United States v. Ofray-Campos

United States Court of Appeals
For the First Circuit

Nos. 05-1461
05-1462
05-2315
05-2627
06-1005

UNITED STATES OF AMERICA,

Appellee,

v.

HERIBERTO OFRAY-CAMPOS, PEDRO JOSÉ DÍAZ-CLAVELL,
DENNYS CRUZ-PEREIRA, MIZAURY LÓPEZ-SOTO, MODESTO ZARAGOZA-LASA,

Defendants, Appellants.

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

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Circuit Judge,
Lynch, Circuit Judge,
and Keenan,* Senior District Judge.

Elfrick Méndez Morales, on brief for Appellant Ofray-Campos.
José R. Olmo-Rodríguez, for Appellant Díaz-Clavell.
Elaine Pourinski, on brief for Appellant Cruz-Pereira.
Raymond J. Rigat, for Appellant López-Soto.
J. Michael McGuiness, for Appellant Zaragoza-Lasa.

*Of the Southern District of New York, sitting by designation.
 Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, was on brief for appellee.

July 7, 2008

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 KEENAN, District Judge. These five consolidated

appeals arise from the convictions of the defendants, after a

jury trial, for their participation in a multi-drug conspiracy.

On October 4, 2002, a federal grand jury, sitting in the District

of Puerto Rico, returned a two-count Indictment, charging forty-

three defendants with conspiracy to distribute five kilograms or

more of cocaine, fifty grams or more of crack, and one kilogram

or more of heroin, in violation of 21 U.S.C. §§ 841 and 846.1

The charges stemmed from the defendants’ alleged participation in

Las Avispas, a heroin, powder cocaine, crack, and marijuana ring

that operated drug distribution centers, or drug “points,”

throughout neighborhoods in the Guayama and Salinas regions of

Puerto Rico, from April 1993 to September 2002. Of the forty-

three defendants who were indicted, thirty-seven pleaded guilty.

The present Defendants-Appellants, Mizaury López-Soto (“López-

Soto”), Heriberto Ofray-Campos (“Ofray”), Pedro José Díaz-Clavell

(“Díaz-Clavell”), Dennys Cruz-Pereira (“Cruz-Pereira”), and

Modesto Zaragoza-Lasa (“Zaragoza-Lasa”) (collectively, the

“Appellants”), opted to go to trial, along with an additional

defendant, Carlos Escobar-Figueroa, whose appeal proceeded

1The second count, which was charged against only a few of the
defendants, was a narcotics forfeiture count and is not relevant to
any issue raised in the present appeals.

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separately. Trial began on August 5, 2003 and concluded on

September 29, 2003. The jury found the Appellants guilty and

indicated by a special verdict form that the charged conspiracy

involved the threshold amounts of the narcotics described in the

Indictment.

For the reasons that follow, we vacate the convictions

of Díaz-Clavell and Zaragoza-Lasa and remand for new trials. We

affirm the convictions of Cruz-Pereira and López-Soto but vacate

their sentences and remand for re-sentencing. We affirm the

conviction and sentence of Ofray.

BACKGROUND

In setting forth the background of this case, we

present the facts in a light that is most favorable to the

Government’s case and thus supportive of the jury’s verdict. We

provide additional facts where they are relevant to the legal

analysis of specific issues. See United States v. Rodriguez-

Marrero, 390 F.3d 1, 6 (1st Cir. 2004).

The Government’s evidence at trial consisted, among

other things, of the testimony of law enforcement agents and

cooperating witnesses; audio recordings of drug transactions; and

physical evidence, including guns and narcotics, recovered during

the course of the investigation. The evidence established that,

from 1993 to 2002, Las Avispas, a gang with approximately forty

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members under the leadership of José Dávila-López (a/k/a José

Cabezón), owned and operated drug points in Guayama and Salinas

from which members of the organization sold large quantities of

cocaine, crack, heroin, and marijuana. The drug points operated

by Las Avispas included the points at Las Vias and La Plumita, in

the Borinquen ward of Guayama. For several years during the time

period at issue, Las Avispas was engaged in a violent war over

territory in the Borinquen ward with a smaller gang, Los

Jibaritos, that operated a drug point at Las Ruinas, in close

proximity to the Las Vias and La Plumita drug points. The Las

Vias point carried out a thriving narcotics trade, operating

around the clock with nearly constant demand from street users.

Francisco Rivera Cardona, a former Avispas street dealer who sold

crack and cocaine at Las Vias from 1996 to 1999, testified that

he typically sold between 400 and 500 capsules of crack per

eight-hour shift, as well as approximately twenty-five $10 bags

of cocaine per shift. Members of Las Avispas and Los Jibaritos

regularly carried weapons and frequently engaged in shoot-outs

with each other and with members of other rival gangs in the

area.

Las Avispas, Los Jibaritos, and other neighboring drug

rings operated under similar principles. Drug point owners, such

as José Cabezón, were rarely seen at the actual drug points and

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had limited interaction with the gangs’ lower level members. In

addition to drug point owners and managers, workers in the drug

rings included suppliers, who sold large quantities of narcotics

on a regular basis to several different gangs; sellers, who sold

the packaged drugs on the street to end users; runners, who kept

the points stocked with drugs; and enforcers, who often carried

firearms and used violence to protect the gangs’ members, drugs,

and drug proceeds from the violent encroachment of rivals.

Often, members of the drug gangs occupied overlapping roles.

The Government’s witnesses also described how different

drugs were packaged. Cocaine and marijuana were sold in plastic

bags, in $5 and $10 quantities. Crack was sold in small plastic

vials, at $3 or $3.50 per vial. Heroin was packaged in aluminum

foil of different colors. The heroin sold by Las Avispas at Las

Vias generally was packaged in violet-colored foil. The

cooperating witnesses also described how the cash proceeds were

safeguarded and how the cash was spent, often on luxury items, to

disguise its illicit source. Much of the testimony focused on

the narcotics activity and violent conduct of members of Las

Avispas who were named in the Indictment but who were not on

trial. The Government also offered testimony about the seizures

of drugs and firearms that were made from many of the absent co-

defendants.

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 Although the Government’s witnesses provided a

comprehensive description of Las Avispas’ structure and

activities, and much testimony was presented relating to the

narcotics activities of the thirty-seven absent co-defendants,

the quantity and quality of the proof adduced against each of the

present Appellants varied markedly. The evidence offered against

each Appellant was as follows.

Ofray

Ofray owned two bars, Rumba’s Pub and La Cota Rota,2 in

Guayama, as well as an upholstery store in Salinas, from which he

sold cocaine in “wholesale” quantities, ranging from eighths of a

kilogram to full kilograms. Abdul Mendoza-Lebrón (“Mendoza-

Lebrón”), a former member of Los Jibaritos who acted as second-

in-command of their Las Ruinas drug point but who also sold drugs

to Las Avispas in 1997 and 1998, testified that Ofray was a major

cocaine supplier in Guayama. Mendoza-Lebrón purchased crack from

Ofray for re-sale at Las Ruinas, usually from Ofray’s upholstery

store or from Ofray’s residence in Puente Jobo, on a weekly basis

from 1994 until Mendoza-Lebrón’s arrest in 1999. Mendoza-Lebrón

testified that Ofray sold large amounts of drugs to Las Avispas,

Los Jibaritos and, indeed, “to anybody who would come to buy from

2 The bar was also known, and at times referred to at trial, by the
name “La Copa Deportiva.”
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him.” Juan Rivera-Rivera (“Rivera-Rivera”), the former leader of

the rival Las Jibaritos gang during much of the time period at

issue, further testified that Ofray supplied cocaine to drug

points run by Las Avispas and that Rivera-Rivera personally

purchased cocaine from Ofray on one occasion, in 1997 or 1998.

Carlos Collazo (“Collazo”), another cooperating witness who

operated a drug point in the San Felipe ward, between Guayama and

Salinas, and frequently associated with and supplied guns to

Avispas members, testified that he learned from López-Soto that

Ofray was a crack supplier.3

Angel Villodas (“Villodas”), a cooperating witness who

began working as a confidential informant for the FBI in 2000,

testified that, on June 8, 2001, he arranged with Ofray to

purchase approximately two ounces of cocaine for $1200. Villodas

made the purchase on June 14, 2001, at Rumba’s Pub. Although

Villodas conferred with Ofray when he first arrived at Rumba’s

Pub to complete the transaction, Villodas testified that it was

Ofray’s part-time employee, Appellant Díaz-Clavell, who delivered

the cocaine to Villodas in the bathroom of Rumba’s. Villodas

also testified that Ofray frequently carried an automatic weapon.

3 Collazo’s testimony about López-Soto’s statement was admitted,
over objection, as a co-conspirator statement.
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 In addition, law enforcement officers testified about

Ofray’s possession of two handguns. Specifically, in the early

morning of July 14, 2002, police officers recovered a .9mm pistol

that Ofray deposited in a parked van outside of Rumba’s Pub.

Later that day, while arresting Ofray, officers seized a Colt .45

pistol that Ofray carried in a duffel bag.

Díaz-Clavell

Díaz-Clavell had a full-time job with the Puerto Rico

Department of Public Works, but also worked part-time at Ofray’s

establishments, Rumba’s Pub and La Copa Rota. Mendoza-Lebrón

testified that Díaz-Clavell was very frequently in Ofray’s

company and often present when Mendoza-Lebrón and Ofray conducted

drug deals. Mendoza-Lebrón also testified that Díaz-Clavell

stashed cocaine and cash for Ofray and, on several occasions when

Mendoza-Lebrón purchased cocaine from Ofray, Díaz-Clavell brought

the drugs to the apartment above Ofray’s upholstery shop, where

the deals were consummated.

As stated above, Villodas, who was Díaz-Clavell’s

second cousin, testified that, on June 14, 2001, when Villodas

went to Rumba’s Pub to execute the cocaine deal that he had pre-

arranged with Ofray, it was Díaz-Clavell who delivered the two

ounces of cocaine to Villodas, in the bar’s bathroom.

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 López-Soto

The Government’s cooperating witnesses, including

Mendoza-Lebrón, Rivera-Rivera, and Collazo, testified at length

about López-Soto’s control of several drug points, including the

Olimpo point in Borinquen, from which López-Soto sold cocaine and

crack from 1993 to 1998. Mendoza-Lebrón testified that López-

Soto regularly carried weapons and acted as an enforcer for Las

Avispas from 1993 through 1998, and shot one of the men working

for Mendoza-Lebrón around Christmas of 1998. López-Soto

conducted frequent drug deals with Las Avispas’ members at drug

points in Borinquen, which remained open twenty-four hours each

day. López-Soto was both a buyer and seller of narcotics;

Rivera-Rivera testified that, on a particular occasion in 1996 or

1997, he sold López-Soto 100 vials of crack, and in 1998, bought

one kilogram of cocaine from López-Soto. Collazo testified that

he supplied automatic weapons and silencers to López-Soto in 1996

and 1997. López-Soto also was arrested in possession of a .9mm

pistol in March 1998. In addition, Collazo testified that López-

Soto carried out the murder of Santito, a rival drug dealer, in

March 1997. Rivera-Rivera stated that López-Soto admitted to

Rivera-Rivera that he had murdered Santito.

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 Cruz-Pereira

Mendoza-Lebrón testified that Cruz-Pereira regularly

purchased crack from him and his cousin, Wilson Mendoza-Vásquez

(“Wilson”) –- a member of Las Avispas and one of the defendants

named in the Indictment. Mendoza-Lebrón sold crack to Cruz-

Pereira until Mendoza-Lebrón’s arrest in 1999, on those occasions

when Wilson did not have crack to sell. In addition to selling

crack, Mendoza-Lebrón bought “eighths” of crack from Cruz-

Pereira.

The Government also presented evidence of three

recorded drug purchases that were made from Cruz-Pereira. On

June 21, 2001, Villodas, who had known Cruz-Pereira since their

youth, went to Cruz-Pereira’s house on Santa Ana Street and

arranged to purchase crack. Cruz-Pereira left in his truck and

returned approximately thirty or forty minutes later with

approximately fifty vials of crack, which he sold to Villodas in

exchange for cash.

Agent Edwin Rosa-Ferrer (“Agent Rosa-Ferrer”), an

undercover officer working for the Puerto Rico Police Department,

was introduced to Cruz-Pereira through an individual named

“Christopher.” On November 17, 1998, Agent Rosa-Ferrer went to

Cruz-Pereira’s house and arranged to purchase one gram of cocaine

for $40. Agent Rosa-Ferrer later went to La Ponderosa, a bar
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owned by Cruz-Pereira, to complete the transaction. At La

Ponderosa, Cruz-Pereira received the cocaine from Cruz-Pereira

and handed the $40 to “Christopher.” On December 3, 1998, again

at La Ponderosa, Agent Rosa-Ferrer purchased five grams of

cocaine from Cruz-Pereira for $150.

Zaragoza-Lasa

Zaragoza-Lasa, who was known by the nickname “El Viejo

Mode,” was alleged to be a major heroin and cocaine supplier for

Las Avispas. Cardona testified that he saw Zaragoza-Lasa, whom

he knew only by the name “El Viejo Mode,” at Las Vias on “several

occasions” speaking with Javier Báez, the manager of the drug

point. On one occasion, in 1998, Cardona saw Zaragoza-Lasa hand

to Baez a brick-shaped object wrapped in paper. Cardona

testified that he believed the package contained drugs because a

runner later brought to Cardona what appeared to be the package’s

wrapping, and Cardona was able to make crack out of cocaine

residue that was on the paper. Cardona also testified that when

drug supplies at Las Vias became depleted, the stock of drugs

would increase following “El Viejo Mode”’s visit.

