United States v. Lizardo

United States Court of Appeals
For the First Circuit

No. 04-1714

UNITED STATES OF AMERICA,

Appellee,

v.

MERALDO LIZARDO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. Senior District Judge]

Before

Torruella and Lynch, Circuit Judges,
and Lasker,* Senior District Judge.

James B. Krasnoo, with whom the Law Offices of James B.
Krasnoo was on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellee.

April 26, 2006

*
Of the Southern District of New York, sitting by designation.
 TORRUELLA, Circuit Judge. A jury convicted defendant

Meraldo Lizardo for conspiring to distribute cocaine in violation

of 21 U.S.C. § 846 and for unlawful use of a communication facility

in violation of 21 U.S.C. § 843(b). The district court sentenced

Lizardo to a term of imprisonment of 60 months. On appeal, Lizardo

contests both the conviction and the sentence. We affirm.

I. Background

From 1997 to 2000, Lizardo was a deputy sheriff in the

Essex County Sheriff's department in Massachusetts. He was a

member of the Warrant Apprehension Unit and worked with state and

local law enforcement. The jury convicted Lizardo of conspiring to

distribute cocaine with two other individuals, Carlos Bello and

Tilson Yturrino. Before presenting the factual background of this

case, we give a brief summary of the roles played by Bello and

Yturrino.

Bello owned a business in Lawrence, Massachusetts, called

Bello's Multi Services, from which he would sell cocaine to

dealers, who in turn sold the cocaine on the street. Bello and

Lizardo knew each other, and they would meet at Bello's Multi

Services. Bello pled guilty to conspiracy to distribute cocaine

and was sentenced to 120 months' imprisonment.

Yturrino purchased cocaine from Bello at Bello's Multi

Services over a period of about seven years. Yturrino and Lizardo

met each other on several occasions at Bello's Multi Services.

-2-
Yturrino ran a cocaine distribution business, and he had several

employees selling cocaine on the streets. Yturrino pled guilty to

conspiracy to distribute cocaine and was sentenced to 97 months'

imprisonment. In exchange for his testimony against Lizardo,

Yturrino's sentence was reduced to 60 months.

A. Investigation

Law enforcement officers were investigating Bello for

drug crimes and obtained a wiretap authorization to monitor his

cell phone. In a December 16, 1999 conversation between Bello and

a person named "Enano," Enano chastised Bello for posting bail for

a person who had been arrested for counterfeiting money because

that could involve federal law enforcement authorities. Enano then

became a suspect in the investigation. Lizardo later admitted that

he was the person named Enano in this conversation.

On December 17, Sergeant Donald Kennefick interviewed an

inmate at the Essex County Jail regarding drug trafficking in

Lawrence, and Lizardo assisted in the interview by providing

Spanish translation. It is not clear if this interview was related

to drug trafficking by Bello or Yturrino. After the interview,

Lizardo initiated a conversation with Kennefick, which the

government contends was an attempt to divert investigation of drug

trafficking away from Bello. Lizardo mentioned a recent fire in

Lawrence that had burned down several businesses, including Bello's

Multi Services. He stated that the fire was caused by a dispute

-3-
over heroin trafficking in a sandwich shop. When Kennefick

responded that he thought that the dispute involved cocaine

trafficking and not heroin trafficking, Lizardo stated that the

shoe store across the street was run by cocaine dealers. When

Kennefick asked Lizardo for more information about this drug

trafficking, Lizardo responded that he had already given this

information to Mark Rivet of the Lawrence Police Department. In

fact, Lizardo never had this conversation with Rivet. Lizardo did

not mention Bello or Bello's business to Kennefick during this

conversation.

At 11:15 a.m. the same day, Lizardo called Bello and had

the following conversation:

Lizardo: What have you done?

Bello: What happened?

Lizardo: Nothing man.

. . . .

Bello: What happened, any problem?

Lizardo: No, no, I said to take care.

Bello: What happened?

Lizardo: I can't tell you over the phone but
take care okay.

Bello: But . . . but . . . damn . . . what's
going on old man?

Lizardo: I can't tell you over the phone man.

At 12:44 p.m., Lizardo and Bello had another conversation:

-4-
 Lizardo: Did you already eat?

Bello: That if I ate? No.

Lizardo: It's better to wait for me there.
You know right there at . . . where we usually
go to eat sometimes.

Bello: Uh-uh. Hold on, hold on. Where we
usually go. More or less what is the name of
the place?

Lizardo: Uh?

Bello: What's the first sign of this place?

Lizardo: It starts with a number.

Bello and another man then drove to the Ninety-Nine Restaurant,

while under surveillance by undercover officers. The officers

entered the restaurant and observed Bello sitting with Lizardo.

After leaving the restaurant, Bello and Lizardo had another phone

conversation where they discussed the officers whom they knew were

surveilling them at the restaurant.

Officers intercepted two phone calls on December 21.

