United States v. Perez-Colon

279 F.3d 105

• Court: Court of Appeals for the First Circuit
• Decided: February 8, 2002
• Docket: 01-1318
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 99-1790

UNITED STATES OF AMERICA,

Appellee,

v.

MARCOS MARTÍNEZ-MEDINA,

Defendant, Appellant. ____________________

No. 99-1999 No. 01-1318

UNITED STATES OF AMERICA

MANUEL PÉREZ-COLÓN,

Defendant, Appellant. ___________________

No. 99-2080

ANGELA AYALA-MARTÍNEZ,

Defendant, Appellant.

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

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Boudin, Chief Judge,

Kravitch,* Senior Circuit Judge,

and Torruella, Circuit Judge. ____________________

Judith H. Mizner for appellants Manuel Pérez-Colón and Angela Ayala-Martínez. Law Offices of John E. Bergendahl on brief for appellant Angela Ayala-Martínez. Irma R. Valldejuli for appellant Marcos Martínez-Medina. Sonia I. Torres, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, Chief, Criminal Division, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief for the United States.

February 8, 2002

*Of the Eleventh Circuit, sitting by designation. BOUDIN, Chief Judge. This set of appeals grows out of

an indictment alleging that the appellants, along with 76

others, were part of a sprawling drug smuggling and distribution

network in southwest Puerto Rico between 1994 and 1997. The

two-count indictment charged Angela Ayala-Martinez ("Ayala") and

Manuel Perez-Colon ("Perez") with conspiracy to possess and

distribute multi-kilogram amounts of cocaine, heroin, and

marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994)

and conspiracy to engage in illegal financial transactions

involving the drug proceeds in violation of 18 U.S.C. §§

1956(a)(1) and 1957 (1994). Perez's money laundering charge

under 18 U.S.C. § 1957, but not § 1956(a)(1), was later dropped.

Appellant Marcos Martinez-Medina ("Martinez") was charged only

with participating in the drug conspiracy.

The three appellants were tried along with four other

co-defendants: Manuel Garcia-Torres ("Manuel"), his brother

Andres Garcia-Torres ("Andres"), Walter Batiz, and Deri Ventura.

The evidence presented during the forty-day trial was extensive,1

and featured the testimony of several indicted co-conspirators

1 The evidence presented at trial was far more extensive and therefore differed in some respects from the evidence presented in the case against Jaime Garcia-Torres, who was tried separately for related offenses. See United States v. Garcia- Torres, ___ F.3d ___ (1st Cir. 2002).

-3- who agreed to cooperate with the government in exchange for

leniency.

In brief, it showed that in 1995, Ayala obtained a

contact with a Colombian dealer, Jorge Alicea-Serrano (a/k/a

"Jockey"), to import large quantities of cocaine into Puerto

Rico. The drugs were delivered by air and by sea, and Ayala

hired others--including Andres Garcia, Perez, Batiz, and

Ventura--to retrieve them for her.

By virtue of her connection to Jockey, Ayala rose from

a small-time drug dealer to a major supplier to various drug

distribution points at housing projects in the city of Ponce.

Among them were drug points at Los Lirios Del Sur and Santiago

Iglesias, owned by Perez; La Atocha and Tibes, owned by Edwin

Melendez Negron (a/k/a "Danny Gongolon"); and La Cantera, owned

by the Garcias' older brother Tommy Garcia-Torres until his

death in August 1995, when it was inherited by Manuel Garcia and

Ventura. Batiz worked for Garcia and Ventura cutting drugs at

La Cantera.

Disputes at these drug points led to several violent

killings, which were not charged as crimes but were important to

the government's case both as conspiratorial acts and factors in

sentencing. According to the testimony of a cooperating witness

named Daniel Sanchez-Ortiz, in or around 1996 Perez ordered the

-4- murder of Sol Garcia, owner of a competing drug point at Los

Lirios del Sur that was threatening Perez's sales.

At La Cantera, an internecine feud erupted in 1994 when

Tommy Garcia fired "Gerardito", his brother-in-law and drug

runner, because he allegedly stole $35,000 to $40,000 in drug

proceeds. After being ostracized from La Cantera, Gerardito and

his brother Nelsito began associating with Michael Vazquez and

his father Eddie; the Vazquezes owned a jewelry store and had no

demonstrated connection to the drug trade but had weapons and

were willing to help Gerardito seek revenge against the Garcias.

A war soon erupted between the Garcias and their allies--

including Ventura, Ayala, and Gongolon--and Gerardito and his

faction--which included Nelsito, the Vazquezes, and the

Vazquezes' jewelry store employee, Jose Negron-Santiago (a/k/a

"Bejumen").

A series of violent incidents ensued between the two

factions. In 1995 Tommy Garcia and his trigger man, Abraham

Borgos Santiago, were killed in separate incidents, as was

"Gordo", a friend of Gerardito and Nelsito. Each side pinned

blame on the other. In 1996, Eddie Vazquez shot and wounded

Danny Gongolon. On numerous occasions throughout this period,

the Garcias tried to find and kill Gerardito, Nelsito, the

Vazquezes, and Bejumen.

-5- On February 14, 1997, Bejumen and his wife Rosemarie

were shot and killed in their car. Gamaliel Goglas-Valentin,

who worked part time for the Garcias at La Cantera and also

helped them store guns, testified that Andres, Manuel, and

Marcos Martinez drove into the auto shop where he was working

and celebrated openly that they had "finally" killed Bejumen.

As Andres described it, the three of them ambushed Bejumen's

car; Martinez and Andres then opened the door and shot Bejumen

and his wife repeatedly at close range.

Four days later, Ayala, Manuel, Danny Gongolon, and

Ventura paid $20,000 to hire kidnappers to pose as policeman and

"arrest" Michael Vazquez. Although the testimony of various

witnesses is somewhat unclear as to the precise chain of events,

it appears that the kidnappers handed Michael Vazquez over to

associates of the Garcia group--including Manuel and Andres

Garcia, Gongolon, Ventura, and Batiz--who drove away with him

and killed him. They also found and shot Eddie Vazquez. Ayala

was described as celebrating when she was told that the plan had

been successfully executed.

The appellants were convicted as charged. Ayala and

Perez were sentenced to life imprisonment on the drug conspiracy

count and 20 years' imprisonment on the money laundering count,

-6- to be served concurrently; Martinez was sentenced to 405 months'

imprisonment. These appeals ensued.

The appellants' various claims can be grouped into

several categories: sufficiency of the evidence as to certain

counts, admissibility of specific evidence, alleged

prosecutorial misconduct, improper jury instructions, sentencing

rulings, and new trial claims based on new or withheld evidence.

We affirm the appellants' convictions and sentences in all

respects.

I. SUFFICIENCY OF THE EVIDENCE

Single versus multiple conspiracies. All three

appellants argue that the evidence was insufficient to support

aspects of their convictions. The first sufficiency issue,

raised by Ayala and Perez, is the frequently raised but often

misunderstood claim that a single conspiracy found by the jury

was in fact multiple, independent conspiracies.2 If there was

such "variance" between the indictment and the proof at trial,

it might be grounds for reversal if it substantially prejudiced

the defendants' rights by, for example, allowing the jury to

transfer evidence of one conspiracy against defendants involved

2Because the defendants did not challenge the jury instructions as to conspiracy, we review the issue for evidentiary sufficiency only. United States v. Mena-Robles, 4 F.3d 1026, 1033 (1st Cir. 1993), cert. denied, 511 U.S. 1035 (1994).

-7- in another. Kotteakos v. United States, 328 U.S. 750, 774

(1946); United States v. Glenn, 828 F.2d 855, 858 (1st Cir.

