United States v. Velazquez Rotger ( 1995 )


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  • USCA1 Opinion








    May 11, 1995
    [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS

    FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

    ____________________

    No. 93-2259

    UNITED STATES OF AMERICA,

    Plaintiff, Appellee,

    v.

    HECTOR RODRIGUEZ-PENA,

    Defendant, Appellant.

    ____________________

    No. 93-2260

    UNITED STATES OF AMERICA,

    Plaintiff, Appellee,

    v.

    ANGEL GALINDEZ-RODRIGUEZ,

    Defendant, Appellant.

    _____________________

    No. 93-2261

    UNITED STATES OF AMERICA,

    Plaintiff, Appellee,

    v.

    GONZALO VELAZQUEZ-ROTGER,

    Defendant, Appellant.

    _____________________


    _____________________
    No. 93-2262















    UNITED STATES OF AMERICA,

    Plaintiff, Appellee,

    v.

    VICTOR RIVERA a/k/a QUIQUE,

    Defendant, Appellant.

    ____________________


    APPEALS FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO

    [Hon. Jose Antonio Fuste, U.S. District Judge] ___________________

    ____________________

    Before

    Torruella, Chief Judge, ___________
    Aldrich, Senior Circuit Judge, ____________________
    and Cyr, Circuit Judge. _____________

    ____________________


    Rafael F. Castro-Lang for appellants Angel Galindez-Rodriguez and _____________________
    Victor Rivera.
    Rafael Anglada-Lopez for appellant Gonzalo Velazquez-Rotger. ____________________
    Harry R. Segarra for appellant Hector Rodriguez-Pena. ________________
    Antonio R. Bazan, Assistant United States Attorney, with whom _________________
    Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa, _____________ _______________________ ________________________
    Senior Litigation Counsel, were on brief for appellee.

    ____________________


    ____________________






















    ALDRICH, Senior Circuit Judge. Appellants ________________________

    Rodriguez Pe a (Pe a), Velazquez Rotger (Velazquez), Galindez

    Rodriguez (Galindez) and Rivera, co-defendants in a single

    criminal trial on multiple narcotics-related charges, jointly

    or severally advance assignments of error on appeal of their

    convictions: (1) the court erroneously instructed the jury on

    the meaning of "beyond a reasonable doubt"; (2) motions for

    severance should have been granted; (3) a motion to suppress

    pretrial photospread identifications should have been

    granted; (4) the court abused its discretion in allowing the

    government to present evidence which it withheld in violation

    of Federal Rule of Evidence 16; (5) the evidence was

    insufficient to convict; (6) the prosecutor committed

    reversible errors in his opening and closing arguments; and

    (7) the court should have instructed the jury on the defenses

    of entrapment and duress. We sustain one, and reject the

    rest.

    I. Background I. Background ____________________

    Relating the essential facts most favorably to the

    verdict, United States v. DeMasi, 40 F.3d 1306, 1310 (1st ______________ ______

    Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 947, 130 _____ ______

    L.Ed.2d 890 (1995), in late December, 1991, a confidential

    informant of the United States Customs Service, known as

    "Gordo," responded to a shortwave radio request by a

    Colombian national, identified as Cabeza, to contact certain



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    individuals in Puerto Rico. This led to meetings and

    telephone conversations over the next several months with

    various individuals, including Velazquez and Pe a, during

    which a narcotics smuggling venture with Cabeza and his

    suppliers in Colombia was hatched. Both Velazquez and Pe a

    worked closely on the planning and preparation with various

    undercover agents who became involved to facilitate Customs'

    monitoring of the plot. The evidence contains numerous

    photographs and over one hundred recordings of their

    discussions up until the moment it finally unravelled and

    several of the players were arrested. Gordo agreed to

    arrange the transport of the drugs to Puerto Rico and

    proposed utilizing a Customs undercover vessel to meet and

    receive the cargo from a Colombian ship at sea. Initially

    the conspirators contemplated bringing in 2,000 pounds of

    marijuana; subsequent discussions with Velazquez and Pe a

    increased the amount to 5,000 to 6,000 pounds, or more. A

    shipment of up to 300 kilograms of cocaine was discussed as

    well.

    On March 27, 1992 Gordo was scheduled to pick up

    10,000 pounds of marijuana, and two kilograms of cocaine

    specifically intended for Velazquez, from the Colombian ship

    at sea. However, the latter had sailed off course, broken

    down, and after Pe a provided Gordo with some equipment for

    an attempt at repair, was eventually forced to jettison its



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    load and return to Colombia.

    The conspirators were monitored as they continued

    to arrange for a successful importation throughout the month

    of April. Velazquez mailed a navigational device to Cabeza

    to facilitate the meeting of the two vessels at sea, and

    provided a second code sheet to Gordo. On April 30, however,

    Velazquez was arrested by local authorities on drug related

    charges, and Gordo suddenly left Puerto Rico, apparently

    because he thought the deal was dead. Customs agent Juan

    Dania, posing as Gordo's boss, communicated to Pe a that the

    deal was still on and, after some hesitation, Pe a agreed to

    continue. Pe a thereafter met with agent Polo Diaz, who

    replaced Gordo, to discuss importing around 6,500 pounds of

    marijuana and 5 kilograms of cocaine, and was photographed.

    In subsequent discussions he spoke of another shipment of

    several hundred kilograms of cocaine. At a later meeting

    Pe a provided Diaz with another new code sheet from the

    Colombians, and, a week later, with a number of emergency

    lamps for the ship. He remained in close contact with Diaz

    as they finalized plans to meet the shipment of a second

    load.

    On May 30, 1992, five undercover Customs agents

    picked up 153 bales of marijuana and two Colombian

    participants from a Colombian ship at sea and transported

    them aboard their undercover vessel to Puerto Rico, as



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    arranged. Cabeza contacted Diaz to inquire about the

    shipment and to discuss another shipment of 300 kilograms of

    cocaine. On or about June 1st they arrived in Puerto Rico,

    and Diaz telephoned Pe a to obtain keys to a truck onto which

    Diaz was supposed to load the narcotics for delivery to Pe a.

    Pe a had obtained a red dump truck from his friend Victor

    Rivera, who had rented it from an acquaintance named Martin

    Salgado. Around the beginning of June, Rivera instructed

    Salgado to leave the truck at the Plaza Carolina. When it

    proved unusable, Pe a enlisted Rivera to help obtain a second

    one, which Rivera partially financed together with another

    friend. On June 2, Rivera and the friend together delivered

    a white enclosed truck to Plaza Carolina.1

    Pe a and Diaz arranged that June 4th would be the

    date of delivery. The agents retrieved the truck from the

    Plaza Carolina, loaded it up, and delivered it back to the

    Plaza Carolina, as arranged. On June 4th Diaz phoned Pe a to

    inform him the truck was ready and he would be waiting in his

    car at a nearby Burger King parking lot for Pe a to deliver

    the money he owed for the shipment in exchange for the keys

    to the marijuana- laden truck. At around noon Diaz received

    a call on his car phone from Pe a, who informed him that his

    ____________________

    1. The red dump truck was never returned to Salgado, who
    eventually reported it stolen after Rivera proved unable to
    provide any information on its whereabouts and advised him to
    make out a stolen vehicle report using a false name and phone
    number to describe the person to whom he had rented it.

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    nephew was on his way over to exchange the money for the

    keys. As they were talking a young black man approached,

    exchanged $30,000 cash with Diaz for the truck keys, and ran

    off.

    Shortly thereafter the truck, followed by Pe a

    driving a gray Volvo, followed by a burgundy silhouette van

    with tinted windows, were tailed by several surveillance

    teams from various federal agencies. The three vehicles

    pulled aside briefly on 65th Infantry Avenue, and several

    surveillance vehicles had to pass ahead in order not to blow

    their cover. When the convoy resumed, it made a left turn

    down Monte Carlo Avenue, heading toward the Monte Hatillo

    housing complex. Several surveillance vehicles made u-turns

    on 65th Infantry Avenue in order to head back toward the

    Monte Hatillo.

    When the first of these, occupied by three federal

    agents, turned right onto Monte Carlo Avenue in pursuit of

    the convoy, the burgundy van suddenly pulled diagonally in

    front of their vehicle and raked it with machine gun fire.