Olga Lebrón-Ortiz (“Lebrón-Ortiz”), a cooperating

witness who regularly sold marijuana and cocaine in the Borinquen

ward in Guayama in 1994 and 1995 and later made undercover drug

purchases for the FBI, saw Lasa –- whom she also knew only by the
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name “El Viejo Mode” –- in Borinquen regularly from 1995 through

2002. Zaragoza-Lasa appeared in Borinquen up to twice a week.

Lebrón-Ortiz stated that she saw Zaragoza-Lasa deliver to Javier

Baez a transparent bag containing violet-colored aluminum foil

packages. Lebrón-Ortiz corroborated other testimony that

established that heroin was regularly packaged for sale by Las

Avispas at Las Vias in violet-colored aluminum foil. Lebrón-

Ortiz also testified that, on two occasions in 2002, she saw

Zaragoza-Lasa give free samples, or “tastes,” of heroin to

Borinquen street junkies.

“Overview” Testimony

In addition to the aforementioned testimony from

cooperating witnesses and an undercover officer, the Government

offered the testimony of two lead case agents, Agent Ricardo

Rivera and Agent José Tirado, who were both members of the Puerto

Rico Police Department assigned to the joint FBI task force

investigating narcotics and weapons activity in Guayama and

Salinas. Agent Rivera, the Government’s first witness, provided

a general overview of the pervasive, violent drug activity in the

Guayama and Salinas region, identifying eleven different drug

points that were controlled by seven gangs. In addition to

testifying about the general hierarchy among the workers at the

drug points and the way in which drug points typically operated,

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Rivera – over defense counsel’s frequent objections – summarized

the role played by each of the five Appellants in Las Avispas.

Agent Rivera stated that Ofray dealt large quantities of drugs

from his bars and upholstery shop, carried weapons regularly, and

was a friend and drug supplier to José Cabezón, Las Avispas’

leader. Agent Rivera described Díaz-Clavell as Ofray’s assistant

and runner, who regularly delivered drugs to Ofray. Rivera also

discussed López-Soto’s role as an enforcer for Las Avispas, and

his frequent carriage of weapons. Agent Rivera identified Cruz-

Pereira as the leader of the Santa Ana drug point in the Puente

Jobo ward. Finally, Agent Rivera stated that Zaragoza-Lasa

delivered drugs regularly to Las Avispas and, in particular,

supplied heroin to the Las Vias drug point. Agent Rivera did

not, however, testify that he had any personal knowledge of the

Appellants’ alleged narcotics activity. Rather, he derived his

conclusions “through information that we obtained from informants

who collaborated in the investigation and informants of the

Puerto Rico Police Department and state policemen as well.”

Agent Tirado provided similar “overview” testimony over

defense counsel’s objections later in the trial. Like Agent

Rivera, Agent Tirado explained the role each Appellant played in

the Las Avispas drug organization. Agent Tirado described Ofray

as a Las Avispas cocaine supplier who operated the San Felipe

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drug point in Salinas (that is, Ofray’s upholstery store); Díaz-

Clavell as Ofray’s runner; López-Soto as a Las Avispas “hit man”

and owner of a drug point; Cruz-Pereira as the manager of the

Santa Ana drug point in the Puente Jobo ward; and Zaragoza-Lasa

as one of Las Avispas’ suppliers, and “the main supplier of

heroin at the Pales Matos drug points in the Borinquen ward, in

Guayama and other drug points” who was known to supply heroin in

violet-colored aluminum foil packets. While testifying about

each Appellant’s role in the conspiracy, Agent Tirado referred to

a chart that contained the names and alleged positions occupied

in the conspiracy by the Appellants and the other defendants

named in the indictment. Like Agent Rivera, Agent Tirado

conceded that his information was obtained solely through second-

hand information given to him by informants and “through the

investigation that we conducted.”

DISCUSSION

The Appellants assert numerous individual claims on

appeal. One claim, which initially was raised only by Cruz-

Pereira, arises from the district court’s allegedly improper

handling of a jury note submitted after the close of evidence.

In its written response to the note, the court imparted to the

jury information that was extrinsic to the evidence presented at

trial and potentially prejudicial to all five Appellants.

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Because the district court’s response to the jury note arguably

affected the jury’s verdict as to all five Appellants, we deal

first with this issue before addressing Appellants’ many

individual challenges.

The Jury Note

On September 29, 2003, after the jury received final

instructions and began deliberations, the district court told

both the prosecutors and defense counsel that, if the court

received a note from the jury, it would notify all counsel, and

that counsel were required to arrive within ten minutes after

being notified. The trial judge warned that if counsel failed to

appear within ten minutes of the notification, he would respond

to the jury’s note without input from anyone who was absent.

The record indicates that the court subsequently

received four jury notes, including the final note, which stated

that the jury had reached a verdict. Two notes, the contents of

which are irrelevant for purposes of this appeal, were marked as

“Jury Note #1" and “Jury Note #3", and were signed by the

foreperson, respectively, at 5:55 p.m. and 6:00 p.m. The note

which concerns us was marked as “Juror Note #2” (“Note #2"), and

was signed by the foreperson at 6:15 p.m.4 Note #2 was written in

4 It is unclear why Note #2 -- which was signed by the foreperson
and thus presumably submitted fifteen minutes after “Jury Note #3"
-- was not in fact marked as the third (rather than the second)
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Spanish and headed with the single, underlined word “Duda,” which

is translated as “Doubt.” The district court responded to the

note, in English, as follows:

Dear Jury:
The question you posed, Those that are imprisoned,
that is the others in the Indictment, are they in jail
for a conspiracy? The answer is yes. s/Juan M. Pérez-
Giménez, U.S.D.J., 9-29-03.

This written answer was then sent to the jury. The

final note from the jury, stating that the jury had reached a

verdict, was signed by the foreperson at 7:15 p.m.

As stated, Cruz-Pereira was the sole Appellant to

assert a claim relating to the jury note. Cruz-Pereira claimed

that the trial court’s handling of the note violated Rule 43(a)

of the Federal Rules of Criminal Procedure, which requires the

presence of the defendant at every stage of the trial, and that

the substance of the district court’s response to the note

resulted in great prejudice. The Government argued, first, that

the district court’s divergence in this case from the standard

practice of handling the jury note was due to defense counsel’s

failure to follow the judge’s reasonable ten-minute rule; second,

that the record indicated that defense counsel were in fact

present when the district court drafted its proposed answer to

note.
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Note #2 and did not object to the answer; and third, even if the

court improperly handled the note, that the error was harmless in

light of the overwhelming evidence against Cruz-Pereira.

Because it is undisputed that the district court

informed the jury of a fact that was never offered in evidence -–

namely, that thirty-seven non-testifying co-defendants were

incarcerated for a conspiracy5 –- and because that fact had the

potential of tainting the jury’s verdict with respect to all of

the Appellants, we exercised our discretion to review the jury

note issue as it applied to all five Appellants, even though only

Cruz-Pereira initially raised the claim on appeal. See United

States v. Rivera-Rosario, 300 F.3d 1, 10 n.1 (1st Cir. 2002) (“In

exceptional cases, especially in criminal cases, appellate

courts, in the public interest, may, of their own motion, notice

errors to which no exception has been taken, if the errors are

obvious, or if they otherwise affect the fairness, integrity or

public reputation of judicial proceedings.”) (quoting United

States v. Atkinson, 297 U.S. 157, 160 (1936) (internal quotation

marks omitted)).

5 Although the trial judge translated Note #2 into English to read
that the “others in the Indictment” were in prison for “a
conspiracy,” the Spanish words “por conspiracion” are more aptly
translated as “for conspiracy.” In any event, given the context of
Note #2, as discussed below, it is evident that the jury was
referring to the conspiracy charged in the Indictment.
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 Our initial review of the procedural component of the

district court’s handling of the jury note was somewhat hampered

by the state of the trial transcript. As all the parties agree,

the portion of the transcript that relates to the district

judge’s receipt of the jury notes and his drafting of the answer

to Note #2, in particular, contains gaps and omissions. Because

of the incomplete transcription, it was unclear which defense

counsel, if any, were present when the judge discussed his

proposed response to Note #2. It was equally unclear whether

defense counsel were given an opportunity to object to the

proposed response or whether counsel in fact voiced any

objections. Unsurprisingly, the briefs submitted by the

Government and Appellant Cruz-Pereira contained differing

interpretations of the incomplete record. Counsel’s statements

at oral argument did not help to clarify the circumstances under

which the district court responded to Note #2. Accordingly, we

directed the parties to submit supplemental briefing on the issue

of whether the district court’s handling of the jury note was

erroneous, as well as affidavits from the trial attorneys,

setting forth relevant facts related to the trial judge’s

handling of the jury note, in an attempt to reconstruct the

record. In addition, we directed the parties to address the

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substantive issue of prejudice that may have resulted, as to each

Appellant, from the court’s answer to Note #2.

The affidavits and supplemental briefing submitted by

the parties lead us to conclude that the procedure followed by

the court in handling the jury note was not erroneous. In United

States v. Maraj, 947 F.2d 520 (1st Cir. 1991), we set forth the

proper procedure for a trial court’s handling of a jury note:

The preferred practice for handling a jury message
should include these steps: (1) the jury’s communique
should be reduced to writing; (2) the note should be
marked as an exhibit for identification; (3) it should
be shown, or read fully, to counsel; and (4) counsel
should be given an opportunity to suggest an
appropriate rejoinder. If the note requires a response
ore tenus, the jury should then be recalled, the note
read into the record or summarized by the court, the
supplemental instructions given, and counsel afforded
an opportunity to object at side-bar. If, however, the
note is to be answered in writing, the court’s reply
should be marked as an exhibit for identification, the
judge should read both the jury’s note and the reply
into the record, and counsel should be afforded an
opportunity to register objections before the reply is
transmitted to the jury.

Id. at 525. In addition, “it is also helpful for the judge to

inform counsel of the substance of [the] proposed response . . .

.” Id. (quoting United States v. Ronder, 639 F.2d 931, 934 (2d

Cir. 1981) (internal quotation marks omitted)). The rules for

handling a jury note that are set forth in Maraj are well-

settled. See United States v. Parent, 954 F.2d 23, 25 (1st Cir.

1992) (stating that Maraj drew upon “long-settled precedent” and
- 20 -
“stands foursquare for the proposition that messages from a

deliberating jury, pertaining to ongoing deliberations, ought to

be fully disclosed to the lawyers when received, so that the

latter may be heard before the judge implements a course of

action”). A judge’s responding to a jury note outside the

presence of counsel and defendant also violates Rule 43 of the

Federal Rules of Criminal Procedure, which states that the stages

of a trial at which the defendant must be present include “every

trial stage, including jury impanelment and the return of the

verdict[.]” Fed. R. Crim. P. 43(a)(2).

The affidavits submitted by the parties lead us to

conclude that all parties were present at the time that the

district court drafted a proposed answer to Note #2 and that the

note was discussed with counsel. The affidavits received from

trial counsel for López-Soto (Attorney Inserni), Zaragoza-Lasa

(Attorney Cruz), and Cruz-Pereira (Attorney Dolz) all state that

the attorneys do not recall whether they were present when the

trial judge drafted his answer to Note #2. The attorney who

represented Ofray and Díaz-Clavell jointly at trial (Attorney

Díaz) did not submit an affidavit. By contrast, the Government’s

lead prosecutor at trial, Assistant United States Attorney

(“AUSA”) Irene Feldman, offers a clear recollection of the events

at issue. She states in her affidavit that she “quite definitely

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remember[s] the presence of all attorneys in the crowded room

when the notes were read and the answers were discussed and

drafted by the court.” In particular, AUSA Feldman states that

she is “absolutely certain that the second question [Note #2] was

discussed in the presence of all parties prior to the court’s

having drafted and filed a response.”

In light of defense counsel’s collective uncertainty

and the Government’s definitive recollection that all parties

were present when the district court drafted its response to Note

#2, we find that there was no procedural error in the district

court’s handling of the jury note. It is evident from the record

that Note #2 was reduced to writing, and equally evident from the

Government’s affidavit that the note was shown to and/or

discussed with defense counsel, and that counsel thus had the

opportunity to object to the proposed answer.6

We turn next to the issue of whether the trial judge’s

response to Note #2, resulting in the jury’s exposure to

potentially prejudicial extrinsic information, constituted

substantive error. The Sixth Amendment requires that the jury’s

6 Because we have determined that the parties and defense counsel
were, in fact, present when the district court drafted its answer
to Note #2, we need not decide whether counsel’s failure to follow
the court’s ten-minute rule operated to waive or forfeit an
appellate challenge to the manner in which the court handled the
note or the substance of the court’s answer.
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verdict must be based solely upon the evidence developed at

trial. See Turner v. Louisiana, 379 U.S. 466, 472 (1965). “The

theory of our system is that the conclusions to be reached in a

case will be induced only by evidence and argument in open court,

and not by any outside influence, whether of private talk or

public print.” Patterson v. Colorado, 205 U.S. 454, 462 (1907)

(Holmes, J.). “[E]xposure to extrinsic information deprives a

criminal defendant of the protections of the Sixth Amendment,

including his right of confrontation, of cross-examination, and

of counsel.” United States v. Santana, 175 F.3d 57, 65 (1st Cir.

1999) (citations and footnote omitted); see also id. (finding

that “the judge should not have intervened by allowing the jury

to observe [extrinsic evidence] after the close of evidence and

without the standard safeguards of a criminal trial” and vacating

conviction); Lacy v. Gardino, 791 F.2d 980, 983 (1st Cir. 1986)

(finding that defendant’s Sixth Amendment rights to confrontation

and cross-examination were violated when juror peeled tape off

exhibits unmasking information concerning defendant’s prior

criminal record); United States v. Hans, 738 F.2d 88, 93 (3d Cir.

1984) (trial court committed reversible error by granting jury’s

request to examine objects not in evidence, after deliberations

had begun).

- 23 -
 The jury’s exposure to extrinsic facts is especially

troubling when the trial judge is the source of the information.

A district court must use extreme caution in answering
questions from juries so as not to usurp the jury’s
fact finding role. As we have noted on many occasions
“undeniably inherent in the constitutional guarantee of
trial by jury is the principle that a court may not
step in and direct a finding of contested fact in favor
of the prosecution regardless of how overwhelmingly the
evidence may point in that direction.”