1987); see generally 4 LaFave, Israel & King, Criminal Procedure

§ 19.6 (2d ed. 1999).

Appellants make two different so-called "variance"

arguments. The first focuses on the possibility that some

people charged in the indictment but not tried together with the

defendants might not have been implicated in the same

conspiracy--in particular, other drug point owners whose

association with Ayala and the Garcias may have been more

tangential. But the government need not show that every person

indicted was a member of the conspiracy. United States v.

Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991). At most,

questions may arise whether the introduction of evidence as to

these other individuals' actions was unfairly prejudicial to the

defendants. United States v. Mojica, 185 F.3d 780, 785-86 (7th

Cir. 1999). But the appellants make no sustained argument as to

unfair prejudice.

Appellants' main "variance" claim is that not all of

those tried together were engaged in the single charged

conspiracy. This is essentially a challenge to the sufficiency

of the evidence. Townsend, 924 F.2d at 1389. As in all

sufficiency claims, we take the evidence, including issues of

-8- credibility, in the light most favorable to the government and

ask whether a rational jury could easily find guilt beyond a

reasonable doubt. United States v. Moran, 984 F.2d 1299, 1300

(1st Cir. 1993).

The touchstone of conspiracy is an agreement to do an

unlawful act, Iannelli v. United States, 420 U.S. 770, 777

(1975), but each coconspirator need not know of or have contact

with all other members, nor must they know all of the details of

the conspiracy or participate in every act in furtherance of it.3

The jury may infer an agreement circumstantially by evidence of,

inter alia, a common purpose (such as a purpose to sell illicit

drugs), overlap of participants, and interdependence of various

elements in the overall plan.4

Putting aside Martinez (who raises a separate claim

that we address below), the evidence permitted the jury to find

that the appellants and their co-defendants were engaged in a

single drug conspiracy. The Garcias, Ventura, and Batiz all

3 United States v. Garcia-Rosa, 876 F.2d 209, 223 (1st Cir. 1989), cert. denied, 493 U.S. 1030, vacated on other grounds sub nom. Rivera-Feliciano v. United States, 498 U.S. 954 (1990); United States v. Giry, 818 F.2d 120, 127 (1st Cir.), cert. denied, 484 U.S. 855 (1987); United States v. Drougas, 748 F.2d 8, 17 (1st Cir. 1984). 4 See United States v. Rivera-Ruiz, 244 F.3d 263, 268 (1st Cir. 2001); United States v. Randazzo, 80 F.3d 623, 629 (1st Cir. 1996); see also 2 LaFave & Scott, Substantive Criminal Law § 6.4(d) (1986).

-9- engaged in a joint venture--the La Cantera drug point--whose

main supplier was Ayala. Ayala supplied the drugs and profited

from their resale, while the Garcias, Ventura, and Batiz ran the

resale operation and took steps--often violent--to protect it.

This ongoing operation could be found to constitute a

conspiracy. See United States v. Ortiz De Jesus, 230 F.3d 1, 5

(1st Cir. 2000).

Perez was not involved in the operations of the La

Cantera drug point but instead operated his own drug points at

Los Lirios del Sur and Santiago Iglesias. Were this Perez's

only connection to Ayala, it might be arguable that Perez was

not part of the same conspiracy as the La Cantera operators. In

a case where a common supplier is the sole link between diverse

distributors, it may be more difficult to sustain a finding of

common agreement, see, e.g., Kotteakos, 328 U.S. at 754-56;

Glenn, 828 F.2d at 858, although even then one could be inferred

by additional evidence--e.g., a finding that the various

distributors depended on one another for the health of their own

drug business, see United States v. Portela, 167 F.3d 687, 697

(1st Cir. 1999).

In this case, not only was Perez one of Ayala's

distributors, but he directly aided Ayala by helping her

retrieve the drugs from Jockey, Ayala's aforementioned Colombian

-10- contact. From there, Perez distributed the drugs to the drug

points per Ayala's instructions. This evidence is more than

sufficient to show that Perez was in a single conspiracy with

Ayala and the La Cantera operators to distribute narcotics.

Evidence as to Martinez. Martinez argues separately

that even if the other co-defendants were part of a single drug

conspiracy, he was not part of it. Martinez paints himself as

a "hired gun" who participated in the murder of Bejumen Santiago

at the behest of the Garcias but did not share or even know of

their purpose to promote the drug operations.

There is evidence that Martinez was directly involved

in drug dealing. Goglas testified that Martinez worked for

Julio Teta, a friend of Manuel Garcia who was starting a new

drug point at Guanica. Teta, usually accompanied by Martinez,

went to Goglas' house almost every day to pick up drugs from

Garcia for the drug point. Perhaps this evidence would suffice

for the jury to infer that through these repeated purchases of

drugs for resale, Martinez joined the Garcias' drug enterprise.

See United States v. Rivera-Ruiz, 244 F.3d 263, 270 (1st Cir.

2001).

We need not decide this issue, however, because here

there is clearer evidence of agreement. Sometime prior to

February 1997, Teta agreed to help Garcia in his conflict with

-11- Gerardito in exchange for help with some problems he was having

at the Guanica drug point. The evidence that Martinez was

regularly involved in drug dealing with Teta provides a

reasonable basis for the jury to infer that he also knew about

the working arrangements between Teta and Garcia; this is the

most straightforward way to explain how he came to assist

Garcia, for whom he did not otherwise work, in carrying out the

murder of Bejumen--which (as will be seen) can be deemed a part

of the larger conspiracy.

This inference is reinforced by the fact that on

another occasion Teta and Martinez unsuccessfully went out to

find and kill Nelsito and Gerardito using guns supplied by

Manuel Garcia. Based on this evidence--Teta's pact with Manuel

Garcia, Martinez's relationship with Teta, and Martinez's overt

acts on behalf of Manuel Garcia--a jury could reasonably infer

that Martinez agreed to join the Garcias' drug operation in the

capacity of an enforcer.

Virtually all of the evidence linking Martinez to the

conspiracy came in through the testimony of Goglas,5 and Martinez

argues that the uncorroborated testimony of a government

5 Danny Gongolon also testified that he had seen Martinez at Ayala's house on several occasions (including a barbecue party) before the murder of Bejumen, but Gongolon's testimony provided no specific information about the substance of Martinez and Ayala's relationship.

-12- informant is not enough to convict. That argument runs contrary

to the law of this circuit, which leaves in the hands of the

jury decisions about credibility of witnesses "so long as the

testimony is not incredible or insubstantial on its face."

United States v. Andujar, 49 F.3d 16, 21 (1st Cir. 1995)

(quotations omitted).

Perez's money laundering conviction. Perez appeals the

denial of his motion for a judgment of acquittal on the money

laundering conspiracy count. The government replies that Perez

conspired with Ayala to engage in a financial transaction

designed to conceal the unlawful proceeds in violation of 18

U.S.C. § 1956(a)(1)(B)(i) (1994). Specifically, the government

on appeal relies on an incident in which Ayala had her drug

point employee Hector Dominicci install air conditioning units

in Perez's house. Ayala paid Dominicci between $8,000 and

$10,000 in cash, which she retrieved from the house of her

friend Maria Barbosa, who routinely hid drug money for her.

To prove a money laundering conspiracy under 18 U.S.C.