Around 3:11 p.m., Bello had a conversation with a person named

Daniel:

Bello: Is it for whenever or does it have to
be right now?

Daniel: . . . I want to go tonight and buy me
some shoes.

Bello: Oh, alright.

Daniel: Do you understand me? You see, it's
because I'll be going to the party tonight.

. . . .

-5-
 Bello: . . . but so we're partying tonight,
right?

Daniel: Yes!

Around 6:49 p.m. the same day, Bello and Lizardo had the following

conversation:

Bello: Until what time is your detail?

Lizardo: Until 11:00 p.m.

Bello: So that you could do it today?

. . . .

Lizardo: What . . . we have to make a trip to
Boston?

Bello: No . . . right there . . . in any one
of those places.

That night around 11:30 p.m., an officer surveilling Bello's

residence saw Lizardo arrive and enter Bello's residence. He then

saw Bello drive a minivan out of the garage with Lizardo as a

passenger. Six unmarked police vehicles followed the minivan.

The officers followed Bello to Lynn, Massachusetts, and

observed him driving at a high rate of speed. Bello parked outside

a nightclub named Casa del Sol. Several of the surveillance

vehicles drove past Bello, and one officer observed Lizardo

pointing out the undercover vehicles to Bello. The officers saw

Bello and Lizardo enter the nightclub.

Around 1:00 a.m., Bello and Lizardo left the nightclub

and got back in the minivan. Bello drove on the highway at a slow

rate of speed, about 45-50 miles per hour. At one point, Bello

-6-
exited the highway, but at the bottom of the ramp he made a U-turn

to get back on the highway. An officer who was driving behind them

saw Bello and Lizardo looking directly at him as they passed each

other. The officers continued to follow the minivan and saw Bello

exit onto a rotary. The officers pulled over before the rotary and

saw Bello drive around the rotary five times before continuing. At

this point, the officers broke off their surveillance.

The next morning, December 22, Lizardo called Sergeant

Kennefick and told him that he went to a nightclub the previous

night with his cousin (Bello was not his cousin), an informant who

could provide information about heroin dealers in Lawrence.

Kennefick asked to meet his cousin, and Lizardo said he could

arrange a meeting but never did.

On April 13, 2000, officers interviewed Lizardo regarding

his involvement with Bello's cocaine trafficking operation.

Lizardo said that he had known Bello for about two years and was

aware that he had been a cocaine dealer, but he thought that Bello

had since stopped dealing cocaine. The officers showed Lizardo the

transcripts of the telephone calls between Lizardo and Bello, and

Lizardo admitted that he was the person on the phone with Bello.

Lizardo also admitted to conducting countersurveillance on December

17 and 21 and stated, "It was wrong for me to burn surveillance."

The officers asked him if he had ever taken advantage of his

position as deputy sheriff to run warrant checks or Registry of

-7-
Motor Vehicle checks for Bello,1 and after remaining silent for

about three minutes, Lizardo responded that he had not. Lizardo

initially admitted to having warned Bello that he was under police

investigation but later denied that he had done so. At the

conclusion of the interview, the officers arrested Lizardo.

B. Yturrino's Testimony

Yturrino testified at trial as to his relationship with

Bello and his knowledge of the relationship between Bello and

Lizardo. From 1993 to 1999, Yturrino bought cocaine from Bello at

Bello's Multi Services. He purchased approximately a kilogram of

cocaine every two weeks.

On one occasion in 1998, Yturrino went to Bello's Multi

Services and was startled to see Lizardo wearing his uniform in

Bello's office. After Lizardo had left, Bello assured Yturrino

that Lizardo was under his control. On about eight or nine

occasions, Lizardo was present when Yturrino delivered thousands of

dollars in cash to Bello. He would openly place the cash on

Bello's desk and not make any effort to conceal his actions. On

about fifteen occasions, Lizardo was present when Yturrino picked

up kilogram-sized packages from Bello. He described one occasion

in particular, where in Lizardo's presence, Bello took a 1.5

1
Yturrino testified, as described below, that Lizardo ran these
checks for him.

-8-
kilogram block of cocaine out of a bag, put it in a Nextel2 box,

and gave it to Yturrino, who put it in his briefcase and departed.

Yturrino also met with Bello in Lizardo's presence at

nightclubs and restaurants, including the Ninety-Nine Restaurant.

During these meetings, Yturrino and Bello spoke openly about their

cocaine business. Yturrino also talked to his employees on his

cell phone and brought his business ledger with him.

To avoid the attention of law enforcement, Yturrino only

wanted employees without outstanding arrest warrants. On several

occasions, Yturrino gave Bello a piece of paper with the name,

social security number, and date of birth of an employee for the

purpose of having Lizardo run a warrant check. In one instance

where Yturrino, Bello, and Lizardo were all at the Ninety-Nine

Restaurant, Yturrino called a new employee to obtain his social

security number and date of birth. He wrote this information on a

piece of paper and handed it directly to Lizardo. Lizardo took the

paper and said that he would take care of it. Several days later,

Yturrino and Bello were at Bello's Multi Services when Lizardo

entered and gave Bello a piece of paper with the results of the

warrant check, and Bello gave the paper to Yturrino.