    The ambush severely wounded the three agents. A second

    undercover car pulled up and several agents emerged to return

    fire. Shooting was also coming from elsewhere, apparently

    from within or around the housing complex. A third

    surveillance vehicle, driven by agent Montalvo and carrying

    two other federal agents, pulled up and observed the van and



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    truck fleeing the scene. Pe a's Volvo was nowhere in sight.

    Montalvo pursued the van and truck, but was slowed by

    automatic weapons fire from several individuals on foot.

    They lost sight of the two vehicles and stopped to pull on

    bullet-proof vests. As they were doing so, three individuals

    approached firing automatic or semi-automatic weapons. After

    some exchange of fire, Montalvo managed to hit one of them

    and the others retreated carrying the wounded man. Montalvo

    and his fellow agents then returned to the site of the first

    shooting incident to assist the injured agents.

    The truck was later found parked in the housing

    complex. The owner of the van reported it stolen some hours

    later. The friend with whom Rivera had purchased the white

    truck reported it stolen around 3:30 that afternoon. Pe a

    was arrested later that day when he went to local police to

    report that he had been kidnapped and handcuffed at gunpoint,

    and his car had been stolen, a story he later recanted in

    favor of cooperating with the government. Velazquez was

    already in custody, and was indicted on information gleaned

    from surveillance of his activities before his arrest.

    Rivera was arrested some months later on information provided

    by Salgado. Galindez was arrested in December of 1992 on

    other charges and was indicted in February, 1993 on charges

    in connection with this case after being identified in a

    photospread by agents Montalvo and Diaz.



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    II. Jury Instruction on Reasonable Doubt II. Jury Instruction on Reasonable Doubt _______________________________________________

    Appellants allege the court gave erroneous

    definitions of reasonable doubt in its preliminary remarks to

    the jury at the outset of the case, and in its final charge.

    At the outset, after defining reasonable doubt briefly and

    correctly, the court added,









































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    It doesn't mean beyond all possible doubt
    or to an absolute certainty. Simply more ___________
    evidence. ________

    (Emphasis supplied). In its final instructions, it said,

    It all boils down to an impartial
    consideration of all the evidence, and
    the evidence must leave you firmly ___________________
    convinced that a particular defendant in _________
    a given context of a particular charge is
    guilty.

    (Emphasis supplied). Defendants took no exceptions, but

    claim these particular statements to be plain error under

    Federal Rule of Criminal Procedure 52(b). We may find plain

    error only where there is a "clear" or "obvious" error that

    affects "substantial rights." United States v. Olano, ___ _____________ _____

    U.S. ___, ___, 113 S.Ct 1770, 1776-78, 123 L.Ed.2d 508

    (1993); United States v. Romero, 32 F.3d 641, 651 (1st Cir. _____________ ______

    1994). Granted that an erroneous charge on reasonable doubt

    is plain error, Sullivan v. Louisiana, 113 S.Ct. 2078, 124 ________ _________

    L.Ed.2d 182 (1993), there is a scope of language that is

    acceptable. On the charge as a whole, we hold the words here

    fell within that scope.

    Defendants rely principally on United States v. _____________

    Colon-Pagan, 1 F.3d 80 (1st Cir. 1993). In Colon the trial ___________ _____

    court had defined reasonable doubt to mean, among other

    things, "proof of such a convincing character that a person

    . . . would be willing to rely and act upon it." Id. at 81. ___

    Rely on it under what circumstances? A small matter? We

    found this particular language clearly erroneous, since it


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    may have created the "incorrect impression that [the jury]

    can convict a defendant in a criminal case upon the basis of

    evidence no stronger than might reasonably support a decision

    to go shopping or to a movie or to take a vacation." Id. at ___

    81. However, we declined to hold the same language, with the

    addition that the proof should be of such convincing

    character that the jury should be willing to act on it "in

    the most important decisions that you have to make in your

    own lives and for yourselves," constituted plain error.

    United States v. Gordon, 634 F.2d 639, 644 (1st Cir. 1980). _____________ ______

    Although the charge in Gordon was by no means ideal, the ______

    "convincing" was sufficiently defined to signal to the jury

    the gravity of its task; in Colon it was meaningless. _____

    We readily distinguish our case from Colon. First, _____

    the preliminary charge here was not affirmatively wrong, it

    was merely incomplete. The court made that clear, and

    indicated it would further explain reasonable doubt at the

    end of the case. The vague "simply more evidence" language

    the court used to distinguish beyond a reasonable doubt from

    the preponderance standard is not automatically fatal here,

    as the court completed and amplified its remarks on the

    subject in its final charge.

    Our only question is whether, as a whole, the

    instructions left the jury with the correct understanding of

    its responsibility. Romero, 32 F.3d at 651-52 (while ______



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    preliminary statements that proof beyond a reasonable doubt

    required "scale" to "tip more to the government's side,"

    taken alone, may suggest diluted burden of proof,

    instructions as a whole did not create obvious likelihood

    jury would be misled).

    In its final charge the court said,

    Remember what I said at the
    beginning . . . . [T]he defendants . . .
    are presumed innocent until proven guilty
    beyond a reasonable doubt. They had no
    burden to testify or to present any
    evidence or prove that they are innocent.
    The government has the burden of proving
    every element of the charge or each
    charge, I guess, against each defendant
    beyond a reasonable doubt. And, of
    course, if the government fails to do so,
    . . . you must return a verdict of not
    guilty to the particular defendant or
    charge that the government failed to
    prove beyond a reasonable doubt.

    And what is this business of
    "reasonable doubt"? I gave you, at the
    beginning, a limited instruction on
    reasonable doubt; and I compared the
    standard of the civil case with the
    standard of a criminal case.

    Now let me tell you more about it. .
    . . [R]easonable doubt is a doubt based
    upon reason and common sense and may
    arise from a careful, impartial
    consideration of all the evidence in the
    case, or from lack of evidence. Proof
    beyond a reasonable doubt is proof that
    leaves you firmly convinced that a given _____________________________
    defendant is guilty of a given charge. _____________________________________

    If after a careful and impartial
    consideration with your fellow jurors of
    all the evidence, you are not convinced
    beyond a reasonable doubt that a
    particular defendant is guilty of a


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    particular charge, it is your duty to
    find that particular defendant not
    guilty.

















































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    On the other hand, if after a
    careful and impartial consideration with
    your fellow jurors of all the evidence,
    you are convinced, beyond a reasonable
    doubt, that the defendant is guilty, it
    is your duty to find the particular
    defendant related to that particular
    charge guilty.

    It all boils down to an impartial
    consideration of all the evidence, and
    the evidence must leave you firmly ______
    convinced that a particular defendant in _________________________________________
    a given context of a particular charge is _________________________________________
    guilty. (Emphasis supplied.) _______

    The court expressed the government's burden of

    proof beyond a reasonable doubt, neat, seven times. Did

    summing it up by saying that "it all boils down to" the

    evidence must leave the jury "firmly convinced" of the guilt

    of each defendant dilute its well-hammered instruction? The

    court did not leave the impression, as it did in Colon, that _____

    members of the jury could convict on the basis of evidence no

    stronger than might convince them to go shopping. Colon- ______

    Pagan, 1 F.3d at 81. The jury had to be "firmly convinced" _____

    that each defendant "is guilty," a matter of ultimate

    importance. We attach weight also to the word "firmly." The

    common meaning of "firm" is "fixed." We do not consider this

    summation of the court's repeated articulation of the

    government's burden to have improperly diminished that

    burden. Cf. United States v. DeMasi, 40 F.3d 1306 (1st Cir. ___ _____________ ______

    1994); Romero, 32 F.3d 641; United States v. Glenn, 828 F.2d ______ _____________ _____

    855 (1st Cir. 1987).



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    We strongly observe, as we have before, that

    lengthy explanations of reasonable doubt offer little gain,

    and much risk. See, e.g., United States v. Olmstead, 832 ___ ____ _____________ ________

    F.2d 642, 645 (1st Cir. 1987), cert. denied, 486 U.S. 1009, _____ ______

    108 S.Ct. 1739, 100 L.Ed.2d 202 (1988). Solicitude for the

    jury is understandable, but there is no duty to explain that

    phrase, let alone to embellish. Victor v. Nebraska, 114 ______ ________

    S.Ct. 1239 (1994).