§ 1956(a)(1)(B)(i), the government must show that Perez agreed

to have the air conditioners installed knowing both that they

were paid for with illegal proceeds and that the transaction was

"designed, in whole or in part . . . to conceal or disguise the

nature, the location, the source, the ownership, or the control

-13- of the proceeds . . . ." Where the defendant is someone other

than the source of the illegal proceeds (here, Perez), the

statute is concerned with his knowledge of the source's intent

in the transaction. United States v. Campbell, 977 F.2d 854,

857-58 (4th Cir. 1992); see also United States v. Frigerio-

Migiano, 254 F.3d 30, 33 (1st Cir. 2001).

Perez objects that there is no evidence that Ayala used

the air conditioners to conceal her drug money or that he knew

of Ayala's intent. Concededly there is no direct evidence of

Ayala's intent in this transaction. But the evidence indicates

at least two other transactions between Ayala and Dominicci that

support an inference of pattern. In 1995 Ayala gave Dominicci

$30,000 in small bills and had him buy a Ford Explorer for her

in the name of his air conditioning company. She also paid him

about $16,000 in cash for a Mazda that was registered to

Dominicci's sister. Dominicci used the money to pay off the

balance on the car; the registration was never changed after the

sale.

Purchasing large items with drug money through third

parties surely supports an inference of intent to conceal. See

United States v. Westbrook, 119 F.3d 1176, 1191 (5th Cir. 1997),

cert. denied, 522 U.S. 1119 (1998); United States v. Cisneros,

112 F.3d 1272, 1283 (5th Cir. 1997). And Ayala's intent in

-14- these automobile purchases could fairly justify a jury's

conclusion that the air conditioners were also part of Ayala's

concerted effort to conceal the drug proceeds.

As to Perez's knowledge, he was intimately involved in

Ayala's drug operations, both helping Ayala retrieve the drugs

from Jockey and helping distribute them to the drug points. He

also ran two drug points of his own. Perez's deep involvement

in Ayala's drug business is enough for a jury to find beyond a

reasonable doubt that when Perez agreed to have the air

conditioners installed, he knew that Ayala was using them to

conceal her drug money.

II. ADMISSION OF SPECIFIC EVIDENCE

Evidence of the murders. Appellants object to the

admission of specific pieces of evidence introduced at trial.

Martinez argues that the evidence of the Bejumen and Vazquez

murders was unfairly prejudicial and irrelevant because they had

no relationship to the drug conspiracy. See Fed. R. Evid. 403;

United States v. Gonsalves, 668 F.2d 73, 75 (1st Cir. 1982).

To the contrary, the Garcias sought to kill Bejumen

because he was associated with Gerardito, who had allegedly

stolen from the Garcias' drug point. Bejumen was apparently

neither involved in the drug trade nor took any particular

actions to threaten the Garcias's drug interests; but the

-15- evidence revealed a pattern of murders originating in the drug

conspiracy, directed against mere friends and relatives of

rivals, which the jury could find were to discourage and

undermine such rivals.

There was even more evidence presented at trial linking

the Vazquez murders to the drug conspiracy. While Bejumen may

have been killed for purely retributive reasons, there is

substantial evidence that the Vazquezes posed a more immediate

threat to Garcias's future interests at La Cantera. After the

feud between Gerardito and the Garcias erupted, Michael Vazquez

began to shoot at Gongolon's drug point at La Atocha and the

Garcias' drug point at La Cantera, which depressed drug sales.

The Garcias thus targeted the Vazquezes not only to get back at

Gerardito, but to protect the profitability of the drug

conspiracy. The admission of the murders was relevant and not

unfairly prejudicial.

Co-conspirator hearsay statements. Much of the

government's proof rested on hearsay statements that were

admitted in evidence under the co-conspirator exception, which

exempts from the hearsay rule statements "by a coconspirator of

a party during the course and in furtherance of the conspiracy."

Fed. R. Evid. 801(d)(2)(E). The district court found at the

close of the evidence that the statements more likely than not

-16- satisfied the requirements of the rule. See United States v.

Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977); accord Bourjaily

v. United States, 483 U.S. 171, 175 (1987). Ayala and Perez

allege error as to eight particular statements on the ground

that they were not made "in furtherance" of the conspiracy. Our

review is for clear error. United States v. Sepulveda, 15 F.3d

1161, 1180 (1st Cir. 1993).

Although its rationale is sometimes deemed shaky, "the

co-conspirator exception to hearsay is of long standing and

makes a difficult-to-detect crime easier to prove." United

States v. Goldberg, 105 F.3d 770, 775 (1st Cir. 1997). As

developed by the courts, the "in furtherance" requirement

provides a limited exception for "idle conversations among

criminal partners," as well as for statements clearly intended

to foil rather than facilitate the criminal enterprise. 5

Weinstein, Federal Evidence § 801.34[5] (2d ed. 2001). However,

a statement need not be necessary or even important to the

conspiracy, or even made to a co-conspirator, as long as it can

be said to advance the goals of the conspiracy in some way. Id.

Six of the statements challenged by the appellants

easily satisfy this requirement because they conveyed to other

co-conspirators information about the operations of the drug

conspiracy centering around Ayala: which drug points Ayala

-17- supplied, the means by which she retrieved the drugs from

Jockey, and the role that Batiz played at La Cantera. Three of

the statements indicate that Ayala supplied drugs to Gongolon

and Antonio Gonzalez-Vega; two others are about Ayala's

statements concerning the retrieval of drugs from the ocean; the

sixth concerns Batiz's status as an employee of Ventura at La

Cantera. See Sepulveda, 15 F.3d at 1180-81 (sharing of

information about co-conspirators' roles and a conspiracy's mode

of operation); United States v. Munson, 819 F.2d 337, 341 (1st

Cir. 1987) (identification of co-conspirator as source of

cocaine).

The final two statements--admissions by "Eleizer" to

Gongolon and Goglas that he killed "Joito El Orejon"--are more

debatable. Eleizer was Gongolon's bodyguard and worked at his

drug point at Tibes. Gongolon testified that he told Eleizer he

was upset with Orejon for trying to sell a stolen car at Tibes,

fearing it would "heat up" the drug point. When Eleizer

responded that he wanted to kill Orejon, Gongolon advised him to

wait until Orejon left Tibes. After the killing, Eleizer told

Gongolon how the shooting occurred. On this version of the

facts, Eleizer's statements to Gongolon were undoubtedly in

furtherance of their drug conspiracy, since he and Gongolon were

-18- discussing strategies for dealing with the threat posed by

Orejon to the Tibes drug point.

Goglas, however, testified that Ayala had Eleizer kill

Orejon because Orejon had stolen some jewelry and money from

Ayala's friend Jose Velazquez. This version of the facts is

friendlier to the appellants, since it makes the murder--and

consequently Eleizer's admission to it--less clearly relevant to

the drug conspiracy. Although there is scant evidence as to

which version of the facts is accurate (perhaps both are), we

cannot say that the district court clearly erred in concluding

that Eleizer's admissions were more likely than not in

furtherance of the drug conspiracy.

Moreover, even if there was error in admitting these

final two statements, it was patently harmless. Here the

evidence as to the appellants' participation in the conspiracies

was strong, and it is highly improbable that the statements

about Eleizer's role in a murder that was at best peripheral to

the prosecution's case affected the verdict. United States v.

Tse, 135 F.3d 200, 209-10 (1st Cir. 1998).

III. PAYMENTS TO WITNESSES

Gamaliel Goglas, the main witness implicating Martinez

in the conspiracy, was paid $9,000 in return for his cooperation

in the government's case. Goglas testified that he decided to

-19- cooperate with the government because he began to fear for his

life after he robbed $23,000 from Ventura and that the payments

were for his security while in Puerto Rico (hotel and travel

expenses) and for his relocation (a one-way ticket from Puerto

Rico). DEA Agent Lugo corroborated this testimony, although he

admitted mistakenly indicating on a DEA form that the payment

was for "information." Angela Castro, another cooperating

witness, was paid $10,000 for relocation expenses for her and

her husband.

