United States v. Soto-Beniquez

• Court: Court of Appeals for the First Circuit
• Decided: November 20, 2003
• Docket: 01-1619
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Vol. II of II

No. 01-1619

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM SOTO-BENÍQUEZ,

Defendant, Appellant.

No. 01-1674

JUAN SOTO-RAMÍREZ,

No. 00-1547

EDUARDO ALICEA-TORRES,

Defendant, Appellant. No. 01-1620

RAMON FERNÁNDEZ-MALAVÉ,

No. 00-1464

CARMELO VEGA-PACHECO,

No. 00-1488

ARMANDO GARCÍA-GARCÍA,

Defendant, Appellant. No. 00-1470

JOSE LUIS DE LEÓN MAYSONET,

No. 00-1362

RENE GONZALEZ-AYALA,

No. 00-1543

JUAN ENRIQUE CINTRÓN-CARABALLO,

Defendant, Appellant. No. 00-1361

MIGUEL VEGA-COLÓN,

No. 00-1456

MIGUEL VEGA-COSME,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lynch, Circuit Judge.

Marlene Apontes-Cabrera for appellant Soto-Beníquez. Miriam Ramos-Grateroles for appellant Soto-Ramírez. Raymond Rivera Esteves for appellant Alicea-Torres. Luz M. Rios-Rosario for appellant Fernández-Malavé. Javier Morales-Ramos for appellant Vega-Pacheco. Rachel Brill for appellant García-García. Roberto Roldan-Burgos for appellant de León Maysonet. Victor Miranda-Corrada, for appellant Gonzalez-Ayala. Rafael Anglada-Lopez for appellant Cintrón-Caraballo. Marcia G. Shein for appellants Vega-Cosme and Vega-Colón. Jacabed Rodriguez-Coss and Michelle Morales, Assistant United States Attorneys, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabon, Assistant United States Attorney, were on brief, for appellee.

November 20, 2003 f) Improper Admission of Rule 702 Expert Testimony As Lay Testimony Under Rule 701 (Cintrón-Caraballo)

Cintrón-Caraballo argues that the court should have

excluded the testimony of eleven witnesses because they provided

expert testimony but, he says, were not disclosed as experts under

Rule 702.8 These witnesses included eight forensic examiners

(Ruben Diaz-De Leon, Alfredo Roman-Rodriguez, Virginia Cortes, Luis

Batista-Maldonado, Nelson Morales-Huerta, Luis Mercedes-Rodriguez,

Francisco Ramos-Seda, and Cesar W. Ostolaza-Perez), two

pathologists (Dr. Yocasta Brougal-Mena and Dr. Francisco Cortes),

and a firearms examiner (Juan B. Maldonado). This was prejudicial,

Cintrón-Caraballo argues, because the defendants would have been

entitled to summaries of the witnesses' testimony if they had been

designated as experts. See Fed. R. Crim. P. 16(a)(1)(G)(defendants

are entitled to summaries of all expert testimony, which must

include "the witness's opinions, the bases and reasons for those

opinions, and the witness's qualifications").

The district court correctly determined that none of the

eight forensic examiners provided expert testimony. Witnesses who

testify only about their perceptions of an event, or about lay

opinions arising out of those perceptions, see Fed R. Evid. 701,

8 The trial in this case took place in 1999, before the December 1, 2000 effective date of the amendments to Rules 701 and 702. Accordingly, we apply the pre-amendment Rules and case law.

-63- are not experts under Rule 702 regardless of any specialized

training or experience they may possess. See United States v.

Paiva, 892 F.2d 148, 157 (1st Cir. 1989) ("[T]he individual

experience and knowledge of a lay witness may establish his or her

competence, without qualification as an expert, to express an

opinion on a particular subject outside the realm of common

knowledge."); see also United States v. Rivera-Santiago, 107 F.3d

960, 968 (1st Cir. 1997). That rule is dispositive here: the court

permitted each of the witnesses to testify only about their

observations at the various crime scenes they personally

investigated. Indeed, the court consistently reminded both the

witnesses and the lawyers that if any of these witnesses' testimony

"sound[ed] like a 702 [opinion] . . . [he would] not admit it."

Although at points the district court faced difficult decisions

about the side of the Rule 701 / Rule 702 divide on which a

witness's opinion fell, there was no abuse of discretion in the

court's resolution of these issues. See Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 152 (1999) (review of a district court's

decision to admit or exclude expert testimony is for abuse of

discretion).

Nor did the district court abuse its discretion in

allowing the expert testimony of the two pathologists, Drs. Cortes

and Brugel-Mena. The district court found, despite the

government's failure to label the witnesses' testimony and reports

-64- as Rule 702 material in its pre-trial disclosure, that the

government had effectively complied with the applicable disclosure

requirements. In particular, the government had informed

defendants before trial that both pathologists would be testifying

about several autopsies and provided the defendants with copies of

all of these autopsy reports. Although Dr. Cortes testified about

one autopsy report that he did not personally prepare, the district

court permitted this substitution because the pathologist who had

prepared that report was unavailable to testify due to serious

illness. There is no generalized prohibition on allowing experts

to testify about autopsy reports that they did not personally

prepare. See Manocchio v. Moran, 919 F.2d 770, 780 (1st Cir.

1990).

The government failed to formally designate the last

witness, Juan Maldonado, as an "expert", but it did inform the

defendants that Maldonado would be testifying about ballistics and

provided the defense with all of Maldonado's notes on his

testimony. And once again, the district court permitted

Maldonado's testimony due to the lack of prejudice to the defense.

Here, though, the court compensated the defendants for the

government's failure to adhere to the technical requirements of

Fed. R. Crim. P. 16 by certifying the witness only as a ballistics

expert, and refusing to also certify him as a "firearms expert."

This decision was an appropriate sanction against the government

-65- and undercuts the defendant's prejudice argument.

g) Rule 404(b) "Bad Act" Evidence (Cintrón-Caraballo)

Cintrón-Caraballo argues that the court erred in

admitting evidence of his March 8, 1994 arrest by Puerto Rico

police, and of the contemporaneous seizure of a gun that he was

carrying. He argues that this evidence was impermissible bad act

evidence under Fed. R. Evid. 404(b) because it was not relevant to

demonstrating his participation in the conspiracy, which, according

to the indictment, had ended one day earlier, on March 7. Cintrón-

Caraballo also argues that the firearms evidence should have been

excluded as unreliable because the firearm had been destroyed by

Puerto Rico authorities.

These arguments are unavailing. Evidence of Cintrón-

Caraballo's arrest was admissible under Rule 404(b) because the

arrest was for activities evidencing his participation in the

conspiracy charged in the indictment. The arrest took place on

Street B, where the drug point that the government alleged Cintrón-

Caraballo supervised was located. This evidence demonstrated an

overt act in furtherance of the alleged conspiracy and Rule 404(b)

explicitly provides that evidence of bad acts is admissible for

purposes other than showing actions in conformity with those acts.