    III. Severance III. Severance ___________________

    Velazquez, Galindez and Rivera contend the court

    committed reversible error in denying their motions for

    severance.2 They claim as ground for reversal a highly

    prejudicial spillover effect stemming from the prosecutor's

    relentless emphasis on the shoot-out, for which none of them

    stood charged.3

    Severance is warranted only when there is a

    manifest and serious risk that a "specific trial right" will

    ____________________

    2. If it appears that a defendant . . . is
    prejudiced by a joinder . . . of
    defendants . . . for trial together, the
    court may . . . grant a severance of
    defendants, or provide whatever other
    relief justice requires.

    Fed.R.Crim.P. 14.

    3. Velazquez also contends that joinder was not proper to
    begin with because he had nothing to do with the shoot-out.
    As he was not charged with any offense arising from the
    shoot-out, and does not contend he was improperly joined for
    trial on the offenses for which he was charged, we find this
    argument without merit.

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    be compromised, or that the jury will be unable to make "a

    reliable judgment about guilt or innocence." Zafiro v. ______

    United States, 113 S.Ct 933, 938 (1993). District courts _____________

    have wide discretion to decide severance motions, that we are

    "reluctant to secondguess." United States v. Boylan, 898 ______________ ______

    F.2d 230, 246 (1st Cir.), cert. denied, 498 U.S. 849, 111 _____ ______

    S.Ct. 139, 112 L.Ed.2d 106 (1990); United States v. O'Bryant, _____________ ________

    998 F.2d 21, 25 (1st Cir. 1993). We will interfere only if

    it is "plainly abused." United States v. Natanel, 938 F.2d _____________ _______

    302, 308 (1st Cir. 1991), cert. denied, 502 U.S. 1079, 112 _____ ______

    S.Ct. 986, 117 L.Ed.2d 149 (1992).

    Appellants do not allege that any specific trial

    right was violated, but rather that the prosecutor's

    overdramatization of the "bloodbath" prejudicially affected

    the jury's ability to make a reliable judgment. They point

    to the acquittal of two original codefendants whose motions

    for severance were successful as evidence of prejudice. But

    prejudice in this context "means more than just a better

    chance of acquittal at a separate trial." United States v. ______________

    Pierro, 32 F.3d 611, 615 (1st Cir. 1994) (quoting Boylan, 898 ______ ______

    F.2d at 246); Zafiro, 113 S.Ct. at 938. ______

    While in a trial of multiple defendants the risk of

    prejudice is magnified, for example, "when evidence that the

    jury should not consider against a defendant and that would

    not be admissible if a defendant were tried alone is admitted



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    against a codefendant," Zafiro, 113 S.Ct at 938, severance is ______

    not automatically required. Id.; Boylan, 898 F.2d at 246. ___ ______

    Though none of the evidence relating to the shoot-out would

    have been admissible had appellants been tried separately, it

    was not offered to prove any charges they faced, and there is

    no indication the jury considered it against them. We

    presume juries capable of disregarding evidence where it is

    irrelevant to the charges against certain defendants.

    Pierro, 32 F.3d at 616. ______

    Rule 14 leaves the granting of any relief to the

    sound discretion of the district court. Zafiro, 113 S.Ct at ______

    938. Limiting instructions will often suffice. Id. In ___

    denying the motions, the district court promised to take care

    of any potential prejudice through appropriate instructions

    and, although appellants urge otherwise, we find it

    adequately did so.4 We are particularly loathe to second

    ____________________

    4. The court's instructions were as follows:

    A separate crime is charged against
    one or more of the defendants in each
    count. The charges have been joined for
    trial. You must decide the case for each
    defendant on each crime charged against
    that defendant separately. Your verdict
    on any count as to any defendant should
    not control your verdict on any other
    count or as to any other defendant.

    In other words, the rule to be
    followed is a separate consideration of
    each person that is named as a defendant
    and of each charge that appears in the
    indictment.

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    guess the district court here, given that the jury manifested

    its ability

















































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    to differentiate the defendants, and the evidence against

    each, by returning several acquittals.5 Boylan, 898 F.2d at ______

    246.

    IV. Pretrial Photo Identifications IV. Pretrial Photo Identifications ________________________________________

    Galindez assigns as error the admission of two

    pretrial photospread identifications, as well as the in-court

    identifications based on them. He argues that the

    circumstances surrounding the identifications were unduly

    suggestive, and unreliable.

    Galindez was first named in February 1993 as the

    person who exchanged payment with agent Diaz for keys to the

    marijuana-laden truck on June 4, 1992. He was indicted after

    agents Montalvo and Diaz separately identified him in a

    photospread. Galindez moved to suppress the identifications

    and a hearing was held before a magistrate. The district

    court adopted the magistrate's recommendation for denial.

    Galindez now appeals.

    A. Standard of Review _______________________

    We "uphold a district court's denial of a motion to

    suppress if any reasonable view of the evidence supports it."

    United States v. De Jesus-Rios, 990 F.2d 672, 677 (1st Cir. _____________ ______________

    1993). See, also, United States v. McLaughlin, 957 F.2d 12, ___ ____ _____________ __________

    16 (1st Cir. 1992) (collecting cases). The district court's


    ____________________

    5. Both Rivera and Galindez were acquitted of the main
    conspiracy charge.

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    findings relating to a motion to suppress are binding on

    appeal unless clearly erroneous. De Jesus-Rios, 990 F.2d at _____________

    677. See McLaughlin, 957 F.2d at 17 (collecting cases). A ___ __________

    finding may be clearly erroneous, however, even where there

    is evidence to support it if "the reviewing court on the

    entire evidence is left with the definite and firm conviction

    that a mistake has been committed." Id. (quoting United ___ ______

    States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, ______ _______________

    542, 92 L.Ed. 746 (1948)).

    We employ a two-part inquiry: (1) whether the

    identification was "impermissibly suggestive," and, if so,

    (2) whether the totality of the circumstances indicates it

    was nonetheless reliable. De Jesus-Rios, 990 F.2d at 677 _____________

    (collecting cases). Unreliability is found only where there

    is "a very substantial likelihood of irreparable

    misidentification." Id. (citations omitted). See, e.g., ___ ___ ____

    United States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990) _____________ _______

    ("it is only in extraordinary cases that identification

    evidence should be withheld from the jury"), cert. denied, _____ ______

    501 U.S. 1234, 111 S.Ct. 2861, 115 L.Ed.2d 1027 (1991). The

    magistrate purported to apply this test, and found neither

    suggestiveness nor unreliability. Based on the analysis

    below, we disagree.

    1. Suggestiveness ____________________

    On February 8, 1993, agent Diaz inspected a



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    photospread built around a photograph of Galindez which an

    uninvolved informant had identified as the person he heard

    had made the money for keys exchange. Diaz identified

    Galindez as the one with whom he had made the exchange.

    Agent Montalvo was shown the photospread the next day and

    also identified Galindez. Diaz testified that he was ordered

    not to talk to anyone about the photospread or his

    identification, and that he did not do so. Although Diaz

    continued to deny it at trial, Montalvo admitted both at the

    suppression hearing and at trial to speaking with Diaz about

    the photospread after Diaz had viewed it, but prior to

    examining it himself. The magistrate's ruling, although

    detailed, inexplicably fails to note and consider this strong

    hint of collusion between the identifying agents. We believe

    it raises the possibility of suggestiveness, requiring

    examination of the circumstances6 in order to determine

    whether the ruling can nonetheless stand.

    On June 4, 1992 Montalvo, along with two other

    agents, was surveilling the parking lot where Diaz was

    waiting for the exchange. He could not see Diaz's car, but

    could see as close as five feet surrounding it from about 6'-

    8' higher up and 35 feet away. It was around noon, and

    raining heavily, when Montalvo observed a young black male

    ____________________

    6. Galindez does not suggest, nor is there any evidence,
    that the procedure used was faulty. We therefore address
    only the circumstances surrounding the identifications.

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    running toward Diaz's car. He disappeared from Montalvo's

    view in the vicinity of the car for about 30 to 60 seconds

    before re-emerging on the other side running toward the

    shopping mall. Montalvo concluded that this person had made

    the exchange, even though he could not observe it, because

    immediately afterward a radio report confirmed that the

    exchange had been completed, and because the suspect remained

    within the small radius surrounding Diaz's car for much

    longer than he would have had he simply continued running by.

    On June 7 Montalvo prepared a report of his

    observations. He described this suspect as a young, black,

    Hispanic male, about 13-15 years old, wearing a multi-colored

    tee-shirt. The next day, during a preliminary hearing

    regarding co-defendant Pe a, Montalvo repeated this

    description. He added that he saw the same youth a short

    time later riding as passenger in the marijuana-laden truck

    as the truck-Volvo-van convoy progressed toward the Monte

    Hatillo housing complex.

