United States v. Perez ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-4-2002
    USA v. Perez
    Precedential or Non-Precedential:
    Docket 0-5237
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    Recommended Citation
    "USA v. Perez" (2002). 2002 Decisions. Paper 90.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/90
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    Filed February 4, 2002
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NOS. 00-5237, 00-5238, 00-5261
    UNITED STATES OF AMERICA
    v.
    LINETTE PEREZ, Appellant in No. 00-5237
    UNITED STATES OF AMERICA
    v.
    JUANCHO ALCANTERA, Appellant in No. 00-5238
    UNITED STATES OF AMERICA
    v.
    EDMUNDO BATOON, Appellant in No. 00-5261
    Consolidated Appeals From the
    United States District Court
    For the District of New Jersey
    (D.C. Crim. No. 99-cr-00100-3, No. 99-cr-00100-4 and
    No. 99-00100-6)
    District Judge: Honorable John W. Bissell
    Argued: December 12, 2000
    Before: SCIRICA, AMBRO, Circuit Judges, and
    POLLAK, District Judge*
    _________________________________________________________________
    * The Honorable Louis H. Pollak, Senior District Judge for the Eastern
    District of Pennsylvania, sitting by designation.
    (Filed: February 4, 2002)
    James A. Galdieri (Argued)
    Miller & Galdieri
    32 Jones Street
    Jersey City, NJ 07306
    Attorney for Appellant
    Linette Perez
    Paul X. Escandon
    414 Corlies Avenue
    Allenhurst, NJ 07711
    Stephen M. Latimer (Argued)
    131 Main Street
    Suite 235
    Hackensack, NJ 07601
    Attorneys for Appellant
    Juancho Alcantera
    Robert Kasenow, II (Argued)
    401 Broadway, Suite 1401
    New York, NY 10013
    Attorney for Appellant
    Edmundo Batoon
    Robert J. Cleary
    United States Attorney
    George S. Leone
    Chief, Appeals Division
    970 Broad Street
    Newark, NJ 07102-2535
    Norman J. Gross (Argued)
    Assistant United States Attorney
    United States Attorney's Office
    Camden Federal Building and
    United States Courthouse
    P.O. Box 2098
    Camden, NJ 08101-2098
    Attorneys for Appellee
    United States of America
    2
    OPINION OF THE COURT
    AMBRO, Circuit Judge
    Defendants/Appellants Linette Perez ("Perez"), Juancho
    Alcantera ("Alcantera"), and Edmundo Batoon ("Batoon")
    appeal their convictions on the charge of conspiracy to
    distribute and possess with the intent to distribute
    methamphetamine, a Schedule II controlled substance, in
    the District of New Jersey and elsewhere in violation of 21
    U.S.C. S 846 and S 841(a)(1). All three were convicted by a
    jury in the United States District Court for the District of
    New Jersey. In this appeal, Appellants challenge their
    convictions on numerous grounds, one of which is a
    question of first impression for this Court -- whether and
    under what circumstances the trial court must give a jury
    instruction on venue. Appellants Alcantera and Batoon also
    challenge the District Court's ruling on a minor role
    reduction, and the attributable drug quantity, at
    sentencing. We affirm the convictions and sentences of
    each Appellant.
    I. Factual and Procedural Background
    A. Factual Background
    In the following recitation of the facts on which
    Appellants' convictions were based, we construe those facts
    in the light most favorable to the Government, as we must
    following the jury's guilty verdict. Glasser v. United States,
    
    315 U.S. 60
    , 80 (1942). Beginning in 1998, agents of the
    Federal Bureau of Investigation and the Drug Enforcement
    Agency based in New Jersey opened an investigation into
    drug operations allegedly headed up by Lirio Del Rosario
    ("Del Rosario") based on information supplied by a
    confidential source. With Del Rosario at the helm, the
    organization imported and distributed crystal
    methamphetamine in New York and New Jersey.
    The factual scenario leading up to and encompassing the
    arrest of Appellants unfolds as follows. In January of 1999,
    Del Rosario's supply of methamphetamine ran low. He
    3
    dispatched Alcantera and another man to the home of
    Augustin Daluro ("Daluro") in Jersey City, New Jersey to
    procure more of the drug. Daluro gave twenty grams of
    methamphetamine to Alcantera, without charge, for delivery
    to Del Rosario. At that time, Del Rosario told Daluro that he
    was getting travel documents for a woman named "Linette"
    so that she could smuggle methamphetamine into the
    United States as part of his operation.
    In early February of 1999, members of the Queens
    Narcotics Division of the New York City Police Department
    ("N.Y.P.D.") received information of Del Rosario's drug
    operation from another confidential informant (CI-1), and
    began an independent investigation. When the federal and
    local investigators learned that they were conducting
    parallel investigations, they agreed to pool their
    information. The confidential informants tipped off the
    federal and N.Y.P.D. investigators that a woman named
    "Linette" would be bringing in a large shipment of
    methamphetamine through John F. Kennedy Airport on
    February 24, 1999. The informant offered a description of
    "Linette," which was later confirmed by several customs
    agents.
    On February 18, 1999, Perez, who at the time was a
    United States citizen living in Virginia, obtained a passport.
    The following day, she purchased a round-trip ticket from
    J.F.K. Airport to Manila, the Philippines, through a New
    York City travel agency. Perez departed from the United
    States on February 22, 1999, and checked into the Manila
    Holiday Inn where she stayed for two days. While in Manila,
    Perez obtained ten kilograms of crystal methamphetamine
    from relatives of Del Rosario. The methamphetamine was
    put into plastic baggies, hidden inside fabric shoulder pads
    of women's dresses, and placed into two large cardboard
    boxes.
    On February 23, 1999, while Perez was still in Manila,
    Del Rosario called Prajedo Almiranez ("Almiranez") and
    asked him to pick up Perez when she arrived at J.F.K.
    Airport, but he was unable to go. On February 24, 1999,
    Del Rosario called Nestor Uy ("Uy"), a Filipino living in New
    York City who occasionally repaired automobiles for Del
    Rosario, and asked him to pick up Perez. Uy had met Perez
    4
    before at Del Rosario's home. Del Rosario told Uy that Perez
    would be arriving at J.F.K. Airport on Asianna Airlines, and
    gave Uy money to pay the excess baggage fee for the
    packages Perez was bringing in from the Philippines, for a
    hotel room for Perez at the Queens Motor Inn, and for gas
    and food.
    Perez returned to the United States that evening with the
    two large boxes, arriving at J.F.K. Airport at approximately
    8:35 p.m. Uy arrived late to J.F.K. Airport, and was unable
    to find Perez. He called the number for Alcantera's cell
    phone several times and spoke to Del Rosario, who told him
    to keep looking for Perez. At the same time, several N.Y.P.D.
    investigators also went to J.F.K. Airport with CI-1 to
    intercept Perez, but they were unable to locate her.
