked them to wait

"because he was going to decide where he was going with his

friend."

Upon agreeing with Carrasquillo to proceed with the

exchange, Martínez walked over to the car, opened the rear door,

and asked Llinas to hand him the bag next to her. According to

Llinas, after she handed Martínez the bag that she believed

contained cellular telephones, she "asked him whether we could

leave yet and he said no because the friend that was going to pick

him up hadn't arrived yet." Carrasquillo and Martínez then moved

to the back of the car to inspect the bag's contents. Once certain

that the boxes contained a heroin-like substance, Carrasquillo

signaled for the arrest of Martínez, Llinas, and Arroyo.

-5-
 On July 26, 2000, Llinas was arraigned on a three-count

indictment. Count I charged Llinas, Arroyo and Martínez with

conspiracy with the intent to possess and distribute two kilograms

of a substance containing a detectable amount of heroin and five

kilograms of a substance containing a detectable amount of cocaine,

in violation of 21 U.S.C. § 841(a)(1); Count II charged Llinas and

her co-defendants with aiding and abetting possession with the

intent to distribute approximately two kilograms of heroin, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Count III

charged Llinas and Martínez with aiding and abetting each other in

using a communication facility to facilitate the conspiracy, in

violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.

On November 21, 2000, a joint trial began; Llinas and

Arroyo were co-defendants.2 On November 28, 2000, a jury found

Llinas guilty on Counts I and III and not guilty on Count II.

Arroyo was acquitted on all counts. On April 24, 2001, the

district court sentenced Llinas to concurrent prison terms of 123

months for Count I and 24 months for Count III, three years of

supervised release, and $200 in special assessments.

This appeal followed.

2
Prior to trial, Martínez had entered a guilty plea.
Notwithstanding his cooperation with the government, Martínez did
not testify at Llinas's trial.

-6-
 II.

We are presented with two issues on appeal: (1) whether

there was sufficient evidence to support Llinas's convictions; and

(2) whether the district court erred when it allowed the government

to introduce certain documents and testimony, neither of which were

noticed to Llinas as allegedly required by Rule 12.1(b) of the

Federal Rules of Criminal Procedure.

Given these separate issues, two standards of review

apply. First, in deciding sufficiency challenges, "we review all

the evidence, direct and circumstantial, in the light most

favorable to the prosecution, drawing all reasonable inferences

consistent with the verdict, and avoiding credibility judgments, to

determine whether a rational jury could have found guilt beyond a

reasonable doubt."3 United States v. Baltas, 236 F.3d 27, 35 (1st

Cir. 2001); see also United States v. Ruiz, 105 F.3d 1492, 1495

(1st Cir. 1997) (noting that "we review de novo the defendants'

challenge to the evidentiary sufficiency of their convictions,

construing the evidence in the light most favorable to the

government"). As to the second issue, because the district court's

3
Following the government's presentation of its case-in-chief,
Llinas unsuccessfully moved for judgment of acquittal pursuant to
Rule 29 of the Federal Rules of Criminal Procedure. Llinas
thereafter presented evidence in her defense, thus waiving review
of her initial motion. See United States v. Ruiz, 105 F.3d 1492,
1495 n.1 (1st Cir. 1997) (citing United States v. Amparo, 961 F.2d
288, 291 (1st Cir. 1992)). Therefore, we review the evidence
presented by Llinas during her case-in-chief in the light most
favorable to the verdicts. See Ruiz, 105 F.3d at 1495 n.1.

-7-
decision to admit the alibi-rebuttal evidence was based on its

construction of Rule 12.1(b), we proceed de novo. See United

States v. Randazzo, 80 F.3d 623, 627 (1st Cir. 1996) (noting that,

because the district court's rejection of a motion turned on its

construction of a rule of criminal procedure, the court would

review the decision de novo); see also United States v.

Encarnacion, 239 F.3d 395, 397 (1st Cir. 2001) ("We review de novo

the district court's construction of the Federal Rules of Criminal

Procedure." (citation omitted)).