See Fed. R. Evid. 404(b).

The fact that the indictment charged the conspiracy with

ending "on or about" March 7 does not change this conclusion. The

-66- "on or about" language left the district court leeway to conclude

that the arrest fit within this time frame, and thus that the

arrest was evidence of an act directly in furtherance of the

conspiracy. Cf. Portela, 167 F.3d at 704 (indictment charging

defendant with possession of cocaine "on or about" March 1995

provided "perfectly adequate" notice to the defendant for acts

charged in April 1995).

We also reject Cintrón-Caraballo's related objection that

the photograph of the gun should have been excluded because there

was no reliable evidence that it was the gun actually seized from

him. The district court found that there were sufficient indicia

of reliability that the photograph was what it purported to be

because specific markings on the gun in the photograph matched the

description in the police report. The arresting officer also

testified that the photograph depicted the weapon seized from

Cintrón-Caraballo. Under these circumstances, the photograph was

properly authenticated. See Fed. R. Evid. 901(a).

h) Admission of Evidence on Rebuttal (Soto-Ramírez)

In the government's case-in-chief, Negrón-Maldonado

testified that Soto-Ramírez was involved in the murder of a

government informant, Ana Luz Dones-Arroyo. Soto-Ramírez countered

this testimony by suggesting that the government did not have

sufficient evidence to indict him for Dones-Arroyo's murder because

it had accepted his guilty plea to the charge of accessory after

-67- the fact. In rebuttal, the government called Juan Maldonado, who

had previously testified as a ballistics expert, but whom the court

had refused to further qualify as a firearms expert. Maldonado

testified that the same weapon that was used to kill Robles-

Rodríguez -- a murder to which Soto-Ramírez had pled guilty -- was

also used in the murder of Dones-Arroyo.

Defendant argues that Maldonado's testimony was not

admissible as rebuttal evidence because Soto-Ramírez's argument

that he only pled guilty to the accessory after the fact charge was

not "a sweeping denial" of his involvement in the Dones-Arroyo

murder. We review the admission of rebuttal evidence for abuse of

discretion. See United States v. Leon-Delfis, 203 F.3d 103, 113

(1st Cir. 2000); Faigin v. Kelly, 184 F.3d 67, 85 (1st Cir. 1999).

The district court did not abuse its discretion in

rejecting Soto-Ramírez's argument and admitting Maldonado's

testimony as rebuttal evidence. "Rebuttal evidence may be

introduced to explain, repel, contradict or disprove an adversary's

proof." United States v. Laboy, 909 F.2d 581, 588 (1st Cir. 1990).

That is exactly what the government did here. The defense opened

the door to Maldonado's testimony when it attempted to demonstrate

that Soto-Ramírez was only an accessory after the fact because that

claim implied that Soto-Ramírez was not guilty of the underlying

murder.

Soto-Ramírez also argues that Maldonado's testimony in

-68- rebuttal should have been excluded because it was expert firearms

testimony that the district court had specifically excluded during

the government's case-in-chief. The court rejected this argument,

concluding that the defendants had sufficient notice that Maldonado

would testify to this issue and thus that its previous holding

limiting Maldonado's testimony to ballistics was not applicable.

This conclusion was sound. The defendants were provided with a

report before trial that Maldonado would testify that the same

weapons were used in the Robles-Rodríguez and Dones-Arroyo murders.

2. Brady and Giglio Claims (Soto-Beníquez, Soto-Ramírez, Alicea-Torres)

Defendants contend that there were multiple Brady and

Giglio violations. See Brady v. Maryland, 373 U.S. 83, 87 (1963);

Giglio v. United States, 405 U.S. 150, 153-54 (1972). First,

several defendants challenge the government's failure to reveal the

apparent inconsistencies in Rodríguez-López's story when it first

became aware of them in the summer of 1998. At that time, all the

prosecution knew was that Rodríguez-López had lied to the FBI (not

the grand jury) about being present at Rivera-González's murder.

He had not testified to the grand jury about that murder. Although

the prosecution must reveal material information that is favorable

to the accused, the fact that Rodríguez-López may not have been

present at the Rivera-González murder is not exculpatory evidence.

Admittedly, the analysis might have been different if the

government had ultimately called Rodríguez-López as a witness at

-69- trial: his earlier lies to the government would certainly have

constituted a basis for impeaching him. See Giglio, 405 U.S. at

153-54; Moreno-Morales v. United States, 334 F.3d 140, 145 (1st

Cir. 2003). But the government did not call Rodríguez-López.

Furthermore, as the trial court noted, the defendants knew a month

before trial that Rodríguez-López had lied, so they had sufficient

time to interview him and have him testify if they so desired.

Several defendants also argue that the government failed

to fully disclose the extent of Negrón-Maldonado's plea and

cooperation agreement with the government. After testifying on

direct examination about ten murders, Negrón-Maldonado admitted

during redirect examination that the government had promised him

favorable treatment in his related state court proceedings in

exchange for his testimony. Counsel for Soto-Beníquez and Soto-

Ramírez immediately moved for a mistrial, telling the court that

the prosecution had never disclosed its intervention in the Puerto

Rico courts on behalf of the witness. (The prosecution had

disclosed the existence of a plea arrangement between itself and

Negrón-Maldonado). At side-bar, the government explained that

while the Commonwealth of Puerto Rico had made certain oral

assurances to the witness at the prosecution's behest, no agreement

had been reduced to writing and thus there was no document that

could have been produced to inform the defense of the agreement.

The government's obligation to disclose impeachment

-70- evidence is not, as suggested by the prosecution, dependent on

whether that evidence has been reduced to written form. See

Giglio, 405 U.S. 152, 154-55 (reversing conviction where an oral

agreement between a prosecutor and key witness was not disclosed to

the defense). Here, the government failed to disclose the full

extent of its agreement with the witness until the defense

uncovered the details of the arrangement during cross-examination.

Nonetheless, the defendants were not prejudiced by the

government's delay in revealing this information and are not

entitled to reversal on appeal. See United States v. Lemmerer, 277

F.3d 579, 588 (1st Cir. 2002) (a defendant must show that

"learning the information altered the subsequent defense strategy,"

and that given timely disclosure, "a more effective strategy would

likely have resulted" (quoting United States v. Devin, 918 F.2d

280, 290 (1st Cir. 1990)); United States v. Ingraldi, 793 F.2d 408,

411-12 (1st Cir. 1986) (same). Negrón-Maldonado admitted the full

extent of his arrangement with the government during cross-

examination. Moreover, the defendants' strategy in cross-examining

Negrón-Maldonado was surely not impacted by the government's

delayed disclosure. Even without knowing about the federal

prosecution's intervention in state court, the defense's cross-

examination of Negrón-Maldonado was intended to suggest that the

witness was fabricating his testimony in order to receive favorable

treatment. There has been no showing that having a larger quantum

-71- of evidence than originally supposed would have altered the way in

which the defense cross-examined the witness, and the court granted

additional time to defense counsel to prepare and investigate the

new information before cross-examination of the witness resumed.