Martinez argues that these payments compromised the

integrity of his conviction and violated the federal witness

bribery statute, 18 U.S.C. § 201(c)(2) (1994). As to the

statutory issue, it is entirely doubtful that 18 U.S.C. §

201(c)(2) applies at all to the government, see United States v.

Lara, 181 F.3d 183, 198 (1st Cir. 1999), but in all events

Congress has explicitly authorized the Attorney General to

provide for the relocation and protection of witnesses that may

be in danger, see 18 U.S.C. § 3521 (1994) (Witness Relocation

and Protection Act). It would be unreasonable to interpret 18

U.S.C. § 201(c)(2) as precluding a practice specifically

authorized by a more specific and recent statute. See, e.g.,

Morton v. Mancari, 417 U.S. 535, 550-51 (1974).

-20- Certain inducements to government witnesses may

compromise a defendant's fair trial right wholly apart from

section 201(c)(2). United States v. Murphy, 193 F.3d 1, 9 (1st

Cir. 1999); see United States v. Dailey, 759 F.2d 192, 201 (1st

Cir. 1985). But certainly security-related expenses are a

legitimate part of a prosecutor's arsenal, at least as long as

certain procedural safeguards--such as disclosure of the

arrangement to the parties and cautionary jury instructions--are

maintained. See United States v. Innamorati, 996 F.2d 456, 482

& n.11 (1st Cir.), cert. denied, 510 U.S. 955 (1993); United

States v. Cresta, 825 F.2d 538, 546 (1st Cir. 1987), cert.

denied, 486 U.S. 1042 (1988).

Here the payments to Goglas were a relatively small

amount and, despite the apparent mistake in notation by the DEA

agent, designed specifically for protection and relocation

expenses. The defense cited such payments to argue bias to the

jury as its main defense theory. And the district judge

instructed the jury that they should approach the testimony of

these witnesses "with particular caution." All of this lay well

within constitutional bounds. See United States v. Wilson, 904

F.2d 656, 659-60 (11th Cir. 1990), cert. denied, 502 U.S. 889

(1991).

IV. PROSECUTION'S SUMMATION

-21- All three appellants allege that the trial was tainted

by improper remarks by the prosecutor in summation. Some were

objected to; others were not. Although several of the remarks

were highly improper, none calls for a new trial.

The appellants first object to the prosecutor's

repeated and graphic references to the various murders described

at trial, claiming that this inflamed the passions of the jury

and distracted from the merits of the case. The trouble with

this theory is that, as discussed in Part II above, the murders

were a legitimate part of the government's case because they

were overt acts of the conspiracy.

At several points, the prosecution appealed to the

juror's "hearts and minds" and "conscience." The prosecutor

told the jury that "your conscience must have been screaming at

you, screaming at you that [the defendants] were guilty."

Later, the prosecutor said that "if you know in your head and

your heart that these defendants are guilty then you must return

the only verdict that the evidence commands." These comments

were plainly improper appeals to the jury's emotions and role as

the conscience of the community. See Arrieta-Aggresot v. United

States, 3 F.3d 525, 527 (1st Cir. 1993).

Nevertheless, these statements were immediately

stricken, and when defense counsel later moved for a mistrial on

-22- those grounds, the district court denied it and instructed the

jury that they were to use their common sense and experience,

not their emotions. Improper though the prosecutor's statements

were, they are basically rhetoric rather than misstatements of

evidence. We also give weight to the judgment of the trial

judge, who was better able to assess the impact of the remarks

on the jury, that they did not prejudice the outcome in light of

the curative instruction and overwhelming evidence.

More disturbing was the prosecutor's characterization

of the defendants as "hunting each other like animals" and

killing one another "with no mercy." The reference to the

defendants as animals is especially inflammatory and improper.

See United States v. Hands, 184 F.3d 1322, 1332-33 (11th Cir.

1999) (improper to refer to defendant as "wickedly vicious man,

monster, drug dealer"). Nevertheless, it is very difficult to

believe that this single stray remark added anything significant

to the depictions of the various murders by far more gruesome

testimony and photographs. Thus, it seems to us highly

implausible to think that this isolated epithet altered the

jury's verdict.

As to the various misstatements of fact alleged by the

appellants, most appear reasonably supported by the record or

are within the prerogative of the prosecution to characterize

-23- the evidence presented at trial and argue certain inferences to

the jury. United States v. Mount, 896 F.2d 612, 625 (1st Cir.

1990). Any factual inaccuracies were minor, related to

peripheral issues, and had no plausible prejudicial effect.

The appellants claim that the prosecutor improperly

vouched for witnesses' credibility on several occasions. The

first statement--that the police returned certain seized money

because they did not yet have Angela Castro's testimony to link

it to Ayala--does not even arguably constitute a personal

assurance as to Castro's credibility.

The second statement--that cooperating witnesses had

a motive to tell the truth because of the dire consequences of

breaking their plea agreements--was also not improper vouching

because it provided a reason, not a personal assurance, why the

jury should believe the witnesses. United States v. Auch, 187

F.3d 125, 131 (1st Cir. 1999); see United States v. Rodriguez,

215 F.3d 110, 123 (1st Cir. 2000). Moreover, it was an

appropriate response to the defense's main theory, which was

that the cooperating witnesses were lying to obtain leniency.

See United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.

1987); see also United States v. Young, 470 U.S. 1, 12-13

(1985).

-24- A final set of statements were clearly improper. In

its rebuttal, the government sought to support the credibility

of four cooperating witnesses--Angela Castro, Antonio Gonzalez-

Vega, Daniel Sanchez-Ortiz, and Kelvin Moro-Ortiz--by stating

that they would have concocted more damaging stories if they had

been lying in order to curry favor with the government. We have

repeatedly held that this type of argument crosses the bounds of

permissible conduct. See Auch, 187 F.3d at 132; United States

v. Manning, 23 F.3d 570, 575 (1st Cir. 1994). As we stated in

Auch, "prosecutors in this circuit should consider themselves

well advised to strike such commentary from their repetoires."

187 F.3d at 132.

We do not condone the continuing disregard for our

precedents by federal prosecutors in Puerto Rico. See, e.g.,

United States v. Gonzalez-Gonzalez, 136 F.3d 6, 10 (1st Cir.

1998) (citing cases); see also United States v. Capone, 683 F.2d

582, 586 (1st Cir. 1982) (noting that a new trial may be

appropriate if "sanction is needed to deter future prosecutorial

misconduct"). Here, the prosecutor's argument is all the more

problematic given that it occurred in rebuttal, was not followed

by a cautionary instruction, and occurred in a case that rested

largely on the testimony of cooperating witnesses whose

-25- credibility was crucial to determining guilt. See Auch, 187

F.3d at 129, 132.

However, the prosecution's vouching extended to only

four relatively minor witnesses; no claim is made that other key

witnesses--specifically Gongolon, Goglas, and Dominicci--were

improperly vouched for. Their testimony, which was often

corroborated by testimonial and tangible evidence, was more than

enough to establish the drug conspiracy as to all appellants

beyond reasonable doubt. See United States v. Palmer, 203 F.3d

55, 59 (1st Cir. 2000). Although the issue is close, the

prosecutor's inexcusable remarks do not warrant a new trial.