A. Sufficiency of the Evidence

Llinas's principal argument on appeal is that her

convictions should be reversed because there was insufficient

evidence at trial to sustain either (1) a finding that she

conspired to possess narcotics with the intent to distribute or (2)

a finding that she used a communication device to facilitate such

a conspiracy. We disagree.

(1) Conspiracy Count

Llinas contends that "the evidence taken as a whole

failed to establish her knowing, intentional participation in the

drug conspiracy . . . beyond a reasonable doubt . . . ." More

specifically, she argues that, "[a]side from the total lack of

evidence presented by the government concerning her knowledge and

criminal intent[,] there is a substantial amount of evidence that

established that [she] did not know about [the conspiracy]."

-8-
 To prove the elements of the crime of
conspiracy, the government must show the
existence of a conspiracy, the defendant's
knowledge of the conspiracy, and the
defendant's voluntary participation in the
conspiracy. More specifically, to establish
that a defendant belonged to and participated
in a conspiracy, the government must prove two
kinds of intent: intent to agree [with her co-
conspirators] and intent to commit the
substantive offense. Such proof may consist
of circumstantial evidence, including
inferences from surrounding circumstances,
such as acts committed by the defendant that
furthered the conspiracy's purposes. The
government need not prove that a co-
conspirator knew all of the details or
participated in all of the objectives of the
plan.

United States v. Gomez-Pabon, 911 F.2d 847, 852-53 (1st Cir. 1990)

(citations and quotation marks omitted); United States v. Nelson-

Rodriguez, 319 F.3d 12, 27 (1st Cir. 2003) (listing the "three

basic components of a drug conspiracy").

Because Llinas does not contest the existence of a

criminal conspiracy between Sanchez and Martínez,4 we consider only

whether the government proved beyond a reasonable doubt both that

Llinas knew of the conspiracy and that she voluntarily participated

in it.

It is clear from the record that Llinas engaged in

activity that would be illegal had she known about the Sanchez-

4
According to Llinas's brief, "[f]rom the testimony of
undercover agent Carrasquillo[,] the government established
that . . . [t]hey finally agreed to exchange 2 kilos of heroin to
be delivered by Sanchez and [Martínez] in exchange for 11 kilos of
cocaine to be delivered by agent Carrasquillo."

-9-
Martínez conspiracy. For example, Llinas testified that, on the

day of the exchange, she picked up the boxed heroin from the

backseat of the car and handed it to Martínez. This evidence alone

arguably is sufficient to prove voluntary participation in the

conspiracy, including an intent to commit the underlying

substantive offense, if Llinas knew that drugs were in the box.

Llinas's conviction, then, turns on the question of when,

if ever, she gained knowledge of the conspiracy. At trial, no

direct evidence was presented on this issue; instead, as is

permissible, the jury inferred knowledge from the government's

circumstantial evidence. See Gomez-Pabon, 911 F.2d at 853

("[P]roof may consist of circumstantial evidence, including

inferences from surrounding circumstances, such as acts committed

by the defendant that furthered the conspiracy's purposes."

(citations omitted)); see also United States v. Valerio, 48 F.3d

58, 63 (1st Cir. 1995) (noting that "the government's proof may lay

entirely in circumstantial evidence" (citation omitted and emphasis

retained)).

Although the evidence is not overwhelming, we conclude

that the jury, having been properly instructed,5 could have found

that the evidence was sufficient to prove the requisite knowledge

beyond a reasonable doubt. The inference that Llinas was, in fact,

5
The district court instructed the jury, inter alia, that "a
person who has no knowledge of a conspiracy, but happens to act in
a way that furthers some object or purpose of the conspiracy, does
not thereby become a conspirator."

-10-
a knowing participant in the conspiracy is adequately supported by

substantial circumstantial evidence together with evidence that

Llinas testified untruthfully at trial.