    Finally, Uy discovered that Perez had taken a cab to Del
    Rosario's home. Uy went to the Queens Motor Inn and
    reserved a room for Perez under his name, then went to Del
    Rosario's apartment to pick up Perez. In Del Rosario's living
    room were the two large boxes. Uy then drove Perez back to
    the hotel. During the trip, Perez told Uy that she had just
    smuggled ten kilos of methamphetamine into the United
    States from Del Rosario's family in the Philippines, boasting
    that she "had the guts to do that." Uy stayed with Perez at
    the hotel briefly, then drove her to Batoon's home in
    Elmhurst, Queens.
    At around 10:00 a.m. the next morning, February 25th,
    Almiranez picked up Perez from Batoon's home and drove
    her to Del Rosario's apartment. Uy arrived at the apartment
    at approximately 11:00 a.m. He saw that the boxes had
    been opened, the plastic bags removed from the shoulder
    pads of the dresses and cut open, and the
    methamphetamine taken out. Del Rosario explained to Uy
    how the methamphetamine had been packaged and how
    Asianna Airlines and the customs officials protected Del
    Rosario's drug shipments.
    Del Rosario then called Arturo Zoletta, who had
    previously delivered methamphetamine for him. Del Rosario
    told Zoletta that he had a shipment of methamphetamine
    for him to deliver to another person. Zoletta paged Roland
    Abaia, a cab driver, to pick him up at his home. The two
    5
    drove to Del Rosario's apartment in Abaia's Lincoln
    Towncar.
    At approximately 2:00 that afternoon, acting on a tip
    from CI-1 that Del Rosario was dealing methamphetamine
    out of three possible locations, plain-clothed investigators
    and uniformed officers from the N.Y.P.D. staked out Del
    Rosario's apartment building, an automobile body shop,
    and Uy's residence, all in Queens.
    Del Rosario's apartment building was four stories high,
    with four apartment units on each floor. The N.Y.P.D.
    officers knew from the informant that Del Rosario's
    apartment was 2C. It was located at the back of the second
    floor, and one could not see the street from the inside. Nor
    could the surveilling officers tell which apartment was Del
    Rosario's from the outside of the building. They observed
    several cars stop outside of Del Rosario's apartment
    building, stay for a few minutes, then leave. Just before
    6:00 p.m., the investigators observed Abaia drive up to Del
    Rosario's apartment building in the Lincoln Towncar with
    Zoletta in the back seat. Zoletta got out of the car and
    entered the building empty-handed while Abaia waited
    outside.
    Zoletta emerged from the apartment building
    approximately ten minutes later, carrying a clear plastic
    bag with a white plastic bag inside of it. He got back into
    the Lincoln Towncar, and showed the bag to Abaia. The two
    drove off, followed by two of the plain-clothed police
    investigators driving an unmarked police car. Zoletta
    turned around and made eye contact with one of the
    investigators. The investigators observed Zoletta lean over,
    apparently to stuff the bag under the front seat. After
    Zoletta and Abaia had driven two blocks and turned the
    corner, the investigators pulled them over.
    The investigators saw the clear bag with a white shopping
    bag inside. In the white bag, the investigators found what
    appeared to be approximately 200 grams of
    methamphetamine, and they placed Abaia and Zoletta
    under arrest. A search of the car uncovered more drugs
    and drug paraphernalia, including a small gram-weight
    scale, pipes used for smoking methamphetamine, ziplock
    6
    bags, a cell phone, and a pager. At this point, Zoletta
    cooperated with the investigators, telling them that he had
    worked for Del Rosario delivering methamphetamine for two
    years in New York City and New Jersey. Zoletta told the
    investigators that he had just been in Del Rosario's
    apartment, Unit 2C, and that Del Rosario had just given
    him a package of drugs to deliver. Zoletta told the
    investigators that there were several people still in the
    apartment.
    The interchange lasted only a few minutes, after which
    the officers decided to get a search warrant. However,
    apparently fearing that their arrest of Zoletta would tip off
    the occupants in the apartment to destroy the drugs, the
    officers decided to forego getting the warrant. Instead, the
    investigators returned to the apartment building and with
    the uniformed officers went up to Del Rosario's apartment.
    They knocked, and when a woman answered, the
    uniformed officers stated that they had received a
    disturbance call and asked if they could come in to see if
    everyone was all right. The woman, Perez, let them into the
    apartment.
    Upon entering, the officers encountered Del Rosario,
    Perez, Alcantera, Batoon, and Almiranez inside. A bag of
    approximately 100 grams of crystal methamphetamine was
    in plain view on top of the television in the living room. The
    officers placed all of the occupants of the apartment under
    arrest and conducted a protective sweep to secure the
    premises and to assure their safety. Perez told the officers
    that she had just returned from the Philippines and was
    staying at the Queens Motor Inn. She gave her consent to
    search the hotel room and handed the officers the key. At
    this point, two of the officers left with Zoletta to obtain
    search warrants for Del Rosario's apartment and Perez's
    hotel room.
    The officers completed the warrant affidavit with the
    assistance of the Queens County District Attorney's office.
    They included in the warrant reference to what was seen at
    the apartment. However, due to the unavailability of judges
    at the late hour, the officers had to travel to Manhattan to
    obtain judicial review of the warrant application.
    7
    Meanwhile, back at the apartment, Daluro arrived with a
    suitcase containing $67,500. The officers present placed
    him under arrest and seized the suitcase.
    At approximately 4:00 the next morning (February 26),
    the officers who went for the search warrant returned to
    Del Rosario's apartment with the warrant and began to
    conduct a search. In the course of the search, they
    discovered approximately four kilograms of crystal
    methamphetamine, over $28,000 in cash belonging to Del
    Rosario, hand-written records of drug transactions,
    numerous plastic ziplock bags in five different sizes, several
    BB rifles and pistols, three cell phones, a pager, a
    combination cell phone and two-way radio, and a
    bulletproof vest.
    From Perez the officers seized $724, her passport, a
    Virginia driver's license, and two credit cards. From her
    hotel room, they seized the written itinerary for her recent
    trip to Manila and credit card receipts from her stay there.
    From Almiranez the officers took into custody three plastic
    bags and a cigarette box containing 116 grams of crystal
    methamphetamine. They captured from Alcantera a cell
    phone with a battery and a pager. From Batoon they took
    hold of a small amount of methamphetamine consistent
    with personal use and a pager.