United States v. Sabetta, 373 F.3d 75, 80 (1st Cir. 2004)

(quoting United States v. Rivera-Santiago, 107 F.3d 960, 965 (1st

Cir. 1997)). “The Constitution casts judge and jury in mutually

supporting -- yet nevertheless distinct -- roles. . . . ‘The

trial judge is . . . barred from attempting to override or

interfere with the jurors’ independent judgment in a manner

contrary to the interests of the accused.’” United States v.

Argentine, 814 F.2d 783, 788 (1st Cir. 1987) (quoting United

States v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977)).

Here, the jury requested, and the court affirmatively

provided, undisputably extrinsic information. There was simply

no evidence presented at trial relating to the current status of

any of the thirty-seven absent co-defendants named in the

Indictment. None of the thirty-seven co-defendants testified at

trial, and no mention was made of whether any of the thirty-seven

had been imprisoned or found guilty of the charges in the

- 24 -
indictment. Thus, the jury’s note itself sugggests that the jury

had been exposed to the extrinsic “fact” that the absent co-

defendants were incarcerated. More crucially, the judge’s

response to Note #2, in which he confirmed for the jury that the

thirty-seven co-defendants who did not appear at trial were in

prison for their participation in a conspiracy, constituted new

evidence, delivered to the jury from the bench rather than the

witness stand, and unaccompanied by any of the safeguards of a

criminal trial, in violation of Appellants’ Sixth Amendment

rights. See Turner, 379 U.S. at 472-73 (“Trial by jury in a

criminal case necessarily implies at the very least that the

‘evidence developed’ against a defendant shall come from the

witness stand in a public courtroom where there is full judicial

protection of the defendant’s right of confrontation, of cross-

examination, and of counsel.”). Thus, the jury’s exposure to

extrinsic information amounts to an error of constitutional

dimension.

Having found error, we must next select the appropriate

standard for our review. Normally, in the absence of any

objection to the answer that the district court proposed and

submitted to the jury, we would review for plain error. The gaps

in the trial transcript prevent us, however, from ascertaining

whether defense counsel asserted timely objections to the court’s

- 25 -
proposed response. The affidavits submitted in supplemental

briefing do not provide much illumination. The trial attorneys

for López-Soto, Zaragoza-Lasa, and Cruz-Pereira all state that,

although they are unsure whether they were present when the note

was discussed, they would have certainly objected if the trial

judge had stated that he intended to issue a written affirmative

response to Note #2. As Attorney Cruz states, “I don’t remember

any type of discussion in relation to the answer to jury note

number 2. I am familiar with the experience of the defense

attorneys involved in this case and I believe at least one, if

not all of us, would have objected to the wording contained in

the answer to jury note number 2 and would have requested that

the jury be advised that they were only to concern themselves

with those defendants who were at trial.”

AUSA Feldman’s affidavit contains only the oblique

suggestion that defense counsel failed to voice objections.

Regarding defense counsel’s reaction to the court’s proposed

answer to Note #2, Feldman states, “I recall that defense counsel

responded to the jury note and proposed response as if it were

favorable to the defendants.” Feldman does not affirmatively

state that she recalls that there were no objections asserted.

Moreover, the Government does not claim, in its supplemental

- 26 -
brief, that defense counsel failed to object to the district

court’s proposed response.

Further, Feldman’s recollection that defense counsel

responded to the district court’s answer as if it were

“favorable” is contradicted by the record. The transcript,

though incomplete, indicates that at least one attorney raised a

concern about the trial court’s answer. After the court read

aloud, in English, both the question posed in Note #2 and the

answer that was given by the court, the transcript indicates that

Attorney Díaz stated, “But they should know that they didn’t go

to trial.” The court responded as follows: “I didn’t tell them

that they didn’t go to trial. The question you posed, those that

are in prison; that is the others that are in the indictment, are

they in jail for conspiracy? The answer is yes.” Thus, it

appears that Attorney Díaz (who, as noted, did not provide an

affidavit) did go on record to express a reservation about the

propriety of the court’s response.

In sum, the affidavits submitted by counsel and our

review of the incomplete transcript do not lead us to find that

defense counsel failed to object to the trial court’s proposed

response to the jury note. Rather, the record indicates that

some objection was in fact asserted and thus weighs against plain

error review. Ordinarily, “wherever material uncertainties

- 27 -
result from an incomplete or indecipherable record and impede or

affect our decision, we resolve such uncertainties against

appellants." Credit Francais International, S.A. v. Bio-Vita,

Ltd., 78 F.3d 698, 700-01 (1st Cir. 1996); see also Real v.

Hogan, 828 F.2d 58, 60 (1st Cir. 1987) (“[I]t is the appellant

who must bear the brunt of an insufficient record on appeal.”).

The rule, however, is applied typically in cases where an

appellant has failed to provide an adequate record. In this

instance, however, Appellants are not to blame for any

ambiguities or omissions in the record. We have been provided

with the necessary portions of the trial transcript. It is the

transcript itself that is deficient. Mindful that “[a] criminal

defendant has a right to a record on appeal which includes a

complete transcript of the proceedings at trial,” United States

v. Carrillo, 902 F.2d 1405, 1409 (9th Cir. 1990) (citing Hardy v.

United States, 375 U.S. 277, 279-82 (1964)), we will not resolve

the transcript’s inadequacies against the Appellants.

Where, as here, we deem a claim of jury contamination

to be preserved, we are faced with two potential standards of

review: that of abuse-of-discretion or that of harmless error.

In the majority of our cases that have involved claims that a

jury was improperly exposed to extrinsic information, our review

has been for abuse of discretion. These cases involve the jury’s

- 28 -
accidental exposure to potentially prejudicial material that was

not offered in evidence at trial. See, e.g., United States v.

Bradshaw, 281 F.3d 278 (1st Cir. 2002) (unredacted version of

indictment accidentally left in jury room during deliberations);

United States v. Gomes, 177 F.3d 76 (1st Cir. 1999) (indictment

from prior trial of defendant left in jury room); Boylan v.

United States, 898 F.2d 230 (1st Cir. 1990) (magazine containing

potentially prejudicial article about defense counsel

accidentally left in jury room). In each of these cases, the

colorable claim of jury contamination was brought to light either

before or after the rendering of a verdict, the trial judge

conducted an inquiry to discern whether the jurors were in fact

prejudiced by their exposure to outside material, and where

appropriate the judge employed remedial measures, such as issuing

curative instructions, see Bradshaw, 281 F.3d at 291, or

dismissing potentially prejudiced jurors, see Gomes, 177 F.3d at

82. In Bradshaw, we explained that a trial court, when

confronted with a claim of jury contamination, has broad

discretion to “fashion an appropriate procedure for assessing

whether the jury has been exposed to substantively damaging

information, and if so, whether cognizable prejudice is an

inevitable and ineradicable concomitant” of the jury’s exposure

to improper extrinsic information. 281 F.3d at 290. Where the

- 29 -
jury’s contact with outside information is inadvertent and not

accompanied by “egregious circumstances,” and the trial judge

responds to the claim of contamination by conducting an inquiry

and employing remedial measures, we do not presume that the

jury’s exposure to extrinsic material resulted in prejudice. Id.

at 288. Instead, we review the trial judge’s actions for abuse

of discretion. See United States v. Yeje-Cabrera, 430 F.3d 1, 10

(1st Cir. 2005). In Bradshaw, however, we declined to hold that

a presumption of prejudice could never be applied: “We leave for

another day the question of whether a jury’s exposure to

substantively damaging information may sometimes occur under

circumstances so aggravated as to warrant the application of the

. . . presumption [of prejudice] even without deliberate

misconduct (and if so, what those circumstances might comprise).

That question simply is not presented here.” Bradshaw, 281 F.3d

at 288 n.5. Bradshaw recognized that Santana was one of those

cases.

In Santana, 175 F.3d at 57, we held that the jury’s

exposure to outside information required the application of a

presumption of prejudice. In Santana, as in this case, we

confronted the “unusual” situation where the jury was exposed to

extrinsic information after the close of evidence and during its

deliberations, not as a result of inadvertence or juror

- 30 -
misconduct, but rather because of the trial judge’s “approval of

the jury’s request to consider information outside the record.”

Id. at 65. In Santana, the trial judge permitted the jury to

file back into the courtroom after the close of evidence and

observe the defendant’s ears, which had remained covered

throughout the trial by headphones used for the Spanish

translation. A contested issue at trial was whether the

defendant was in fact the individual who had participated in a

drug deal that had been surveilled by a government agent; in

identifying the defendant as a participant in the deal, the agent

remarked on the fact that the defendant’s ears were oddly

protuberant. After observing the defendant without headphones,

the jury returned to its deliberations and subsequently returned

a guilty verdict. There, as here, the trial judge did not

conduct any inquiry into possible prejudice resulting from the

jury’s exposure to extra-record evidence, nor did the court issue

curative instructions or undertake any other remedial measures.

Under those circumstances, we found that “the court’s decision to

allow the jury to consider extrinsic information is . . . .

subject to de novo review and it is error per se.” Id.

We find that review for abuse of discretion is

inappropriate in this case. Here, the jury’s exposure to

extrinsic material did not occur inadvertently: the undisputably

- 31 -
extrinsic information was supplied to the jury by the trial court

itself, in response to the jury’s note, and thus essentially was

offered to the jury as evidence. The judge, who served as the

source of the extrinsic information, conducted no inquiry as to

the prejudice that may have resulted from the jury’s receipt of

the off-record fact and did not undertake any remedial measures.

Thus, there was no action undertaken by the court that we can now

review. Abuse of discretion is simply a poor fit.

We conclude instead that the presumption of prejudice

that we applied in Santana is also appropriate in this case.

Here, as in Santana, the jury actively sought and received

extrinsic information from the trial judge. Here, too, as

discussed below, the information was prejudicial, was probably

used by the jury as evidence of the Appellants’ guilt, and was

unaccompanied by an instruction or any other curative undertaking

by the district court. Accordingly, this case, like Santana,

presents sufficiently aggravated circumstances that a presumption

of prejudice is warranted.

Because the jury’s exposure to extrinsic factual

information in this case raises a presumption of prejudice, “the

government bears the burden of showing beyond a reasonable doubt

that the extrinsic information did not contribute to the

conviction.” Id. at 66 (citations omitted); see also Lacy, 791

- 32 -
F.2d at 983. An error will be deemed harmless if “the

beneficiary of . . . [the] constitutional error [can] prove

beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Chapman v. California, 386

U.S. 18, 24 (1967); see also Santana, 175 F.3d at 66. In

Sullivan v. Louisiana, 508 U.S. 275 (1993), the Supreme Court

explained that the harmless error inquiry is “not whether, in a

trial that occurred without the error, a guilty verdict surely

would have been rendered, but whether the guilty verdict actually

rendered in this trial was surely unattributable to the error.”

Id. at 279. To determine whether the jury’s exposure to

extrinsic evidence was harmless, a reviewing court must “assess

the record as a whole to determine the impact of the improper

evidence upon the jury. . . . The prejudicial effect of the

improper evidence must be weighed against the weight of the

properly admitted evidence.” Lacy, 791 F.2d at 986 (quoting

Morgan v. Hall, 569 F.2d 1161, 1166 (1st Cir. 1978) (internal

quotation marks omitted)); see also United States v. Weiss, 752

F.2d 777, 783 (2d Cir. 1985) (possibility of prejudice is

assessed “by reviewing the entire record, analyzing the substance

of the extrinsic evidence, and comparing it to that information

of which the jurors were properly aware”). The inquiry regarding

harmless error analysis “is case-specific” and requires

- 33 -
consideration, among other factors, of “the centrality of the

tainted evidence, its uniqueness, its prejudicial impact, the use

to which the evidence was put, and the relative strength of the

parties’ cases.” United States v. Garcia-Morales, 382 F.3d 12, 17

(1st Cir. 2004). We first examine “the nature of the extrinsic

information to which the jury was exposed to determine its

potential prejudicial effect.” Santana, 175 F.3d at 66. Second,

we analyze the weight of the trial evidence properly adduced

against each of the five Appellants. See id.

Nature of the Prejudicial Information

Both the information conveyed to the jury and the

manner of its conveyance were prejudicial. The district court’s

confirmation that the thirty-seven defendants named in the

Indictment who did not appear at trial were all incarcerated for

participation in the conspiracy was tantamount to an announcement

to the jury that the thirty-seven absent defendants had been

convicted of the charges contained in the Indictment. The

Government concedes, as it must, that “[t]he fact that other co-

defendants are in prison for the same conspiracy” is “irrelevant

to the guilt of those on trial.” Courts in this and other

circuits have strongly cautioned against the admission of such

evidence. “[A] defendant is entitled to have the question of his

guilt determined upon the evidence against him, not on whether a

- 34 -
codefendant or government witness has been convicted of the same

charge.” United States v. Dworken, 855 F.2d 12, 30 (1st Cir.

1988) (quoting United States v. Miranda, 593 F.2d 590, 594 (5th

Cir. 1979) (internal quotation marks omitted)). The potential

for prejudice is present where evidence of a co-conspirator’s

conviction is admitted for substantive purposes. See United

States v. Blevins, 960 F.2d 1252, 1260-62 (4th Cir. 1992). Under

such circumstances, the jury may abdicate its duty and “regard

the issue of the remaining defendant’s guilt as settled and the

trial as a mere formality.” United States v. Griffin, 778 F.2d

707, 711 (11th Cir. 1985). As the Fifth Circuit, reversing a

conviction on the grounds that the jury was told that a non-

testifying co—defendant had pleaded guilty, explained in United

States v. Hansen, 544 F.2d 778 (5th Cir. 1977): “There is no

need to advise the jury or its prospective members that some one

not in court, not on trial, and not to be tried, has pleaded

guilty. The prejudice to the remaining parties who are charged

with complicity in the acts of the self-confessed guilty

participant is obvious.” Id. at 780. Regardless of whether an

absent co-defendant has pleaded guilty or been convicted after

trial, the admission of such evidence not only results in the

danger that the jury will improperly infer guilt by association,

it also “significantly undercuts the defendant’s right to have a

- 35 -
jury’s verdict based only upon evidence that is presented in open

court and is thereby subject to scrutiny by the defendant.”