Again, we do not approve of the prosecution's conduct; we hold only

that it does not provide a basis for reversal.

Soto-Beníquez and Soto-Ramírez also allege that the

prosecution failed to disclose that it had granted immunity to

Janet Garcia-Diaz, the girlfriend of Torrens-Alicea, another

cooperating witness. This argument is without merit. Garcia-Diaz

was told that she would not be prosecuted after she specifically

inquired of the government whether she needed a lawyer, on the same

day that she was called as a defense witness by Vega-Colón to

impeach Torrens-Alicea's testimony for the prosecution. There was

a window of, at most, several hours between the government's

statement to Garcia-Diaz and the defendants' discovery of this

supposed grant of immunity. Even assuming that the defendants were

entitled to this information under Giglio, they became aware of the

so-called "grant of immunity" on the same day that it was extended.

No prejudice has been shown.

Finally, Soto-Beníquez and Soto-Ramírez suggest that the

prosecution did not disclose the fact that cooperating witnesses

were allowed to make unmonitored phone calls, visit with their

spouses, and take pictures of themselves "half-naked" in government

-72- offices. Defendants, though, were informed by discovery letter

about several visits by family members to cooperating witnesses.

In any case, these benefits pale in comparison with the deals

negotiated in the plea bargains. Defendants were well aware of the

agreements with cooperating witnesses (absent that of Negron-

Maldonado, discussed above) and used them well in cross-

examination. There was no prejudice to the defendants.

3. Closing Arguments (de León Maysonet, Gonzalez-Ayala, García-García)

Several defendants urge that the prosecution's closing

argument led to reversible error.

In its rebuttal in closing the prosecutor argued: And one point that I want to make clear as to Ramon Fernandez Malave, as to Carmelo Vega Pacheco, as to Rene Gonzalez Ayala, as to Jose Luis de Leon Maisonet and anyone else who argues here before you that they are here before you pleading not guilty, pleading their innocence. Well, let me tell you something, ladies and gentlemen of the jury, a plea of not guilty is not, not a declaration of innocence. A plea of not guilty simply means, government, prove your case. But a plea of not guilty is not a declaration of innocence.

(emphasis added). Defense counsel objected:

We would like to interpose an objection, hinges on the constitution right to the presumption of innocence.

The court replied, in the presence of the jury:

There is a presumption of innocence going on. Fine.

(emphasis added). The prosecutor echoed that:

There is a presumption of innocence. They are to be

-73- presumed innocent, that is not what I'm arguing against, Your Honor. And I understand the jurisprudence from the First Circuit supports my argument.

The court then said:

Keep on going.

Later, the prosecution made a similar statement:

Carmelo Vega Pacheco again comes before you and says my client is pleading not guilty. Again, a plea of not guilty is not a declaration of innocence. It simply puts the government to its proof. And he argues, yes, he participated in [the] Quintana massacre but that was in furtherance of a different conspiracy.

(emphasis added). The defense again objected to this later

statement, but not on the ground asserted on appeal -- namely, that

the prosecutor's comments undercut the presumption of innocence.

Because a contemporaneous objection was made by defense

counsel to the earlier statement, we review de novo the question of

whether the argument was improper and review for abuse of

discretion the court's ruling on whether the misconduct, if any,

warrants a new trial. United States v. Hernandez, 218 F.3d 58, 68

(1st Cir. 2000). We conclude that error occurred but that it does

not warrant a new trial.

On appeal, the prosecution argues that these statements

were an accurate description of the law. It also contends that its

comments were invited by the improper argument of several

defendants that their pleas of not guilty in this case were

reliable indications of their innocence because if they were guilty

they would have admitted it in this case, as they did in the state

-74- court.

The prosecution is wrong on both points. First, the

prosecutor's comments did undermine the presumption of innocence.

By saying that a plea of not guilty is "not a declaration of

innocence" but simply means "government, prove your case," the

prosecutor undercut the axiomatic principle that a defendant is

presumed innocent until proven guilty and need not declare or prove

that he is innocent. Regardless of the complex relationship

between the presumption of innocence and the prosecution's duty to

convince the jury beyond a reasonable doubt, see, e.g., Taylor v.

Kentucky, 436 U.S. 478, 483-85 (1978) (noting the scholarly debate

concerning whether the presumption of innocence is analytically

distinct from the requirement that the government prove guilt

beyond a reasonable doubt); McCormick on Evidence § 346 (5th ed.

1999) (suggesting that the presumption of innocence is "a

convenient introduction to the statement of the burdens upon the

prosecution"), due process requires that both of these principles

guide the jury in reaching its verdict. Taylor, 436 U.S. at 483-

86; Coffin v. United States, 156 U.S. 432, 453, 461 (1895). To

undercut one, even if the other remains standing, is improper. It

is for precisely this reason that a district court's failure to

instruct the jury on the presumption of innocence may violate due

process even when the jury has been properly informed of the

prosecution's burden of proving guilt beyond a reasonable doubt.

-75- Taylor, 436 U.S. at 488-89.

The prosecution's contention that the statements were a

justified response to the argument of defense counsel is also

incorrect. Although it is true that, in certain circumstances, a

prosecutor's otherwise impermissible statements during closing

argument may be allowable because they were "invited" by defense

counsel, United States v. Henderson, 320 F.3d 92, 107 (1st Cir.

2003), this was clearly not such a case. Defense counsel's

argument that the defendants' pleas of not guilty in federal court

were particularly trustworthy because the defendants had formerly

pled guilty in state court was not improper and did not justify the

prosecutor's response.

Not every prosecutorial error in making closing argument

justifies a new trial, even when that error undermines

constitutional rights. No reversible error occurs when the

reviewing court determines beyond a reasonable doubt that the

constitutional error was harmless. Wihbey, 75 F.3d at 772 n.6; see

also United States v. Hasting, 461 U.S. 499, 510-11 (1983). As the

Supreme Court has clarified, the relevant question "is not what

effect the constitutional error might generally be expected to have

upon a reasonable jury, but rather what effect it had upon the

guilty verdict in the case at hand." Sullivan v. Louisiana, 508

U.S. 275, 279 (1993); see United States v. Rivera-Santiago, 107

F.3d 960, 967 (1st Cir. 1997).

-76- We conclude beyond a reasonable doubt that the

prosecutor's improper closing argument did not prejudice the

defendants in this case. The court gave curative instructions that

established the presumption of innocence immediately after the

prosecutor's first improper statement (the only time the defense

made the appropriate objection). It then reinforced the

presumption in its general instructions to the jury, noting that it

"is a cardinal principle of our system that every person accused of

a crime is presumed to be innocent unless and until his/her guilt

is established beyond a reasonable doubt." Given those

instructions and the strong evidence of guilt, we conclude beyond

a reasonable doubt that the statements did not affect the ultimate

outcome of the case, especially when they occupied only several

seconds in a six-month long trial.