At times, Yturrino suspected that certain vehicles might

be part of undercover surveillance efforts. By having the plate

2
Nextel is a manufacturer of cell phones with walkie-talkie
capability.

-9-
checked with the Registry of Motor Vehicles, Yturrino could learn

whether such vehicles were law enforcement. On one occasion,

Yturrino handed Bello a piece of paper with a license plate number,

who in turn handed it to Lizardo. Yturrino later learned that the

vehicle was not tied to law enforcement.

C. Lizardo's Testimony

Lizardo testified in his own defense at trial. Lizardo

said that he knew Bello and sometimes met with him at Bello's Multi

Services. On two occasions, Yturrino was also present, but he did

not see them exchange drugs or cash. Lizardo denied running any

warrant or registry checks for Bello or Yturrino and denied that

the two of them ever discussed their cocaine business in his

presence. Lizardo also interpreted the telephone conversations

between himself and Bello, attributing non-inculpatory meaning to

the unclear statements.

Regarding the two occasions when officers surveilled

Lizardo and Bello, Lizardo denied having assisted with any

countersurveillance actions. Further, he was upset with Bello's

attempts to evade surveillance. Lizardo testified that he was

suspicious of the officers surveilling them at the Ninety-Nine

restaurant because he thought the officers might be gay or

connected to criminals he had recently arrested. He stated that he

went to the Casa del Sol nightclub with Bello because he wanted to

-10-
use Bello as an informant and arrange a meeting between Sergeant

Kennefick and Bello.

II. Sufficiency of the Evidence

Following the jury's verdict, Lizardo filed a motion for

a judgment notwithstanding the verdict, arguing that no reasonable

jury could have convicted him based on the evidence presented at

trial. The district court denied the motion, and Lizardo appeals.

Our review is de novo. United States v. Ruiz, 105 F.3d 1492, 1495

(1st Cir. 1997). When considering the evidence presented at trial,

we resolve all questions of credibility and reasonable inferences

in favor of the verdict. Id. If, in this light, any reasonable

jury could find all the elements of the crime beyond a reasonable

doubt, we must uphold the conviction. United States v. Casas, 356

F.3d 104, 126 (1st Cir. 2004).

To convict Lizardo for conspiracy to distribute cocaine

under 21 U.S.C. § 846, the government must prove "the existence of

a conspiracy, the defendant's knowledge of the conspiracy, and the

defendant's voluntary participation in the conspiracy." United

States v. Gómez-Pabón, 911 F.2d 847, 852 (1st Cir. 1990). "The

third element, voluntary participation, requires a showing of

intent to agree to the conspiracy and intent to effectuate the

object of the conspiracy." Casas, 356 F.3d at 126 (citing Ruiz,

105 F.3d at 1499). The agreement need not be express and may be

-11-
shown by circumstantial evidence. United States v. Rivera-

Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989).

The evidence presented at trial was clearly sufficient

for a jury to find the first two elements of the conspiracy

conviction. For many years, Yturrino purchased cocaine from Bello.

On numerous occasions, Lizardo was present when cocaine and money

exchanged hands between Yturrino and Bello. In one instance,

Lizardo was in uniform, which made Yturrino nervous, but Bello

assured Yturrino that Lizardo was under his control. During their

meetings, Yturrino and Bello openly discussed their business, Bello

reviewed ledgers of the business, and Yturrino called his

employees. A reasonable jury could find that a conspiracy to

distribute cocaine existed and that Lizardo had knowledge of the

conspiracy.

The evidence was also sufficient to show that Lizardo

voluntarily participated in the conspiracy. Lizardo ran license

plate checks for Yturrino when Yturrino feared that a particular

vehicle might be associated with law enforcement activities.

Lizardo also ran warrant checks for Yturrino because Yturrino

wanted to be sure that his employees did not have outstanding

arrest warrants. In a number of ways, Lizardo attempted to help

Bello evade police investigation. Lizardo pointed out police

surveillance, alerted Bello to a possible wiretap of his phone, and

even attempted to divert police investigation away from Bello. All

-12-
of these actions clearly aided the conspiracy or would have aided

the conspiracy had Lizardo been successful. A reasonable jury

could infer from this evidence that Lizardo intentionally agreed to

join the conspiracy and that he intentionally effectuated the sale

of cocaine.