Finally, the appellants claim that the prosecution

improperly shifted the burden of proof by remarking to the jury

that the defense failed to keep its promise in opening statement

to ask certain questions about the drug trafficking relationship

between Perez and Hector Dominicci. Whether or not this remark

crosses the line, see United States v. Savarese, 649 F.2d 83, 87

(1st Cir. 1981), the district judge removed any threat of

prejudice by immediately striking the statement and clearly

instructing the jury that the burden of proof beyond a

reasonable doubt rested squarely with the prosecution.

V. JURY INSTRUCTIONS

-26- Ayala and Perez contend that the district court's

refusal to give a "buyer-seller" jury instruction constitutes

reversible error. Such an instruction would have informed the

jury that a buyer and seller in a single drug transaction are

not invariably part of a drug conspiracy. United States v.

Moran, 984 F.2d 1299, 1302 (1st Cir. 1993). The classic example

is a single sale for personal use and without prearrangement.

Id. at 1302-04.

We noted in Moran that other variations on this classic

case might raise additional problems, but we need not address

any of them in this case. Appellants were entitled to the

"buyer-seller" instruction only if the record, taken in the

light most congenial to their theory of the case, could

plausibly support it. United States v. Rodriguez, 858 F.2d 809,

812 (1st Cir. 1988). Here, overwhelming evidence showed that

Ayala and Perez agreed to import drugs with the intent to

distribute them, and engaged in repeated transactions of large

quantities of narcotic drugs for resale. This evidence does not

plausibly support a mere buyer-seller relationship.

VI. SENTENCING ISSUES

Ayala and Perez's sentencing claims. These two

appellants challenge their sentences on several grounds, three

of which are common to them both. As background, we start with

-27- a description of Ayala and Perez's sentencing proceedings. In

accordance with settled practice at the time, United States v.

Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996), the court

proceeded to determine the quantity of drugs involved in the

offense. Relying upon trial evidence, the court concluded that

more than 150 kilograms of cocaine were involved in the

conspiracy and fairly attributable to both Ayala and Perez.

This figure was far more than needed to trigger the

statutory maximum life sentence, 21 U.S.C. § 841(b)(1)(A), and

enough to set their guideline base offense levels at 38, the

highest unadjusted level for drug crimes, U.S.S.G. § 2D1.1

(1998). With a criminal history category of IV, Ayala was

initially subject to a 324 to 405 month sentence, and Perez,

with a criminal history category of III, was initially subject

to a term of 292 to 365 months. U.S.S.G. Ch. 5 Pt. A

(sentencing table).

However, the court found that life sentences were

mandated in each case for at least two reasons. First, after

making the requisite factual findings, the court applied two

upward departures to each appellant's base offense level: a two-

level increase for possession of a firearm, U.S.S.G. §

2D1.1(b)(1), and a four-level increase for being an organizer or

-28- leader of the conspiracy, id. § 3B1.1. With these enhancements,

Perez and Ayala were subject to life terms.

Second, as an alternative, the court applied U.S.S.G.

§ 2D1.1(d)(1)'s murder cross reference, which says that "[i]f a

victim was killed under circumstances that would constitute

murder under 18 U.S.C. § 1111" the sentencing court shall apply

U.S.S.G. § 2A1.1. The court found, by a preponderance of the

evidence, that Ayala was responsible for the murders of Joito el

Orejon and Michael and Eddie Vazquez, and that Perez had ordered

the murder of Sol Garcia. Accordingly, it increased their base

offense levels to 43, as specified in section 2A1.1. The pair

were again subject to life terms.

Third, the court determined that Ayala (but not Perez)

was subject to a mandatory life sentence under 21 U.S.C. §

841(b)(1)(A) because she had two or more prior drug felony

convictions.

Finally, the court proceeded to sentence the appellants

on the money laundering count. At the outset, the court

declined to group the two counts of conviction under U.S.S.G. §

3D1.2 since the drug offenses involved murder and thus distinct

victims and harms. It then calculated a combined base offense

level of 43 and applied it to the money laundering conviction.

U.S.S.G. § 3D1.4. The court then imposed a sentence of 20 years

-29- on each Ayala and Perez, the maximum allowed by statute. 18

U.S.C. § 1956(a)(1).

First, Ayala and Perez say the district court violated

their rights under Apprendi v. New Jersey, 530 U.S. 466 (2000),

when it sentenced them to life in prison based on the court's

determination of drug quantity. The default statutory maximum

for the cocaine conspiracy would be 20 years if no quantity were

determined; life imprisonment becomes the statute's maximum only

where five kilograms or more is involved. Compare 21 U.S.C. §

841(b)(1)(C) with id. § 841(b)(1)(A). Ayala and Perez say,

correctly, that under Apprendi quantity determinations that push

the actual sentence imposed beyond the otherwise applicable

statutory maximum must be determined by a jury beyond a

reasonable doubt.

Although Ayala and Perez were sentenced in July and

August of 1999, before Apprendi was decided in 2000, there is no

bar to applying that decision now to their direct appeals.

United States v. Barone, 114 F.3d 1284, 1293 (1st Cir. 1997).

Nevertheless, it is settled that an Apprendi error can be

harmless where the evidence overwhelmingly establishes the

minimum drug quantity needed to justify a higher statutory

maximum. United States v. Duarte, 246 F.3d 56, 62 (1st Cir.

2001); Sustache-Rivera v. United States, 221 F.3d 8, 17-18 (1st

-30- Cir. 2000). Although the parties disagree as to whether an

Apprendi claim was properly preserved at trial, our conclusion

would be the same under any standard of review.

At trial, the government produced overwhelming evidence

that the conspiracy involved at least five kilograms of cocaine.

For example, Hector Dominicci testified to transporting and

storing huge quantities of cocaine for Ayala and Perez. On one

occasion alone he handled 20 sacks of cocaine, each containing

several kilograms of the drug. Further, Victor Rodriguez,

another of Jockey's contacts, testified that Ayala received

drugs from air drops, each of which involved between 600 and

1,000 kilograms of cocaine. The record is replete with other

examples as well, involving Ayala, Perez, or their co-

conspirators.6 Sepulveda, 15 F.3d at 1197; U.S.S.G. §

1B1.3(a)(1)(B).

Relying upon this evidence, the sentencing court

ultimately determined that the conspiracy involved more than 150

kilograms of cocaine, or thirty times more than needed to impose

a life sentence under 21 U.S.C. § 841(b)(1)(A). Neither

appellant seriously denies that the conspiracy involved at least

five kilograms of cocaine. In fact, Ayala makes no effort

6 For example, Danny Gongolon testified that he sold Ayala 37 kilograms of cocaine between 1994 and 1995 and received more than 10 kilograms from her on credit between 1995 and 1997.

-31- whatsoever to undermine the accuracy of the sentencing court's

findings. And Perez takes aim at the wrong target for Apprendi

purposes--the 150 kilograms figure--conceding in his brief and

at sentencing that he was responsible for more than 50 kilograms

of cocaine.

Insofar as Perez attacks the district court's finding

of drug amount as affecting the guidelines range, Apprendi is

simply beside the point. United States v. Caba, 241 F.3d 98,

101 (1st Cir. 2001). And we find no clear error in the larger

figure calculated by the court. United States v. Rivera-

Maldonado, 194 F.3d 224, 228 n.2 (1st Cir. 1999).

Next, Ayala and Perez challenge the sentencing court's

application of U.S.S.G. § 2A1.1, the first degree murder

provision cross-referenced by section 2D1.1(d)(1), on several

legal grounds. Their argument is that the sentencing court

again violated Apprendi by finding, under a preponderance of the

evidence standard, that they played a role in various conspiracy

murders, thus subjecting them to life imprisonment. The

argument fails, however, because Apprendi does not apply to

findings made for purposes of the sentencing guidelines, such as

the court's determinations that the appellants were accountable

for the murders. Caba, 241 F.3d at 101.