4. Cumulative Effect of Errors (Soto-Beníquez, Soto-Ramírez)

A series of errors, each one of which is individually

"harmless," may have a cumulative effect that requires a new trial.

United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993).

Defendants rely on this proposition, arguing that,

considered as a whole, the prosecution's missteps warrant a new

trial. To this point, we have concluded that the prosecution erred

in repeatedly failing to meet discovery deadlines, in neglecting to

disclose the extent of its plea arrangement with Negrón-Maldonado,

and in making inappropriate remarks during closing arguments. This

-77- conduct is blameworthy and the government should take steps to see

that it does not recur.

Still, the government's bad behavior does not require

that the jury's verdict of guilt be set aside. At a minimum, to

overturn a verdict, the prosecution's bad behavior must have

prejudiced the defendants. See, e.g., United States v. Joyner, 191

F.3d 47, 53 (1st Cir. 1999) (in evaluating allegations of

prosecutorial misconduct, "the unavoidable bottom line" is "whether

we deem it likely, or not, that any prejudice affected the outcome

of the case"). Although the frustrations of defense counsel are

understandable, that test is not met here.

The defense was not demonstrably prejudiced by any of the

government's violations, and sometimes even gained an advantage

from them. The defendants ultimately received the necessary

discovery and were provided with compensation such as additional

discovery and the exclusion of otherwise admissible evidence. When

the defendants learned of the federal prosecution's intervention in

state court on behalf of Negrón-Maldonado, the court offered them

additional time to cross-examine the witness. And while the

court's curative instruction during the prosecutor's closing

arguments was concise, it was sufficient in the context of the

overall instructions to assure that the jury was properly appraised

of the import of the presumption of innocence. The totality of

errors argument is unsuccessful.

-78- D. Post-Trial

1. Sufficiency of Evidence as to CCE Count (Soto-Beníquez, Soto-Ramírez)

Soto-Beníquez and Soto-Ramírez argue that there is

insufficient evidence to support their convictions. They offer no

further explanation, except to cite to their filings before the

district court. Their argument as to sufficiency of evidence has

been waived. See Grella, 42 F.3d at 36. "If counsel desires our

consideration of a particular argument, the argument must appear

within the four corners of the brief filed in this court."

Executive Leasing Corp. v. Banco Popular de P.R., 48 F.3d 66, 67-68

(1st Cir. 1995). Attorneys cannot circumvent this requirement by

referencing their district court filings. Id. at 68.

2. Sufficiency of Evidence as to Conspiracy Count (Cintrón-Caraballo, Vega-Cosme, Vega-Colón)

Vega-Cosme and Vega-Colón argue that the evidence is

insufficient to tie them to the charged conspiracy. We reject this

claim.

The government presented overwhelming evidence of Vega-

Cosme's participation in the conspiracy. Government witnesses

testified that Vega-Cosme had a series of agreements with other

members of the conspiracy to maximize drug revenue. He negotiated

with the Chacho gang on behalf of the drug points to end the

warfare that was interfering with drug sales, met with Negrón-

Maldonado to coordinate the colors of crack capsule caps to avoid

-79- competition between the points, and arranged the opening of his own

drug point on Laguna Street with Soto-Ramírez. Although Vega-Cosme

correctly notes that there is no evidence that Soto-Ramírez acted

as his supplier, the government did present testimony that Vega-

Cosme supplied narcotics to Soto-Ramírez, along with ammunition

used in shootings of rival gang members in 1992 and 1993.

The record also shows sufficient evidence of the

participation of Vega-Cosme's son, Miguel Vega-Colón. Vega-Colón

packaged crack cocaine, heroin, and marijuana for his father's

point. He also stood armed guard at the Callejón Nueve drug point,

which was owned by Rodríguez-López. Both of those activities were

in furtherance of the conspiracy. Moreover, based on Vega-Colón's

presence at meetings between Vega-Cosme and Soto-Ramírez, a

reasonable jury could have concluded that he joined the conspiracy

knowingly and voluntarily.

Vega-Cosme and Vega-Colón also argue that their

convictions are based on unreliable testimony from co-conspirators

who "had clear incentives to testify untruthfully." In assessing

the sufficiency of evidence, credibility determinations must be

resolved in favor of the verdict. United States v. Guerra-Garcia,

336 F.3d 19, 22 (1st Cir. 2003). Credibility judgments are the

province of the jury, not of this court.

Cintrón-Caraballo also makes an insufficiency of evidence

argument. He argues that the district court erred in admitting

-80- certain expert testimony and Rule 404(b) "bad act" evidence, and

contends that without this evidence, the only evidence tying him to

the conspiracy is the uncorroborated testimony of co-conspirators.

This argument fails. The contested evidence was properly admitted.

See Part III.B(f)-(g). Moreover, even if Cintrón-Caraballo's

conviction rested only on co-conspirator testimony, the jury was

entitled to credit such testimony and convict him on that basis.

See United States v. Torres-Galindo, 206 F.3d 136, 140 (1st Cir.

2000).

3. Special Verdict and Jury Instructions for CCE Count (Soto-Beníquez, Soto-Ramírez)

Soto-Beníquez and Soto-Ramírez claim that the district

court committed reversible error when it failed to instruct the

jury to determine the quantity and type of drugs. First, they

argue that the drug amount is an element of the CCE offense and

that the jury was not otherwise instructed to find a minimum drug

amount. Second, they argue that Apprendi v. New Jersey, 530 U.S.

466 (2000), requires that the drug amount be proven to the jury

beyond a reasonable doubt. The standard of review for alleged jury

instruction errors involving the interpretation of the elements of

a statutory offense is de novo. United States v. Shea, 150 F.3d

44, 49-50 (1st Cir. 1998).

We reject both arguments. As to the claim that the drug

amount is an element of the CCE offense, the CCE statute plainly

does not require a minimum drug amount for a conviction.

-81- As to Soto-Ramírez and Soto-Beníquez's Apprendi argument,

Apprendi requires that "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt." 530 U.S. at 490. Here, absent

a finding of drug quantity, the statutory maximum for CCE is

already life imprisonment: the statute authorizes a sentence of

twenty years to life imprisonment regardless of drug amount. 21

U.S.C. § 848(a)-(c). A drug amount above a certain level can

result in a mandatory life sentence, § 848(b), but does not change

the statutory maximum. Hence, no Apprendi violation has occurred

with regard to the CCE convictions.9

4. Special Verdict for Conspiracy Count (Alicea-Torres, Fernández-Malavé)

Alicea-Torres and Fernández-Malavé argue that the trial

court erred in not providing the jury with a special verdict form

requiring it to determine the quantity and type of drugs as to each

defendant. They argue that a special verdict form was necessary to

9 Soto-Beníquez and Soto-Ramírez also argue reversible error based on the district court's denial of their request for a special verdict sheet requiring the jury to find the type and amount of drugs as to each defendant. In criminal cases, the failure to use a special verdict form is reviewed for abuse of discretion. United States v. Ellis, 168 F.3d 558, 562 (1st Cir. 1999). For the reasons discussed above, we find no such abuse here. It was not necessary for the jury to determine the quantity or type of drugs to convict Soto-Ramírez and Soto-Beníquez on the CCE count.