Lizardo presents several factors to support his claim

that a reasonable jury could not find that he had the requisite

intent.3 First, he notes that he did not have knowledge of the

details of Bello's distribution scheme. But "[i]t is not necessary

that . . . [he] knew all the details of the conspiracy" as long as

he knew the "essential nature of the plan and [his] connections

with it." Rivera-Santiago, 872 F.2d at 1079. Second, Lizardo puts

forth a long laundry list of actions that he did not take to

further the conspiracy. He never possessed cocaine, sold cocaine,

planned the delivery of cocaine, or put buyers in touch with

sellers. All of this, however, is insufficient as direct

participation in drug sales is not necessary. Id.; see also United

States v. Frink, 912 F.2d 1413 (11th Cir. 1990) (voluntary

participation by fraudulently changing license plates); United

States v. Ashley, 555 F.2d 462 (5th Cir. 1977) (voluntary

participation by serving as contact person). Third, Lizardo cites

3
Lizardo cites a number of our cases in his attempt to show that
the evidence against him was insufficient. Because all of these
cases are easily distinguishable from the present case, we decline
to address them individually.

-13-
United States v. García-Torres, 280 F.3d 1, 4 (1st Cir. 2002) and

argues that he merely provided a "peripheral service" to the

conspiracy that was insufficient to find voluntary participation.

In García-Torres, however, the crux of the issue was not whether

the defendant's act was peripheral, but whether the defendant had

knowledge of the conspiracy and voluntarily participated in it.

Id. Given that we have already determined that a reasonable jury

could find all the elements of Lizardo's conspiracy conviction, we

need not separately determine whether his acts were peripheral.

Finally, Lizardo argues that because Yturrino's testimony was

uncorroborated, the government's case rests on a "slender reed."

While Yturrino's testimony was essential to Lizardo's conviction,

the government presented additional evidence to support Yturrino's

testimony. Officers testified that they observed Lizardo helping

Bello evade surveillance, that Lizardo admitted to helping Bello

evade surveillance, and that Lizardo attempted to divert

investigation of drug trafficking away from Bello. The intercepted

phone calls, while not explicitly incriminating, also suggest that

Lizardo was involved in illegal activity. We find that there was

ample evidence to support his conviction.

Lizardo also argues that we must reverse his conviction

for unlawful use of a communication facility, because it depends on

the conspiracy conviction and the evidence for that conviction was

insufficient. Because we uphold Lizardo's conspiracy conviction,

-14-
we also uphold his conviction for unlawful use of a communication

facility.

III. Interpretation of Evidence

Lizardo claims that the district court erred in allowing

Yturrino and several officers to interpret recorded telephone

conversations. He argues that interpretation was unnecessary

because the language was clear, and he also argues that the

interpretations unduly influenced the jury.

A. Yturrino

Yturrino was presented as a lay witness,4 and the

admissibility of lay opinion testimony is determined by Federal

Rule of Evidence 701, which provides

If the witness is not testifying as an expert,
the witness' testimony in the form of opinions
or inferences is limited to those opinions or
inferences which are (a) rationally based on
the perception of the witness, (b) helpful to
a clear understanding of the witness'
testimony or the determination of a fact in
issue, and (c) not based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.

A "lay witness[] with . . . inside knowledge [may] give [his]

opinion[] as to the meanings of 'code words' used by fellow

conspirators in taped conversations," so long as that testimony

comports with the requirements of Rule 701. United States v.

4
In arguing that Yturrino's interpretations of the conversations
were erroneously admitted, Lizardo mostly cited cases concerning
the admission of expert testimony, which are not relevant to
determining the admission of lay opinion evidence.

-15-
Gaines, 170 F.3d 72, 77 (1st Cir. 1999). A witness may also

testify about his subjective interpretation of a conversation in

which he is participating as long as "his opinion is rationally

based on his perception and is helpful either to an understanding

of his testimony or to the determination of a fact in issue."

United States v. Saccoccia, 58 F.3d 754, 780 (1st Cir. 1995). We

review the admission of lay opinion testimony for manifest abuse of

discretion. United States v. Kornegay, 410 F.3d 89, 94 (1st Cir.

2005).

At trial, Yturrino interpreted the following statements

from recorded telephone conversations:5

(1) "You are using your feet, man, not your
head, man. What's going on with you, man?"

(2) "You know he could go in for that. You
know that's a federal."

(3) "This is 10 talking, listen."

(4) "Have you talked to the tiger."

(5) "I can't tell you over the phone, but take
care, okay."

(6) "What's the first sign of this place?"

(7) "The . . . the . . . the one with the
stripes."

5
Lizardo objected to all of Yturrino's interpretations except for
that of the first. The admissibility of interpretation of the
first statement is therefore subject to plain error review.
Bandera v. City of Quincy, 344 F.3d 47, 55 (1st Cir. 2003). We
review the admissibility of interpretations of the remaining
statements for manifest abuse of discretion. Kornegay, 410 F.3d at
94.

-16-
 (8) "I even paged him and stuff and put 911
and he hasn't got back to me."

(9) "No. Right there in any of those places."

Lizardo argues that the meanings of the statements in the recorded

conversations are clear, and it was thus error to allow Yturrino to

interpret them. With respect to statements (3), (4), (7) and (8),

we disagree, as those statements clearly contain terms that could

be construed as code words.