Blevins, 960 F.2d at 1260. Thus, “where a missing co-defendant

does not testify, ‘it is generally accepted that absent

agreement, courts and prosecutors generally are forbidden from

mentioning that a co-defendant has either pled guilty or been

convicted.’” United States v. Carraway, 108 F.3d 745, 756 (7th

Cir. 1997) (quoting United States v. Johnson, 26 F.3d 669, 677

(7th Cir. 1994) (internal quotation marks omitted)).

Where, as here, the defendants are being tried for

their participation in an alleged conspiracy that took place over

the course of nearly a decade, the danger that the defendants

will be found guilty by sheer association with guilty non-

testifying co-defendants is great. See United States v. Izzi,

613 F.2d 1205, 1210 (1st Cir. 1980) (“Guilt by association is one

of the ever present dangers in a conspiracy count that covers an

extended period.”) (citing Kotteakos v. United States, 328 U.S.

750, 774-75 (1946)). Justice Jackson, in his well-known

concurrence in Krulewitch v. United States, 336 U.S. 440 (1949),

reflected on the abnormally high risk to co-defendants in a

conspiracy trial of being found guilty by association:

A co-defendant in a conspiracy trial occupies an
uneasy seat. There generally will be evidence of
wrongdoing by somebody. It is difficult for the
- 36 -
 individual to make his own case stand on its own
merits in the minds of jurors who are ready to believe
that birds of a feather are flocked together.

Id. at 454 (Jackson, J., concurring).

Although a jury “may wonder what happened to the co-

defendants whose names have been mentioned in the indictment and

in the course of the trial but who have not appeared before

them,” the preferred course is simply to instruct the jury “not

to concern itself with that question.” Carraway, 108 F.3d at 756;

see also Edward J. Devitt, Charles B. Blackmar, et al., Federal

Jury Practice and Instructions § 5.02, at 106 (1992).

The district court’s announcement to the jury that

thirty-seven absent co-defendants named in the Indictment were

incarcerated for the charged conspiracy increased by an order of

magnitude the risk that the Appellants would be found guilty

because of their association with the absent alleged co-

conspirators, rather than because of the evidence offered at

trial. Quite simply, the extrinsic information allowed the jury

to draw the prejudicial inference that, if thirty-seven non-

testifying co-defendants had been found guilty of the crimes

described in the Indictment, the Appellants also must be guilty.7

7 In considering the question of prejudice, it is also worth
noting that AUSA Feldman, after being apprised of the trial court’s
answer to Note #2, expressed reservations about the answer, stating
to the court, “Unless you think [the answer to the note] would be
- 37 -
Moreover, the court did not instruct the jury that the

incarcerated status of the thirty-seven absent co-defendants, or

the fact that they may have been found guilty, should have no

bearing on the jury’s verdict with respect to each of the

defendants on trial. See United States v. Rivera-Santiago, 872

F.2d 1073, 1083 (1st Cir. 1989). Absent the safeguard of a

proper instruction, the prejudice arising from the court’s

response to the note is even more serious.

The Government claims that the district court’s answer

was not especially prejudicial because “the jury note itself

illustrates the jury already had knowledge that the other co-

defendants were imprisoned, as it begins with the phrase, ‘those

that are imprisoned.’” The Government’s argument is unavailing.

To the extent that the note reveals that the jury knew that the

absent co-defendants were imprisoned, as discussed above, such

awareness was not gleaned from evidence presented at trial. The

fact that the jury demonstrated its knowledge of an undisputably

extrinsic fact does not cut against our evaluation of the

prejudicial impact of the jury note and the district court’s

response. As stated, the Sixth Amendment requires that a jury’s

prejudicing them.” The incomplete transcript prevents us from
determining exactly when AUSA Feldman made this remark. What is
clear, however, is that the Government was aware that the court’s
answer could prejudice the defendants.

- 38 -
verdict must be based solely upon the evidence developed at

trial, see Turner, 379 U.S. at 472, and “[t]he jury’s exposure

during its deliberations to extrinsic information, whatever its

source, is an error of constitutional proportions . . . .”

Santana, 175 F.3d at 65 (emphasis added).

Moreover, the Government cannot, and does not, attempt

to deny that the most prejudicial extrinsic information in fact

came from the trial judge –- namely, confirmation that the

thirty-seven alleged co-conspirators were imprisoned for the

conspiracy. It was this information that most readily permitted

the jury to draw the impermissible inference of guilt by

association.

We also find that the manner in which the jury

requested the extrinsic information suggests that a direct

connection existed between the extrinsic evidence and the jury’s

verdict. The fact that the note was headed by the word “Duda,”

or “Doubt,” strongly indicates that the jury may have sustained

doubt about some or all of the Appellants’ involvement in the

charged conspiracy and was looking to the trial judge to resolve

that doubt. See Rivera-Santiago, 107 F.3d at 966 (finding it

“significant,” in determining that district court had exposed

jury to extrinsic information, that jury was asking for judge to

provide portion of record to “‘clarify some doubts’”). That the

- 39 -
jury actively sought the information that it received, rather

than obtained it accidentally or in an otherwise unsolicited

fashion, further indicates that the answer was important to its

verdict. See Santana, 175 F.3d at 67 (“[B]ecause the jurors

specifically asked to observe Santana without his headphones,

they obviously deemed such evidence important to their

deliberations.”).

It is also important, in considering prejudice, that

the answer to the jury’s question was supplied by the trial

judge, and thus stamped with the imprimatur of the court, rather

than by comparatively less authoritative sources, such as

prosecutorial comment, juror misconduct, or the inadvertent

admission of extrinsic evidence into the jury room. See id.;

Argentine, 814 F.2d at 788. Finally, the fact that the jury

returned with a verdict a mere forty-five minutes after receiving

the answer to Note #2, which was the last note the jury sent out

prior to the announcement that it had reached a verdict, supports

the inference that the jury attributed weight to the trial

judge’s response, and indeed considered the court’s response to

be important, if not critical, in arriving at the verdict. See

Rogers v. United States, 422 U.S. 35, 40 (1975) (noting that

jury’s returning with a verdict “five minutes” after receiving

judge’s response to query weighed in favor of finding that

- 40 -
judicial response to note was harmful error); Rivera-Santiago,

107 F.3d at 967 (drawing inference that judge’s improper response

to jury influenced verdict where jury returned verdict two hours

after receiving judge’s answer and noting that timing of jury’s

response to judge’s answer was factor to consider in harmless

error analysis). Thus, although the “fact” of the absent co-

defendants’ incarceration was neither raised nor disputed at

trial, and although it was not proper for the jury to consider

such a fact in reaching a verdict, it was clearly information

that was material to the jury’s verdict. See Santana, 175 F.3d at

67 (finding that “the connection between the extrinsic

information at issue here –- the appearance of Santana’s ears –-

and an issue material to and disputed throughout the trial –- the

identity of the [supplier of] crack cocaine –- is unmistakable”).

In sum, the nature of the extrinsic information

received by the jury was prejudicial to the Appellants.

Weight of the Evidence

Because the relative strength of the Government’s case

varied as to each Appellant, we consider each of the Appellants

in turn, in light of the court’s response to Note #2.

- 41 -
 López-Soto

The error was harmless as to López-Soto. The evidence

clearly established that López-Soto was a member of the Avispas

conspiracy and, more particularly, an enforcer for the

organization who regularly carried guns and engaged in violence.

Juan Rivera-Rivera, who lived near López-Soto in Marín and

frequently associated with members of Las Avispas before the

Avispas and Los Jibaritos became embroiled in a war over

territory, provided ample, detailed testimony about López-Soto’s

ownership of drug points at Olimpo, Las Palmas de Arroyo, Marín,

and El Flamboyan. The evidence showed that López-Soto sold crack

and cocaine from Olimpo from 1993 through 1998. Rivera-Rivera

testified about specific drug deals in which he engaged with

López-Soto, including the sale of 100 vials of crack to López-

Soto in 1996 or 1997 and the purchase from López-Soto of one

kilogram of cocaine in 1998. Rivera-Rivera identified specific

individuals who assisted López-Soto in drug dealing, including

Freddie El Agente and “Cabe,” in Olimpo.

Further testimony established that López-Soto acted as

an enforcer for Las Avispas who regularly carried and used guns.

Testimony was presented about López-Soto’s participation in

specific acts of violence, including his participation in an

attempted contract “hit” of a rival drug dealer, with Rivera-

- 42 -
Rivera, and his murder of rival dealer Santito in 1997. Collazo

also provided detailed testimony about López-Soto’s narcotics

activity, including his purchase of large quantities of cocaine

which López-Soto subsequently cooked into crack. In addition,

Collazo testified about specific weapons, including automatic

weapons equipped with silencers, that he sold to Zaragoza-Lasa,

thus supporting the Government’s theory that López-Soto acted as

an enforcer for Las Avispas.

In light of the Government’s strong evidence of López-

Soto’s participation in the charged conspiracy, and the

comparative weakness of the defense’s case, we conclude that the

guilty verdict was “surely unattributable” to the district

court’s answer to the jury note. Sullivan, 508 U.S. at 279.

Ofray

The Government’s case against Ofray was overwhelming.

Mendoza-Lebrón testified at length that Ofray supplied large-unit

quantities of cocaine to Las Avispas on a weekly basis from 1994

through 1999. There was ample testimony establishing that Ofray

frequently sold narcotics from his businesses in Salinas and

Guayama, which included an upholstery store, Rumba’s Pub, and La

Copa Rota. Mendoza-Lebrón testified that he frequently contacted

Ofray by cellular phone to arrange purchases and designate a

meeting place, and that Ofray would subsequently meet Mendoza-
- 43 -
Lebrón at the designated place and there receive drugs from Ofray

in exchange for cash. Rivera-Rivera also testified about Ofray’s

sale of cocaine to Las Avispas and his purchase from Ofray of

nearly one kilogram of cocaine in 1997 or 1998.

In addition, Villodas testified in detail about the

purchase of cocaine that he pre-arranged with Ofray on June 8,

2001, in which he agreed to buy two ounces of cocaine for $1200.

Villodas provided further testimony about the execution of the

sale on June 14, 2001, in which Villodas – while wearing a

monitoring device – went to La Copa Rota, as arranged, met with

Ofray, and shortly thereafter received the cocaine.

Finally, law enforcement testimony established that a

.9mm pistol belonging to Ofray was recovered from outside Rumba’s

Pub and a Colt .45 pistol was seized from Ofray’s duffle bag at

the time of his arrest on July 14, 2002.

As with López-Soto, the strength of the government’s

case leads us to conclude that the extrinsic information to which

the jury was exposed did not sway the verdict as to López-Soto

and was thus harmless beyond a reasonable doubt.

Cruz-Pereira

The district court’s error also was harmless beyond a

reasonable doubt as to Cruz-Pereira. There was convincing

- 44 -
evidence of Cruz-Pereira’s participation in three pre-arranged

drug buys. Agent Rosa-Ferrer purchased cocaine on two separate

occasions from Cruz-Pereira, on November 17, 1998 and December 3,

1998, at Cruz-Pereira’s bar, La Ponderosa. Angel Villodas,

wearing a monitoring device, purchased vials of crack from Cruz-

Pereira on June 21, 2001, in the backyard of Cruz-Pereira’s

residence in Santa Ana.

Mendoza-Lebrón also testified that Cruz-Pereira

purchased crack from Mendoza-Lebrón’s cousin, Wilson –- a member

of Las Avispas –- and from Mendoza-Lebrón himself in large

quantities and on a weekly basis until Mendoza-Lebrón’s arrest in

1999. Mendoza-Lebrón also stated that he purchased crack from

Cruz-Pereira.

Because the evidence of Cruz-Pereira’s drug dealing was

strong, if not overwhelming, and was supported by additional

evidence to show that Cruz-Pereira engaged in narcotics activity

with non-government actors, including Mendoza-Lebrón and Wilson,

we find that the district court’s erroneous answer to the jury

note was harmless beyond a reasonable doubt as to Cruz-Pereira.

Díaz-Clavell

By contrast, the evidence presented against Díaz-

Clavell, while legally sufficient to support his conviction for

participation in the conspiracy, was not strong enough to
- 45 -
persuade us beyond any reasonable doubt that the jury’s verdict

of guilt was surely unattributable to the court’s response to

Note #2. See Santana, 175 F.3d at 67. The case against Díaz-

Clavell relied exclusively on the testimony of cooperating

witnesses. See United States v. Bosch, 584 F.2d 1113, 1123 (1st

Cir. 1978) (finding government’s case “not overwhelming” and

constitutional error harmful, in part, because “[t]he

government’s case consisted primarily of the testimony of

admitted accomplices, whose credibility was attacked”). Although

it was undisputed that Díaz-Clavell worked as a part-time

employee at Ofray’s businesses, and the Government presented

substantial evidence to establish that Ofray was a major cocaine

supplier to Avispas, proof of Díaz-Clavell’s narcotics activity

was relatively scant. Inculpating testimony was limited to the

testimony of Mendoza-Lebrón, who stated that Díaz-Clavell

assisted Ofray in his drug dealing by stashing cocaine and cash;

and the testimony of Villodas, who testified that Díaz-Clavell

delivered approximately two ounces of cocaine to Villodas on one

occasion, on June 14, 2001, in the bathroom of La Copa Rota,

after Villodas had arranged several days earlier to buy cocaine

from Ofray.

Mendoza-Lebrón initially stated only that he often saw

Díaz-Clavell present during drug deals that Ofray conducted and

- 46 -
that “whenever Eric [Ofray] gave things to me, Pepe [Díaz-

Clavell] would always be present . . . .” When asked whether

Díaz-Clavell did “anything in relation to the drug deal?”,

Mendoza-Lebrón answered as follows, “Well, most of the time. I

can’t say all of the time because not all of the time was he

[Díaz-Clavell] with Eric but he was present during several

transactions that I did with Eric.” It is well-settled that such

testimony, establishing nothing beyond the fact that Díaz-Clavell

was present during drug transactions, without more, would not

make him culpable of conspiracy. See, e.g., United States v.