-82- ensure that the jury was unanimous as to drug type and quantity.

This argument is based on Apprendi and is discussed later.

E. Sentencing

1. Apprendi and Related Issues

a) Apprendi Error (Alicea-Torres, Fernández-Malavé, Vega-Pacheco, Vega-Cosme, Vega-Colón)

Five of the non-CCE defendants -- Alicea-Torres,

Fernández-Malavé, Vega-Pacheco, Vega-Cosme, and Vega-Colón --

assert that their sentences violated the rule of Apprendi. They

argue that the amount of drugs distributed by the conspiracy was

not proven beyond a reasonable doubt to a jury, that the drug

amount raised the statutory maximum, and that their sentences must

be vacated as a result. We conclude that Apprendi error did occur,

but that the error was harmless.

The jury instructions in this case did not make direct

reference to drug amount or quantity. Instead, the jury was

instructed that, to find the defendants guilty of the conspiracy

count, it had to find that the government proved the conspiracy

charged in the indictment beyond a reasonable doubt. The jury was

provided with a copy of the indictment, which charged the

defendants with knowingly and intentionally distributing more than

five kilograms of heroin, more than five kilograms of cocaine, more

than five kilograms of crack cocaine, and more than 100 kilograms

of marijuana. However, the jury was also instructed that the

-83- actual amount of drugs need not be proven, and that the government

need only prove that defendants distributed or possessed with

intent to distribute a "measurable amount" of drugs.

The latter part of these instructions resulted in

Apprendi error. This case presents an even stronger case of

Apprendi error than United States v. Nelson-Rodriguez, 319 F.3d 12

(1st Cir. 2003). In that case, as here, the jury was given a copy

of the indictment and instructed that to find the defendants guilty

on the conspiracy count, it had to find them guilty of the

conspiracy in the indictment. Id. at 45. The indictment in

Nelson-Rodriguez, as here, specified drug types and quantities

sufficient to support the defendants' sentences. Id. We concluded

that this instruction was insufficient to elicit a jury

determination of the threshold drug amount and quantity. Id. The

same analysis applies here with greater force because the jury was

specifically instructed that it need only find a "measurable

amount" of drugs.

All five defendants who raise the Apprendi issue were

sentenced above the default statutory maximum. Absent a jury

determination of drug amount or type, the default statutory maximum

is based on the distribution of unspecified amounts of marijuana,

which results in a maximum sentence of five years for first-time

felony drug convictions and ten years if a prior such conviction

exists. 21 U.S.C. §§ 841(b)(1)(D), 846. Alicea-Torres, Fernández-

-84- Malavé, Vega-Pacheco, and Vega-Cosme were sentenced to life

imprisonment, and Vega-Colón was sentenced to 292 months, or about

twenty-five years, of imprisonment.

The existence of an Apprendi error, however, does not end

the inquiry. If the defendants failed to preserve their Apprendi

objection below, their sentences are vacated only if we find plain

error. United States v. Cotton, 535 U.S. 625, 631 (2002). If they

did preserve their objection, their sentences are vacated only if

we find that the error was not harmless beyond a reasonable doubt.

Nelson-Rodriguez, 319 F.3d at 49.

Fernández-Malavé preserved his Apprendi objection, and we

assume without deciding that the remaining defendants did the same,

as it makes no difference to the outcome. Defendants' trial took

place from December 1998 to June 1999, before Apprendi was decided.

At the time, several defendants requested a special verdict form

requiring the jury to determine the drug amount and type as to each

defendant. But only Fernández-Malavé, who was the sole non-CCE

defendant sentenced after Apprendi was decided, challenged his

sentence before the district court on this basis. The question

whether the remaining defendants' special verdict request was

sufficient to preserve an Apprendi objection, absent a separate

objection at sentencing, is a complex one. Nelson-Rodriguez, 319

F.3d at 48. Here, as in Nelson-Rodriguez, we prefer to assume

without deciding that the objection was preserved and the harmless

-85- error standard applies. Id.

The Apprendi error in this case was harmless beyond a

reasonable doubt. An Apprendi error is harmless where the evidence

overwhelmingly establishes the minimum drug quantity needed to

justify the statutory maximum under which the defendants were

sentenced. Martinez-Medina, 279 F.3d at 121-22. Here, the

government produced overwhelming evidence that the conspiracy

involved at least five kilograms of cocaine, which triggers a

maximum sentence of life imprisonment for all co-conspirators under

21 U.S.C. § 841(b)(1)(A) and § 846. Government witnesses Negrón-

Maldonado and Torrens-Alicea both testified that Rodríguez-López

and Gonzalez-Ayala stole a 200 kilogram shipment of cocaine in

Fajardo, which was then brought back to Bitumul for distribution.

Negrón-Maldonado further testified that in 1991 he purchased a

kilogram of cocaine per week from Soto-Ramírez. After May 1992,

Negrón-Maldonado stated, he and another co-conspirator named

Manolín, who managed Soto-Ramírez's point while Soto-Ramírez was in

prison, each purchased one kilogram of cocaine per week from Soto-

Beníquez to be sold at their respective drug points. Negrón-

Maldonado also testified that after January 1993, he continued to

purchase from Soto-Beníquez three-eighths of a kilogram of cocaine

each week for his drug point.

In addition, the government presented overwhelming

evidence that the conspiracy distributed more than the 50 grams of

-86- crack cocaine necessary to trigger a life sentence under 21 U.S.C.

§ 841(b)(1)(A). According to Negrón-Maldonado, 125 grams of crack

cocaine would yield approximately 800 to 850 crack capsules using

the conspiracy's packaging techniques. Negrón-Maldonado testified

that Cintrón-Caraballo received 600 capsules of crack cocaine (90

grams) per week for distribution at his drug point in 1990, 800 to

850 capsules (125 grams) per week in 1991, and 1000 capsules (150

grams) per week in early 1993. Furthermore, Negrón-Maldonado

testified that at the beginning of 1992, he would "cook" 500 grams

to a kilogram of cocaine into crack cocaine two to three times per

week for Soto-Ramírez's points; this alone amounts to one to three

kilograms per week. At around the same time, Negrón-Maldonado

himself was also selling 500 to 800 crack capsules, or between 75

to 125 grams of crack, per week. When he left for the United

States, he sold an additional 2000 crack capsules, or over 300

grams of crack. All told, Negrón-Maldonado estimated that a single

drug point would distribute at least one kilogram of crack cocaine

per month -- more than twenty times the amount necessary to trigger

a life sentence.