    Before a grand jury convened to indict Galindez on

    February 10, 1993, the day after identifying Galindez in the

    photospread, Montalvo described him for the first time as

    having a long neck. At the suppression hearing held in April

    1993, Montalvo testified that what caught his attention when

    observing the suspect running toward Diaz's car was his long

    neck. Montalvo then testified at trial that what caught his



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    eye at the time was the suspect's long neck and "very

    protruding Adam's apple." When confronted with the fact that

    he had never mentioned the long neck and Adam's apple in the

    report he prepared just three days after the incident nor any

    time prior to seeing Galindez' photograph, Montalvo said that

    it was because the photo "refreshed" his memory. Both

    Montalvo and the agent who administered the identification

    procedure testified that all six photos in the spread were

    covered up to the chin -- to assure that labels identifying

    the persons depicted could not be seen and that the photos

    appeared uniform -- thus no necks would be observable.

    Montalvo said he removed the paper covering the neck of

    Galindez's photograph after he selected it but before

    initialling it.

    Evidence tending to strengthen agent Diaz's

    identification of Galindez also materializes only after his

    viewing of the photospread. Shortly after the crime, Diaz

    was interviewed by an investigating case agent who prepared a

    report, dated July 20, 1992. This report contains no

    physical description of this suspect other than that he was

    black and wearing a black tee shirt with printed letters and

    jeans. Diaz, a Customs agent for seven years and trained in

    identification techniques, testified that he did not recall

    whether he had provided the investigating agent with more

    than this general description, but admitted that had he done



    -23-













    so the agent would have reported it.7

    Two days after he identified Galindez, Diaz

    testified before a grand jury that the feature he recalled

    specifically was a long neck. At the suppression hearing two

    months later Diaz testified that at the time of the incident

    he had specifically noted the suspect's long neck, recessed

    eyes, big lips and age between 18 and 22, and that when he

    identified Galindez he was certain because he would "never

    forget" the eyes, nose and mouth. It then emerged on cross

    examination that Diaz, who was not required to write a report

    himself, had taken contemporaneous "rough notes" of his

    participation in the undercover operation. These had not

    been provided to defense counsel and, despite his request,

    the magistrate refused to hold up the hearing to obtain them.

    Defense counsel proceeded without, and managed to establish

    that (1) Diaz had reviewed them before being interviewed by

    the case agent, and (2) they contained some description of

    the suspect but Diaz could not recall any details other than

    that he was black and wearing a black printed tee shirt,

    precisely the description contained in the agent's report.

    The prosecutor produced Diaz's notes on the first

    day of trial, revealing a detailed description of the suspect

    as black, with brown eyes, short hair, long neck, heavy

    ____________________

    7. The agent, Juan Dania, a six year veteran, testified that
    it would have been his practice to report all descriptions
    provided by the agents he interviewed.

    -24-













    eyebrows and recessed eyes, 5' 6-8" and age 18-22. Diaz

    admitted on cross examination that he had thoroughly reviewed

    these notes before the suppression hearing, yet had been

    unable to recall anything about them when questioned by the

    defense at that time. It stretches credulity to believe that

    Diaz wrote contemporaneous notes describing the suspect as,

    among other things, having a long neck and recessed eyes, and

    that several weeks later when interviewed by the

    investigating agent, and after reviewing those notes, he

    provided none of that detail; that after again reviewing the

    notes for the express purpose of testifying about his

    identification at the suppression hearing, he was again

    unable to recall any of their detail; and that when they were

    finally revealed at trial those notes turned out to contain

    the very details tending to confirm the description Diaz gave

    for the first time at the suppression hearing, and describe

    the very features he claimed both at the hearing and at trial

    had most impressed him at the time of the incident.

    Viewed in totality, the circumstances indicate a

    possibility that Montalvo was influenced by Diaz prior to his

    identification of Galindez, and thereafter both he and Diaz

    supplemented their descriptions to include features prominent

    in the photograph. Although law enforcement experience is a

    factor that mitigates susceptibility to suggestiveness,

    Maguire, 918 F.2d at 263, the pre-viewing conversation _______



    -25-













    between the two agents, and the apparent post hoc doctoring

    of both their descriptions, destroys that presumption here.

    The finding below, which did not consider the improper

    conversation, is clearly erroneous.

    2. Reliability __________________

    A finding of suggestiveness, however, only requires

    exclusion when it creates a "very substantial likelihood of

    irreparable misidentification." De Jesus-Rios, 990 F.2d at _____________

    677 (citations omitted). This prong of the test questions

    "whether under the 'totality of the circumstances' the

    identification was reliable even though the confrontation

    procedure was suggestive." Neil v. Biggers, 409 U.S. 188, ____ _______

    199 (1972). The following factors are probative:

    (1) the opportunity of the witness to
    view the criminal at the time of the
    crime; (2) the witness' degree of
    attention; (3) the accuracy of the
    witness' prior description of the
    criminal; (4) the level of certainty
    demonstrated by the witness at the
    confrontation; and (5) the length of time
    between the crime and the confrontation.

    De Jesus-Rios, 909 F.2d at 677 (citing Neil v. Biggers, 409 _____________ ____ _______

    U.S. at 199-200 (other citations omitted)). Applying these

    factors, we note, first, that the record indicates Montalvo

    had but 25 seconds to view the suspect, in heavy rain, at a

    distance of, at best, 35 feet, and 6-8 feet elevated. He

    admitted his subsequent viewing of the same person in the

    passenger seat of the truck was somewhat obstructed --



    -26-













    although he claims he recognized the tee shirt and general

    appearance -- and fleeting, as it occurred while he was

    driving his own vehicle past the stopped truck. This may

    have been adequate to observe and note a long neck. Second,

    since Montalvo was assigned to surveillance, we may assume he

    was attentive. Third, his reported description just days

    after the events contains none of the detail that begins to

    appear in his descriptions subsequent to speaking with Diaz

    and then viewing the photospread. Fourth, although it only

    took Montalvo several minutes to pick out Galindez's

    photograph, he testified that he was confused because he

    remembered the hair of the person he saw as "coming straight

    down," whereas the photo depicted Galindez with very short

    hair.

    Finally, eight months elapsed between the crime and

    the identification. This Court has allowed photospread

    identifications that have occurred as much as five years

    after the crime, but this has been where other factors

    strengthened considerably the reliability of the

    identification. See, e.g., United States v. Drougas, 748 ___ ____ ______________ _______

    F.2d 8, 28 (1st Cir. 1984) (five-year gap was "very much

    greater than would ordinarily be permissible," but unlike

    most cases, "the witness was not identifying an assailant . .

    . he viewed only once under stressful circumstances;" he was

    co-conspirator who had spent considerable time with



    -27-













    defendant). In Biggers itself, the Supreme Court noted that _______

    a seven month delay would "be a seriously negative factor in

    most cases," 409 U.S. at 201, but since the witness, a rape

    victim, had spent up to half an hour with her assailant,

    under artificial light, and at least twice











































    -28-













    "faced him directly and intimately," the identification was

    allowed. Id. at 200. ___

    In light of the conversation between Diaz and

    Montalvo prior to Montalvo's viewing the photospread, the

    alterations in both of their subsequent descriptions, the

    suspicion that Diaz's "contemporaneous" notes were composed

    after the fact (and the ease with which the prosecutor could

    have cleared up that problem by promptly providing the notes

    to defense counsel), and the negative weight of the third,

    fourth and fifth Biggers factors compels the conclusion that _______

    at least Montalvo's identification was unreliable, and the

    district court was clearly erroneous in allowing it to go to

    the jury.

    B. Was the Error Harmless Beyond a Reasonable ___________________________________________________

    Doubt? ______

    Next, we assess whether the district court's error

    was harmless beyond a reasonable doubt. De Jesus-Rios, 990 _____________

    F.2d at 678 (citation omitted). In overturning a district

    court's finding that a pretrial identification, though

    impermissibly suggestive, was nonetheless reliable, this

    court has focussed on the inevitable uncertainty concerning

    what role the impermissible identification played in the

    jury's decision to convict. De Jesus-Rios, 990 F.2d at 679. _____________

    In De Jesus-Rios, as here, there were two pretrial _____________

    identifications, and no other evidence linking defendant to



    -29-













    the crime.8 The court found only one identification

    unreliable. In ruling nonetheless that the district court's

    error in admitting both was not harmless beyond a reasonable

    doubt, the court noted that it was possible that the jury had

    relied significantly upon the unreliable identification. The

    court was "concerned that the jury may have been persuaded to

    convict by the very fact that there were two witnesses who ___

    identified [the defendant]." Id. Here, too, it is possible ___

    that the jury rested its decision to convict on the fact that

    there were two identifications. We cannot conclude beyond a

    reasonable doubt that the district court's error was

    harmless.