Guerrero, 114 F.3d 332, 342 (1st Cir. 1997) (“[P]roof of

sufficient participation in the crime, as well as knowledge of

it, is required to convict; the defendant’s ‘mere presence’ at

the scene of criminal activity is not enough.”); United States v.

Ocampo, 964 F.2d 80, 82 (1st Cir. 1992) (although defendant knew

that her residence was used by co-defendant for drug dealing,

government must also prove defendant’s participation); United

States v. Hyson, 721 F.2d 856, 862-63 (1st Cir. 1983). On re-

direct examination, Mendoza-Lebrón did state that Díaz-Clavell

assisted Ofray “several times” in the latter’s drug dealing by

helping Ofray to stash cocaine. However, Mendoza-Lebrón’s

testimony lacked detail. This evidence, while certainly enough

to justify affirmance on review for legal sufficiency, was not so

- 47 -
conclusive as to convince us that the jury note error was

harmless beyond any reasonable doubt.

Mendoza-Lebrón’s testimony about Díaz-Clavell’s conduct

stood alone. No other Government witness observed Díaz-Clavell

assist Ofray in any narcotics transaction. No physical evidence

linked Díaz-Clavell to Ofray’s drug dealing. Villodas’ testimony

was similarly uncorroborated. There was no testimony by any

Government agent or any other witness to support Villodas’

account of the June 14, 2001 cocaine deal in La Copa Rota, and

there was no physical evidence that tied Díaz-Clavell to the drug

deal. In addition, the recording that Villodas made of the

cocaine transaction, which revealed the voices of both Villodas

and Díaz-Clavell, did not contain any statements relating to the

drug deal. The recording merely captured Villodas and Díaz-

Clavell (Villodas’ second cousin) conversing about family

members, which was consistent with Díaz-Clavell’s own testimony

about his encounter with Villodas at La Copa Rota on June 14,

2001.

The testimonies of Agent Rivera and Agent Tirado,

portions of which the Government cites in support of its

assertion that evidence of Díaz-Clavell’s guilt was overwhelming,

provided no corroboration. Although Agent Rivera testified that

Díaz-Clavell acted as a drug runner for Ofray at La Copa Rota,
- 48 -
the statement was based not on his first-hand knowledge but

rather on information gleaned from the Government’s cooperating

witnesses –- namely, Mendoza-Lebrón and Villodas. In other

words, Agent Rivera’s statement constituted “overview” testimony

delivered at the outset of the Government’s case, in which the

case agent merely summarized the evidence that would later be

provided by Villodas and Mendoza-Lebrón. Similarly, Agent

Tirado’s testimony that, “[t]hrough the investigation that we

did,” Díaz-Clavell assisted Ofray in the drug trade did not serve

to corroborate the testimonies of the cooperators. Like Agent

Rivera’s testimony, Agent Tirado’s testimony -– which purportedly

provided additional support for the accounts of the cooperating

witnesses –- in fact derived entirely from and thus did no more

than summarize the testimonies of Mendoza-Lebrón and Villodas.

Agent Rivera’s and Agent Tirado’s conclusions regarding Díaz-

Clavell’s role in the conspiracy served merely to bolster the

testimony of the cooperating witnesses.

Although Agent Tirado also testified that, following

the completion of the June 14, 2001 cocaine transaction at La

Copa Rota, Villodas stated to Tirado that Díaz-Clavell had given

the drugs to Villodas, this testimony cannot be deemed to be

corroborative. In considering the strength of the Government’s

case for the purposes of a harmless error analysis, we consider

- 49 -
only evidence that was properly admitted. See, e.g., United

States v. Zanghi, 189 F.3d 71, 83 (1st Cir. 1999) (weighing only

government’s admissible evidence in conducting harmless error

analysis); United States v. Ferreira, 821 F.2d 1, 8 (1st Cir.

1987) (finding error not to be harmless where “strength of the

admissible, circumstantial evidence is not ‘overwhelming’”)

(emphasis added).

In assessing the relative strength of the Government’s

case, it is also significant that Díaz-Clavell testified on his

own behalf. Díaz-Clavell stated that, although he spoke with his

cousin, Villodas, on June 14, 2001 at La Copa Rota, where he

worked and frequently visited even when not working, he did not

at that time or any other time deliver drugs to Villodas. Díaz-

Clavell also testified, more generally, that although he

frequented La Copa Rota and Rumba’s Pub and associated with

Ofray, both socially and as a part-time employee, he did not

assist Ofray in conducting drug deals. On cross-examination, the

Government did not substantively impeach Díaz-Clavell’s

testimony. While the jury chose to credit the accounts of the

cooperating witnesses over the admittedly self-serving testimony

of the defendant, Díaz-Clavell’s countervailing testimony on his

own behalf is a factor in conducting the harmless error analysis.

Cf. Garcia-Morales, 382 F.3d at 18 (finding error harmless where

- 50 -
government’s case was strong but “defense was relatively weak,

consisting entirely of cross-examination of the prosecution’s

witnesses to challenge their credibility”); United States v.

Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993) (finding error

harmless where defendant’s evidence was “a drop in the proverbial

bucket”).

It is also instructive to contrast the weight of the

Government’s evidence in this case with the prosecution’s proof

in Santana. There, we found that the evidence against Santana,

though legally sufficient, was not strong enough to render

harmless the admission of prejudicial extrinsic evidence. In

Santana, the evidence of the defendant’s participation in the

alleged narcotics activity consisted of the agent’s eyewitness

identification of Santana as a drug supplier as well as the

following facts:

(1) the November 8 drug transaction took place in a
vehicle registered in [Santana’s] name, and law
enforcement officers observed Santana twenty minutes
after the transaction standing next to the vehicle in
front of his business; (2) on February 23, 1995,
[Santana’s non-testifying co-defendant] called, then
visited, Santana’s business shortly after an unexpected
drug order was placed; and (3) on March 23, 1995, [the
non-testifying co-defendant] told [the government’s
confidential informant] that the crack cocaine would be
of good quality because his supplier was the “same guy,
red truck.”

- 51 -
Santana, 175 F.3d at 67. The evidence against Díaz-Clavell was

no more persuasive. As discussed, there was no admissible direct

evidence to corroborate the accounts of the two cooperating

witnesses.

Finally, the extrinsic information received by the jury

was especially prejudicial to Díaz-Clavell. The risk that Díaz-

Clavell, a comparatively minor participant in the widespread

nine-year conspiracy, would be found guilty merely because of his

association with his co-defendants, against most of whom far more

evidence was adduced, was particularly high. Although a relative

paucity of evidence was presented against Díaz-Clavell, the

district court’s answer to Note #2 was likely to cause the jury

to disregard weaknesses in the Government’s case and result in a

finding of guilt simply by virtue of his association with the

numerous other individuals named in the Indictment. Thus, in

Díaz-Clavell’s case, there was more than a reasonable possibility

that the extrinsic information “tipped the scales in favor of the

government’s theory.” Rivera-Santiago, 107 F.3d at 967.

After considering the prejudicial nature of the

extrinsic information, as well as the relative strength of the

Government’s case against Díaz-Clavell, “it is impossible to

conclude beyond a reasonable doubt that the court’s error” in

informing the jury that thirty-seven absent co-defendants were in
- 52 -
prison for the conspiracy “did not contribute to the verdict.”

Santana, 175 F.3d at 67. Accordingly, we vacate Díaz-Clavell’s

conviction and remand for a new trial.8

Zaragoza-Lasa

The evidence offered against Zaragoza-Lasa, while also

legally sufficient to support the conviction for drug conspiracy,

was not so overwhelming as to persuade us that the jury note

error was harmless in his case. Despite the Government’s

contention that overwhelming evidence established that Zaragoza-

Lasa was “a drug supplier to Las Avispas,” comparatively little

evidence linked Zaragoza-Lasa to any drug transactions.

Zaragoza-Lasa was purported to be a major supplier of heroin to

the Avispas drug point at Las Vias. However, the only admissible

evidence of Zaragoza-Lasa’s involvement in any narcotics activity

was provided by the brief and uncorroborated testimony of two

cooperating witnesses, Francisco Cardona and Olga Lebrón-Ortiz,

both of whom identified Zaragoza-Lasa in court but knew him only

by his nickname “El Viejo Mode.” Cardona, who worked regular

shifts as a Las Avispas street dealer at Las Vias from 1996

8 Because we vacate Díaz-Clavell’s conviction, and because the
other issues raised by Díaz-Clavell on this appeal are unlikely to
be implicated on re-trial, we need not consider the other claims he
has asserted.

- 53 -
through 1999, testified only that he saw Zaragoza-Lasa on

“several occasions,” or “three or four times,” arrive at Las

Vias, speak with the drug point’s manager, Javier Baez, and on

one occasion hand Baez a brick-shaped package wrapped in paper.

Cardona testified that a runner brought him what appeared to be

the paper that had wrapped the package and that cocaine residue

was present on the paper. Cardona also testified that the drug

supplies at Las Vias increased following Zaragoza-Lasa’s visits.

Lebrón-Ortiz also testified that she witnessed

Zaragoza-Lasa frequently in Borinquen from 1998 to 2002 and

witnessed Zaragoza-Lasa hand to Baez on one occasion a

transparent bag filled with violet-colored aluminum foil parcels.

Lebrón-Ortiz also provided the only direct evidence of Zaragoza-

Lasa’s involvement with narcotics: namely, that on two occasions

she witnessed him giving tastes of heroin to street junkies in

Borinquen.

The above-mentioned testimony permits the inference

that Zaragoza-Lasa supplied heroin to Las Vias. It is quite

another matter, however, to conclude that this evidence rendered

harmless beyond any reasonable doubt the prejudicial extrinsic

information to which the jury was exposed. As with Díaz-Clavell,

the mere fact that Zaragoza-Lasa was present in a known drug area

(Las Vias) and associating with an Avispas member (Baez) is not
- 54 -
enough. Nor is there much heft in the fact that both cooperating

witnesses observed Zaragoza-Lasa hand suspicious packages to

Baez. Although an inference can be drawn that Zaragoza-Lasa

delivered heroin to Baez, because the violet-colored aluminum

packaging was consistent with the type of packaging Las Avispas

typically used for heroin, Lebrón-Ortiz did not actually observe

Zaragoza-Lasa possess or distribute heroin. Similarly, Cardona’s

testimony about Zaragoza-Lasa’s handing Baez a suspicious package

on one occasion and Cardona’s statement that more drugs were

available at Las Vias after Zaragoza-Lasa’s visits do not amount

to conclusive evidence of Zaragoza-Lasa’s guilt.

The direct evidence of Zaragoza-Lasa’s drug activity,

consisting only of the fact that Zaragoza-Lasa on two occasions

provided heroin samples to Borinquen junkies, also was less than

overwhelming. While this evidence established that Zaragoza-Lasa

had some involvement in narcotics activity, it simply does not

qualify as strong evidence of Zaragoza-Lasa’s participation in

the charged narcotics conspirascy.

Moreover, as with Díaz-Clavell, there was no physical

evidence to corroborate the cooperating witnesses’ testimony.

Zaragoza-Lasa was not recorded on any monitoring device. There

was no physical evidence seized from him. He was not alleged to

have taken part in any Government-arranged undercover drug
- 55 -
purchase. Although Agents Rivera and Tirado testified

confidently about Zaragoza-Lasa’s role as a major heroin supplier

to Las Avispas drug points, including Las Vias, their testimonies

once again derived entirely from, in the words of Agent Rivera,

“information that we obtained from informants who collaborated in

the investigation and informants of the Puerto Rico Police

Department . . . .” Again, as discussed above, this purportedly

corroborating evidence amounts to nothing more than case agent

“overview” testimony that merely summarizes the first-hand

accounts of the cooperating witnesses. As both Agents Rivera and

Tirado conceded on cross-examination, their conclusions about

Zaragoza-Lasa’s culpability were not based on their personal

knowledge.

Again, our decision in Santana provides illumination.

The Government’s case against Zaragoza-Lasa, as against Díaz-

Clavell, was not as strong as the case presented against Santana,

where we found harmful error. Unlike Santana, the Government’s

proof against Zaragoza-Lasa did not include a government agent’s

eyewitness identification or circumstantial evidence that closely

linked the defendant to an undercover drug purchase. Here,

again, the evidence consisted solely of the uncorroborated

testimony of two cooperating witnesses. Further, the Government

offered more ample, direct evidence against López-Soto, Ofray,

- 56 -
Cruz-Pereira, and absent members of the Avispas conspiracy named

in the Indictment. As discussed above, the danger that a

defendant, against whom comparatively less evidence was

introduced, would be found guilty by association with more

evidently culpable co-defendants was high, and was made

correspondingly higher by the prejudicial nature of the extrinsic

information imparted to the jury.

As with Díaz-Clavell, in light of the prejudicial

nature of the extrinsic information given to the jury and the

relative strength of the Government’s case against Zaragoza-Lasa,

we cannot conclude with any assurance that the extrinsic

information did not contribute to the jury’s determination that

Zaragoza-Lasa was guilty. Accordingly, we vacate Zaragoza-Lasa’s

conviction and remand for a new trial.9

Individual Claims

I. Insufficiency of Evidence of Conspiracy

Appellant Cruz-Pereira claims that the district court

erred in denying his motion for a judgment of acquittal pursuant

to Rule 29 of the Federal Rules of Criminal Procedure because the

Government presented insufficient evidence of his participation

9 Having vacated Zaragoza-Lasa’s conviction, we do not address the
rest of his claims, which –- like the additional claims asserted by
Díaz-Clavell –- are unlikely to be implicated in a new trial.
- 57 -
in the charged conspiracy. Review of a district court’s denial

of a Rule 29 motion is de novo. United States v. Hernandez, 218

F.3d 58, 64 (1st Cir. 2000). “Challenges to the sufficiency of

the evidence and to the denial of the motion for judgment of

acquittal raise a single issue. . . .” Id. at 64 n.4 (quoting

United States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998)

(internal quotation marks omitted)). A district court’s denial

of a motion for acquittal must be affirmed “unless the evidence,

viewed in the light most favorable to the government, could not

have persuaded any trier of fact of the defendant’s guilt beyond

a reasonable doubt.” United States v. Paradis, 802 F.2d 553, 559

(1st Cir. 1986). The reviewing court cannot weigh evidence or

make credibility judgments. See United States v. Ortiz, 966 F.2d

707, 711 (1st Cir. 1992). The court must reject only “those

evidentiary interpretations . . . that are unreasonable,

insupportable, or overly speculative, and must uphold any verdict

that is supported by a plausible rendition of the record.”