    B. Procedural Background
    On March 1, 1999, a federal grand jury issued a one-
    count indictment charging Appellants and five co-defendants1
    with violating 21 U.S.C. S 846 by conspiring to distribute
    and to possess with intent to distribute more than one
    kilogram of methamphetamine in the District of New Jersey
    and elsewhere, contrary to 21 U.S.C. S 841(a)(1). Several of
    the defendants filed motions to suppress the physical
    evidence seized by the police. On August 18, 1999, the
    District Court conducted a hearing on the motions to
    suppress, and on September 10, 1999, the District Court
    issued a letter opinion denying all of the suppression
    motions.
    _________________________________________________________________
    1. The indictment charged Appellants Perez, Alcantera, and Batoon, as
    well as Lirio Del Rosario, Augustin Daluro, Roland Abaia, Prajedo
    Almiranez, and Arturo Zoletta.
    8
    On August 16, 1999, prior to the District Court's ruling
    on the suppression motions, Daluro pled guilty to the
    indictment pursuant to a cooperation and plea agreement
    with the Government. On October 20, 1999, Del Rosario
    pled guilty to the indictment pursuant to a plea agreement
    that did not require his cooperation with the Government.
    On the same day, Zoletta and Almiranez also pled guilty to
    the indictment pursuant to cooperation agreements with
    the Government.
    The remaining defendants -- Perez, Alcantera, Batoon,
    and Abaia -- were tried jointly on the charge in the
    indictment. At trial, Daluro,2 Zoletta, Almiranez,3 and Uy,4
    an unindicted co-conspirator, all testified on behalf of the
    Government. Alcantera was the only defendant to testify. In
    its motion for acquittal at the close of the Government's
    case, the defense made a general application claiming that
    the Government did not produce credible evidence to
    sustain a conviction. The motion did not specifically raise
    venue as a disputed issue, i.e., whether the trial should
    have occurred in the District of New Jersey. The District
    Court denied the motion, responding: "The Court
    determines that there is indeed . . . sufficient evidence for
    _________________________________________________________________
    2. Daluro testified that he distributed methamphetamine for Del Rosario
    in New Jersey and traveled to Del Rosario's apartment in New York to
    pick up the drugs. He frequently saw Almiranez, who also lived in Jersey
    City, New Jersey, with Del Rosario. Daluro testified further that he
    occasionally encountered Batoon in Del Rosario's apartment when he
    went there to pick up drugs, and that Del Rosario typically had a lot of
    methamphetamine in his apartment. Daluro also testified that Alcantera
    had been to his residence in Jersey City, New Jersey in late January
    1999 to buy drugs for Del Rosario.
    3. Almiranez testified that he sold the methamphetamine he obtained
    from Del Rosario to others to resell in Jersey City, New Jersey. Almiranez
    also testified that in 1998 he observed Del Rosario give between 10 and
    100 grams of methamphetamine to Appellants Batoon and Alcantera in
    each of their respective homes.
    4. Uy testified that in the Fall of 1998, while in Del Rosario's
    apartment,
    he saw Del Rosario give drugs to Batoon in exchange for a "wad" of what
    appeared to be twenty dollar bills. Uy testified further that in March
    1999, while the two were incarcerated in Queens House, a men's
    detention center in Queens, Alcantera boasted to him that he was one of
    Del Rosario's sellers.
    9
    the jurors to find beyond a reasonable doubt both the
    existence of the conspiracy charged in the indictment and
    the participation and membership of each of the defendants
    on trial in that conspiracy." At the jury charge conference
    and following the charge, the defendants requested that the
    District Court instruct the jury on venue. The District
    Court denied this request.
    On November 11, 1999, the jury returned guilty verdicts
    against Perez, Alcantera, and Batoon, and acquitted Abaia.
    Appellants moved for a new trial, arguing that the District
    Court should have submitted the question of venue to the
    jury. The District Court denied this motion, but cautioned:
    If indeed I am wrong and the law to be applied to this
    case is such that this was a matter that should have
    been submitted to the jury upon a defense request,
    upon submission of the jury instructions, then I would
    not conclude the Court's decision to do otherwise is
    harmless error. I think the evidence, in other words, as
    to the presence of venue in the District of New Jersey
    is not so overwhelming that the jury couldn't have
    decided otherwise had it been before it.
    The District Court conducted sentencing hearings in
    March 2000, and imposed sentences at or near the bottom
    of the applicable Sentencing Guideline ranges for each
    defendant.5 The Appellants filed timely appeals, which are
    consolidated before us. We have jurisdiction to hear their
    appeals pursuant to 28 U.S.C. S 1291.
    II. Failure to Instruct the Jury on Venue
    Appellants claim that the District Court erred when it
    failed to instruct the jury whether the District of New
    Jersey was the proper venue for their trial, as was alleged
    in the indictment. As set out above, the crimes alleged with
    respect to Appellants appear on their face to have occurred
    primarily within New York City. The Government's evidence
    tying the conspiracy to New Jersey consisted of the
    testimony of Uy, an unindicted co-conspirator, and of
    _________________________________________________________________
    5. The District Court sentenced Perez to a term of imprisonment of 235
    months. It sentenced Alcantera to 190 months, and Batoon to 152.
    10
    Daluro, Zoletta, and Almiranez, all of whom pled guilty,
    that they conducted their part of the drug operation in New
    York and New Jersey and encountered Appellants Alcantera
    and Batoon buying drugs from and for Del Rosario.
    We hold that, where the indictment alleges venue without
    a facially obvious defect, the failure to instruct the jury to
    determine whether that venue is proper is reversible error
    only when (1) the defendant objects to venue prior to or at
    the close of the prosecution's case-in-chief, (2) there is a
    genuine issue of material fact with regard to proper venue,
    and (3) the defendant timely requests a jury instruction.
    Because the first and second prerequisites were unmet
    here, the District Court did not err in failing to instruct the
    jury on venue. Our reasoning for this rule and our
    conclusion in this case are discussed below.
    A defendant in a criminal trial has a constitutional right
    to be tried in the district in which the crime was
    committed. Proper venue is a safeguard that is guaranteed
    twice in the Constitution. Article III, Section 2, Paragraph 3
    declares that "[t]he Trial of all Crimes . . . shall be by Jury;
    and such Trial shall be held in the State where the said
    Crimes shall have been committed . . . ." U.S. Const. art.
    III, S 2, c. 3. The Sixth Amendment to the Constitution
    provides that: "In all criminal prosecutions, the accused
    shall enjoy the right to a speedy and public trial, by an
    impartial jury of the State and district wherein the crime
    shall have been committed, which district shall have been
    previously ascertained by law."6 U.S. Const. amend. VI; see
    _________________________________________________________________
    6. The framers, explained Justice Frankfurter in United States v.
    Johnson, 
    323 U.S. 273
    , 275 (1944), wrote the first of these provisions
    into the Constitution because they were "[a]ware of the unfairness and
    hardship to which trial in an environment alien to the accused exposes
    him . . . ." The second provision, providing the"State and district" from
    which the jury is to be drawn, serves as a reinforcement to the first
    "[a]s
    though to underscore the importance of this safeguard." 