First, there was substantial circumstantial evidence

suggesting that Llinas knew about the conspiracy. This evidence

can be summarized as follows: While in Puerto Rico, Sanchez and

Martínez stayed with Llinas in the same house; despite her

testimony to the contrary,6 Llinas drove Sanchez and Martínez to

their initial meeting with Carrasquillo, waited in the car

approximately one-half hour, and then drove them back to her

stepfather's home; Llinas was present when Martínez phoned

Carrasquillo and spoke about the drug exchange (albeit in coded

language); on the day of the drug exchange, Martínez handed Llinas

the telephone so that she could receive directions to the

racetrack; Llinas agreed to provide the transportation to the

racetrack in her boyfriend's rental car; after Llinas arrived at

the racetrack, an undercover agent allegedly observed her "moving

[her] head[] like looking for something";7 when asked, Llinas

6
Llinas's potentially untruthful testimony is discussed below.
7
On cross-examination, however, the undercover agent suggested
that he might not have actually observed Llinas "looking for
something." After Arroyo's defense counsel established that the
agent failed to note this particular observation in his
investigative report, the following exchange occurred:

A: But you have got to remember that always, always in
all these transactions, when they arrive in a vehicle,
they all do the same. They are always looking around at
everything, and I never write those details in a

-11-
handed Martínez the drugs, which had been hidden in boxes next to

her in the backseat; and, following confiscation of the heroin that

was placed in two Ericsson cellular telephone boxes, agents seized

two Ericsson cellular telephones from the car.

Llinas responds to the government's evidence as follows:

It is obvious that from the evidence taken as
a whole . . . that [Martínez] used [Llinas] to
provide him with transportation without
[Llinas] having knowledge that he was engaged
in narcotics trafficking with Daniel Sanchez.
Whatever actions [Llinas] took in providing a
ride to [Martínez] and Sanchez on June 16 and
July 3, [they] were carried out without
criminal knowledge and intent.

We are unconvinced. While "mere presence at the scene of

the crime" or "mere association with conspirators" is not enough to

establish guilt, see Gomez-Pabon, 911 F.2d at 853, "the mere

presence defense is not so ubiquitous as to envelop every drug-

trafficking case in which the government lacks direct evidence of

a defendant's complicity." Echeverri, 982 F.2d at 678. See also

United States v. Flores-Rivera, 56 F.3d 319, 324 (1st Cir. 1995)

("Mere presence at the scene and close association with those

involved are insufficient factors alone; nevertheless, they are

relevant factors for the jury." (quoting United States v. Sanchez,

[report].
Q: Well, sir, is that an assumption you are making
because you thought that the people inside the car knew
what was going on? . . .
A: Well, based on my experience, I know.
Q: Exactly. That's what you believe is the pattern of
behavior. Is that correct . . . ?
A: Yeah, yeah.

-12-
961 F.2d 1169, 1174 (5th Cir. 1992)) (emphasis retained)). "As we

repeatedly have recognized, a jury is free to rely on its common

sense and may infer that criminal conspirators do not involve

innocent persons at critical stages of a drug deal." United

States v. DiMarzo, 80 F.3d 656, 661 (1st Cir. 1996) (citations

omitted). "[S]uch is not normally the conduct that one would

expect of conspirators engaged in conduct which by its nature is

kept secret from outsiders." United States v. Smith, 680 F.2d 255,

260 (1st Cir. 1982).

Here, of course, Llinas was more than merely present. On

at least one occasion, Llinas provided the necessary

transportation. And, as the evidence shows, her usefulness

extended much further than the car. First, Llinas alone had the

directions to the racetrack; but for her guidance, it is likely

that Martínez never would have arrived. Second, when asked, Llinas

picked up the heroin that was next to her on the backseat and

handed it to Martínez; that the drugs were concealed within boxes

is, of course, not enough to require a finding of reasonable doubt

as to knowledge, since the jury was entitled to infer knowledge

from the other circumstantial evidence.