Hernandez, 218 F.3d at 64 (quoting United States v. Spinney, 65

F.3d 231, 234 (1st Cir. 1995) (internal quotation marks

omitted)).

To prove Cruz-Pereira’s culpability of the charged

conspiracy, the Government was required to show “the existence of

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

- 58 -
the defendant’s voluntary participation in the conspiracy.”

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

To establish that Cruz-Pereira belonged to and participated in

the drug conspiracy, the Government must show two kinds of

intent: “intent to agree and intent to commit the substantive

offense.” Id. at 853 (quoting Rivera-Santiago, 872 F.2d at 1079)

(internal quotation marks omitted). The Government was not

required to prove that each co-conspirator knew about or had

contact with all other members of the conspiracy or knew details

about and participated in every act in furtherance of the

conspiracy. United States v. Martinez-Medina, 279 F.3d 105, 113

(1st Cir. 2004); see also Rivera-Santiago, 872 F.2d at 1079 (“A

defendant may culpably join a drug-trafficking conspiracy without

knowing the full extent of the enterprise or the identities of

all the coconspirators.”).

Cruz-Pereira argues that, although the Government

presented evidence of his drug sales to an undercover agent and

an FBI informant, there was no evidence presented that connected

Cruz-Pereira with Las Avispas or showed that he conspired with

anyone (other than Government agents) to sell drugs. Thus, the

defense claims that because the evidence proved only that Cruz-

Pereira “worked alone,” there was insufficient evidence to

convict him of conspiracy.

- 59 -
 As discussed above, the Government presented evidence

that Cruz-Pereira not only sold drugs to Agent Rosa-Ferrer and

Informant Villodas, but also that Cruz-Pereira engaged in crack

transactions with Las Avispas. Specifically, Mendoza-Lebrón

testified that he and his cousin, Wilson –- an established

Avispas dealer –- sold crack to both Cruz-Pereira and Cruz-

Pereira’s co-defendant, Carlos Escobar Figueroa, at the drug

points Cruz-Pereira and Escobar operated at Puente Los Jobos,

from 1993 until Mendoza-Lebrón’s arrest in 1999. Mendoza-Lebrón

also testified that he sold drugs to José Cabezón, the leader of

Las Avispas. Cruz-Pereira’s regular drug purchases from Wilson,

an established Avispas member, provided the jury with legally

sufficient proof of Cruz-Pereira’s participation in the charged

conspiracy. In addition, the jury reasonably could have inferred

a link between Cruz-Pereira and Las Avispas arising from the fact

that Cruz-Pereira bought crack from a dealer (Mendoza-Lebrón) who

acted as a common supplier to other members of Las Avispas -–

namely, Escobar Figueroa and Cabezón. In sum, the Government

presented evidence legally sufficient to support the jury’s

finding that Cruz-Pereira was guilty of the charged conspiracy.

II. Purported Judicial Bias

López-Soto claims that the trial judge’s open hostility

and bias against his trial counsel, Attorney Inserni, rendered
- 60 -
his trial fundamentally unfair. As evidence of bias, López-Soto

points out that the trial court, among other things, interrupted

Inserni during opening and closing statements; told Inserni to

“shut up” during a conference at sidebar and made demeaning

comments about Inserni’s performance, including his use of notes;

asked several leading questions of witnesses; and refused to

pause trial proceedings while Inserni left court to use the

restroom.

“It is well-established that a judge is not a mere

umpire; he is ‘the governor of the trial for the purpose of

assuring its proper conduct,’ and has a perfect right -- albeit a

right that should be exercised with care -- to participate

actively in the trial proper.” Logue v. Dore, 103 F.3d 1040, 1045

(1st Cir. 1997) (quoting Quercia v. United States, 289 U.S. 466,

469 (1933)). Where, as here, an appellant claims that the trial

judge overstepped his bounds and displayed judicial bias to the

extent that the trial was rendered fundamentally unfair, the

appellant must show that the judge’s actions resulted in “serious

prejudice.” United States v. Cunan, 152 F.3d 29, 37 (1st Cir.

1998). In reviewing the record for alleged judicial bias, we

“consider[] ‘isolated incidents in light of the entire transcript

so as to guard against magnification on appeal of instances which

were of little importance in their setting.’” United States v.

- 61 -
Candelaria-Silva, 166 F.3d 19, 35 (1st Cir. 1999) (quoting United

States v. Montas, 41 F.3d 775, 779 (1st Cir. 1994)). The Supreme

Court has held that “expressions of impatience, dissatisfaction,

annoyance, and even anger . . . are within the bounds of what

imperfect men and women . . . sometimes display. A judge’s

ordinary efforts at courtroom administration -- even a stern and

short-tempered judge’s ordinary efforts at courtroom

administration -- remain immune” to claims of judicial bias.

Liteky v. United States, 510 U.S. 540, 555-56 (1994); see also

Morales v. INS, 208 F.3d 323, 327 (1st Cir. 2000).

Here, López-Soto has identified several moments during

the trial which, at most, demonstrate the court’s occasional

impatience or frustration with Attorney Inserni. The isolated

instances cited by López-Soto do not amount to judicial bias, and

López-Soto has not come close to showing how the purportedly

improper conduct of the trial court resulted in serious

prejudice. Although the trial judge did interrupt Inserni during

opening and closing arguments, the interruptions were almost

invariably interposed for a proper purpose. For example, during

Inserni’s opening statement, when Inserni stated that his client

was being charged with the murder of Santito, the district court

quite rightly broke in to instruct the jury that López-Soto was

not on trial for murder.

- 62 -
 To the extent that the trial judge expressed

frustration with Inserni or rebuked him, almost all of the

remarks at issue –- including the court’s imploring Inserni to

“shut up and let me finish” –- were spoken at sidebar, out of the

jury’s presence. See Candelaria-Silva, 166 F.3d at 35 (noting

that “[o]n several occasions, this Court has held that a trial

judge’s frustration displayed at sidebar does not deprive a

defendant of a fair trial” and collecting cases). López-Soto has

not identified any statement that the court made to Inserni in

the jury’s presence, including the court’s remark about Inserni’s

notes, that was so hostile or demeaning as to rise to the level

of judicial bias. See United States v. Rodriguez-Rivera, 473

F.3d 21, 27-28 (1st Cir. 2007).

The questions that the district court asked certain

witnesses also did not constitute judicial testifying or blatant

bias against López-Soto; rather, on the relatively few occasions

when the district court questioned a witness, it was usually to

clarify a witness’s answer regarding the time frame or location

of events, for example, about which the witness was testifying.

A trial court’s sua sponte questioning of witnesses, to clarify

counsel’s questions or the witness’s answer “is generally an

appropriate role for the judge to play.” Id. at 27. Finally,

although the trial court’s refusal to continue proceedings for

- 63 -
five minutes so that Inserni could use the restroom was not

especially accommodating, the failure to grant the brief break

did not result in even slight prejudice to López-Soto, because

the witness testifying at that time was not providing any

evidence that was relevant to López-Soto.

In sum, the few instances of the trial court’s

frustration, cherry-picked from the voluminous record of a nearly

two month-long trial, do not reveal judicial bias, let alone the

serious prejudice against the Appellant that he must establish to

prevail on a claim of judicial bias. López-Soto’s claim of

judicial bias is without merit.

III. Ineffective Assistance of Counsel

López-Soto claims that he received ineffective

assistance of counsel because his trial counsel, Attorney

Inserni, revealed to the jury in opening argument that López-Soto

was being prosecuted in the local court for the murder of

Santito, a rival drug dealer. López-Soto asserts that Inserni’s

commentary about the murder, which was neither charged in the

Indictment nor listed as an overt act, opened the door to permit

the government to introduce highly prejudicial testimony about

the murder.

“We have held with a regularity bordering on the

- 64 -
monotonous that fact-specific claims of ineffective assistance

cannot make their debut on direct review of criminal convictions,

but, rather, must originally be presented to, and acted upon by,

the trial court.” United States v. Mala, 7 F.3d 1058, 1063 (1st

Cir. 1993). This is because an appellate court usually is ill-

equipped to handle the fact-specific inquiry that such claims

often require. See id. “In addition, the insights of the trier,

who has seen and heard the witnesses at first hand and watched

the dynamics of the trial unfold, are often of great assistance.”

United States v. Moran, 393 F.3d 1, 10 (1st Cir. 2004). In the

exceptional case, however, where the record is sufficiently

developed, and critical facts are not in dispute, such claims may

be reviewed. United States v. Torres-Rosario, 447 F.3d 61, 64

(1st Cir. 2006).

This is not a case that presents an exception to the

well-settled rule. No claim of ineffective assistance was raised

in the trial court. Although there was ample colloquy relating

to Attorney Inserni’s decision to discuss the fact that local

charges were pending against López-Soto for the murder of

Santito, we cannot tell from the record whether Inserni’s

decision to discuss the uncharged murder was a legitimate

tactical decision at the time that it was made or deficient

performance in violation of López-Soto’s right to effective

- 65 -
assistance of counsel. See Moran, 393 F.3d at 10-11 (“Although

hindsight is always 20/20, we cannot tell from this record

whether [trial counsel’s decision], when made, was a calculated

stratagem or a mere oversight.”). In addition, it is the trial

court, rather than the appellate court, that is in the best

position to assess whether Inserni’s decision, if it was in fact

constitutionally deficient, resulted in prejudice to López-Soto’s

substantial rights, as required under Strickland v. Washington,

460 U.S. 668, 687 (1984). See Moran, 393 F.3d at 11. Thus, we

decline to review López-Soto’s claim. Instead, we dismiss the

claim without prejudice to its reassertion, should the Appellant

so choose, in a proceeding under 28 U.S.C. § 2255. See id.

IV. Evidence of Santito’s Murder

Cruz-Pereira argues that he was prejudiced by evidence

that López-Soto confessed to the murder of Santito. He protests

that evidence of this murder was unrelated to the conspiracy, not

charged in the Indictment, and not related to Cruz-Pereira, and

caused a “spillover” effect that was highly prejudicial. Cruz-

Pereira asserts that admission of evidence of Santito’s murder

violated Rules 403 and 404(b) of the Federal Rules of Evidence.

We review the district court’s decision whether to

admit evidence pursuant to Rule 404(b) for an abuse of

discretion, and “will reverse a district court’s Rule 403
- 66 -
balancing ‘only in exceptional circumstances.’” United States v.

Manning, 79 F.3d 212, 217 (1st Cir. 1996) (quoting United states

v. Garcia, 983 F.2d 1160, 1173 (1st Cir. 1993)). Further, the

court will treat any error in admitting Rule 404(b) evidence as

harmless if it determines that the disputed evidence did not

contribute to the verdict. United States v. Levy-Cordero, 156

F.3d 244 (1st Cir. 1998).

The court did not abuse its discretion in allowing

evidence of Santito’s murder. First, Rule 404(b) is not

implicated in this case. As the Government notes, the Indictment

charged that the defendants engaged in violence to carry out the

drug conspiracy. The Government presented evidence of the drug

wars between Las Avispas and Las Jibaritos and other rival gangs,

as well as evidence that a number of individuals acted as

enforcers for the drug organizations. In particular, the

Government charged in the Indictment that López-Soto acted as an

enforcer and presented evidence at trial to establish his role as

a “hit man” for Las Avispas. Thus, evidence that López-Soto

murdered the leader of a rival drug gang is direct proof of the

means used to carry out the conspiracy, and is not “other act”

evidence that is subject to Rule 404(b). See, e.g., United States

v. McGuire, 389 F.3d 225, 229 (1st Cir. 2004) (noting that

evidence that defendant pistol-whipped drug customer whom

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defendant thought had “set him up” was direct proof of

defendant’s participation in conspiracy and thus was not other

act evidence that required analysis under 404(b)).

Under the Rule 403 analysis, the probative value of the

evidence was not substantially outweighed by the danger of unfair

prejudice. As discussed, the evidence was probative of López-

Soto’s participation in the conspiracy and of the means used by

the members of Las Avispas to further the drug ring’s goals.

Further, the trial court instructed the jury that, although it

could consider evidence of Santito’s murder “as part of the

manner or means used by members of the conspiracy to carry out

the objects of the conspiracy,” the jury could not consider the

murder as evidence that any of the Appellants, apart from López-

Soto, participated in the conspiracy. The trial court’s limiting

instruction helped to safeguard the jury’s consideration of the

evidence against the claimed “spillover” effect. See United

States v. Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991) (trial

court’s limiting instructions may safeguard against prejudicial

spillover effect). In sum, the probative value of the evidence

was not substantially outweighed by its prejudicial effect.

Admission of evidence relating to Santito’s murder was proper.

V. Restriction of Ofray’s Cross Examination of Govt. Witness

Ofray claims that the district court erred by (a) not
- 68 -
granting his Rule 33 motion for a new trial on the ground that

the court improperly precluded Ofray from introducing evidence of

a Government witness’s bias and motive; and (b) limiting Ofray at

trial from cross-examining the Government’s witness as to bias

and motive.

The Government’s witness, Agent Candelaria, testified

that, in the early morning of July 14, 2002, he was sleeping at

his residence when he was awakened by a detonation that sounded

like a gunshot. Candelaria called the police and then, from his

window, observed Ofray on the street outside Rumba’s Pub, holding

a weapon. Candelaria then saw Ofray walk up to a parked van and

place the weapon inside. Based on the information provided by

Candelaria, police later recovered the weapon, an automatic

pistol, from the van. Ofray was arrested hours later, and at the

time of his arrest, a second weapon was recovered from his duffel

bag.