    Id.
    The provision in Article III is literally a venue provision because it
    fixes
    the place of trial, whereas the Sixth Amendment is a vicinage guarantee
    because it determines from where the jurors in a criminal trial shall be
    selected. "This distinction, however, has never been given any weight,
    perhaps because it is unlikely that jurors from one district would be
    asked to serve at a trial in another district, or perhaps, more
    importantly, because the requirement . . . presupposes that the jury will
    sit where it is chosen." United States v. Passodelis, 
    615 F.2d 975
    , 977
    n.3 (3d Cir. 1980).
    11
    United States v. Baxter, 
    884 F.2d 734
    , 736 (3d Cir. 1989).
    The Government has the burden of proving that venue is
    proper. United States v. Black Cloud, 
    590 F.2d 270
    , 272
    (8th Cir. 1979).
    In 1944, Congress embedded the constitutional venue
    guarantee in the Federal Rules of Criminal Procedure. Rule
    18 states that "[e]xcept as otherwise permitted by statute or
    by these rules, the prosecution shall be had in a district in
    which the offense was committed. . . ." That same year, the
    United States Supreme Court, in the landmark case United
    States v. Johnson, 
    323 U.S. 273
     (1944), underscored the
    importance of safeguarding the constitutional guarantee of
    proper venue in criminal trials.
    These are matters that touch closely the fair
    administration of criminal justice and public
    confidence in it, on which it ultimately rests. These are
    important factors in any consideration of the effective
    enforcement of the criminal law. . . . Questions of
    venue in criminal cases, therefore, are not merely
    matters of formal legal procedure. They raise deep
    issues of public policy in the light of which legislation
    must be construed.
    Johnson, 
    323 U.S. at 276
    .
    Despite its basis in the Constitution, venue in the
    criminal context continues to occupy a lesser station in the
    hierarchy of constitutionally-derived rights. The issue of
    proper venue in a criminal proceeding can be waived by a
    defendant. See United States v. Turley, 
    891 F.2d 57
    , 63 (3d
    Cir. 1989); United States v. Sandini, 
    803 F.2d 123
    , 127 (3d
    Cir. 1986), cert. denied sub nom. Moody v. United States,
    
    479 U.S. 1093
     (1987). Further, the standard for finding a
    waiver of venue is less rigorous than that for finding a
    waiver of the rights to trial by jury, to confront one's
    accusers and to be free from self-incrimination. See Boykin
    v. Alabama, 
    395 U.S. 238
     (1969); Sandini, 
    803 F.2d at 127
    .
    In Sandini, we observed that "[o]bjections to venue are
    waived if not raised in a timely manner." What is timely
    depends on whether the alleged error is clear from the
    indictment. Where an indictment alleges venue on its face
    without an obvious defect, "the defendant has no notice
    12
    that a facially proper allegation of venue is in fact defective,
    and thus there can be no waiver until the close of the
    government's case." 
    Id.
    Under Rule 18 of the Federal Rules of Criminal
    Procedure, Congress has the power to lay out the elements
    of a crime to permit prosecution in one or any of the
    districts in which the crucial elements are performed. See
    United States v. Flaxman, 
    304 F. Supp. 1301
     (S.D.N.Y.
    1969) (referencing Travis v. United States, 
    364 U.S. 631
    (1961)). Pursuant to this power, Congress has modified the
    venue safeguards by statute to fit the situation of
    conspiracy. "[A]ny offense . . . begun in one district and
    completed in another, or committed in more than one
    district, may be inquired of and prosecuted in any district
    in which such offense was begun, continued, or completed."
    18 U.S.C. S 3237(a).
    In addition, venue can be established wherever a co-
    conspirator has committed an act in furtherance of the
    conspiracy.
    We see no reason why a constructive presence should
    not be assigned to conspirators as well as to other
    criminals; and we certainly cannot assent to the
    proposition that it is not competent for Congress to
    define what shall constitute the offense of conspiracy
    or when it shall be considered complete, and do with it
    as with other crimes which are commenced in one
    place and continued in another.
    Hyde v. United States, 
    225 U.S. 347
    , 363-64 (1912); see
    also United States v. Ochoa, 
    229 F.3d 631
    , 636 (7th Cir.
    2000) (stating the traditional rule that a conspiracy charge
    may be tried in any district in which an overt act of
    conspiracy occurred); United States v. Dabbs, 
    134 F.3d 1071
    , 1078 (11th Cir. 1998) (holding that in a conspiracy
    case venue lies where the conspiracy agreement was formed
    or in any jurisdiction where an overt act in furtherance of
    the conspiracy was committed by any of the conspirators);
    U.S. v. Bascope-Zurita, 
    68 F.3d 1057
    , 1062 (8th Cir. 1995)
    (same); United States v. Al-Talib, 
    55 F.3d 923
    , 928 (4th Cir.
    1995) (same); United States v. Record, 
    873 F.2d 1363
    , 1366
    (10th Cir. 1989) (same).
    13
    It is against this backdrop that we consider the
    Appellants' assertion that the District Court committed
    reversible error when it failed to instruct the jury on venue,
    both after a request by defendants at the charge conference
    and following the charge. The specific issue raised by
    Appellants is whether proof of venue in a multi-district
    indictment for conspiracy is a determination of fact that
    must be submitted to a properly instructed jury upon
    defendants' request. This precise question has not been
    considered by this Court, although several other courts of
    appeal have formulated varying rules governing when a trial
    court must instruct the jury on venue. To resolve this
    issue, we must make the threshold determinations of
    whether venue is an element of an offense and, if so,
    whether it presents a factual or legal question.
    A. Is Venue an Element of an Offense?
    Federal courts of appeals often state that venue is an
    element of every offense. See, e.g., United States v. Miller,
    
    111 F.3d 747
     (10th Cir. 1997); United States v. Winship,
    
    724 F.2d 1116
    , 1124 (5th Cir. 1984); United States v.
    White, 
    611 F.2d 531
    , 536 (5th Cir.), cert. denied, 
    446 U.S. 992
     (1980); but compare United States v. Maldonado-Rivera,
    
    922 F.2d 934
    , 969 (2d Cir. 1990) (rejecting defendants'
    attempt to challenge venue based on supposed omission in
    the counts with which they had been charged and stating
    that "[v]enue, however, is not an element of the offense"). In
    general, "[t]he Constitution gives a criminal defendant the
    right to have a jury determine, beyond a reasonable doubt,
    his guilt of every element of the crime with which he is
    charged." United States v. Gaudin, 
    515 U.S. 506
    , 522-23
    (1995).