In addition to evidence of Llinas's affirmative

involvement in the conspiracy, the government also presented

evidence showing what Llinas did not do. For example,

notwithstanding her testimony that she planned to drop Martínez off

-13-
at the racetrack and then leave for the beach, neither Llinas nor

her boyfriend ever moved from their respective positions in the car

to take Martínez's place in the driver's seat; instead, they

remained at the racetrack and waited for Martínez. Having observed

these nonevents on the videotape of the arrest and having heard

unrebutted testimony that the heroin was to be exchanged for eleven

kilograms of cocaine, the jury was free to infer that the more

likely story was that Llinas and Martínez planned to leave the

racetrack together, along with the cocaine for which they arrived

in the first place.

On facts analogous to these, where the defendant-driver

alleged not only that "he had merely given [a conspirator] a ride

and [had] not participate[d] in the drug sale" but also that "there

was no evidence that he could see what was in the box," we noted

that "the jury could reasonably have inferred that under these

potentially dangerous circumstances, an insider rather than an

outsider would chauffeur the dealer." United States v. Olivo-

Infante, 938 F.2d 1406, 1409 (1st Cir. 1991). So too in this case.

See Echeverri, 982 F.2d at 678 ("[W]e require only that a jury's

verdict be supportable, not that it be inevitable . . . .").

Llinas, however, argues that "the present case is akin to

several appeals where this court has not hesitated to reverse

convictions on sufficiency grounds where the government failed to

establish that the actions taken by the defendant were made with

-14-
criminal knowledge and intent" (citing United States v. Francomano,

554 F.2d 483 (1st Cir. 1977); United States v. Mehtala, 578 F.2d 6

(1st Cir. 1978); United States v. Ocampo, 964 F.2d 80 (1st Cir.

1992); Valerio, 48 F.3d 58; United States v. de la Cruz-Paulino,

61 F.3d 986 (1st Cir. 1995); United States v. Clotida, 892 F.2d

1098 (1st Cir. 1989)).

These cases are inapposite because, unlike in this case,

the factfinder did not have evidence suggesting that the defendant

had lied on the witness stand. In Francomano, for example, we

based our decision to vacate the conviction on findings that "the

Government made no case-in-chief and no testimony offered by the

[defendants] strengthen[ed] the Government's case." 554 F.2d at

487 (emphasis added). We noted that, while a jury may sometimes

infer guilt from the mere fact that the defendant lied on the

stand, "we [could] detect no inconsistencies or other appropriate

basis for such an inference here." Id. at 487-88.

Here, even if we were to assume that the government's

circumstantial evidence, taken alone, was insufficient to support

an inference of knowledge, we cannot ignore the strong possibility

that the jury determined that Llinas had lied on the witness stand.

At trial, Llinas testified that she could not have driven Sanchez

and Martínez to their meeting with Carrasquillo because she had

been working on the day in question. Not only did the government

present evidence in rebuttal suggesting that Llinas had not worked

-15-
that day, it had also presented Sanchez's testimony that Llinas had

driven them to their meeting and Carrasquillo's corroborating

testimony that a woman fitting Llinas's description had driven the

car.

Having reason to doubt Llinas's credibility, the jury

properly could have disregarded all of Llinas's testimony,

including the beach-weekend explanation for her presence at the

racetrack. See United States v. Batista-Polanco, 927 F.2d 14, 18

(1st Cir. 1991) (noting that "the district court's well-supported

finding that appellant gave materially false testimony . . .

provided a basis for discrediting other exculpatory testimony given

by [appellant] in [her] own defense" (citations omitted)).

Moreover, the jury properly could have used Llinas's

testimony, in conjunction with the government's circumstantial

evidence, to bolster its inference of knowledge. See United

States v. Hadfield, 918 F.2d 987, 999 (1st Cir. 1990) (finding that

an inference of guilt could have been further supported by

defendant's "tall tale"); see also Ruiz, 105 F.3d 1492, 1500 ("Lies

such as these legitimately support a finding of guilt."); United

States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir. 1989) ("[I]f the

jury disbelieved defendants' story, it could legitimately have

presumed that the fabrication was all the more proof of their

guilt." (citation omitted)).