During cross-examination, Ofray’s counsel sought to

question Candelaria about alleged family ties and hostile

relations that existed between him and Ofray. Specifically,

Ofray wished to show that Candelaria had known Ofray a long time

because of the latter’s ownership of Rumba’s Pub and that the two

men were in fact related, namely because Candelaria’s brother

had a son with Ofray’s sister – in other words, that the two men
- 69 -
shared a nephew. Ofray wished to introduce “evidence of family

troubles between [Ofray’s] sister and the witness’ brother to

impeach the witness as to bias and motivation to cause harm to

[Ofray] by fabricating a case against him.” After hearing the

proffer of testimony to be elicited from Candelaria, the district

court precluded Ofray’s counsel from questioning Candelaria about

the allegedly hostile family relationship. In addition to

restricting the scope of Ofray’s cross examination of Candelaria,

the trial court precluded the defense from calling in its case-

in-chief Agent Irving Ofray, who Ofray’s counsel proffered “was

being called to testify about bias and motivation on the part of

the Government agents to induce witnesses to fabricate evidence

against the defendant-appellant.”

Denial of a Rule 33 motion for a new trial is reviewed

for abuse of discretion. United States v. Díaz, 300 F.3d 66, 78

(1st Cir. 2002). As a threshold matter, the Government points

out that the district court never ruled on Ofray’s Rule 33

motion. Accordingly, we remand Ofray’s Rule 33 motion to the

district court.

Thus, the remaining claim is that the court erred by

restricting the scope of cross-examination. A court’s limitation

of the scope of cross-examination is reviewed de novo to

determine whether the defendant “was afforded a reasonable
- 70 -
opportunity to impeach adverse witnesses” in conformity with the

Confrontation Clause. United States v. Martinez-Vives, 475 F.3d

48, 53 (1st Cir. 2007). Under the Confrontation Clause, a

defendant has the right to cross-examine the government’s witness

about his bias against the defendant and his motive for

testifying. See Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986). Nevertheless, the right to cross-examination is not

without limits, and “trial judges retain wide latitude insofar as

the Confrontation Clause is concerned to impose reasonable limits

on such cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only

marginally relevant.” Id. “The trial court’s latitude in shaping

such restrictions is ‘wide.’” United States v. Vega Molina, 407

F.3d 511, 523 (1st Cir. 2005) (quoting Van Arsdall, 475 U.S. at

679). “[R]estrictions on cross-examination regarding bias are

erroneous only if they are manifestly unreasonable or overbroad.”

United States v. Callipari, 368 F.3d 22, 36 (1st Cir. 2004),

vacated on other grounds, 543 U.S. 1098 (2005) (quoting United

States v. Gonzalez-Vazquez, 219 F.3d 37, 45 (1st Cir. 2000)

(internal quotation marks omitted)). “To establish that the

district court has abused its discretion, the defendant must show

that the limitations imposed were clearly prejudicial.” United

- 71 -
States v. Williams, 985 F.2d 634, 639 (1st Cir. 1993). “It

follows logically, therefore, that should an error be revealed,

we may affirm the conviction if we are confident that it was

harmless beyond a reasonable doubt.” Martinez-Vives, 475 F.3d at

53.

Here, the district court precluded the proffered cross

examination primarily on the ground that it was “collateral

matter.” The court stated that cross examination as to

Candelaria’s bias would be irrelevant, in light of the fact that

other evidence corroborated Candelaria’s account, namely the

testimony of a police officer who recovered a weapon in the van

parked outside of Rumba’s Pub several hours after Candelaria

claimed to have witnessed Ofray deposit the weapon in the van.

The fact that Candelaria’s testimony was partially corroborated

by the subsequent testimony of another officer, however, did not

provide an adequate basis for the court’s preclusion of the cross

examination sought by Ofray. While it is true that police

recovered a firearm from the exact place where Candelaria

testified the firearm was deposited, there was no corroboration

of Candelaria’s testimony that it was Ofray, rather than another

individual, who placed the weapon in the van. In other words,

cross examination of Candelaria as to his bias against Ofray

could have allowed the jury to infer that Candelaria observed an

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individual other than Ofray possess a gun and then –- because of

hostility between him and Ofray –- pinned the act of firearm

possession on Ofray. Although cross examination of Candelaria

would indeed have required a certain amount of delving into

collateral matter, the issue of Candelaria’s possible bias

against Ofray was a relevant fact for the jury to consider in

deciding whether to credit Candelaria’s testimony. It was thus

error for the trial judge to preclude the defense from attempting

to show that there was a familial tie between Candelaria and

Ofray, and that bad blood existed between the two men. This was

clearly evidence of Candelaria’s motive and bias for providing

inculpating testimony.10

Any error, however, was harmless, because the jury was

confronted with other testimony that established that Ofray sold

large quantities of drugs and regularly carried weapons in

connection with his role as the operator of several drug points.

Although Ofray’s possession of a weapon on July 14, 2002, was an

overt act charged in the Indictment, the jury could have chosen

10 The Government seeks to justify the court’s decision to preclude
on the ground that the proffered cross examination was “inherently
speculative.” But it is clear from the record of the proffer that
Ofray’s counsel had an adequate basis from which to assert his
claim that Candelaria had a bias against Ofray stemming from
hostile familial relations. It is worth noting that the district
court did not preclude the requested cross examination on the
ground that the line of questioning was inherently speculative.

- 73 -
to disbelieve all of Candelaria’s testimony about the gun

possession, and even have disbelieved the testimony of the police

officer who discovered the gun in the van, and still found Ofray

to be guilty of the charged drug conspiracy. As discussed above,

the Government’s proof of Ofray’s participation in the charged

conspiracy was overwhelming. This was not a case where the

success of the Government’s proof turned on the jury’s

determination of Candelaria’s credibility. Cf. United States v.

Mulinelli-Navas, 111 F.3d 983, 993 (1st Cir. 1997) (finding

erroneous limitation of cross examination not harmless where

proof of charges relied solely on government witness’s testimony

and allowing cross examination to proceed could have allowed jury

to discredit witness’s testimony). Here, Ofray’s theory of the

case –- urged in cross examination of most of the Government’s

witnesses, in opening statement, and in closing argument –- was

that the Government had failed to present credible evidence of

any connection between Ofray and Las Avispas. Ofray’s theory of

defense, although ultimately unsuccessful, did not suffer as a

result of his inability to impeach Candelaria’s testimony

regarding Ofray’s possession of a firearm on a single occasion.

See United States v. Cunan, 152 F.3d 29, 38 (1st Cir. 1998)

(finding no error in court’s restriction of cross examination

where restrictions did not impede assertion of theory of

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defense).

In sum, the trial court’s decision to limit the cross

examination of Candelaria, even if erroneous, was harmless in

light of overwhelming evidence of Ofray’s guilt.

VI. Sentencing Errors

(A) Ofray

At Ofray’s sentencing hearing on February 25, 2005, the

district court, after calculating the applicable sentencing

guidelines range as 188 to 235 months, imposed a “middle-of-the-

Guidelines” sentence of 200 months. Ofray in essence asserts a

two-part, procedural challenge to his sentence. First, he claims

that the district court erroneously treated the sentencing

guidelines as mandatory, rather than advisory. Second, Ofray

maintains that the court failed to consider the relevant

sentencing factors set forth in 18 U.S.C. § 3553(a).

Where, as here, an appellant challenges the procedural

aspects of his sentencing, our review is for abuse of discretion.

See Gall v. United States, 128 S. Ct. 586, 597 (2007). We

determine whether the court made errors “such as failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the [18

U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

- 75 -
erroneous facts, or failing to adequately explain the chosen

sentence -- including an explanation for any deviation from the

Guidelines range.” United States v. Politano, 522 F.3d 69, 72

(1st Cir. 2008) (quoting Gall, 128 S. Ct. at 597) (internal

quotation marks omitted).

Ofray’s claim that the district court erroneously

treated the guidelines as mandatory, rather than advisory, can be

disposed of quickly. Here, it is evident from the sentencing

transcript that the district court, and all parties, were well

aware that the sentencing guidelines were only advisory. As the

Government points out, Ofray’s own counsel stated on the record

at the sentencing hearing that “the guidelines are only advisory

for this court.” The district court also stated as follows:

“The court is using the guidelines as advisory . . . .” There is

no doubt, therefore, that the district court imposed the sentence

under the correct understanding that the sentencing guidelines

are advisory, not mandatory.

Similarly, it is evident that the district court did

not abuse its discretion in failing to consider the relevant

sentencing factors set forth in § 3553(a). While the court did

not expressly refer to the statute or recite the factors, it

provided a reasoned and adequate explanation for the sentence

that was imposed. See United States v. Garcia-Carrasquillo, 483
- 76 -
F.3d 124, 132 (1st Cir. 2007) (“An important prerequisite to our

reasonableness analysis is the district court’s reasoned

explanation for the sentence imposed . . . .”). We “allow a

good deal of leeway” in reviewing the adequacy of a district

court’s explanation. United States v. Gilman, 478 F.3d 440, 446

(1st Cir. 2007). Ultimately, we defer to “the district court’s

sentence as long as the court has provided a plausible

explanation, and the overall result is defensible.” United States

v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006).

Here, the district court properly began the sentencing

procedure by determining Ofray’s adjusted offense level. The

court then stated that, although it was aware of the advisory

nature of the guidelines, “nevertheless I believe that the

guidelines do provide the factors which the court should consider

in this sentence, in which [sic] also provides a reasonable

sentence in view of the evidence in this case.” The court then

found that the applicable sentencing guidelines range for Ofray,

which is uncontested on this appeal, was a term of imprisonment

of 188 to 235 months and a range for a monetary fine of $20,000

to $4 million. Before imposing the 200-month prison term and the

below-guidelines fine of $10,000, the district court gave the

following explanation for the sentence:

The court notes that the defendant[’]s substantial
- 77 -
 participation in furtherance of an extensive and
violent drug trafficking enterprise and its detrimental
consequences to society, which [sic] warrants a
sentence at the middle of the guideline range.

There is no indication that the district court failed

to consider, or accord sufficient weight, to the relevant

sentencing factors. The court emphasized the scope and violent

nature of the conspiracy, Ofray’s extensive role within it, and

the “detrimental consequences to society.” The court also stated

that the reasonableness of a sentence at the middle of the

guidelines range was justified by the evidence presented at

trial. The reasonableness of the within-guidelines sentence is

strongly supported by our review of the overall record. As

discussed above, the evidence clearly established that Ofray sold

large quantities of narcotics from various drug points that he

owned and operated over the course of many years, and that he

regularly carried weapons in connection with his narcotics

activity. While the district court’s explanation for a “middle

of the guideline range” sentence could have been more

comprehensive, the court’s sentence was supported by a plausible

explanation and constituted an overall defensible result.

Accordingly, we find that Ofray “has not carried the heavy burden

of proving that his within-the-range sentence was unreasonable or

an abuse of discretion.” United States v. Innarelli, 524 F.3d

- 78 -
286, No. 06-2400, 2008 U.S. App. LEXIS 9242, at *14 (1st Cir.

Apr. 29, 2008).

(B) Cruz-Pereira

Cruz-Pereira argues that the evidence was insufficient

to support the district court’s imposition of a two-level upward

adjustment to his base offense level for his role as an

organizer, leader, manager, or supervisor of other participants

in the drug-selling enterprise. See U.S.S.G. § 3B1.1(c).

We review a sentencing court’s findings of fact for

clear error, while questions of law involved in sentencing

determinations are reviewed de novo. See United States v. Ramos-

Paulino, 488 F.3d 459, 463 (1st Cir. 2007). “A question about

whether the evidence is sufficient to support a particular

guideline determination is a question of law and, therefore,

engenders de novo review.” Id. “Where the undisputed facts

support more than one plausible inference, the sentencing court’s

choice among supportable alternatives cannot be clearly

erroneous.” United States v. Garcia, 34 F.3d 6, 10 (1st Cir.

1994).

The sentencing guidelines provide for an upward

adjustment to a defendant’s base offense level due to the

relative importance of his role in the offense. United States v.

Cruz, 120 F.3d 1, 3 (1st Cir. 1997) (en banc) (citing U.S.S.G. §
- 79 -
3B1.1(c)). For a sentencing court to apply an upward adjustment

pursuant to section 3B1.1(c), the evidence must show that the

defendant “exercised control over, organized, or was otherwise

responsible for superintending the activities of” at least one

other participant in a criminal activity on at least one

occasion. Garcia-Morales, 382 F.3d at 19 (quoting Cruz, 120 F.3d

at 3) (internal quotation marks omitted); accord United States v.

Voccola, 99 F.3d 37, 44 (1st Cir. 1996) (finding that single

directed transaction is sufficient to support imposition of

enhancement). It is not enough, however, that the defendant

merely controlled, organized, or managed criminal activities;

rather, he must instead control, organize, or manage criminal

actors. Ramos-Paulino, 488 F.3d at 464; see also United States v.

Thiongo, 344 F.3d 55, 63 (1st Cir. 2003) (“Section 3B1.1 does not

apply to a defendant who merely organizes or supervises a

criminal activity that is executed without the aid of others.”).

Cruz-Pereira argues that there was no evidence in the

record that permitted the district court to find that he

supervised, managed, organized, led or otherwise exercised

control over any non-government actor in the narcotics activity

at issue. He maintains that the evidence established only that

he acted alone in operating the Santa Ana drug point, located at

his house, and the drug point located at his bar, La Ponderosa.