    Further inquiry, however, reveals that the term"element"
    lacks its usual force in the context of venue. What the
    courts give criminal defendants on this issue with one hand
    they frequently take away with the other. When courts
    describe venue as an element, they often distinguish it from
    "substantive" or "essential" elements. See United States v.
    Kaytso, 
    868 F.2d 1020
    , 1021 (9th Cir. 1988); United States
    v. Griley, 
    814 F.2d 967
    , 973 (4th Cir. 1987); Miller, 
    111 F.3d at 749
    ; Wilkett v. United States, 
    655 F.2d 1007
    , 1011
    (10th Cir. 1981). The Fifth Circuit has explained that while
    14
    venue is an element, it will be protected less vigorously
    than other elements. See Winship, 
    724 F.2d at 1124
    .
    Likewise, the Seventh Circuit has recognized that while one
    may call venue an element, "it is an element more akin to
    jurisdiction than to the substantive elements of the crime."
    United States v. Massa, 
    686 F.2d 526
    , 530 (7th Cir. 1982)
    (citing White, 611 F.2d at 536). Put another way, "[v]enue is
    wholly neutral; it is a question of procedure, more than
    anything else, and it does not either prove or disprove the
    guilt of the accused." Wilkett, 
    655 F.2d at 1011
    .
    In keeping with venue's Boswellian status as a criminal
    element, courts require a lesser standard of proof than with
    regard to the other elements of an offense -- a
    preponderance of the evidence rather than beyond a
    reasonable doubt.7 See, e.g., United States v. Barsanti, 
    943 F.2d 428
     (4th Cir.), cert. denied, 
    503 U.S. 936
     (1991);
    United States v. Gonzalez, 
    922 F.2d 1044
    , 1054-55 (2d
    Cir.), cert. denied, 
    502 U.S. 1014
     (1991); United States v.
    Taylor, 
    828 F.2d 630
     (10th Cir. 1987); Winship, 
    724 F.2d at 1124
    ; United States v. Males, 
    715 F.2d 568
     (11th Cir.
    1983); Massa, 
    686 F.2d at 531
    ; United States v. Davis, 
    666 F.2d 195
     (5th Cir. 1982); United States v. Haley , 
    500 F.2d 302
    , 305 (8th Cir. 1974); United States v. Powell, 
    498 F.2d 890
     (9th Cir.), cert. denied, 
    419 U.S. 866
     (1974); 2 Charles
    Alan Wright & Arthur R. Miller, Federal Practice and
    Procedure S 307 (3d ed. 2000). Our Court now explicitly
    joins those courts in adopting the preponderance standard
    for venue, a question which we reserved in United States v.
    Passodelis, 
    615 F.2d 975
    , 977 n.4 (3d Cir. 1980).
    We agree with the Seventh Circuit that venue is"an
    element more akin to jurisdiction than to the substantive
    elements of the crime." Massa, 
    686 F.2d at 530
    ; White, 611
    F.2d at 536. In this context, although an element strictly
    speaking, venue does not automatically present a question
    for the jury. We deal below with when it does.
    _________________________________________________________________
    7. The Tenth Circuit has pointed out that the Supreme Court in Gaudin
    did not have occasion to address the proper treatment of a
    nonsubstantive element like venue. Miller, 
    111 F.3d at
    749-50 (citing
    Gaudin, 
    515 U.S. at
    509 n.1).
    15
    B. When Must a Jury Instruction on Venue Be Given?
    Appellants contend that whether venue is proper is
    always an issue of fact for the jury to decide. The
    Government, however, argues that where venue is not
    disputed at trial, the court may properly find it as a matter
    of law without submitting the issue to the jury. This is so,
    it argues, even if venue might have been in genuine dispute
    had it been raised at trial.8 We considered this fact versus
    law distinction in Passodelis and held that"the question of
    venue at issue here is a matter of law." 
    615 F.2d at 978
    .
    The defendant in Passodelis was convicted of violating
    federal law by making contributions to then-Governor
    Milton Shapp's presidential campaign in excess of the
    campaign limit and in the name of another person. There
    was no dispute that Governor Shapp's campaign
    headquarters were located in the Middle District of
    Pennsylvania and that contributions were deposited there.
    Proper venue turned on the question of "whether there
    [was] evidence in the record which will support a finding
    that acts which constitute elements of the crimes were
    committed by Passodelis in the Middle District." 
    Id.
     We
    ruled that the Government did not provide sufficient
    evidence to meet its burden of establishing that venue was
    proper. 
    Id.
     The majority opinion distinguished the dissent,
    which argued that venue in that case was "wholly factual
    [in] nature," 
    id. at 979
    , as follows:
    The dissent is certainly correct in characterizing the
    central issue in dispute in this case as a factual one.
    However, we are concerned that the dissent
    misapprehends the nature of our inquiry. The dissent
    asserts that we substitute our own "verdict of
    acquittal." However, we are not reviewing whether there
    was sufficient evidence upon which a jury could have
    found Passodelis guilty, but rather whether there was
    _________________________________________________________________
    8. The only Supreme Court case addressing the fact versus law
    distinction with respect to venue dates to 1861. In United States v.
    Jackalow, 
    66 U.S. 484
     (1861), the Supreme Court ruled that for
    purposes of determining whether venue existed in one district for a
    piracy conviction, the existence of a border dispute between states,
    affecting the determination of where the acts actually occurred, did not
    provide a basis to conclude that those acts occurred within that district.
    16
    sufficient evidence upon which the district court could
    have found that crimes were committed by Passodelis
    in the Middle District. In fact, it is completely
    unnecessary for us to call into question any of the
    jury's findings since there is no factual inconsistency
    between the jury having found that Passodelis
    committed the crimes for which he was convicted and
    our determination that the evidence was insufficient to
    support a finding that crimes were committed by
    Passodelis in the Middle District. The two inquiries are,
    on the facts of this case, entirely separate. . . .
    [Moreover,] the determination as to whether there was
    sufficient evidence to support a finding that crimes were
    committed by Passodelis in the Middle District is a
    question of law, not of fact.
    
    Id.
     at 978 n.6 (emphasis added).9
    Nine years later, in United States v. Baxter, we repeated
    substantially the underscored language from Passodelis in
    concluding that "the question of venue at issue here is a
    matter of law. . . ." 
    884 F.2d 734
    , 736 (3d Cir. 1989). In
    Baxter, the defendant was convicted of five counts of
    receiving an illegal gratuity while a public official. It was not
    disputed that Baxter received the illegal payments (by way
    of checks drawn on a bank account in Pennsylvania,
    deposited in his bank in Arlington, Virginia), at his home in
    Reston, Virginia, and that the checks were presented for
    payment by the Virginia bank at the bank in Jenkintown,
    Pennsylvania. 