In the face of this overwhelming evidence, defendants

argue that the testimony of co-conspirators alone is never a

sufficient basis to find an Apprendi error harmless beyond a

reasonable doubt. That is not so. See United States v. Stewart,

306 F.3d 295, 324-25 (6th Cir. 2002) (finding Apprendi error

-87- harmless beyond a reasonable doubt based on the testimony of co-

conspirators). Defendants offered no evidence contradicting the

conspiracy-wide drug quantities at trial, and they point to no such

evidence on appeal, except their attack on the general credibility

of the two witnesses.

The jury in this case could not have convicted all eleven

defendants of participation in the conspiracy without believing the

testimony of Negrón-Maldonado and Torrens-Alicea regarding at least

some of the transactions. Negrón-Maldonado and Torrens-Alicea also

testified regarding the quantity of drugs involved in those

transactions. Defendants offer no explanation for why the jury

would believe Negrón-Maldonado and Torrens-Alicea's account of each

defendant's activities in furtherance of the conspiracy, but

discredit their testimony regarding the quantity or type of drugs

involved in those activities. In Nelson-Rodriguez, we found an

Apprendi error harmless on very similar facts: the jury could not

have convicted without crediting informant testimony, the same

informant testified to the drug amount, and the defendant offered

no reason to disbelieve the testimony except a general attack on

the witness's credibility. 319 F.3d at 49-50.

Defendants further protest that even if the conspiracy

writ large involved the requisite quantities and types of drugs,

the Apprendi error is not harmless. They argue that it was not

reasonably foreseeable to each of them individually, from their

-88- limited involvement, that such quantities of drugs would be

involved. Under the Sentencing Guidelines, a narcotics

conspirator's sentence is based on the amount of drugs he actually

handled, negotiated, or saw, as well as the amount of drugs that he

reasonably could have foreseen to be embraced by the conspiracy he

joined. Rodriguez, 162 F.3d at 149; U.S.S.G. § 1B1.3 & cmt. 2.

Defendants argue that unless this court is certain that the jury

would find the drug quantity reasonably foreseeable to each

defendant, the Apprendi error cannot be harmless.

We reject this argument. Apprendi does not require that

the jury determine beyond a reasonable doubt the quantity of drugs

foreseeable to each defendant. Apprendi requires only that juries

determine facts necessary to increase the statutory maximum. 530

U.S. at 490. Here, the conspiracy-wide drug quantity determines

the statutory maximum. See 21 U.S.C. § 846 (holding each

conspirator responsible for the quantity of drugs distributed by

the conspiracy). As long as the sentence falls within this

statutory maximum, the district court may determine the quantity of

drugs reasonably foreseeable to each defendant by a preponderance

of the evidence and sentence each defendant accordingly. Derman v.

United States, 298 F.3d 34, 42-43 (1st Cir. 2002). In determining

whether an Apprendi error is harmless, the determinative question

is whether the evidence overwhelmingly establishes the amount of

drugs distributed by the conspiracy as a whole. It does here.

-89- b) Multi-Object Conspiracy (Vega-Cosme)

Vega-Cosme raises a related argument that the defendants

were charged with a multi-object conspiracy. In a multi-object

conspiracy charge, a jury convicts the defendants of distributing

one type of drug or another type of drug. See, e.g., United States

v. Dale, 178 F.3d 429, 431 (6th Cir. 1999) (jury instructed to

convict if conspiracy distributed crack cocaine or marijuana).

Although the First Circuit has not ruled on this issue, other

circuits have held that when a defendant is charged with a multi-

object conspiracy, and the jury returns a general verdict, the

statutory maximum should be based on the object carrying the lowest

maximum penalty. See, e.g., id. at 432; United States v.

Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir. 1984). Vega-Cosme

argues that the jury in this case returned a general verdict on a

multi-object conspiracy charge -- namely, that the defendants

distributed more than five kilograms of heroin, cocaine, or cocaine

base, or more than 100 kilograms of marijuana. He argues that the

statutory maximum should therefore have been based on the penalty

for conspiring to distribute 100 kilograms of marijuana, which is

up to forty years imprisonment under 21 U.S.C. § 841(b)(1)(B). If

this were indeed the case, Vega-Cosme's life sentence would be

problematic.

Vega-Cosme's argument, though, is without merit. The

defendants were not charged with a multi-object conspiracy. The

-90- indictment charged them with distributing more than five kilograms

each of heroin, cocaine, and crack cocaine, and more than 100

kilograms of marijuana.10 Because those drug quantities and types

were joined by the conjunctive term "and" rather than the

disjunctive term "or," there was no ambiguity about the crime

charged. See United States v. Neuhausser, 241 F.3d 460, 469-70

(6th Cir. 2001) (no Apprendi error in sentencing defendant to

higher statutory maximum for cocaine conspiracy, when defendant was

charged with conspiracy to distribute both cocaine and marijuana);

United States v. Banks, 78 F.3d 1190, 1203 (7th Cir. 1996) (no

ambiguity where indictment was phrased in conjunctive rather than

disjunctive); United States v. Watts, 950 F.2d 508, 515 (8th Cir.

1991) (same).

Vega-Cosme argues that, regardless of the indictment, the

jury instructions transformed Count Two into a multi-object

conspiracy charge. The jury instructions contain a definition of

"possession with intent to distribute" that required the government

to "prove beyond a reasonable doubt that the defendant knew he was

possessing a controlled substance" but not that "the defendant knew

which particular controlled substance was involved." Vega-Cosme

contends that this instruction changed the conjunctive term "and"

10 The indictment did not need to specify the exact amount of drugs involved in the conspiracy, as long as it alleged the appropriate threshold amounts necessary to support the defendants' sentences. Cf. Derman v. United States, 298 F.3d 34, 42 n.4 (1st Cir. 2002).

-91- in the indictment into the disjunctive term "or." This argument is

meritless. First, this definition should not have affected the

jury's consideration of the conspiracy charge. The conspiracy

count of the indictment and the jury instructions regarding the

elements of conspiracy require the jury to find that defendants

conspired to "distribute" controlled substances to return a guilty

verdict; nowhere does the term "possession with intent to

distribute" appear. Second, even if the term had appeared, the

definition requires the government to prove that the defendants did

in fact possess specific drugs, even if they did not know which

drugs they possessed. Thus, the government must still show that

the defendant possessed cocaine and cocaine base and heroin and

marijuana, even if the defendant himself did not know the specific

drugs that he had in his possession. Finally, even if a multi-

object conspiracy were charged and an Apprendi error therefore

occurred, Vega-Cosme admits that review would be for plain error

because he did not preserve this argument below. We have already

determined that any Apprendi error as to drug amount or type would

be harmless; a fortiori, no plain error occurred.

c) Failure to Reference § 841(b)(1)(B) in Indictment (Fernández-Malavé)

Fernández-Malavé argues that his sentence must be vacated

because the indictment was defective under Apprendi for failing to

reference specifically § 841(b)(1)(B), the statutory penalty

subsection under which he was sentenced. This claim is meritless.

-92- The indictment included threshold drug quantities and types. There

is no Apprendi requirement that the penalty subsection be included

in the indictment once the drug quantity and type are alleged. See

United States v. Eirby, 262 F.3d 31, 38 (1st Cir. 2001).