Yturrino's interpretations were also useful in

understanding statements (1), (2), (5), (6), and (9). In statement

(2), Lizardo chastised Bello for posting bail for a person who

could be charged with a federal crime. Yturrino explained:

In other words, if federal authorities were to
get involved in that, . . . their ways of
investigation usually range far beyond just
what's going on at that point.

The average juror probably does not understand the difference

between federal and state criminal prosecutions, and Yturrino's

experience as a drug dealer allowed him to explain the meaning of

Lizardo's statement. In statements (1), (5), (6), and (9), Bello

and Lizardo did not employ code words, but the statements were

either deliberately ambiguous or of uncertain meaning. Yturrino,

as a co-conspirator, was present at or a participant in many

conversations between Bello and Lizardo. He was thus in a position

to understand even the unclear conversations in which he was not a

part. Because of his "first-hand familiarity with the surrounding

-17-
events and conduct," we find no manifest abuse of discretion in

allowing his interpretations of these statements. See Gaines, 170

F.3d at 77.

Even if we were to find that the district court

manifestly abused its discretion, Lizardo never states specifically

how Yturrino's interpretations prejudiced him at trial. He states

that the interpretations "usurped the jury's function and gave the

telephone calls importance that they otherwise lacked," "improperly

drew inculpatory inferences," and put "stamps of approval on the

government's theory." In claiming prejudice, Lizardo only referred

to Yturrino's interpretation of statement (2), which we quoted

above. We do not find this interpretation to be significantly

prejudicial.

B. Officers Cepero, Joyce, and Prior

Lizardo asserts that interpretations of the conversations

made by officers Jaime Cepero, Bryan Joyce, and Richard Prior were

also prejudicial. These contentions are easily disposed of.

First, in a conversation between Bello and Lizardo, Lizardo

requested a meeting at "the restaurant that begins with the

numbers." Sergeant Prior surmised that he meant the "Ninety-Nine

Restaurant." Lizardo did not object to this testimony, and this

testimony was not in error, never mind plain error.

Lizardo also contests Trooper Cepero's testimony that he

concluded from statement (2) that Lizardo was involved in criminal

-18-
activity. This was not an improper interpretation for two reasons.

First, it was Cepero's subjective conclusion after hearing the

conversation and not an interpretation of the meaning of the

conversation. See United States v. Morton, 391 F.3d 274, 277 (D.C.

Cir. 2004). Second, this statement was elicited on cross-

examination by Lizardo's counsel, who cannot now contest his own

invited error. See McDonald v. Fed. Labs., Inc., 724 F.2d 243, 248

(1st Cir. 1984).

Finally, Lizardo argues that Trooper Joyce improperly

interpreted the phrase "one of those places" as a plan "by Lizardo

and Bello to arrange for a pickup of drugs by Bello." However, on

the pages of the transcript cited by Lizardo, Joyce does not

provide any interpretation of the phrase "one of those places."

C. Deputy Sheriff Aguilar

At trial, Lizardo sought to present Deputy Sheriff

Aguilar as a witness to present non-inculpatory interpretations of

the conversations between Lizardo and Bello. The district court

committed no error in excluding this testimony. Lizardo did not

present Aguilar as an expert witness, and he failed to establish

any foundation for Aguilar's testimony as a lay witness by showing

that Aguilar's opinions or inferences would have been "rationally

based on [his] perception[s]" and "helpful to a clear understanding

of the witness' testimony or the determination of a fact in issue."

Fed. R. Evid. 701.

-19-
 IV. Willful Blindness

Lizardo argues that he was prejudiced by the court's

willful blindness instruction because it mandated an inference of

knowledge and because it allowed an inference of voluntary

participation from deliberate ignorance. The parties dispute

whether Lizardo timely objected to the instruction. Because it

makes no difference to our conclusion, we will presume that Lizardo

did validly object to the instruction.

"A willful blindness instruction is appropriate if [1] a

defendant claims a lack of knowledge, [2] the facts suggest a

conscious course of deliberate ignorance, and [3] the instruction,

taken as a whole, cannot be misunderstood as mandating an inference

of knowledge." United States v. Epstein, 426 F.3d 431, 440 (1st

Cir. 2005) (internal quotation marks omitted). The parties dispute

the standard of review for the propriety of a willful blindness

instruction and our precedent is unclear.6 See id. at 440 n.5.

Our outcome is the same whether we apply a de novo or deferential

standard of review, so we do not decide this issue today.

The first element is clearly satisfied since Lizardo

denied having knowledge of the conspiracy. The second element is

6
The government cites United States v. Coviello, 225 F.3d 54, 70
(1st Cir. 2000), and argues that we should review for abuse of
discretion. Lizardo cites United States v. Keene, 341 F.3d 78, 83
(1st Cir. 2003), and argues that our review is de novo. The
standard of review could depend on the prong of the test under
review. In Coviello, we addressed the second prong while in Keene,
we addressed the third prong.