    Id.
     Permissible venue turned on the legal
    question of whether this scenario constituted a continuing
    offense such that prosecution was proper either in the
    applicable district where the checks were deposited
    (Virginia) or where the checks were paid (Pennsylvania).
    Considering the individualized acts of the defendant and
    the continuing nature of the offense, we concluded that
    venue was proper. 
    Id.
    _________________________________________________________________
    9. We did not decide, however, the standard of proof (beyond reasonable
    doubt or preponderance of the evidence) for determining venue because
    "under either standard . . . the government has not met the burden." 
    Id.
    at 978 n.4.
    17
    We continued the theme that, at least initially, the
    "district court's decision regarding proper venue was an
    interpretation of law . . ." in United States v. Palma-
    Ruedas, 
    121 F.3d 841
     (3d Cir. 1997), reversed on other
    grounds sub nom. United States v. Rodriguez-Moreno , 
    526 U.S. 275
     (1999). The venue question in Palma-Ruedas was
    whether "the government [can] try a defendant for using or
    carrying a firearm in any venue where it may try the related
    crime when the defendant neither carried nor used the
    firearm in that venue." Palma-Ruedas, 121 F.3d at 848. It
    was undisputed that the defendant only carried or used the
    firearm in Maryland. Deciding the legal question, we
    determined that venue in New Jersey was improper. Id. at
    850-51.
    Turning to this case, the District Court, in ruling on the
    venue issue raised by the defense for the first time at the
    jury charge conference, relied on our declarations in Baxter
    and Palma-Ruedas that venue was a matter of law. In
    discussing these cases, the District Court noted orally:
    [T]he determination of criminal venue is a matter for
    the court, is a matter of law, and not for the jury as a
    matter of fact.
    So with that reaffirmation of the strength of the
    Baxter rule, although in a slightly different context,
    this Court determines that it will not instruct the jury
    on the question of venue. Furthermore, the Court
    determines at this juncture that there is certainly
    sufficient evidence of proper venue in this district with
    regard to all of the defendants. So that if faced with a
    motion at this juncture to dismiss the case for lack of
    proper venue, that motion would be denied.
    We take issue with the District Court's reading of our line
    of venue decisions to the extent that it concludes that
    venue can never pose an issue of fact that should be
    submitted to a jury. The trial judge is the gatekeeper at
    trial, and in so acting determines as a matter of law
    whether there are sufficiently disputed issues of material
    fact to be decided by the jury. In Passodelis , we were able
    to rule as a matter of law because we were reviewing the
    legal question of "whether there was sufficient evidence
    18
    upon which the district court could have found that crimes
    were committed . . . in the . . . District." Passodelis, 
    615 F.2d at
    978 n.6 (emphasis added). In Baxter and Palma-
    Ruedas, we could rule as a matter of law because the
    necessary facts were established and only the legal
    question of how broadly we would define venue remained.
    Baxter, 
    884 F.2d at 736
    ; Palma-Ruedas, 121 F.3d at 848.
    Thus, in Baxter, whether checks were presented for
    payment in Jenkintown, Pennsylvania would have been a
    factual inquiry affecting venue had it been in dispute, but
    it was not. Similarly, in Palma-Ruedas, whether the
    defendant carried a firearm in New Jersey would have
    raised a fact question affecting venue except that the
    Government conceded that the defendant had never done
    so. Instead it argued that venue in New Jersey was proper
    as a matter of law because the predicate offense of
    kidnapping had taken place in part in that state.
    In this case, the District Court found sufficient evidence
    existed to show as a matter of law that venue in New Jersey
    was suitable, i.e., congruent with some aspect of the
    conspiracy crime being committed in New Jersey. This was
    a proper determination for the Court to make.10 As noted
    below, the Government's evidence on the matter was
    sufficient to establish venue by a preponderance, and
    Appellants did not interpose evidence at trial to raise a
    material dispute over this issue such that it needed to be
    resolved by the jury. In this context, it was not unlike the
    undisputed threshold issues of fact in Baxter and Palma-
    _________________________________________________________________
    10. Several Courts recognize that venue can be"a question of fact" that
    ordinarily must be decided by the jury. United States v. Miller, 
    111 F.3d 747
    , 749 (10th Cir. 1992) (citing United States v. Rinke, 
    778 F.2d 581
    ,
    584 (10th Cir. 1985)); United States v. Record , 
    873 F.2d 1363
    , 1370
    (10th Cir. 1989); United States v. Winship, 
    724 F.2d 1116
    , 1124 (5th Cir.
    1984); United States v. Black Cloud, 
    590 F.2d 270
    , 272 (8th Cir. 1979)
    ("Whether the receipt of the firearm in question occurred in the District
    of North Dakota, so that venue in that district was proper, was a
    question of fact for the jury."); Green v. United States, 
    309 F.2d 852
    ,
    856
    (5th Cir. 1962); United States v. Gillette, 
    189 F.2d 449
    , 452 (2d Cir.
    1951)). But this does not mean that every venue determination presents
    a jury question. For whether sufficient evidence exists to support a
    finding that crimes were committed in New Jersey is a question of law
    for the court. See Passodelis, 
    615 F.2d at
    978 n.6.
    19
    Ruedas. Put another way, proper venue in a criminal case
    may pose a question of fact for the jury if venue is in issue
    and meets procedural trip points.
    When then is venue genuinely in issue, particularly in
    the context of conspiracy? This question has not been
    addressed directly by this Court, although in United States
    v. Turley, 
    891 F.2d 57
    , 60 (3d Cir. 1989), United States v.
    Sandini, 
    803 F.2d 123
     (3d Cir. 1986), and United States v.
    Polin, 
    323 F.2d 549
     (3d Cir. 1963), we addressed the
    broader question of when the failure to object to venue
    results in the defendant waiving the issue altogether. What
    we consider here is not simply when a defendant waives his
    right to challenge venue completely, but when venue
    presents a fact question for the jury as opposed to a
    question of law for the court.
    The precise issue of when venue is "in issue" so as to
    raise a fact question for the jury is one on which our sister
    courts of appeal differ. The more narrow view, followed by
    the Fifth and Seventh Circuits, holds that venue is not in
    issue unless it is actually disputed at trial. See Winship,
    
    724 F.2d at 11125-26
    ; Massa, 
    686 F.2d at 529-31
    . But the
    Tenth Circuit holds that "failure to instruct[the jury] on
    venue, when requested, is reversible error unless it is
    beyond a reasonable doubt that the jury's guilty verdict on
    the charged offense necessarily incorporates a finding of
    proper venue." Miller, 
    111 F.3d at 751
    . Straddling these
    opposing positions are the Fourth and Eighth Circuits,
    which hold, on the one hand, that venue is in issue
    whenever defendants might otherwise be convicted"of the
    offenses charged without an implicit finding that the acts
    used to establish venue had been proven," United States v.