-32- Two other arguments on this score require only the

briefest discussion. Ayala and Perez say that the murders are

irrelevant to drug crime sentencing because neither U.S.S.G. §

2A1.1 nor the cross-reference table in Appendix A of the

Guideline Manual mentions the drug statutes. To the contrary,

the murders can be taken into account when sentencing for the

drug crimes; U.S.S.G. § 2D1.1 explicitly cross-references the

murder provision of section 2A1.1. See United States v. Padro

Burgos, 239 F.3d 72, 76-77 (1st Cir. 2001).

Ayala and Perez also suggest that because the cross-

reference refers to 18 U.S.C. § 1111 (1994), which embraces both

first and second degree murder, a court might apply the higher

base offense level for a first degree murder case where only

second degree murder had been established. Compare U.S.S.G. §

2A1.1 (level 43) with id. § 2A1.2 (level 33). In the present

case this is a fanciful concern since the murders committed by

the conspiracy were plainly "willful, deliberate, malicious [or]

premeditated" and so within the definition of first degree

murder under 18 U.S.C. § 1111.

Separately, Ayala renews her objection to the district

court's determination that she had two prior drug felony

convictions and was thus subject to a mandatory life sentence

under 21 U.S.C. § 841(b)(1)(A). At sentencing, and now on

-33- appeal, Ayala acknowledges having two prior felony drug

convictions but says the court should have lumped the

convictions together because they represent a single episode of

ongoing criminal conduct.

Prior felony drug convictions will be counted

separately for purposes of 21 U.S.C. § 841(b) only when they

represent distinct criminal episodes. See United States v.

Gillies, 851 F.2d 492, 497 (1st Cir. 1988). Ayala's prior

convictions stem from several transactions, occurring over

several months and involving different drugs.7 There was no

error in treating these convictions as distinct. As the Ninth

Circuit has reasoned:

An ongoing course of criminal conduct such as narcotics trafficking may involve many such criminal episodes, each a discrete occurrence. The fact that all are related, part of a series, or part of a continuous course of criminal dealing, does not necessarily render them a 'single' criminal episode, particularly where the episodes occur over time. To so hold would insulate the very career criminals the statute is designed to reach--those continuously engaged in criminal conduct.

7 The Commonwealth levied four charges against Ayala for distributing cocaine on at least four different dates between October 1990 and March 1991. These charges were later consolidated. The federal government, after conducting its own investigation, charged Ayala with distributing heroin as well, apparently in or around July 1991, the date of her arrest for that crime. She pled guilty to the charges and received a five- year sentence on the Commonwealth charge(s), and a six-month sentence on the federal charge, to be served concurrently.

-34- United States v. Maxey, 989 F.2d 303, 307 (9th Cir. 1993); see

also United States v. Griffin, 109 F.3d 706, 708 (11th Cir.

1997).

Separately, Perez renews an objection he made at

sentencing, claiming the court had no basis for imposing a four-

level enhancement for his role in the drug offense. He

acknowledges that he ran some operating units within the

conspiracy (e.g., his drug points) and that a two-level

enhancement is probably warranted. But he denies leading or

managing the overarching conspiracy, arguing that a four-level

enhancement is only appropriate for those individuals at the

very top of its organization (e.g., those who coordinated among

the multiple smaller operating units). Cf. United States v.

Tejada-Beltran, 50 F.3d 105, 111 (1st Cir. 1995).

We review role-in-the-offense determinations, steeped

in the facts of the case, for clear error. United States v.

Cadavid, 192 F.3d 230, 237 (1st Cir. 1999). Here, the four-

level increase is justified "if the defendant was an organizer

or leader of a criminal activity that involved five or more

participants or was otherwise extensive . . . ." U.S.S.G. §

3B1.1(a).

The record shows that Perez ran at least two separate

drug points and supervised the work of at least five other

-35- people, including three sellers at the Los Lirios del Sur drug

point; the runner, Daniel Sanchez-Ortiz; and another individual

at the Santiago Iglesias point. See United States v. Li, 206

F.3d 78, 91-92 (1st Cir. 2000). He also worked with Ayala in

retrieving drug shipments and distributing them among the

organization's other drug points.

This is perhaps a close case because Ayala was more

clearly a leader, although a conspiracy may have several

individuals deserving a four-level enhancement, U.S.S.G. §

3B1.1, App. Note 4, and the district court gets the benefit of

review only for clear error. However, it does not much matter

whether Perez is on one side of the line or the other because

even a smaller three-level enhancement for being a manager or

supervisor of criminal activity involving five or more

participants, when combined with the two-level firearms

enhancement (which Perez does not challenge on appeal), lifts

Perez's base offense level to 43 and subjects him to a life

term.

Lastly, Ayala and Perez say the court erred in

sentencing them to 20 years for the money laundering conviction.

They say the proper guideline range for the money laundering

offense was 121 to 151 months, well below the 240-month

-36- sentences they received. However, they misread the guidelines

and the sentencing record.

It is quite true that if the money laundering count

were the only count of conviction, it would carry an adjusted

offense level of 30, after factoring in various enhancements.

This, presumably, is the figure Ayala and Perez use to calculate

their sentencing ranges.8 The difficulty with the argument is

that it ignores the manner in which the guidelines establish a

single combined offense level for multiple-count convictions and

use that offense level for sentencing on each count of

conviction, subject to statutory maximums.

As already explained, the adjusted offense level for

the drug conspiracy count for both appellants was 43 (the

maximum allowed). U.S.S.G. § 3D1.4 provides a formula for

combining the offense level 43 and offense level 30 that results

in a combined offense level for all counts of conviction of 43.

The district court applied this formula because it held that the

drug and money laundering convictions should not be grouped

together under U.S.S.G. § 3D1.2--a judgment that Ayala and Perez

do not challenge and we need not independently address. Compare

8 With a criminal history category of IV, Ayala would be subject to a term of 135 to 168 months. Thus, it is unclear why she claims that the appropriate range was 121 to 151 months; this latter range applies to defendants, like Perez, with a criminal history category III.

-37- United States v. Harper, 972 F.2d 321, 322 (11th Cir. 1992), and

United States v. Gallo, 927 F.2d 815, 824 (5th Cir. 1991), with

Lopez v. United States, 104 F.3d 1149, 1150-51 (9th Cir. 1996).

Once this single combined offense level is determined,

the guidelines direct that it be used for each count of

conviction. U.S.S.G. § 5G1.2(b). The only pertinent

qualification is that the sentence not exceed the statutory

maximum for the relevant count. Id. § 5G1.1(a). It was for

that reason that despite the combined offense level of 43, the

court limited the money laundering sentence to the statutory

maximum of 20 years. See 18 U.S.C. § 1956(a)(1). Since the 20-

year sentence runs concurrently and is shorter than the life

sentence, Ayala and Perez are not demonstrably worse off; but in

any event the money laundering sentence is consistent with the

explicit directions of the guidelines.

Martinez's sentencing claims. Martinez was the first

of the appellants to be sentenced, in late May 1999, and his

proceeding differed slightly from that of Ayala and Perez. The

court first found that Martinez had participated in the murders

of Bejumen and his wife. Applying the cross-reference to the

murder provision of the guidelines, U.S.S.G. § 2A1.1, the court

calculated Martinez's base offense level at 43. It then granted

him a two-level downward departure for being a minor participant

in the conspiracy, reducing his offense level to 41. With a

-38- criminal history category of I, Martinez was subject to a

guideline sentencing range of 324 to 405 months, and the court

imposed the maximum sentence within that range.