    V. Delayed Discovery V. Delayed Discovery ____________________________

    Rivera challenges the admission into evidence

    certain telephone records revealing calls between his line

    and those belonging to others involved in the conspiracy that

    the government did not provide until the first day of trial.

    The government admitted to possessing some of them as much as

    one year before trial. Rivera reasserts his argument below

    that the government's late disclosure violated Rule 16 of the







    ____________________

    8. The only other evidence linking Galindez to the crime are
    Diaz's notes containing a description to which Galindez can
    be matched. The notes cannot be credited.

    -30-













    Federal Rules of Criminal Procedure9 and prejudiced his

    defense by depriving him of the opportunity to investigate

    the calls.

    We review a district court's ruling on the

    prejudicial effect of a failure to provide pre-trial

    discovery for abuse of discretion. United States v. Alvarez, _____________ _______

    987 F.2d 77, 85 (1st Cir.), cert. denied, ___ U.S. ___, 114 _____ ______

    S.Ct. 147, 126 L.Ed.2d 109 (1993); see Fed.R.Crim.P. ___

    16(d)(2). Prejudice must be proven to obtain reversal on

    appeal. Alvarez, 987 F.2d at 85. _______

    The court allowed the evidence, finding that the

    government did not act in bad faith and that no prejudice

    resulted. See, e.g., United States v. Nickens, 955 F.2d 112, ___ ____ _____________ _______

    126 (1st Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 108, _____ ______

    121 L.Ed.2d 66 (1992) (citations omitted). We agree. The

    prejudice Rivera alleged below related entirely to linking


    ____________________

    9. Rule 16 provides, in pertinent part:

    Upon request of the defendant the
    government shall permit the defendant to
    inspect and copy or photograph books,
    papers, documents, . . . which are within
    the possession, custody or control of the
    government and which are material to the
    preparation of the defendant's defense or
    are intended for use by the government as
    evidence in chief at the trial . . .

    Fed.R.Crim. P. 16(a)(1)(C). Rule 16 imposes a continuing
    duty to disclose such requested material. Fed.R.Crim.P.
    16(c). See, e.g., United States v. Tajeddini, 996 F.2d 1278, ___ ____ _____________ _________
    1287 (1st Cir. 1993).

    -31-













    him to the conspiracy, for which he was acquitted, and he

    proffers no additional proof of prejudice on appeal. This

    verdict itself verifies the court's ruling.

    Rivera also challenges the admission of this

    evidence on relevancy grounds. This contention was not made

    to the district court.

    VI. Sufficiency of the Evidence VI. Sufficiency of the Evidence _____________________________________

    All appellants challenge the sufficiency of the

    evidence by which they were convicted, having made timely

    motions for acquittal to the trial court. On appeal, we

    assess the evidence as a whole, taking "all reasonable

    inferences, in the light most favorable to the verdict, with

    a view to whether a rational trier of fact could have found

    the defendant guilty beyond a reasonable doubt." United ______

    States v. Vargas, 945 F.2d 426, 427 (1st Cir. 1991) (internal ______ ______

    quotations omitted); United States v. Montas, 41 F.3d 775, _____________ ______

    778 (1st Cir. 1994), petition for cert. filed, (April 4, __________________________

    1995) (No. 94-8798). We resolve all credibility issues in

    favor of the verdict. United States v. De Jesus Rios, 990 _____________ _____________

    F.2d at 680.

    A. Galindez _____________

    Although we are awarding Galindez a new trial

    because of an erroneously admitted identification, it is

    still necessary to consider whether his motion for acquittal

    should have been allowed. Our evidentiary ruling leaves a



    -32-













    viable identification. A jury might reasonably conclude that

    this identification alone, made by the agent who dealt

    directly and closely, if briefly, with the suspect,

    establishes Galindez's guilt beyond a reasonable doubt.

    B. Pe a _________

    Pe a was convicted of conspiring to import,

    importing, and possessing with the intent to distribute

    controlled substances in violation of 21 U.S.C. 952(a) and

    841 (a)(1) (Counts One, Two and Three), using a telephone in

    violation of 21 U.S.C. 843(b) (Count Four), possessing a

    firearm during commission of a drug trafficking offense in

    violation of 18 U.S.C. 924(c)(1) (Count Six), and aiding

    and abetting an attempt to kill three federal agents in the

    line of duty in violation of 18 U.S.C. 1114 and 2 (Counts

    Seven through Nine). Although he states a flat challenge to

    the evidence on all counts, we discern questions only with

    respect to the evidence for importation, possession of

    firearms, and the attempt to kill the agents.

    1. Importation __________________

    Pe a attempts to place sole responsibility for

    importing the drugs on the undercover agents involved in the

    scheme, alleging that it was they, not he, who actually

    brought the marijuana across the border. Pe a misinterprets

    the scope of the crime of importation. Importation of a

    controlled substance is a "continuous crime" that is not



    -33-













    complete until the drugs reach their intended destination.

    United States v. Leal, 831 F.2d 7, 9 (1st Cir. 1987) (citing _____________ ____

    cases). Thus the fact that Pe a was not present and

    physically involved at the point of entry into the United

    States does not absolve him. While the outermost limits of

    importation have never been defined by this Court, we are

    satisfied that the crime was ongoing when Pe a took custody

    of the marijuana, the evidence of which is ample.

    2. Use of Firearms During Drug Trafficking ______________________________________________

    Offense _______

    Section 924(c)(1) requires the government to show

    that the defendant "used one or more firearms during a drug

    trafficking offense." United States v. Reyes-Mercado, 22 _____________ _____________

    F.3d 363, 367 (1st Cir. 1994).10 There being no question

    that firearms were thus used, Pe a claims the record lacks

    evidence that he used or possessed a firearm, actually or __

    constructively, or aided anyone in procuring them, asserting

    ____________________

    10. Whoever, during and in relation to any
    crime of violence or drug trafficking
    crime . . . uses or carries a firearm,
    shall, in addition to the punishment
    provided for such crime . . . be
    sentenced to imprisonment for five years,
    and if the firearm is a short-barreled
    rifle, short-barreled shotgun . . . to
    imprisonment for ten years, and if the
    firearm is a machine-gun, or a
    destructive device, or is equipped with a
    firearm silencer or firearm muffler, to
    imprisonment for thirty years. . . .

    18 U.S.C. 924(c)(1).

    -34-













    he did not even know of their presence in the silhouette van

    that

















































    -35-













    escorted the drug-laden truck after he and his co-

    conspirators took possession of it.

    The government contends Pe a's conviction can be

    upheld on either of two theories: first, Pe a aided and

    abetted the occupants of the van in their possession of the

    weapons; second, he can be held criminally accountable for

    the reasonably foreseeable substantive offenses committed by

    others in furtherance of their joint criminal venture.

    Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 _________ _____________

    L.Ed. 1489 (1946).11

    One who aids and abets a crime is punishable as a

    principal. 18 U.S.C. 2; Nye & Nissen v. United States, 336 ____________ _____________

    U.S. 613, 618-619, 69 S.Ct 766, 769-770, 93 L.Ed. 919 (1949)

    ("one who aids, abets, counsels, commands, induces, or

    procures the commission of an act is as responsible for that

    act as if he committed it directly"); United States v. ______________

    Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (acts of principal are ________

    those of aider and abetter "as a matter of law"). To prove

    liability as an accomplice the government must show the

    ____________________

    11. The court instructed the jury as follows:

    If one member of a conspiracy commits a
    crime in furtherance of a conspiracy, the
    other members have also, under the law,
    committed that crime.

    This was sufficient. United States v. Alvarado, 898 F.2d ______________ ________
    987, 993 (5th Cir. 1990); United States v. Gallo, 763 F.2d _____________ _____
    1504, 1520 n.23 (6th Cir. 1985), cert. denied, 474 U.S. 1069, _____ ______
    106 S.Ct. 828, 88 L.Ed.2d 800 (1986).