    Martinez, 
    901 F.2d 374
    , 376 (4th Cir. 1990); United States
    v. Moeckly, 
    769 F.2d 453
    , 461 (8th Cir. 1985), which is the
    Tenth Circuit's position, but on the other hand have found
    harmless the refusal by the trial court to instruct on venue
    because evidence that criminal acts occurred in the
    applicable districts was substantial and uncontroverted.
    Martinez, 
    901 F.2d at 376-77
    ; Moeckly, 
    769 F.2d at 462
    .
    In Massa, the Seventh Circuit adopted an"in issue" rule
    that looks to whether trial testimony established venue as
    a disputed issue of fact. It concluded that the trial court did
    20
    not err "in denying a specific venue instruction where the
    issue of venue was not disputed" at trial. 
    686 F.2d at 531
    .
    The trial court ruled that venue had been established as a
    matter of law based on (1) the sufficiency of the
    Government's proof that venue existed in the Northern
    District of Indiana as per the indictment, and (2) the fact
    that Massa did not contest venue by presenting any
    contrary evidence. 
    Id.
     The Appeals Court affirmed and
    stated that "[w]here venue is not in issue, no court has ever
    held that a venue instruction must be given." 
    Id. at 530
    .
    In Winship, the Fifth Circuit followed a harmless error
    analysis, though it nonetheless noted that trial testimony is
    a precondition to putting venue in issue. There the
    defendants were charged with, among other counts,
    conspiracy to possess with the intent to distribute
    marijuana and methamphetamine in Texas, Oklahoma, and
    Louisiana. Although neither defendant was present in the
    Western District of Louisiana where venue was laid, the
    trial testimony of several indicted co-conspirators connected
    them with distribution activities in that district. Id. at 1120.
    On appeal, the Fifth Circuit addressed whether the trial
    testimony put venue genuinely in issue. It concluded that
    the uncontroverted evidence that the charged drug activity
    occurred in the Western District of Louisiana was so
    overwhelming that trial testimony did not put venue"in
    issue." Id. at 1125. Therefore, the trial court's failure to
    instruct the jury in that case was harmless error. The Fifth
    Circuit nonetheless admonished against the trial court's
    failure to give the venue instruction, noting that"the better
    procedure is to give the venue instruction when requested,
    regardless of whether the trial court believes trial testimony
    has put venue in issue." Id. at 1126 n.13.
    We find the approach to the "in issue" test formulated by
    the Fifth and Seventh Circuits to be more persuasive than
    the broader view taken (at least theoretically) by the Fourth,
    Eighth and Tenth Circuits. Venue cannot be in issue unless
    the parties actually dispute it. It is an element"more akin
    to jurisdiction than to the substantive elements of the
    crime." Massa, 
    686 F.2d at 530
    . Moreover, objections to
    venue are waived if not raised in a timely manner. Sandini,
    
    803 F.2d at 127
    . An issue that has been waived because no
    21
    one has objected to it should not at the same time be "in
    issue" so as to require a jury instruction. That paradoxical
    result, however, appears to be the upshot of a broad"in
    issue" rule. Moreover, the reality that the Fourth and
    Eighth Circuits have followed conclusions that venue was
    properly "in issue" with harmless error analyses affirming
    the decision not to submit the question to the jury
    demonstrates the efficiency of requiring parties to bear the
    consequences of their own inaction.
    We conclude that, where the indictment alleges venue
    without a facially obvious defect, if (1) the defendant objects
    to venue prior to or at the close of the prosecution's case-
    in-chief, (2) there is a genuine issue of material fact with
    regard to proper venue, and (3) the defendant timely
    requests a jury instruction, venue becomes a jury question
    and the court must specifically instruct the jury on venue.11
    These three requirements are separate. The purpose of
    objecting to venue prior to or at the close of the
    prosecution's case is to alert the prosecution to the issue
    and thereby avoid waiving it under Sandini and Polin. A
    defendant may object to venue by raising its absence in a
    pre-trial motion, challenging during the Government's case
    its evidence as to venue, or making a motion for acquittal
    at the close of the Government's case that specifically deals
    with venue.
    Even if a defendant properly objects to venue, however, it
    does not become a fact question for the jury unless the
    defendant also places it in issue by establishing a genuine
    issue of material fact with regard to venue. Trial testimony
    may place venue in issue at any time prior to the close of
    evidence.12
    _________________________________________________________________
    11. While we hold that the trial court was not required to give a venue
    instruction under the facts of this case, the better practice is to give
    the
    instruction when requested. This is especially the preferred course in
    this case, where the trial judge later offered that"the evidence . . . as
    to
    the presence of venue in the District of New Jersey is not so
    overwhelming that the jury couldn't have decided otherwise had it been
    before it."
    12. Our ruling that venue is in issue if the defendant does no more than
    introduce direct evidence during the defense presentation does not run
    22
    When either the time for a venue objection or the
    opportunities to establish the facts placing venue in issue
    pass unavailed, venue is waived even if a jury instruction is
    requested. Objecting to venue at the jury instruction phase,
    without more, is not sufficient, for it does not flag and
    establish an issue of fact that warrants a special jury
    instruction. As the Seventh Circuit noted in Massa, "where
    venue is not in issue, no court has ever held that a venue
    instruction must be given." 
    686 F.2d at 530
    . Furthermore,
    we agree with the Court in Massa that "where venue is not
    disputed and the Government presents sufficient evidence
    of venue . . . ", it is a matter "particularly suited to
    determination by the court as a matter of law." 
    Id. at 531
    .
    Finally, as a procedural matter, a defendant who has both
    properly objected to venue and placed it in issue must also
    timely request a jury instruction on it.
    We now apply this rule to the facts of the case before us.
    Here we have an unchallenged indictment that alleges a
    conspiracy in New Jersey, buttressed by trial testimony of
    two alleged co-conspirators that overt acts in furtherance of
    the conspiracy occurred in New Jersey.13 No countervailing
    evidence was introduced by the Appellants nor did they at
    or before trial challenge the Government's case in any way.
    Instead, they now counter merely that the Government's
    _________________________________________________________________
    afoul of the rule in Sandini, 
    803 F.2d at 127
    , that, where the indictment
    alleges facially valid venue, objections to venue are waived if not raised
    at or before the close of the Government's case. The timing cutoff of
    Sandini and Polin refers to when the defendant must object to venue.