2. Sufficiency of Evidence As to Drug Quantities (Soto-Ramírez, Soto-Beníquez, Cintrón-Caraballo, Vega- Colón, Vega-Cosme)

Five defendants argue, separate from their Apprendi

claims, that the district court erred in determining the amount of

drugs attributable to them. They argue that the evidence does not

establish by a preponderance the quantity or type of drugs

necessary to support the calculation of their base offense levels.

We review factual determinations at sentencing for clear error.

United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997).

The district court's determinations of drug amounts were

not clearly erroneous. Under the Sentencing Guidelines, each

defendant must be sentenced based on the amount of drugs that he

handled, negotiated, saw, or could reasonably have foreseen to be

embraced by the conspiracy. Rodriguez, 162 F.3d at 149; U.S.S.G.

§ 1B1.3 & cmt. 2. Applying this standard, the district court

attributed at least 1.5 kilograms of crack cocaine to each of the

five defendants, resulting in a base offense level of 38 for each.

The record at trial and sentencing supports this

calculation. Negrón-Maldonado testified that Soto-Ramírez sold 300

crack capsules to Cintrón-Caraballo on at least ten occasions in

-93- 1990, which amounts to 450 grams of crack cocaine. He also

testified that at the beginning of 1990, Soto-Ramírez supplied him

with 1000 to 1500 crack capsules, or about 150 to 200 grams, per

week. Assuming that these purchases continued for at least seven

weeks, Soto-Ramírez would have distributed 1.5 kilograms of crack

cocaine just from sales to Cintrón-Caraballo and Negrón-Maldonado

in 1990. Furthermore, according to Negrón-Maldonado's testimony,

during early 1992, Negrón-Maldonado "cooked" one to three kilograms

of cocaine into crack cocaine per week for Soto-Ramírez's points.

In one and a half weeks, Negrón-Maldonado would have packaged at

least 1.5 kilograms of crack cocaine for distribution at Soto-

Ramírez's points. Although Soto-Ramírez was in prison at this

time, the drug quantity was reasonably foreseeable to him because

he was still supervising his drug points by telephone.

The government presented evidence that Soto-Beníquez

supplied other members of the conspiracy with cocaine, which they

converted into at least 1.5 kilograms of crack cocaine and

distributed at their respective drug points. Negrón-Maldonado

testified that each week in early 1992, he bought one to three

kilograms of cocaine from Soto-Beníquez and converted it into crack

cocaine. Over two weeks, this would exceed the required 1.5

kilograms. Negrón-Maldonado also testified that Soto-Beníquez

supplied Cintrón-Caraballo with 125 grams of cocaine per week and

Negrón-Maldonado with 75 to 125 grams of cocaine per week, which

-94- was converted into crack cocaine for sale at their respective drug

points. Over eight weeks, this would exceed the required 1.5

kilograms. Soto-Beníquez protests that he could not have

reasonably foreseen that the cocaine he supplied would be converted

into crack cocaine. The district court had sufficient evidence to

conclude otherwise. Negrón-Maldonado testified that Soto-

Beníquez's house was used, repeatedly, as a location for converting

cocaine into crack cocaine. He also testified that when Cosme-

Sobrado was killed, Soto-Beníquez picked up the proceeds from Soto-

Ramírez's crack cocaine point and determined that money was

missing. Bitumul is a small community; given Soto-Beníquez's

involvement, it would be difficult for him to be wholly ignorant

that his co-conspirators were producing crack cocaine. These

activities and Soto-Beníquez's leadership role in the conspiracy

are sufficient to support the conclusion that Soto-Beníquez knew

Negrón-Maldonado and Cintrón-Caraballo sold crack cocaine at their

points and that he could have reasonably foreseen that the cocaine

he supplied to them would be converted into crack cocaine.

Cintrón-Caraballo's crack cocaine point was in operation

throughout the duration of the conspiracy, according to Negrón-

Maldonado's testimony. Negrón-Maldonado testified that Cintrón-

Caraballo purchased over 90 grams of crack cocaine per week for

distribution at his point in 1990, 125 grams per week in 1991, 125

grams on a regular basis in 1992, and over 150 grams per week in

-95- early 1993. Assuming that Cintrón-Caraballo's drug point operated

at least four weeks each year, the total amount of crack cocaine

purchased for distribution would exceed 1.5 kilograms.

Negrón-Maldonado testified that the drug point operated

by Vega-Cosme and Vega-Colón sold crack cocaine in 1990, 1992, and

1993. Negrón-Maldonado estimated that one drug point distributing

crack cocaine would usually sell at least one kilogram per month.

That volume of sales alone is sufficient to exceed the required 1.5

kilograms. In addition, the government presented evidence

indicating that the quantity of crack cocaine sold by Negrón-

Maldonado and Cintrón-Caraballo was reasonably foreseeable to Vega-

Cosme. Vega-Cosme met at least three times with the others to

coordinate the color of the caps on their respective crack

capsules. These meetings are evidence that Vega-Cosme had some

awareness of his co-conspirators' crack cocaine sales and that,

after color-coding was instituted, he had some way of tracking

their activities.

In response, all five defendants argue that this evidence

is unreliable because it is based on the testimony of cooperating

co-conspirators and was uncorroborated. Vega-Colón and Vega-Cosme

argue in their brief that absent a rule requiring corroboration of

such evidence, "unsuspecting defendants would be entirely at the

mercy of cooperating co-defendants, who have all the incentive in

the world to testify in a manner [whether truthful or not] that

-96- will assist the government in obtaining a larger sentence." That

risk is real, but vacating their sentences for lack of

corroboration is not the answer.11 Here, the cooperating co-

defendants were vigorously cross-examined, and defense counsel had

the opportunity to present evidence of the witnesses's plea

agreements, grants of immunity, and receipt of government money.

If the government's dilatory production of discovery materials had

impeded the cross-examination, the situation might be different.

But it did not. The jury found the co-conspirators credible, and,

for sentencing purposes, so did the trial court. These plausible

credibility determinations cannot be disturbed on appeal. Cf.

Torres-Galindo, 206 F.3d at 139-40 ("Uncorroborated testimony of a

cooperating accomplice may sustain a conviction so long as that

testimony is not facially incredible . . . .").

3. Alleged Rule 32 Violation (Cintrón-Caraballo, Vega-Cosme)

Cintrón-Caraballo argues that the district court erred

(1) in permitting the government to introduce evidence in support

of an upward adjustment for his role as a supervisor in the

conspiracy under U.S.S.G. § 3B1.1 and (2) in granting the

adjustment. Although the probation officer did not include the

upward adjustment for a supervisory role in the PSR and the

11 If the government is mindful of its obligations, countervailing incentives, such as avoidance of perjury charges, can reduce the incentive to lie.