    -36-













    defendant associated himself with a criminal scheme in some

    way, acted so as to demonstrate his wish to bring it about,

    and sought by his actions to make it succeed. Nye & Nissen, ____________

    336 U.S. at 619; United States v. Loder, 23 F.3d 586, 590-91 _____________ _____

    (1st Cir. 1994). Criminal intent may be inferred from

    surrounding facts and circumstances. United States v. Campa, _____________ _____

    679 F.2d 1006, 1010 (1st Cir. 1982). It is settled that for

    an accomplice to be convicted under 924(c)(1) the

    government must prove that he knew "to a practical certainty"

    that a firearm would be used or carried during a qualified

    offense, United States v. DeMasi, 40 F.3d 1306, 1316 (1st ______________ ______

    Cir. 1994); United States v. Torres-Maldonado, 14 F.3d 95, _____________ ________________

    103 (1st Cir.) (citing cases), cert. denied, ___ U.S. ___, _____ ______

    115 S.Ct. 193, 130 L.Ed.2d 125 (1994).

    The evidence establishing Pe a's involvement in the

    drug importation conspiracy, as well as its size, aim and

    scope supports the conclusion that Pe a aided and abetted the

    use of firearms in connection with the transfer of the

    narcotics into his custody. Pe a himself directed the

    exchange of $30,000 in cash for keys to a truck containing

    over 9,000 pounds of marijuana. He then rode in the van to

    the Monte Hatillo complex to pick up his car. A coordinated

    convoy consisting of the truck, a Volvo driven by Pe a,

    followed by the van, was later observed heading back toward

    the Monte Hatillo. The three vehicles pulled to the side of



    -37-













    the road together, and turned together into the housing

    complex moments later. Both Pe a and the truck's passenger

    were observed talking on cellular telephones. There was

    evidence suggesting that the van was also equipped with a

    cellular phone antenna, although activities within could not

    be seen due to its darkened windows. Finally, the convoy

    broke up just before the occupants of the van began shooting,

    and the truck and Pe a's car rapidly disappeared.

    A rational jury could conclude that the van was

    connected to and provided security for the operation, and

    that Pe a must at least have known that the transaction would

    be secured with arms, and could expect that they would be

    used in the event of trouble. Further, the evidence supports

    a conclusion that the barrage of automatic weapons fire was

    designed to provide cover for Pe a and the truck to escape,

    and that Pe a both knew of and benefitted from it. It is

    immaterial that Pe a did not carry or himself use a firearm,

    if he was aware that firearms were available for use during

    or in relation to the transaction, DeMasi, 40 F.3d at 1316, ______

    or if the firearms facilitated the crime or lent him courage

    to see it through. Reyes-Mercado, 22 F.3d at 367. _____________

    Because the evidence is sufficient to support the

    conclusion that, at the very least, Pe a knew to a practical

    certainty that the transaction would be secured with

    firearms, his conviction on count six is affirmed.



    -38-

































































    -39-













    3. Aiding and Abetting the Attempt to Kill ______________________________________________

    the Agents __________

    The government contends the same theories of

    liability support Pe a's convictions for the attempt to kill

    the agents; and Pe a again seeks to avoid responsibility by

    claiming innocence of the identities, actions and intent of

    the occupants of the van. There is no question that an

    attempt was made to kill the agents during the drug

    operation; our only concern is whether Pe a aided and abetted

    this attempt, or whether it was reasonably foreseeable to

    Pe a that such an offense might be committed in furtherance

    of the conspiracy. Pinkerton, 328 U.S. at 648. _________

    We hold that the jury could have inferred that Pe a

    knew there were automatic weapons in the van for protecting

    the transfer of the narcotics, that Pe a was in telephonic

    contact with the occupants of the van up until moments before

    the shooting began, and that the ambush of the agents was

    undertaken with his knowledge, if not pursuant to his orders,

    and that he benefitted by being able to flee the scene. A

    rational jury therefore could have found that the evidence

    indicated Pe a was associated with the ambush, acted in a way

    that showed his desire that it succeed, and shared the

    requisite criminal intent to bear responsibility. The record

    also supports the conclusion that it was reasonably

    foreseeable to Pe a that the firearms would be used in the



    -40-













    event that the successful completion of the drug deal was

    threatened. United States v. Bruno, 873 F.2d 555, 560 (2nd _____________ _____

    Cir.), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d _____ ______

    86 (1989). Pe a's conviction on counts seven through nine

    are therefore affirmed.

    C. Rivera ___________

    Rivera was convicted for possession of a controlled

    substance with intent to distribute. He claims he is but a

    legitimate businessman whose tangential involvement in the

    scheme was innocent and unknowing, and that the evidence does

    not support the verdict.

    Proof of criminal intent or guilty knowledge is

    essential under 18 U.S.C. 2,12 Campa, 679 F.2d at 1010, _____

    otherwise anyone who brushed a criminal en route to his deed

    could be swept within the statute. See United States v. ___ ______________

    O'Campo, 973 F.2d 1015, 1020 (1st Cir. 1992). Rivera's _______

    knowledge and furtherance of the conspirators' plan can be

    inferred from his providing a truck to the conspirators,

    suggesting to its owner that he report it stolen, loaning his

    own money to help obtain a second truck, and the fact that

    this truck ended up reported stolen shortly after the

    incident. Although Rivera claims that all of this could be


    ____________________

    12. It is immaterial that the indictment neither alleged
    aiding and abetting nor referred to 18 U.S.C 2. United ______
    States v. Sanchez, 917 F.2d 607, 611 (1st Cir. 1990), cert. ______ _______ _____
    denied, 499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991). ______

    -41-













    seen as the innocent pursuit of his trucking business, the

    jury acted within its province in resolving this credibility

    issue against him. Viewed in the light most favorable to the

    verdict, the evidence is sufficient to sustain Rivera's

    conviction.

    D. Velazquez _______________

    Velazquez challenges the sufficiency of evidence

    for all counts for which he was convicted: conspiracy to

    import marijuana and cocaine in violation of 21 U.S.C.

    952(a) (count one); importation of 9,540 pounds of marijuana

    in violation of 21 U.S.C. 952(a) (count two); possession

    with intent to distribute marijuana in violation of 21 U.S.C.

    841(a)(1) (count three); and use of a telephone in

    violation of 21 U.S.C. 843(b) (count five).

    1. Conspiracy _________________

    Velazquez attacks his conviction on counts one and

    five by claiming the evidence showed two distinct

    conspiracies, one failed effort before his arrest and

    incarceration on April 30, 1992, and another conceived only

    afterwards. He concedes the evidence supports his

    participation in the first,13 but argues that the second,

    ____________________

    13. Such evidence included taped meetings with a
    confidential informant in which he participated in price
    negotiations, discussions of secret code sheets, and made an
    agreement to pay a certain sum for transportation of the
    drugs, as well as evidence that he personally inspected a
    U.S. Customs undercover vessel for its suitability for
    shipment and provided marine charts and code sheets to others

    -42-













    ultimately successful one, was formed and carried out only

    after his arrest by local authorities on April 30, 1992, and

    since he was still incarcerated on June 4, when this second

    scheme was consummated, it was impossible for him to have

    participated in it. He promotes his two conspiracy theory by

    claiming there were "new players" and new secret "codes" in

    the second plot, and that about four times as much marijuana

    was ultimately imported than he and the original conspirators

    contemplated.

    Velazquez makes this argument for the first time,

    having conceded the sufficiency of evidence to convict on

    count one to the trial court. "It has long been the practice

    in this circuit that an issue not presented in the district

    court will not be addressed for the first time on appeal."

    United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989). We _____________ _____

    discuss it only because he makes an essentially similar

    argument regarding counts two and three, which he did not

    concede, and it bears on the question concerning those

    counts.

    Whether multiple conspiracies existed is a question

    of fact for the jury. United States v. Bello-Perez, 977 F.2d _____________ ___________

    664, 667 (1st Cir. 1992); United States v. Drougas, 748 F.2d _____________ _______

    8, 17 (1st Cir. 1984). To have proceeded on the assumption

    that a single conspiracy existed in this case, the jury need

    ____________________

    to assist their planning and execution of the deal.