-20-
also satisfied, but some explanation is needed. The evidence at

trial suggested that Lizardo had direct knowledge of the conspiracy

to distribute cocaine and does not immediately suggest that he took

a "conscious course of deliberate ignorance." Id. "But a jury may

find a witness credible in part and incredible in part." See

United States v. Lizotte, 856 F.2d 341, 343 (1st Cir. 1988). If

the jury did not believe Yturrino's testimony that Bello handed him

drugs in Lizardo's presence, then the remaining evidence would

suggest that Lizardo remained willfully ignorant of Bello's illegal

activities. The exchange of large amounts of cash and the request

for warrant and registry checks are flags of suspicion that suggest

willful blindness. See Epstein, 426 F.3d at 440.

Regarding the third element, Lizardo states in conclusory

fashion that the willful blindness instruction mandated an

inference of knowledge. We find no such inference. In instructing

the jury on willful blindness, the judge took precautions to avoid

such a mandate:7

7
This cautionary statement was preceded by the following
instruction:

In deciding whether the defendant acted knowingly, you
may infer that the defendant had knowledge of a fact if
you find that he deliberately closed his eyes to a fact
that otherwise would have been obvious to him. In order
to infer knowledge, you must find that two things have
been established: First, that the defendant was aware of
a high probability of the fact in question; second, that
the defendant consciously and deliberately avoided
learning of that fact. That is to say, the defendant
willfully made himself blind to that fact.

-21-
 It is entirely up to you to determine whether
he deliberately closed his eyes to the fact
and, if so, what inference, if any, should be
drawn. It is important to bear in mind,
however, that mere negligence or mistake in
failing to learn the fact is not sufficient.
To find willful blindness of a fact, you must
find a deliberate effort to remain ignorant to
that fact.

In addition, the court twice reminded the jury that "[a]n act is

done knowingly by a defendant if the defendant realizes what he or

she is doing and does not act through ignorance, mistake or

accident." Taken as a whole, the willful blindness instruction did

not mandate an inference of knowledge.

While the jury was properly allowed to consider whether

Lizardo remained willfully blind to the second element of the

conspiracy charge -- knowledge of the conspiracy -- Lizardo also

argues that the jury instructions improperly allowed the jury to

apply willful blindness to the third element -- intent to agree to

the conspiracy and intent to effectuate the object of the

conspiracy. There is something to this argument. Unfortunately,

the instructions were not clear that willful blindness applied only

to the second element of the conspiracy charge. The third element

requires an intent to join the conspiracy, and that is not

established by willful blindness. The intent to join may,

nonetheless, be established by inference from other evidence. The

instruction given was ambiguous and was not necessarily understood

as equating intent and willful blindness.

-22-
 Lizardo's concern is a valid one, but he has shown no

prejudice. The evidence of intent to join the conspiracy was very

strong. Lizardo carried out acts to effectuate the purpose of the

conspiracy. While there should have been greater clarity in the

instruction, there is no reason to think it had any effect.

The district court was not as clear as it could have been

in charging the jury with the elements of the conspiracy charge.

Rather than separate the knowledge element from the intentional

element, the district court required the government to show that

Lizardo acted "knowingly and willfully" or "knowingly, willfully,

and intentionally" for all elements of the crime. Since this

raised the government's burden of proof as to the knowledge element

of the conspiracy, Lizardo cannot claim prejudice from this

additional requirement. Lizardo also cannot argue that the jury

confused the concepts of knowingly and willfully as the district

court explicitly instructed the jury on willfulness:

The word willfully means that the act was
committed voluntarily and purposely with the
specific intent to do something the law
forbids; that is to say, with a bad purpose
either to disobey or disregard the law.

The district court later reminded the jury:

Intentionally does not include acts done by
ignorance, mistake, or accident. To act or
participate willfully means to participate
knowingly, willfully, and voluntarily and with
the specific intent to do something that is
unlawful.

-23-
The court also cautioned the jury not to convict unless Lizardo

voluntarily participated in the conspiracy:

If you find from the evidence that the
defendant in this case did not agree to
participate in the conspiracy charged in the
indictment, you are instructed that he is not
a conspirator even if his actions appear to
have furthered the object of the conspiracy.

We find no error in the court's willful blindness instruction.

V. Prosecutorial Misconduct

Lizardo contends that improper statements by the

government during its opening and closing arguments justify a new

trial.

A. Opening Argument

Lizardo objects to three statements by the prosecution

during its opening argument:

(1) Bello and Yturrino "counted thousands of
dollars in drug proceeds . . . while the
defendant sat in his uniform and watched."

(2) "Bello would brag about the quality of the
cocaine, how he didn't need chemicals to cut
it up, how pure it was."

(3) "Yturrino would be on a telephone talking
to his drug couriers and the defendant would
chime in, 'you guys are changing cars, right?'
to avoid police detection."

The government concedes that it did not produce evidence at trial

to support these three statements. Because Lizardo did not object

to these statements at the close of the government's case, we

-24-
review for plain error. See United States v. Wilkerson, 411 F.3d

1, 7 (1st Cir. 2005).