-97- government did not object to this omission before sentencing, the

government attempted to argue the upward adjustment to the court at

the sentencing hearing. We agree with Cintrón-Caraballo that this

course of action violated Fed. R. Crim. P. 32, which requires that

"[w]ithin 14 days after receiving the presentence report, the

parties shall communicate in writing to the probation officer, and

to each other, any objections" to it. Fed. R. Crim. P. 32(b)(6)(B)

(2000) (amended 2002).

Any possible prejudice to Cintrón-Caraballo from the

government's non-compliance was cured by the district court's grant

of a two-week continuance to give defense counsel an adequate

opportunity to respond to the government's late submission. See

United States v. Young, 140 F.3d 453, 457 (2d Cir. 1998) ("The

sentencing court may impose sentencing enhancements belatedly

suggested by the Government and not contained in the PSR, provided

the defendant is afforded an adequate opportunity to

respond . . . ." (internal citation omitted)).

Vega-Cosme raises a similar argument that the district

court erred in granting a two-level upward adjustment for

possession of a weapon. Here again, the adjustment was not

included in the PSR, and the prosecution did not object to its

omission before sentencing but argued for the enhancement at

sentencing, which was in violation of Rule 32. Because Vega-Cosme

did not object at sentencing, review is for plain error. United

-98- States v. Frisby, 258 F.3d 46, 47-48 (1st Cir. 2001). There was

none. Vega-Cosme had the opportunity to respond to the evidence at

the sentencing hearing. Contrast United States v. Curran, 926 F.2d

59, 62 (1st Cir. 1991), in which the court vacated a defendant's

sentence when he had no opportunity to contradict letters that were

not included in the PSR and that the court relied upon in reaching

its decision. Given the trial testimony regarding Vega-Cosme's

role in obtaining ammunition for the conspiracy and the extensive

murder evidence presented at trial, the government's belated

seeking of a firearms enhancement could not have come as such a

surprise to Vega-Cosme as to render the entire sentencing

proceeding a miscarriage of justice.

4. Denial of Downward Adjustment (Gonzalez-Ayala, de León Maysonet)

Gonzalez-Ayala and de León Maysonet argue that the

district court committed an error of law when it refused to grant

them a downward adjustment based on their roles as minor

participants in the conspiracy. They argue in their brief that the

district court "failed to realize that the guidelines permitted the

sentencing court to decrease defendants' sentencing level" based on

the fact that "the appellants' level of participation was below that

of the other defendants." Mistakes of law in applying the

Sentencing Guidelines are reviewed de novo. United States v. Cali,

87 F.3d 571, 575 (1st Cir. 1996). The district court made no

-99- mistake of law.

The district court correctly determined that these

defendants were not entitled to a minor-role adjustment merely

because they were the least culpable among those who were actually

indicted. See United States v. Daniel, 962 F.2d 100, 103 (1st Cir.

1992). The relevant inquiry is whether the defendant played a part

that made him substantially less culpable than the average

participant in similar crimes. See U.S.S.G. § 3B1.2 cmt. 3; United

States v. Brandon, 17 F.3d 409, 460 (1st Cir. 1994).

Absent a mistake of law, we review the district court's

fact-based determination that a defendant was not a minor

participant for clear error. United States v. Rosario-Peralta, 199

F.3d 552, 571 (1st Cir. 1999). The court's determination was not

clearly erroneous. The government presented testimony at trial that

de León Maysonet stored weapons and narcotics for the conspiracy in

1992, stood as an armed guard at drug points in 1993, and packaged

and sold narcotics at the Callejón Nueve point in 1993. The

government also presented evidence at trial that he participated in

an unsuccessful mission to Fajardo to find and kill an individual

named Vitito, who had been hired to kill those responsible for

stealing the 200 kilograms of cocaine. The evidence is sufficient

to support the district court's finding that de León Maysonet was

not a minor participant, based on his two-year involvement and his

participation in a variety of criminal activities in support of the

-100- conspiracy. As to Gonzalez-Ayala, government witnesses Negrón-

Maldonado and Torrens-Alicea testified at trial that he participated

in the planning and execution of the theft of 200 kilograms of

cocaine in Fajardo and that he received profits from the sale of

that cocaine. They also testified that he helped package heroin and

cocaine for distribution at the Callejón Nueve point. The record

supports the district court's conclusion, based on the quantity of

drugs he helped obtain for the conspiracy and his ongoing role in

the packaging and sale of those drugs, that Gonzalez-Ayala was not

a minor participant.

5. Grant of Upward Adjustment (Cintrón-Caraballo)

Cintrón-Caraballo argues that the evidence was

insufficient to support the district court's grant of a three-level

sentencing enhancement for his role as a supervisor in the

conspiracy under U.S.S.G. § 3B1.1(b). Under the Sentencing

Guidelines, a three-level enhancement is permissible "[i]f the

defendant was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more participants

or was otherwise extensive." U.S.S.G. § 3B1.1(b). Review of this

determination is for clear error. United States v. Brown, 298 F.3d

120, 122 (1st Cir. 2002).

The district court correctly counted the eleven defendants

convicted in the trial as meeting the "five or more participants"

prong. The more serious question is whether Cintrón-Caraballo was

-101- a manager or supervisor, terms not defined in the Sentencing

Guidelines but described in U.S.S.G. § 3B1.1 cmt. 4 as involving:

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

Cintrón-Caraballo argues that there was no firm evidence that he was

a supervisor; there was only rumor and innuendo. But the government

presented testimony at trial that Cintrón-Caraballo controlled a

drug point at Street B that sold crack cocaine and that he had

"Nanito, . . . Bennie's little brothers, and other persons" selling

for him. He also had Negrón-Maldonado cook cocaine into crack for

his drug point. The district court did not clearly err in finding

that Cintrón-Caraballo acted as a supervisor in running his drug

point.

6. Denial of Downward Departure (Soto-Ramírez)

Soto-Ramírez challenges the district court's denial of a

downward departure based on his upbringing. The record contained

well-documented evidence that Soto-Ramírez had suffered severe

neglect and sexual abuse as a child. A denial of a downward

departure is generally non-reviewable unless the lower court's

failure to depart stemmed from a misapprehension of its authority

under the Sentencing Guidelines. See United States v.

-102- Rivera-Rodriguez, 318 F.3d 268, 275 (1st Cir. 2003). This standard

is unaffected by the PROTECT Act, which applies when the decision

made is to grant a departure. 18 U.S.C. § 3742(e). Here, Soto-

Ramírez argues that the district court failed to recognize that it

had the power to grant a downward departure based on abuse that

Soto-Ramírez suffered as a child. But the district court did

acknowledge its power to depart. It expressly stated, "I have [the]

authority to depart because of an upbringing situation which may

have affected the defendant." Accordingly, we have no jurisdiction

to review its decision on this issue.

IV.

This was a lengthy and complex case handled patiently and

well by the trial court. Despite missteps by the prosecution,

defendants received a fair trial and sufficient evidence supported

both the verdicts and the sentences for each defendant, which are

affirmed. So ordered.

-103-