    -43-













    only have found that the evidence as a whole adequately

    showed that all the co-conspirators "knowingly and

    intentionally 'directed their efforts towards the

    accomplishment of a common goal or overall plan' to commit

    the substantive offense charged." Bello-Perez, 977 F.2d at ___________

    667-668 (quoting Drougas, 748 F.2d at 17). The jury need not _______

    have found that they joined the conspiracy together,

    participated at the same time, nor even that they all knew

    each other. Bello-Perez, 977 F.2d at 668 (citing cases). ___________

    Save for his own removal by arrest, the only change

    of players was the replacement of one of the government's

    agents after a first botched attempt in March 1992. The

    other players remained and continued with the original plot.

    Nor does the fact that much more marijuana was imported than

    the original negotiations contemplated necessarily cleave the

    conspiracy in two. The jury could have readily found that

    new codes were issued for security reasons. There is no

    reason it could not have found beyond a reasonable doubt that

    there was a single conspiracy in which Velazquez clearly

    played a part.

    2. Use of Telephone to Facilitate the Crime ______________________________________________

    Section 843(b) makes it a crime to use a

    communication facility, such as a telephone, to facilitate

    the commission of a crime such as importation of controlled

    substances. Velazquez was convicted of one count of



    -44-













    violating 843(b) on the basis of unrefuted evidence of a

    telephone conversation on March 9, 1992, in which he

    discussed details of the importation plans with a

    confidential informant who recorded the call. He employs the

    same two conspiracy theory











































    -45-













    to attack this conviction. We find the evidence more than

    sufficient to uphold it.

    3. Importation __________________

    Velazquez attacks his convictions for counts two

    and three by claiming his imprisonment by local authorities

    as of April 30, 1992 made it impossible for him to have

    participated after that time, and that evidence of his

    participation in the conspiracy before then was insufficient

    to prove his guilt beyond a reasonable doubt for the

    substantive counts.

    The trial court was initially inclined to grant

    Velazquez's motion for acquittal for these two counts, but

    reconsidered. The government contends that the evidence is

    sufficient to support his convictions "at least as an aider

    and abetter." Velazquez contends that all the unlawful

    actions comprising counts two and three were committed by

    others after his incarceration, and therefore the government

    failed to prove his involvement in any of the elements of

    either offense.

    With respect to his importation conviction,

    Velazquez fails to understand the scope of the law of

    conspiracy. The jury was properly instructed that a member

    of a conspiracy is criminally responsible for any illegal

    acts of co-conspirators committed in furtherance of it.

    Pinkerton, 328 U.S. 640; United States v. Munoz, 36 F.3d _________ ______________ _____



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    1229, 1234 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 _____ ______

    S.Ct. 1164, 130 L.Ed.2d 1120 (1995). Thus courts have held

    that the same evidence that supports a defendant's conviction

    for conspiracy to commit a crime may support his conviction

    for the substantive count, even where he did not commit it

    himself. See, e.g., United States v. Salazar, 958 F.2d 1285, ___ ____ _____________ _______

    1292 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 185, _____ ______

    121 L.Ed.2d 129 (1992). As we found the evidence sufficient

    to uphold both the jury's finding of a single conspiracy to

    import illicit narcotics in which both Velazquez and Pe a

    were at various times involved, and Pe a's conviction on the

    substantive count of importation, Velazquez's conviction for

    the substantive count may also stand.14

    4. Possession ________________

    We cannot make the same simple assertion with

    respect to Velazquez's conviction for possession of narcotics

    with intent to distribute, given that he was not convicted

    for conspiracy to commit this offense. Velazquez again


    ____________________

    14. Velazquez seems to make an argument that his arrest and
    incarceration effectively removed him from the conspiracy.
    Where membership in a conspiracy is proven, evidence of
    simply ceasing one's activities in connection with it, for
    whatever reason, is insufficient to constitute withdrawal.
    Munoz, 36 F.3d at 1234. An affirmative step, such as a full _____
    confession to authorities or communicating to co-conspirators
    abandonment of the enterprise and its goals, is required to
    avoid responsibility for the continuing crimes of co-
    conspirators. Id. Velazquez presented no such evidence, and ___
    the jury was entitled to surmise that but for his involuntary
    removal by arrest, he would have continued.

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    contends that because he was incarcerated at the time his co-

    conspirators possessed the drugs, it was impossible for him

    to have been in possession himself, even constructively,

    within the meaning of 21 U.S.C. 841(a)(1), nor could he

    have aided and abetted their possession within the meaning of

    18 U.S.C. 2.

    Evidence of Velazquez's association, participation,

    and active promotion of others' possession of the drugs is

    sufficient to sustain his conviction as an aider and abetter.

    Nye & Nissen, 336 U.S. at 619. Velazquez actively associated ____________

    himself with a scheme that was specifically designed to

    result in his possession and distribution of a substantial

    amount of narcotics by participating in initial negotiations

    over price and amounts and subsequent meetings and telephone

    conversations to refine details of the plan, attempting to

    travel to St. Maarten to pick up one of the suppliers,

    supplying a marine chart, inspecting an undercover Customs

    vessel for its suitability for the smuggle, providing a new

    set of secret codes and a navigational device after an

    initial attempt at shipment failed when the Colombian vessel

    carrying the narcotics got lost en route to Puerto Rico,

    broke down, and had to jettison its cargo, and bringing

    others into the scheme. There was no evidence he was acting

    merely as a facilitator for others with no intent to

    participate in possession and distribution himself. On the



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    contrary, there was evidence that 2 kilograms of cocaine

    contained in the first, failed shipment

















































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    were included specifically per his request and intended

    exclusively for him.

    From this evidence the jury could have concluded

    that possession and distribution of the drugs were the

    obvious intended consequences of the plot to import, and that

    Velazquez promoted and facilitated that goal.

    The only case of which we are aware that addressed

    a conviction for possession by an inmate on the basis of

    possession by his at-large co-conspirators involved a

    defendant who, while incarcerated, made numerous phone calls

    from prison to his cohorts between the time of his arrest and

    their apprehension with a cache of cocaine and directions to

    his apartment. United States v. Disla, 805 F.2d 1340 (9th _____________ _____

    Cir. 1986). Although Disla's conviction for conspiracy to

    possess cocaine with intent to distribute was upheld, the

    court reversed his conviction for the substantive count,

    holding that evidence he was involved as a conspirator before

    his incarceration could not support either an aiding and

    abetting or a constructive possession theory of guilt, given

    that there was no evidence Disla did anything to "effect" or

    "assist" the actual crime.15 Id. at 1350-52. ___




    ____________________

    15. The court held that an inference that he assisted the
    possession of his cohorts based on the telephone calls could
    not be drawn because there was no evidence as to the content
    of those calls.

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    The Disla court was foreclosed from considering _____

    Disla liable under Pinkerton, because the jury had not been _________

    given the requisite instruction. Id. at 1350. Here, as ___

    previously noted, the jury was properly instructed,

    consistent with Pinkerton, that a defendant is liable for the _________

    reasonably foreseeable substantive offenses committed by co-

    conspirators in furtherance of their joint criminal venture.

    We may therefore also affirm if possession of the drugs by

    Pe a and the other conspirators was an act committed in

    furtherance of their unlawful agreement to import, such that

    Velazquez can be held accountable as a party to the plot.

    As discussed above in relation to Pe a, importation

    is a continuous crime that does not cease until the

    contraband reaches its destination. United States v. Leal, ______________ ____

    831 F.2d 7, 9 (1st Cir. 1987) (citing cases). Whatever its

    final destination in this case, we are satisfied that upon

    the conspirators' taking possession of the marijuana-laden

    truck the crime of importation was still on-going. See ante. ___ ____

    Thus, in this particular case, possession with intent to

    distribute a large cache of marijuana was committed by

    Velazquez's co-conspirators in furtherance of the crime they

    conspired to commit, and although it is agreed that he was

    incapable of possessing the drugs himself while imprisoned,

    his conviction for the substantive count can nonetheless

    stand.



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    VII. Prosecutor's Conduct VII. Prosecutor's Conduct ______________________________

    A. Opening Statement and Presentation of the ___________________________________________________

    Evidence ________

    Appellants Rivera and Galindez contend that, by

    creating the impression of a "planned," "ambush type

    situation" designed to kill the federal agents, and painting

    a graphic picture of "raining bullets" that produced a "blood

    bath," the prosecutor aimed to raise the passions of the

    jury. The crux of their argument is that by stating "the

    only possible verdict is that of guilty, because of an

    attempt to kill the agents," the prosecutor improperly urged

    the jury to do justice to the severely wounded agents. They

    further point to the prosecutor's emphasis throughout the

    trial on the culmination of the drug scam in the attempt on

    the agents' lives, tending to suggest it was an element of

    the conspiracy for which they stood charged. Neither was

    charged with the attempt to kill the agents. They claim the

    prosecutor so inflamed and confused the jury as to seriously

    prejudice their right to a fair trial.