Although unsupported by the evidence presented at trial,

we do not find these three statements to be significantly

prejudicial. Regarding the first statement, Yturrino testified

that he openly gave Bello thousands of dollars in cash in Lizardo's

presence. The fact that they did not actually count the money in

Lizardo's presence is of minor importance. Regarding the second

statement, Yturrino testified that Bello gave him a 1.5-kilogram

package of cocaine in Lizardo's presence. Any statement by Bello

as to the quality of the cocaine is largely irrelevant. The third

statement is the most troublesome, as it directly ascribes culpable

conduct to Lizardo. The statement indicates that Lizardo helped

members of the conspiracy evade police investigation in one

particular instance. Given that Lizardo admitted to helping Bello

evade police surveillance and that officers testified that Lizardo

helped Bello evade surveillance, we do not find this false

statement significantly prejudicial. Other aspects of the trial

also reduced the possibility of prejudice. When questioned by the

government concerning the first two statements, Yturrino's

testimony clearly indicated that they were false. Further,

Lizardo's counsel emphasized to the jury in his closing statement

that the government had made these three false statements. Since

-25-
we find no prejudice, there was no plain error. United States v.

Padilla, 415 F.3d 211, 226 (1st Cir. 2005).

B. Closing Argument

Lizardo also claims that the prosecution made three

improper statements during its closing argument. Lizardo objected

to these three statements "so we review de novo the question of

whether the comment was improper and review for abuse of discretion

the question whether the misconduct, if any, warrants a new trial."

United States v. Hernández, 218 F.3d 58, 68 (1st Cir. 2000).

The first alleged error is the prosecutor's reiteration

that Bello and Yturrino counted money in Lizardo's presence. The

district court clearly erred in allowing this statement since the

evidence did not support it. However, as described above, we do

not find this error prejudicial.

The second alleged error is the prosecutor's suggestion

that Lizardo informed Bello that his phone might be tapped. The

following conversation was presented into evidence:

Bello: What happened?

Lizardo: I can't tell you over the phone but
take care okay.

Bello: But . . . but . . . damn . . . what's
going on old man?

Lizardo: I can't tell you over the phone man.

Later that day, in another conversation presented at trial, Bello

told a third person that his phone might be tapped. "Prosecutors

-26-
are free to ask the jury to make reasonable inferences from the

evidence submitted at trial," and we think this was a reasonable

inference. Id.

Finally, the prosecutor stated multiple times, largely

for rhetorical effect, that Lizardo "used his badge as a shield."

Lizardo contends that the "prosecutor improperly argued that

Lizardo tried to use his 'badge' as a shield from responsibility,"

because it "suggested that Lizardo should not take the stand to

defend himself." We do not think the prosecutor's statements bear

the inference that Lizardo would impose.

Finally, taken cumulatively, the errors in the opening

and closing arguments do not justify a new trial. The only error

in the closing argument was identical to one of the errors in the

opening argument and was only infinitesimally prejudicial if at

all. Lizardo contends that the evidence supporting his conviction

was so thin that these errors could have changed the outcome. We

disagree. The evidence against Lizardo was substantial, and any

possible prejudice was relatively insignificant.

VI. Wiretaps

During its investigation of this case, the government

received several wiretap authorizations. The initial wiretaps

named Bello as a target. The first wiretap authorization to name

Lizardo as a target was issued on December 27, 1999. Lizardo moved

to suppress evidence only from the December 27 authorization. The

-27-
district court denied this motion to suppress, but the government

did not use any evidence obtained from this wiretap at trial. The

government did submit as evidence at trial recorded conversations

from authorized wiretaps before December 27, and Lizardo did not

make any pre-trial objections to these other wiretap

authorizations. On appeal, Lizardo now contests these wiretaps for

the first time, arguing that evidence obtained from the wiretaps

should be suppressed.

The Federal Rules of Criminal Procedure clearly state

that a motion to suppress evidence must be made before trial and

that the failure to do so constitutes waiver. Fed. R. Crim. P.

12(b), (e). Although the Rules allow the district court to grant

an exception for "good cause," Fed. R. Crim. P. 12(e), Lizardo did

not seek to suppress the wiretaps at trial. Lizardo does not

address the waiver issue. We see no reason why we should consider

the suppression of these wiretaps for the first time on appeal.

See United States v. Luciano, 329 F.3d 1, 9 (1st Cir. 2003).

VII. Sentencing Errors

The jury convicted Lizardo of conspiracy to distribute

cocaine but did not determine the drug quantity that should be

attributed to him. The sentencing judge found by a preponderance

of the evidence that 1.5 kilograms of cocaine was attributable to

-28-
Lizardo.8 From this, the judge computed a Guideline sentencing

range of 46-57 months. However, the judge imposed a greater

sentence, 60 months, because that was the statutory mandatory

minimum sentence under the drug quantity found by the judge.