-16-
 In sum, having thoroughly examined the record, we

conclude that the jury had sufficient evidence from which to draw

an inference of knowledge.8

(2) Facilitation Count

Llinas next argues that "the evidence presented by the

government was [in]sufficient to establish that [she] . . .

knowingly and intentionally used a telephone facility to promote

[the] conspiracy." She asserts that "the same analysis . . . as to

the conspiracy count applies in the use of a telephone facility

charge."

The applicable criminal statute, 21 U.S.C. § 843(b),

makes it "unlawful for any person knowingly or intentionally to use

any communication facility in committing or in causing or

facilitating the commission of any act or acts constituting a

felony . . . ." (emphasis added).

Because it is clear from the record that Llinas engaged

in activity that would be illegal had she known about the Sanchez-

8
On the basis of the record before us, we have difficulty
understanding the defense decision to provide unnecessary testimony
regarding Llinas's whereabouts when such testimony easily could
have been –- and was -- contradicted. The important issue in the
case involved Llinas's knowledge (or lack thereof) -- not whether
she was driving the car on June 16th (especially given the
permissible inference that she simply was providing a ride to a
house guest). But, Llinas has made no ineffective assistance of
counsel claim on direct appeal and, in any event, the record is not
sufficiently clear to allow us to consider it in the first instance
(in part because the record is silent as to counsel's rationale).
Any further elaboration of the issue must thus await a motion for
relief under 28 U.S.C. § 2255.

-17-
Martínez conspiracy, see, e.g., United States v. Tuesta-Toro, 29

F.3d 771, 776 (1st Cir. 1994) (finding that two telephone calls

between co-conspirators to arrange a drug deal was enough to prove

facilitation); United States v. Cordero, 668 F.2d 32, 43 & n.16

(1st Cir. 1981)(rejecting defendant's two-pronged argument that,

because she spoke only with a government agent and because she

merely was receiving rather than placing the call, she could not

have violated § 843(b)), Llinas's conviction again turns on whether

she knew about the conspiracy. Having already addressed this

issue, we need not provide further elaboration.

B. Rule 12.1

Finally, Llinas argues that her convictions should be set

aside because "the district court committed reversible error in

permitting the government to present alibi rebuttal testimony and

documents[, neither of] which were [] notified to appellant after

she served her notice of alibi as requested by the government

pursuant to Rule 12.1 of the Federal Rules of Criminal Procedure."

We disagree.

When triggered, Rule 12.1 imposes disclosure obligations

on both the defendant and the government. The applicable version

of the rule provides, in pertinent part, as follows:9

9
Rule 12.1 was amended in 2002; the changes were primarily
stylistic. See Fed. R. Crim. P. 12.1, advisory committee's note
(2002).

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 (a) Upon written demand of the attorney for
the government . . . [,] the defendant shall
serve . . . upon the attorney for the
government a written notice of the defendant's
intention to offer a defense of alibi. Such
notice by the defendant shall state the
specific place or places at which the
defendant claims to have been at the time of
the alleged offense and the names and
addresses of the witnesses upon whom the
defendant intends to rely to establish such
alibi.

(b) Within ten days thereafter, . . . the
attorney for the government shall serve upon
the defendant . . . a written notice stating
the names and addresses of the . . . witnesses
to be relied on to rebut testimony of any of
the defendant's alibi witnesses.

Fed. R. Crim. P. 12.1 (2000) (amended 2002) (headings omitted).

Here, the government triggered Llinas's obligation under

Rule 12.1(a) when it filed a motion requesting "notice of

defendant's intention, if any, to offer the defense of alibi." On

October 20, 2000, Llinas complied with this request by filing a

"notice of alibi." According to her notice, Llinas planned to

introduce evidence at trial establishing that, because she was

working on June 16, 2000, she could not have driven Martínez and

Sanchez to the bakery. Specifically, she intended to introduce a

paycheck stub (which was attached to the notice) and testimony from

a manager at the supermarket where she worked. Llinas herself was

not listed as a witness.