- 80 -
 The Government counters that the court’s finding was

based on legitimate inferences. Specifically, the Government

points to the fact that Informant Villodas testified that other

people were present in the backyard of Cruz-Pereira’s house when

Villodas made the controlled purchase of crack, and that the

audio recording of the transaction, though of poor quality,

revealed another voice or voices in the background. This

evidence, the Government contends, permitted the inference that

one or more drug dealers, apart from Cruz-Pereira, sold drugs out

of Cruz-Pereira’s house, over whom Cruz-Pereira necessarily

exerted control. The Government also cites testimony to the

effect that the drug point was open twenty-four hours a day,

which also permitted the court to infer that others assisted

Cruz-Pereira in his narcotics activity. Finally, the Government

claims that Cruz-Pereira is eligible for the enhancement solely

on the basis of the fact that he exerted control over Las

Avispas’ property, by virtue of his “management responsibility

over the Las Avispas Santa Ana drug point,” from which Cruz-

Pereira made the sales to the undercover agent and FBI informant.

There was no sufficient basis for the court’s

imposition of a two-level role-in-offense enhancement under

section 3B1.1(c). Where, as here, the basis for an enhancement

pursuant to section 3B1.1(c) is not “apparent from the record, .

- 81 -
. . the sentencing court, in order to apply such an enhancement,

must make a specific finding which identifies those being managed

‘with enough particularity to give credence to the upward

adjustment.’” United States v. Medina, 167 F.3d 77, 80 (1st Cir.

1999) (quoting United States v. McDowell, 918 F.2d 1004, 1011

(1st Cir. 1990)). Here, the district court at sentencing

determined that Cruz-Pereira exercised control over others in

conducting drug activity because the drug point at Santa Ana

operated twenty-four hours each day and because the audio

recording made by Informant Villodas during his controlled

purchase of crack in Cruz-Pereira’s house revealed another voice

or voices.

The district court drew the plausible inference, based

on the audio recording made by Villodas and the fact of the drug

point’s round-the-clock operation, that others must have been

present while Cruz-Pereira sold drugs or that at least one other

person played a role in the operation of the drug point.

However, the record is devoid of any evidence to show that Cruz-

Pereira exercised control over any individual. Even if the

district court reasonably inferred that Cruz-Pereira associated

with others in operating the drug point, there was no basis for

the finding that the Appellant oversaw their activities. See

Ramos-Paulino, 488 F.3d at 464. In Ramos-Paulino, where we

- 82 -
remanded for re-sentencing, there was testimony that the

defendant –- who was convicted of alien smuggling –- acted with

the assistance of an individual named “Domingo,” who helped the

defendant collect payment and information from, and provide false

documents for, the aliens. We concluded that this testimony,

which afforded the sole arguable basis for the sentencing court’s

finding that the defendant exercised control over the criminal

activity of another individual, provided an insufficient basis

for the imposition of an upward enhancement. We explained that

“[a]lthough [the defendant] worked hand in glove with the

mysterious Domingo, there is nothing to show either that he was

her subordinate in the chain of command or that she oversaw his

activities.” Id.

Here, too, there was no basis for the district court’s

finding that Cruz-Pereira exercised any control over or oversaw

the activities of any individual who participated in narcotics

activity at the Santa Ana drug point. There was no evidence, for

example, of any communication between Cruz-Pereira and any other

individual from which Cruz-Pereira’s supervisory role could be

inferred. Nor was there any evidence that any other person

assisted Cruz-Pereira in the undercover purchases made by

Villodas or Agent Rosa-Ferrer, or that any other individual

performed any acts at Cruz-Pereira’s express or implied

- 83 -
direction. The mere fact that Cruz-Pereira was characterized as

an owner of the Santa Ana drug point, without more, does not

justify the imposition of the role-in-the-offense enhancement.

See Medina, 167 F.3d at 80 (citing United States v. Graham, 162

F.3d 1180 (D.C. Cir. 1998)); United States v. Sostre, 967 F.2d

728, 733 (1st Cir. 1992) (a finding that defendant played an

“essential role” in drug conspiracy insufficient to warrant

enhancement under section 3B1.1).

The Government’s argument that Cruz-Pereira qualified

for the upward enhancement on the basis of his control over the

“the property, assets or activities of a criminal organization,”

is squarely foreclosed by our holding in Ramos-Paulina.11 As we

explained in that case:

[T]he management of criminal activities (as opposed to
the management of criminal actors) may ground an upward
departure but not an upward role-in-the-offense
adjustment. Although both may lead to similar
outcomes, there is an important structural distinction
between sentencing enhancements and sentencing
departures. For present purposes, then, we are
constrained by the unambiguous case law holding that
management of criminal activities, standing alone, does
not constitute a basis for a role-in-the-offense
enhancement under section 3B1.1.

11 The note to section 3B1.1(c), which the Government cites,
provides, in relevant part, that a sentencing court may impose an
upward departure “in the case of a defendant who did not organize,
lead, manage, or supervise another participant, but who
nevertheless exercised management responsibility over the property,
assets, or activities of a criminal organization.” U.S.S.G. §
3B1.1, cmt. n.2.
- 84 -
Ramos-Paulino, 488 F.3d at 464 (citations omitted). Thus, the

two-level role-in-the-offense enhancement imposed by the district

court cannot be based on a finding that Cruz-Pereira managed

property belonging to Las Avispas.

Accordingly, because the district court’s imposition of

a two-level upward enhancement pursuant to section 3B1.1(c) was

based on legally insufficient evidence, we vacate Cruz-Pereira’s

sentence and remand for re-sentencing. Here, however, as in

Ramos-Paulino, we

leave open the full gamut of possibilities -- for
example, the district court, if it can identify a
participant or participants under the [Cruz-Pereira’s]
sway, may reimpose the managerial role enhancement; or
it may essay an upward departure for management of
criminal activities; or it may simply eschew any
further embellishments and impose what it deems to be a
reasonable sentence. We take no view either as to the
course to be followed or as to the duration of the
sentence to be imposed. In the first instance, these
are matters for the sentencing court.
Id.
(C) López-Soto

López-Soto claims that his sentence of forty years (480

months), which constituted an upward variance of greater than two

and one half times the maximum recommended sentence under the

applicable guidelines range, was unreasonable; that he was

deprived of his right to due process by the retroactive

application of Booker’s “remedial” holding; and that the court

- 85 -
failed to give him the required notice of the upward variance

under Rule 32(h) of the Federal Rules of Criminal Procedure.

“We review a district court’s sentence for

reasonableness, which involves a procedural as well as a

substantive inquiry.” Politano, 522 F.3d at 72 (citing Gall, 128

S. Ct. at 597). In reviewing the reasonableness of a particular

sentence, we afford the district court broad discretion. “[A]fter

the court has calculated the [applicable guidelines range],

‘sentencing becomes a judgment call, and a variant sentence may

be constructed based on a complex of factors whose interplay and

precise weight cannot even be precisely described.’” Id. (quoting

United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)).

“Assuming a plausible explanation and a defensible overall

result, sentencing is the responsibility of the district court.”

Jimenez-Beltre, 440 F.3d at 519.

Here, the court gave the following explanation for its

imposition of a sentence of 480 months:

In this case we believe that the guidelines do not
reflect the seriousness of the offense and do not
provide reasonable and adequate deterrence and
punishment.
Based on evidence presented during the trial, the
defendant was a triggerman who possessed powerful
weapons to facillitate the instant offense. Moreover,
he was involved in violence at controlled drug points
where he sold cocaine, crack cocaine, heroin and
marijuana during different periods.

- 86 -
 Therefore, to provide just punishment in light of
the seriousness of the offense and to protect the
community, the Court will sentence the defendant
according to the statute.

López-Soto received a sentence that was two and one

half times greater -– and more than twenty-four years longer –-

than the top of the recommended guidelines range. In such a

case, the district court must offer an especially compelling

reason for its sentence. See United States v. Smith, 445 F.3d 1,

4 (1st Cir. 2006) (“The farther the judge’s sentence departs from

the guidelines sentence . . . the more compelling the

justification based on factors in section 3553(a) that the judge

must offer in order to enable the court of appeals to assess the

reasonableness of the sentence imposed.”) (quoting United States

v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (Posner, J.) (Internal

quotation marks omitted)); see also Martin, 520 F.3d at 91

(“[T]he guidelines are the starting point for the fashioning of

an individualized sentence, so a major deviation from them must

‘be supported by a more significant justification than a minor

one.’”) (quoting Gall, 128 S. Ct. at 597).

The court’s stated grounds for the imposition of a

sentence that so markedly exceeded the recommended guidelines

range were neither sufficiently particularized nor compelling to

survive our review for reasonableness. The district court based

- 87 -
its upward variance on two factors: (1) López-Soto’s possession

of “powerful weapons” as a “triggerman,” and (2) his involvement

in violence in connection with the narcotics activity. The court

linked these facts to several relevant factors set forth in §

3553(a), namely the “need for the sentence to reflect the

seriousness of the offense,” “deterrence,” “to provide just

punishment,” and “to protect the public.” 18 U.S.C. §

3553(a)(2)(A), (B), (C). While the factors identified by the

court may have justified a substantial upward variance, they

simply do not support the imposition of a statutory maximum

sentence of forty years, that is so far above the guidelines

range. López-Soto’s use of powerful weapons and his engagement

in violence were not so unusually egregious as to justify the

imposition of the most severe possible sentence. See, e.g.,

United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)

(vacating sixty year statutory maximum sentence, which was more

than three times higher than guidelines maximum, because grounds

for upward variance, while supporting imposition of severe

sentence, did not sufficiently distinguish defendant from other

offenders guilty of similar crimes). The court’s reference to

López-Soto’s possession of weapons as a triggerman lacks

compelling force, in part because firearm possession had already

been considered, and accounted for, in the two-level enhancement

- 88 -
applied in the calculation of Appellant’s adjusted offense level.

See U.S.S.G. § 2D1.1(b)(1). “When a factor is already included

in the calculation of the guidelines sentencing range, a judge

who wishes to rely on that same factor to impose a sentence above

or below the range must articulate specifically the reasons that

this particular defendant’s situation is different from the

ordinary situation covered by the guidelines calculation.”

United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006).

It was not necessarily unreasonable for the sentencing court to

have found that a variance was warranted because López-Soto

possessed more than one weapon in his role as an enforcer for Las

Avispas and that the weapons were “powerful.” But these factors

were not so distinct from the firearm possession that was

incorporated into the guidelines calculation as to justify a

variance of such magnitude. See id.

Similarly, the court’s reference to López-Soto’s

engagement in violence was not sufficiently compelling to support

the degree of increase over the top of the recommended guidelines

range. The court expressly stated, at the beginning of the

sentencing hearing, that it would not consider López-Soto’s

alleged involvement in the murder of Santito in imposing

sentence. Further, the court concluded that, for purposes of

assessing López-Soto’s conduct in determining the appropriate

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sentence, the presentence report “contains all the essential

information I need. . . . I think it’s complete.” The pre-

sentence report, in turn, did not refer to any specific acts of

violence committed by López-Soto; rather, it described the role

of enforcers within the drug ring, who would use weapons to

protect the organization’s leadership and operations from rivals,

and identified López-Soto as a “hitman” within the organization.

If the court had, in fact, weighed the murder as a factor in

sentencing, the imposition of such a severe sentence might have

been justified. Absent the murder, however, the generic

reference to “violence” –- while supporting a sentence in excess

of the guidelines –- did not justify the imposition of the most

severe sentence allowable by law.

As deplorable as López-Soto’s conduct was, not all

enforcers of drug organizations who carry automatic pistols and

engage in generically described acts of violence deserve the

statutory maximum sentence. “While there is no yardstick

perfectly calibrated to measure one crime and one criminal from

the next crime and the next criminal, there are certainly

measurable differences between [López-Soto’s] situation and the

situation of offenders who might warrant the statutory maximum or

something approaching it.” Poynter, 495 F.3d 349, 354 (6th Cir.

2007). By imposing the maximum sentence on López-Soto, “the

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district court left us little room to distinguish” between him

and more culpable narcotics conspirators who occupy the role of

enforcer within a drug ring. Id. An enforcer for a drug

organization who, for example, is found by the sentencing judge

to have committed one or more uncharged murders or other specific

egregious acts of violence, or whose criminal history category

“substantially under-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant

will commit other crimes,” U.S.S.G. § 4A1.3(a)(1), would be

substantially more culpable than López-Soto.

In sum, the district court’s description of López-

Soto’s conduct, while justifying an upward variance, was not

sufficiently compelling to support a statutory sentence of more

than double the maximum of the applicable guidelines range.

There was ample room for a variance above the guidelines and

below the statutory maximum to accomplish the trial judge’s

stated purposes in sentencing López-Soto. Although “we emphasize

that we do not reject the sentence imposed below solely because

of the magnitude of its deviation from the guideline-recommended

range,” Zapete-Garcia, 447 F.3d at 61, the statutory maximum

forty-year (480-month) sentence simply does not stem from a

plausible explanation, does not constitute a defensible result,

and therefore cannot survive our review for reasonableness. See

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Jimenez-Beltre, 440 F.3d at 519. Accordingly, without expressing

any opinion on what sentence should be imposed on remand, we

vacate López-Soto’s sentence and remand for re-sentencing

consistent with this opinion.12

CONCLUSION

For the foregoing reasons, we vacate the convictions of

Díaz-Clavell and Zaragoza-Lasa and remand both cases for new

trials. We affirm the convictions of Cruz-Pereira and López-

Soto, but vacate both sentences and remand for re-sentencing

consistent with this opinion. We affirm both the conviction and

sentence of Ofray.

12 Because we have disposed of López-Soto’s sentencing argument on
reasonableness grounds, we need not address his argument that his
sentence created an ex post facto effect that deprived him of due
process. See Zapete-Garcia, 447 F.3d at 59 n.3 (citing United
States v. Lata, 415 F.3d 107, 112 (1st Cir. 2005)). Similarly, we
need not rule on Appellant’s challenge to his sentence on the
grounds that proper notice of the upward variance was not provided
pursuant to Rule 32(h) of the Federal Rules of Criminal Procedure.
We note, however, that under the Supreme Court’s recent decision in
Irizarry v. United States, No. 06-7517, 2008 U.S. LEXIS 4886, at
*11 (U.S. June 12, 2008), which was reached during the pendency of
the present appeals, Rule 32(h) does not apply to a variance from
a recommended guidelines sentencing range.

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