Lizardo makes a number of arguments concerning the sentence he

received.9

Lizardo first claims that his right to confront

witnesses, under Crawford v. Washington, 541 U.S. 36 (2004), was

violated at his sentencing because "all of the information about

drug quantity was testimonial and not presented to a jury." While

he recognizes that our prior decisions clearly state that Crawford

does not apply to sentencing, see United States v. Luciano, 414

F.3d 174, 179 (1st Cir. 2005), he nevertheless urges us to

reconsider this position. We are, however, bound by this

precedent, which only an en banc court can change. See United

States v. Baskin, 424 F.3d 1, 4 n.2 (1st Cir. 2005).

Lizardo next contests the judge's factual finding that

1.5 kilograms of cocaine were attributable to him. "[W]hen a

8
The sentencing hearing took place in May 2004, which was before
the Supreme Court decided United States v. Booker, 543 U.S. 220
(2005).
9
We summarily dismiss one of these arguments. Lizardo argues
that we should remand under Booker for the district court to
reconsider the magnitude of the downward departure under the now
advisory Sentencing Guidelines. Because Lizardo received the
statutory mandatory minimum sentence, there was no error under
Booker. See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st
Cir. 2005).

-29-
district court determines drug quantity for the purpose of

sentencing a defendant convicted of participating in a

drug-trafficking conspiracy, the court is required to make an

individualized finding as to drug amounts attributable to, or

foreseeable by, that defendant." United States v. Colón-Solís, 354

F.3d 101, 103 (1st Cir. 2004). At trial, Yturrino testified that

Lizardo was present when Bello gave him 1.5 kilograms of cocaine,

and this was the basis for the district court's finding that this

amount was attributable to Lizardo. This finding is clearly

individualized to Lizardo, and we find no error in the district

court's factual finding.

Lizardo also argues that since the jury did not determine

the drug quantity attributable to him, the sentencing judge

violated Apprendi v. New Jersey, 530 U.S. 466 (2000), by finding

that 1.5 kilograms were attributable to him.10 Apprendi holds that

"[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt." Id. at 490. For the crime for which the jury convicted

Lizardo, the statutory maximum for the minimum possible drug

quantity is 20 years. 21 U.S.C. § 841(b)(1)(C). Since the judge

sentenced Lizardo to only five years of imprisonment, there was no

10
Lizardo made no objection below, so we review only for plain
error. United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
Nevertheless, we find no error, never mind plain error.

-30-
Apprendi violation. See United States v. Pérez-Ruiz, 353 F.3d 1,

15 (1st Cir. 2005).

Lizardo's final sentencing argument requires a more

detailed analysis. Because the jury convicted Lizardo but was not

asked to find a specific drug quantity, we attribute a minimal drug

quantity to the jury's verdict. See Pérez-Ruiz, 353 F.3d at 17.

For a minimal drug quantity, the statutory sentencing range would

be zero to twenty years. 21 U.S.C. § 841(b)(1)(C). In contrast,

under the drug quantity of 1.5 kilograms found by the district

court, the statutory sentencing range would be five to forty years.

Id. § 841(b)(1)(B). The sentence imposed by the judge, five years,

was within both of these ranges, but greater than the Guideline

range of 46 to 57 months. The district court imposed the five year

sentence because it found that the statutory mandatory minimum

sentence was five years. Lizardo argues that the district court

committed plain error in determining the statutory mandatory

minimum sentence on the basis of a drug quantity found by the judge

rather than by the jury.

We addressed precisely this issue in United States v.

Goodine, where we upheld the district court's application of a

mandatory minimum sentence under § 841(b)(1) based on judicially

found facts. 326 F.3d 26, 33 (1st Cir. 2003). We decided Goodine

after Apprendi but before Blakely v. Washington, 542 U.S. 296

(2004), and United States v. Booker, 543 U.S. 220 (2005). Lizardo

-31-
argues that the Supreme Court's intervening opinion in Booker

overrules this aspect of our decision in Goodine.

Lizardo's argument is based on the following language

from Goodine: "Nothing in Apprendi or subsequent cases calls into

question the validity of the Sentencing Guidelines . . . ."

Goodine, 326 F.3d at 33. According to Lizardo, because Booker made

the Guidelines advisory, it thus follows that Goodine must be

overruled. We disagree. Booker, like Apprendi, was concerned only

with "sentence[s] exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict." Booker, 543

U.S. at 244 (emphasis added). Booker left intact the Supreme

Court's precedent in Harris v. United States, 536 U.S. 545, 568

(2002), which allowed the use of judicially found facts to increase

a mandatory minimum sentence, and thus also leaves Goodine intact.11

VIII. Conclusion

For the foregoing reasons, we affirm Lizardo's conviction

and sentence.

Affirmed.

11
Other circuits are split as to whether judicially found facts
can be used to increase the statutory mandatory minimum sentence
under § 841(b)(1). See United States v. González, 420 F.3d 111,
130 (2005).

-32-