Notably, the sentencing court made no findings

concerning drug quantity at the hearing; instead, it merely

recited that the jury had found Martinez guilty of conspiracy to

distribute "multi kilo quantities of drugs." This was arguably

error under the guidelines, because absent any drug quantity

determination, the maximum statutory sentence applicable to

Martinez's crime was 20 years and he was given nearly 34 years.

See U.S.S.G. § 5G1.1. Martinez, however, did not object to the

error at sentencing. And in his second supplemental brief in

this court, he concedes several times that he was responsible

for more than 500 grams of cocaine, thus exposing him to a

sentencing range of five to 40 years.9

Martinez did make two objections at sentencing: first,

that he was being sentenced for a crime (murder) for which he

was neither charged nor convicted. On appeal, he renews this

claim under the guise of Apprendi, suggesting, as do Ayala and

9The district court would have had no difficulty finding Martinez responsible for over 500 grams of cocaine. Martinez was familiar with the Garcia drug point, which involved large quantities of cocaine, and the drug point transactions were foreseeable acts in the conspiracy Martinez joined through the murder of Bejumen and his wife. See Sepulveda, 15 F.3d at 1197.

-39- Perez, that application of the cross-reference violates his due

process rights. But Martinez's concession as to drug quantity

is fatal to this claim of error. The sentence he received was

below the statutory maximum of 40 years; as explained above,

Apprendi is not implicated.

Second, Martinez made a truncated argument at

sentencing concerning the sufficiency of the evidence of his

participation in the murders. On appeal, he says the evidence

of the murder was inconsistent. Even assuming this argument was

fully preserved--which is doubtful--our review is only for clear

error because Apprendi is not implicated (the murder

determination affected only the guidelines determination, not

the statutory maximum). The district court heard admissible

hearsay evidence at trial directly implicating Martinez in the

murder; the hearsay was broadly consistent with an eyewitness

account of the murders; we can hardly say it was clear error for

the court to credit that evidence. United States v. Cunningham,

201 F.3d 20, 28-29 (1st Cir. 2000).

Finally, in a post-argument motion for supplemental

briefing on the Apprendi issue, Martinez brings to the court's

attention the December 2001 sentencing of the three co-

defendants who were not part of this appeal. Martinez complains

that these co-defendants received a more lenient sentence

-40- because the sentencing court felt constrained by the intervening

Apprendi decision. Without intimating any judgment as to these

latter sentencing decisions, whose circumstances are far from

clear, we decline Martinez's request for supplemental briefing

on the issue. Suffice it to say that two similar defendants can

easily receive different results depending on whether their

sentences come before or after a watershed opinion like

Apprendi. Compare United States v. Rivera-Maldonado, 124 F.

Supp. 2d 788, 790 (D.P.R. 2000) (declining in post-Apprendi

sentencing to make drug quantity determination and sentencing

defendant to lowest statutory maximum), with Duarte, 246 F.3d at

62 (upholding pre-Apprendi sentence despite Apprendi error on

basis that defendant acknowledged responsibility for relevant

drug quantity); cf. Teague v. Lane, 489 U.S. 288, 306-07 (1989).

VII. POST-TRIAL EVIDENCE

Finally, Martinez and Perez separately assert a right

to a new trial in light of new evidence, either on the ground

that the evidence was withheld by the prosecution in violation

of Brady v. Maryland, 373 U.S. 83 (1963), or, in the

alternative, that it was newly discovered evidence warranting a

retrial under Fed. R. Crim. P. 33. Both appellants rely on

-41- statements by government informants that arguably impeach that

of government witnesses at trial.

Since the government does not dispute that the evidence

was in the possession of the prosecution and not disclosed to

the defense, we apply the more generous Brady standard. United

States v. Josleyn, 206 F.3d 144, 151-52 (1st Cir. 2000). Under

Brady, violation of the prosecution's duty to disclose warrants

retrial if the defendant can show a "reasonable probability" of

prejudice, that is, that the "favorable evidence could

reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict." Kyles v.

Whitley, 514 U.S. 419, 435 (1995); see also Strickler v. Greene,

527 U.S. 263, 289 (1999). Here we discern no possibility of

prejudice in either case.

Martinez’s Brady argument is based on a sworn statement

in which Jaime Rivera-Morales, a former Puerto Rico police

officer, admits to being one of the "police officers" who helped

kidnap the Vazquezes but states that the murder was arranged by

Jose Galiany on behalf of Santos Martinez, a drug dealer with no

apparent connection to the Garcias. The statement was

discovered after the verdict in this case, during a preliminary

hearing in the Commonwealth trial of Manuel Garcia and Ventura

for the Vazquez murders. Martinez says this statement could

-42- have been used to impeach the credibility of Gongolon, and more

importantly, Goglas, who was the main witness implicating

Martinez in Bejumen's murder.

Wrongly withheld impeachment evidence, if powerful

enough, can be prejudicial and grounds for a new trial. United

States v. Bagley, 473 U.S. 667, 676-77 (1985); United States v.

Patrick, 248 F.3d 11, 25 (1st Cir. 2001). This is particularly

true where the evidence is highly impeaching or when the

witness' testimony is uncorroborated and essential to the

conviction. See Giglio v. United States, 405 U.S. 150, 154-55

(1972).

But here the statement by Rivera does little to

undermine the confidence of the verdict against Martinez.

Although it is true that Goglas's testimony as to the Teta-

Garcia pact and the Bejumen murder provided the main link

between Martinez and the drug conspiracy, see Part I above,

Rivera's statement does not directly undermine Goglas’s

testimony on that crucial point, since it relates to the Vazquez

murders. Such weak impeachment evidence on an issue tangential

to the conviction is not sufficient to warrant the drastic

remedy of a new trial. See Sepulveda, 15 F.3d at 1220 n.5;

United States v. Nash, 29 F.3d 1195, 1202 (7th Cir. 1994).

-43- The withheld material Perez complains of is more

directly related to the evidence against him. Perez points to

a report prepared by DEA Agent Clifford memorializing several

interviews with Samuel Arce-Leon, a cooperating government

informant. According to one of the reports, Arce stated that he

overheard a conversation between other drug dealers who said

that Ayala ordered Ricardo Carrasquillo and another individual

to murder Sol Garcia because she wanted to take over the Los

Lirios del Sur drug point. According to Arce, Ayala and Perez

then took over the drug point. Perez claims that Arce's

testimony is corroborated by eyewitness testimony regarding the

physical appearance of the killers.10

Even taking the evidence most favorably to Perez, it

does not undermine our confidence in his drug conspiracy

conviction. Perez's participation in Sol Garcia's murder was

hardly important to the jury’s drug conspiracy verdict given the

overwhelming evidence--including testimony of other witnesses

and physical evidence such as drug ledgers--that Perez helped

Ayala retrieve drugs from Jockey and ran the Los Lirios del Sur

and Santo Iglesias drug points. Cf. Strickler, 527 U.S. at 294.

10 This eyewitness testified that two men--one light-skinned and one dark-skinned--killed Sol Garcia; Sanchez-Ortiz testified that both men were dark-skinned. Since Carrasquillo is white, the testimony lends some support to Arce's version of the events.

-44- The Sol Garcia murder had more relevance in the

sentencing phase, where the district court cited Perez's

involvement to trigger a life sentence under U.S.S.G. § 2A1.1,

the murder provision cross-referenced in U.S.S.G. § 2D1.1(d).

But Arce's statement was disclosed before sentencing, and the

district court, after a full hearing in which both Agent

Clifford and Arce testified, nevertheless determined by a

preponderance of the evidence that Perez was implicated in

Garcia's murder.