Having fulfilled her obligation under Rule 12.1(a), the

government had a reciprocal obligation under Rule 12.1(b) to

-19-
respond with a list of "witnesses to be relied on to rebut

testimony of any of the defendant's alibi witnesses." Id.

(emphasis added). The government did not file such a response.

Whether one was required is, of course, the dispositive question.

At trial, Llinas herself testified that she had not

driven Martínez and Sanchez to the bakery on the 16th –- a story

that defense counsel attempted to corroborate by offering into

evidence a paycheck stub that allegedly placed Llinas at work on

the day in question. During a sidebar conference following these

events, the government informed defense counsel that it had

obtained payroll records from the supermarket that cast serious

doubt on the validity of Llinas's testimony. Despite objection,

the government was allowed to introduce these records as

impeachment evidence through the testimony of the supermarket's

accountant, who was called to authenticate the documents.10

10
The specific basis for the district court's ruling is
embedded in the following exchange:

The Court: Why didn't you provide the name of this
witness to counsel?

The Government: At the time defendant took the stand and
decided to tell that she did work on the 16th of June, at
that point the matter was triggered, so at this point in
time, in open court and for the record, I told Brother
Counsel and I showed him the – a photocopy of the books
of [the supermarket]. And I immediately told my case
agent, 'Go get this man, because I am going to impeach
this witness.'

The Court: Well, [defense] counsel, the statement came
out in open court from her, not from your [listed alibi]
witness. You see? It probably could have been different

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 On appeal, Llinas contends that both the payroll records

and the accountant's testimony should have been excluded because,

had she been aware of the government's intention to introduce

evidence indicating that she had not been at work on June 16th, she

"very well could have determined that she was incorrect in thinking

that she had worked [on] that particular day and [might have

decided] not [to] present[] any alibi evidence at all."

At the outset, we note that, by its own terms, Rule 12.1

requires the disclosure of witnesses –- not documents. See id.;

see also United States v. Carrasquillo-Plaza, 873 F.2d 10, 12 (1st

Cir. 1989) ("[T]he reciprocal duty imposed on the government is

limited to the disclosure of the names and addresses of witnesses

upon whom the government intends to rely . . . ." (emphases

retained)); United States v. Jones, 255 F.3d 916, 918 (8th Cir.

2001) ("[Rule 12.1(b)] requires disclosure of the names and

addresses of the government's rebuttal witnesses, not all its

rebuttal evidence[;] [t]hus, Rule 12.1(b) does not apply to the

document used to impeach [the witness]."). Accordingly, we reject

had you presented your alibi witness and then he – the
Government might be prevented from bringing another
witness because he didn't give that name to you. But in
this case, it is the defendant herself who said, 'Yes, I
worked on the 16th.' You presented a stub to try to show
that she worked on that day, and I recall that I said,
'Well, this doesn't show the days she worked. Merely in
that pay period she earned whatever amount is there.'
But it doesn't show days of work nor specific hours
worked on specific days. So the Government is entitled
to rebut that evidence.

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Llinas's argument that the district court erred in allowing the

government to introduce the supermarket's payroll records.

The thornier issue is whether the accountant's testimony

falls within the purview of Rule 12.1(b). Given the content of

Llinas's 12.1(a) notice, the government had no reason to know that

it might need to rely upon the accountant's authenticating

testimony. After all, the witness that Llinas had noticed in her

Rule 12.1(a) disclosure, the store manager, easily could have laid

the foundation for –- and elaborated upon the implications of –-

the payroll records on cross examination by the government. In

other words, it was not until unforeseen events had unfolded at

trial –- in particular, Llinas's testimony and the introduction

into evidence of the paycheck stub through her testimony –- that

the government had reason to know that the accountant would be

needed as a rebuttal witness. Whether or not this witness fell

within the purview of Rule 12.1, under these circumstances the

district court did not abuse its discretion in allowing the

accountant to authenticate the payroll records.