    We begin by restating that it is improper to

    suggest to the jury that it "act in any capacity other than

    as the impartial arbiter of the facts." United States v. _____________

    Manning, 23 F.3d 570, 573 (1st Cir. 1994). Appealing to the _______

    jury's emotions or suggesting in any way that it feel a duty

    to convict is error. Id. (telling jury, "take responsibility ___



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    for yourselves," "take responsibility for your community" and

    "convict the defendant because justice compels conviction" is

    error); United States v. Young, 470 U.S. 1, 17, 105 S.Ct. _____________ _____

    1038, 1047, 84 L.Ed.2d 1 (1985) (error to urge jury to "do

    its job"); United States v. Mandelbaum, 803 F.2d 42, 44 (1st _____________ __________

    Cir. 1986) (error to urge jury to "do its duty"). While the

    line separating improper from acceptable behavior in our

    adversary system is "not easily drawn," Young, 470 U.S. at 7, _____

    we assume without deciding that to the extent the

    prosecutor's comments could be understood to urge the jury to

    avenge the injured agents, they were improper.

    Whether those comments warrant a new trial,

    however, turns on whether they likely affected the outcome.

    Manning, 23 F.3d at 574 (citing cases).16 We look to the _______

    severity of the misconduct, the context in which it occurred,

    the curative effect of the judge's admonitions, if any, and

    the strength of the evidence against the defendant. Id. ___

    (citing cases).

    We do not find the factors in this case compel a

    new trial. An objection to the statement was sustained and

    the prosecutor did not repeat it. No remedial action was

    ____________________

    16. Although this line of authority derives from cases
    recognizing deterrence of prosecutorial misconduct as an
    additional basis for reversal, see United States v. Capone, ___ ________________________
    683 F.2d 582, 586 (1st Cir.1982), the Supreme Court
    eliminated this option where the error is harmless. United ______
    States v. Hasting, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979, _________________
    76 L.Ed.2d 96 (1983).

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    requested, nor was any offered -- perhaps a decision not to

    draw attention to the remark. See Mandelbaum, 803 F.2d at ___ __________

    44 (although urging jury to "do its duty" was error, it was

    not reversible error). It was made during opening statements

    wherein it was unlikely to have had a lasting effect.

    Moreover, that Rivera was acquitted of the conspiracy charge

    demonstrates that the jury was not so confused or inflamed

    that it could not rationally evaluate the charges and the

    evidence.

    B. Misstatement of the Evidence in Closing _____________________________________________

    Galindez and Rivera allege the prosecutor

    materially misstated the evidence in his closing argument.

    Because we find Galindez deserves a new trial on another

    ground, we address only Rivera's claim here.

    Rivera objects to the prosecutor's summation of the

    evidence in which he suggested that Rivera called the owner

    of one of the two trucks that he had obtained for Mr. Pe a

    and advised him to report it stolen, and that these acts show

    knowledge. Rivera's attorney did not object. On appeal,

    Rivera points to the record which reveals that the owner

    repeatedly called Rivera about his truck, and only after

    repeated assurances that he would return it as soon as it

    turned up did Rivera suggest that if the owner wasn't

    satisfied he should report it stolen.

    Absent objection, we review for plain error.



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    United States v. Arrieta-Agressot, 3 F.3d 525, 528 (1st Cir. _____________ ________________

    1993). Except on rare occasions, a defendant "who believes

    that a prosecutor's closing argument goes too far must

    usually object to the offending statements when and as they

    are uttered." United States v. Sepulveda, 15 F.3d 1161, 1186 _____________ _________

    (1st Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2714, _____ ______

    129 L.Ed.2d 840 (1994). Absent objection it seems fair to

    give the arguer the benefit of every plausible interpretation

    of her words." Id. at 1187. ___

    The evidence is unequivocal, regardless of who

    called whom, that Rivera told the owner he should report his

    truck stolen. Further, Rivera provided him with a false name

    and telephone number to use in the stolen vehicle report.

    The evidence also showed Rivera was involved in obtaining a

    second truck, the one that was ultimately used, and on the

    day of the incident he gave this owner the same advice, and

    shortly after the shooting this truck was reported stolen.

    Although we do not condone prosecutorial

    distortions of evidence, United States v. Carrasquillo-Plaza, _____________ __________________

    873 F.2d 10, 14 (1st Cir. 1989), the misstatement here did

    not prejudice Rivera's right to a fair trial. See, id.; ___ ___

    United States v. Pasarell, 727 F.2d 13, 16 (1st Cir.), cert. ______________ ________ _____

    denied, 469 U.S. 826, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984). ______

    Suggesting that a truck be reported stolen, whether after

    pestering or on his own initiative, could amount to an



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    attempt to hide guilt, and the jury was entitled to so infer.

    The conclusion that Rivera was knowingly involved can readily

    be drawn even from the facts as he would present them.

    VIII. Requested Jury Instructions on Entrapment and VIII. Requested Jury Instructions on Entrapment and _____________________________________________________________

    Coercion Coercion ________

    Pe a assigns as error the district court's refusal

    to instruct the jury on his defenses of entrapment and

    coercion or duress. A defendant is entitled to instruction

    on his theories of defense so long as "any probative material

    in the record" supports them. United States v. Rodriguez, _____________ _________

    858 F.2d 809, 814 (1st Cir. 1988). This is a question of law

    for the court and review is plenary. Id. at 812, 814. ___

    A. Entrapment _______________

    The entrapment defense, like any other, "is

    measured by the time-honored sufficiency of-the-evidence

    yardstick." Id. at 814. Entrapment has two essential ___

    elements: (1) government inducement to engage in criminal

    activity, and (2) the defendant's lack of predisposition to ___

    engage in such conduct. Id. at 812, 814 (citing Mathews v. ___ __________

    United States, 485 U.S. 58, 63, 108 S.Ct 883, 886, 99 L.Ed.2d _____________

    54 (1988)). Defendant must produce sufficient evidence to

    support both elements. When viewed in the light most

    favorable to the accused, there must be some evidence which,

    "if believed by a rational juror, would suffice to create a

    reasonable doubt as to whether government actors induced the



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    defendant to perform a criminal act that he was not

    predisposed to commit," in order for defendant to be entitled

    to the instruction.17 Rodriguez, 858 F.2d at 814. _________

    Pe a claims he repeatedly refused to go on with the

    scheme after Velazquez was arrested on April 10, 1992 and the

    original undercover agent was replaced by another, but that

    the latter urged him to continue. The evidence was ample

    that Pe a willingly participated in the conspiracy at least

    until then. He therefore could not have sustained the lack

    of predisposition element and was not entitled to the

    instruction.

    B. Coercion or Duress _______________________

    The district court also denied instruction on

    Pe a's alternative defense that he acted under duress,

    coerced by government agents into continuing a criminal

    venture which he wished to abandon. For this defense, a

    defendant must adduce evidence sufficient, if believed, to

    convince a rational juror that (1) he acted under an

    immediate threat of serious bodily injury or death, (2) he

    had a well founded belief that the threat would be carried

    out, and (3) he had no reasonable opportunity to escape or ___

    avoid the threat. United States v. Amparo, 961 F.2d 288, 291 _____________ ______


    ____________________

    17. Of course once defendant meets this entry-level burden,
    the government must prove beyond a reasonable doubt that no
    entrapment occurred. Rodriguez, 858 F.2d at 815 (collecting _________
    cases).

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    (1st Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 224, 121 _____ ______

    L.Ed.2d 161 (1992).

















































    -58-













    Pe a presented his own uncorroborated testimony

    that he refused to continue negotiations to consummate the

    drug deal once Velazquez had been incarcerated and that the

    undercover agent threatened his parents with "the

    consequences" if he did not. A threat to injure some other

    person in the future is neither immediate nor unavoidable.

    The conviction of Galindez is vacated and his case ___________________________________________________

    is remanded for a new trial; the remaining convictions are _____________________________________________________________

    affirmed. ________



































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