Apart from his Apprendi claim, Perez did not dispute

on appeal the sufficiency of the evidence implicating him in Sol

Garcia's murder. Even reading Perez's Brady claim generously as

including an attack on the evidentiary basis for the sentence,

we cannot say that the district court's sentencing decision was

clearly erroneous, especially given the ambiguities in Arce's

statement. See United States v. Meyer, 234 F.3d 319, 326 (7th

Cir. 2000). In any event, because of the district court's other

determinations based on drug quantity and enhancements, any

error would have been harmless. See Part VI, above.

The judgments of conviction, the sentences, and denials

of post-trial motions are affirmed.

Concurrence follows.

-45- TORRUELLA, Circuit Judge (Concurring). I have not been

coy in expressing my views concerning prosecutorial misconduct.

See generally United States v. Moreno, 991 F.2d 943, 949-53 (1st

Cir. 1993) (Torruella, J., dissenting). Thus, while I agree

that in the final analysis the improper statements made by the

prosecutors in closing argument do not warrant a new trial, I

write separately to emphasize my impatience with the office of

the United States Attorney for the District of Puerto Rico.

Despite numerous warnings from panels of this Court, its

prosecutors continue to flout clear rules of ethical conduct in

their zeal to secure convictions.

The problem of prosecutorial misconduct in closing

arguments is by no means confined to the District of Puerto

Rico. Cf. Bennett L. Gershman, Prosecutorial Misconduct § 11:1,

at 11-3 (2d ed. 2001) (noting that such misconduct has "become

staple in American prosecutions" and "shows no sign of abating

or being checked by institutional or other sanctions").

Nevertheless, federal prosecutors in Puerto Rico are conspicuous

in this circuit -- and, indeed, throughout this country -- for

their recalcitrance.11 See Paul J. Speigelman, Prosecutorial

11 A review of our cases from the past fifteen years demonstrates the startling frequency with which we have found closing remarks by prosecutors in the District of Puerto Rico to be improper. See United States v. Rodríguez, 215 F.3d 110 (1st Cir. 2000), cert. denied, --- U.S. ---, 121 S. Ct. 1658 (2001);

-46- Misconduct in Closing Argument: The Role of Intent in Appellate

Review, 1 J. App. Prac. & Process 115, 171-83 (1999) (analyzing

the office of the United States Attorney for the District of

Puerto Rico as a case study in "prosecutorial recidivism"). On

several occasions we have admonished them for their continuing

disregard of our precedent, but to no avail. See United States

v. González-González, 136 F.3d 6, 10 (1st Cir. 1998) ("We do

note a long history of improper statements in closing argument

United States v. Torres-Galindo, 206 F.3d 136 (1st Cir. 2000); United States v. González-González, 136 F.3d 6 (1st Cir. 1998); United States v. Rodríguez-Carmona, No. 95-2277, 1997 WL 157738 (1st Cir. Mar. 26, 1997) (unpublished opinion); United States v. Fernández, Nos. 95-1864, 95-2067, 1996 WL 469009 (1st Cir. Aug. 20, 1996) (unpublished opinion); United States v. Laboy-Delgado, 84 F.3d 22 (1st Cir. 1996); United States v. Cartagena-Carrasquillo, 70 F.3d 706 (1st Cir. 1995); United States v. Levy-Cordero, 67 F.3d 1002 (1st Cir. 1995); United States v. Tuesta-Toro, 29 F.3d 771 (1st Cir. 1994); United States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993); Arrieta-Agressot v. United States, 3 F.3d 525 (1st Cir. 1993); United States v. Ortiz-Arrigoitía, 996 F.2d 436 (1st Cir. 1993); United States v. Morales-Cartagena, 987 F.2d 849 (1st Cir. 1993); United States v. Panet-Collazo, 960 F.2d 256 (1st Cir. 1992); United States v. Soto-Alvarez, 958 F.2d 473 (1st Cir. 1992); United States v. Nickens, 955 F.2d 112 (1st Cir. 1992); United States v. Hodge-Balwing, 952 F.2d 607 (1st Cir. 1991); United States v. Quesada-Bonilla, 952 F.2d 597 (1st Cir. 1991); United States v. Rodríguez-Cardona, 924 F.2d 1148 (1st Cir. 1991); United States v. de León Davis, 914 F.2d 340 (1st Cir. 1990); United States v. Machor, 879 F.2d 945 (1st Cir. 1989); United States v. Rodríguez-Estrada, 877 F.2d 153 (1st Cir. 1989); United States v. Doe, 860 F.2d 488 (1st Cir. 1988); United States v. Acevedo-Ramos, 842 F.2d 5 (1st Cir. 1988); United States v. Santana-Camacho, 833 F.2d 371 (1st Cir. 1987); United States v. Mejía-Lozano, 829 F.2d 268 (1st Cir. 1987); United States v. Giry, 818 F.2d 120 (1st Cir. 1987).

-47- from federal prosecutors in Puerto Rico.") (citations omitted);

United States v. Levy-Cordero, 67 F.3d 1002, 1008 (1st Cir.

1995) ("[W]e repeat our concern that, after numerous warnings

from this court, the prosecuting attorneys in the District of

Puerto Rico persist in spiking their arguments with comments

that put their cases at risk.") (citation and quotation marks

omitted); United States v. Ortiz-Arrigoitía, 996 F.2d 436, 441

(1st Cir. 1993) ("[A]fter numerous warnings from this court, the

prosecuting attorneys in the District of Puerto Rico persist in

spiking their arguments with comments that put their cases at

risk."). Given the seeming lack of response to our warnings, I

must all but conclude that "[g]overnment counsel, employing such

tactics, are the kind who, eager to win victories, will gladly

pay the small price of a ritualistic verbal spanking." United

States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir.

1946) (Frank, J., dissenting). A tonic more potent than our

written rebukes appears necessary.

Thus, I believe it is critical to emphasize a point

that our prior condemnations have perhaps overlooked.

Statements such as the ones found in this case are not merely

passages in a trial transcript that constitute fodder for

arguments on appeal. They are instances of unethical behavior

that virtually all sources of authority condemn with a single

-48- voice. See ABA Standards for Criminal Justice § 3-5.8 (3d ed.

1993); Model Rules of Professional Conduct, Rule 3.4(e); Code of

Professional Responsibility, DR 7-106(C); Restatement (Third)

The Law Governing Lawyers, § 107 (2000). It is well established

that district courts have, as a component of their inherent

powers, the authority to sanction such unethical behavior.

United States v. Kourí-Pérez, 187 F.3d 1, 7 (1st Cir. 1999). I

would therefore urge our district courts to take a conscientious

role in addressing prosecutorial misconduct in the same manner

that they would address other forms of ethical misconduct: by

acting swiftly and decisively to sanction and deter it. See

United States v. Doe, 860 F.2d 488, 492 (1st Cir. 1988) ("Rather

than reversal on appeal, the proper remedy would have been a

reprimand or the imposition of sanctions by the district

court.").

Prosecutorial misconduct erodes our confidence in the

very government entities charged with protecting the public's

interests through enforcement of our laws. Moreover, by

presenting this Court time and again with convictions tarnished

by misconduct, prosecutors breed further cynicism by asking us

to affirm these convictions on harmless-error grounds. The

overall effect is one that impugns the dignity of both the

-49- executive and the judiciary. Its pernicious results are a cause

of concern for all of us.

Given the numerous rebukes from this Court, and the

apparent disregard they have been shown, federal prosecutors in

Puerto Rico should now be on notice that I, for one, will review

with heightened scrutiny their claims of harmless error arising

from prosecutorial misconduct.

-50-