III.

For the reasons stated above, the convictions are

affirmed.

Concurring opinion follows.

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 BOUDIN, Chief Judge, with whom LIPEZ, Circuit Judge,

joins (concurring). This is an unusual case and a troubling one.

But for Llinas' false testimony, this would be an instance in which

the defendant's conduct was as consistent with innocence as with

guilt. Assuredly, Llinas' actions were enough to constitute

participation: she drove the car, got directions, handed over the

drugs. But if she did not know that this was part of a drug

transaction, she was not guilty of a crime. The evidence of

knowledge is very thin.

Had the defense rested without putting on a case, any

conviction that followed would have been reversed by the panel.

Cf., e.g., United States v. Corchado-Peralta, 318 F.3d 255, 259-60

(1st Cir. 2003). The line between reasonable inference and

speculation is very hard to draw; but up to the point when Llinas

took the stand, there was little to distinguish her from her

boyfriend, whom the jury properly acquitted. She had apparently

been seen on a prior occasion waiting for Martínez, but this was

consistent with the fact that he was also a guest of her father and

added little to the government's evidence of knowledge.

Admittedly, the government's direct case against Llinas

went slightly beyond "mere presence." Llinas was present during

the coded-language telephone conversation between Martínez and the

undercover agent that is described in the panel opinion, and her

subservience to Martínez at the racetrack was mildly suspicious.

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Yet Llinas could well not have known that she was driving Martínez

to a drug transaction, and the sum is remarkably slim evidence for

sending this young woman to federal prison for more than ten years.

(The principal culprits got four and seven years, respectively).

Nevertheless, when Llinas took the stand and then lied

(or so the jury could have found), she gave the jury the extra

evidence it needed and the conviction was not irrational. Of

course, her denial of presence at a secondary event could have been

the product of pure fear or misrecollection, but the jury is

permitted to draw an inference of guilt from a deliberate false

alibi. See, e.g., United States v. Hadfield, 918 F.2d 987, 999

(1st Cir. 1990), cert. denied, 500 U.S. 936 (1991). Added to the

faintly suspicious circumstances, a jury could rationally convict,

although this stretches "beyond a reasonable doubt" to its limits.

Federal drug cases in which strong doubts as to guilt linger on

appeal are a rarity.

Llinas unquestionably has a potential claim under section

2255 that she has been deprived of competent representation. 28

U.S.C. § 2255 (2000). This is not because of counsel's decision to

go forward with an affirmative defense case once the Rule 29 motion

had been denied; given the denial, it was a reasonable choice to

offer a defense even at the cost of waiving the right to appeal the

denial as measured by the government's case alone. Rather, the

potential claim of incompetence relates to the decision to allow

-24-
Llinas to testify and provide an alibi that could, as it turned

out, be so easily undermined by available company records.

The error was surely prejudicial under the governing

Strickland test. See Strickland v. Washington, 466 U.S. 668,

687-88 & 694 (1984). Indeed, without the false alibi, Llinas'

conviction could not properly be sustained. But background

circumstances could provide some explanation for counsel's action:

perhaps Llinas insisted on testifying despite counsel's warning or

perhaps the fact that the alibi could so easily be undermined would

not have been apparent to a lawyer making a reasonable

investigation. It is because of such uncertainties that here, as

in the ordinary case, the competence issue cannot be resolved on

direct appeal. See, e.g., United States v. Padilla-Galarza, 351

F.3d 594, 600-01 (1st Cir. 2003).

If and when Llinas does file a section 2255 motion, it

should be given expeditious treatment, and able counsel should be

appointed to represent Llinas. 18 U.S.C. 3006A(a)(2)(B) (2000).

Why this case was brought against Llinas remains a mystery. The

government had no reason to expect the windfall of Llinas'

apparently false testimony and, on the evidence presented for its

direct case, no prosecutor should have foreseen a reasonable

likelihood of a legitimate conviction. As for the decision to

prosecute the boyfriend, the mind reels in disbelief.

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