    Having made a timely objection, the defendant normally needs to present
    testimony that places venue in issue at any time prior to the close of
    evidence. Alternatively, the court may find that the Government's
    testimony places venue in issue notwithstanding the defense
    presentation.
    13. This begs the question of what happens if the Government previously
    alleged venue in the indictment but offered no testimony at trial proving
    venue. If no defense objection is raised at or before the close of the
    Government's case, Sandini and Polin instruct that, notwithstanding the
    lack of prosecution testimony, the venue defense is waived. This "give[s]
    the government an opportunity . . . to provide additional proof, if
    possible, to cure an insufficient presentation on venue." Turley, 891 F.2d
    at 61.
    23
    proof of venue rests entirely on testimony from alleged co-
    conspirators. The Government cites the Fifth Circuit's
    decision in Winship to support the view that testimony from
    admitted co-conspirators can sufficiently support a finding
    of venue as a matter of law. 
    724 F.2d at 1120
    . We agree.
    The Government in this case met the minimum
    requirements.
    We conclude that the District Court's refusal to instruct
    the jury on venue, based on the facts of this case, was not
    in error despite the defense request for a jury instruction.
    Appellants' general application for acquittal at the close of
    the Government's case claiming that the Government did
    not produce credible evidence to sustain a conviction,
    which would have been timely, failed to alert the
    Government and the Court specifically to the alleged
    impropriety of venue. Moreover, trial testimony failed to put
    venue in issue by creating a genuine issue of material fact
    that required resolution by a jury. Appellants offered no
    objection to the indictment, which clearly alleges a
    conspiracy in the District of New Jersey. Nor did Appellants
    challenge or contradict (by cross-examination or evidence
    introduced during the defense presentation) the venue
    testimony of the indicted co-conspirators offered by the
    Government, which recalled specific overt acts in
    furtherance of the conspiracy in New Jersey.14 In this
    context, the request for a jury instruction on venue was too
    little and too late.
    III. Suppression of Evidence
    Appellants argue that the District Court erred in denying
    their motions to suppress evidence seized in violation of
    their Fourth Amendment right against unreasonable
    _________________________________________________________________
    14. The District Court, in its denial of the defense motion for a new
    trial,
    stated that "the evidence . . . as to the presence of venue in the
    District
    of New Jersey is not so overwhelming that the jury couldn't have decided
    otherwise had it been before it." Given the absence of a dispute of
    material fact, "overwhelming" evidence was not necessary for the District
    Court to conclude that the Government's burden was met. The testimony
    of co-conspirators in this case was sufficient to support venue in New
    Jersey.
    24
    searches and seizures. According to Appellants, neither the
    exigent circumstances exception to the warrant
    requirement nor the independent source doctrine, both
    relied upon by the District Court in its denial, apply here.
    This Court reviews the District Court's denial of a motion to
    suppress for clear error as to the underlying factual
    findings and exercises plenary review of the District Court's
    application of the law to those facts. United States v.
    Riddick, 
    156 F.3d 505
    , 509 (3d Cir. 1998).
    As a threshold matter, Appellants have demonstrated no
    privacy interest in Del Rosario's apartment that would
    permit them to claim the protection guaranteed by the
    Fourth Amendment as to the items seized from it. Thus
    they lack the capacity to move to suppress the evidence
    seized. Nor does their claim that the seizure of items from
    them personally violates the Fourth Amendment survive
    either a harmless error analysis or the independent source
    doctrine. We conclude that probable cause to secure a
    search warrant existed prior to the officers' entry of Del
    Rosario's apartment15 and that the independent source
    doctrine applies to the items seized. Therefore, we affirm
    the District Court's ruling on the suppression motion.
    A. Capacity of Appellants to Claim the Protection of
    the Fourth Amendment
    The Fourth Amendment guarantees
    the right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable
    searches and seizures . . . and that no warrants shall
    issue, but upon probable cause, supported by oath or
    affirmation, and particularly describing the place to be
    searched and the persons or things to be seized.
    U.S. Const. amend. IV. In its denial of Appellants' motion to
    suppress, the District Court determined that the issue of
    _________________________________________________________________
    15. Although we have doubts about the District Court's finding that
    exigent circumstances were present to justify the arresting officers'
    decision to enter and secure the premises, we need not address this
    issue in view of our conclusions on the lack of a privacy interest and the
    independent source doctrine.
    25
    their "standing" was moot in light of the Court's decision on
    the merits that no Fourth Amendment violation occurred.
    We may affirm the rulings of the District Court for any
    proper reason that appears on the record even where not
    relied on by it. United States v. Miller, 
    224 F.3d 247
    , 248
    (3d Cir. 2000). We address the capacity issue here because
    we think it falls squarely within the Supreme Court's
    holding in Minnesota v. Carter, which declared that the
    " ``capacity to claim the protection of the Fourth Amendment
    depends . . . upon whether the person who claims the
    protection of the Amendment has a legitimate expectation
    of privacy in the invaded place.' " 
    525 U.S. 83
    , 88 (1998)
    (citing Rakas v. Illinois, 
    439 U.S. 128
    , 143 (1978)). Under
    this rule, persons in another's apartment for a short time
    for the business purpose of packaging cocaine had no
    legitimate expectation of privacy in that apartment. Thus
    any search which may have occurred did not violate their
    Fourth Amendment rights. 
    Id. at 91
    . Although overnight
    guests who are legitimately in a third-party's apartment
    may have a reasonable expectation of privacy, Appellants
    do not qualify. See Minnesota v. Olsen, 
    495 U.S. 91
    , 98-99
    (1990). Perez, a resident of Virginia, was booked at the
    Queens Motor Inn. She actually stayed at Batoon's home
    the night before the arrest. She did not stay overnight at
    Del Rosario's apartment. Nor was there any evidence that
    either Alcantera or Batoon resided at or were staying
    overnight at Del Rosario's apartment.
    Appellants cite to United States v. Erwin, in which the
    Tenth Circuit ruled, in the context of an automobile stop
    and search, that "[e]ven if defendant lacks standing16 to
    _________________________________________________________________
    16. In Rakas the Supreme Court opined that "the determination of
    whether the proponent of a motion to suppress is entitled to contest the
    legality of a search and seizure . . . belongs more properly under the
    heading of substantive Fourth Amendment doctrine than under the
    heading of standing. . . ." 439 U.S. at 140. To some this may seem a
    distinction without a difference. See United States v. Felton, 
    753 F.2d 256
    , 259 n.1 (3d Cir. 1985) ("The question necessarily arises whether it
    serves any useful analytical purpose to consider this principle a matter
    of standing, distinct from the merits of a defendant's Fourth Amendment
    claim. We can think of no decided cases of this Court that would have
    26
    challenge the search of the car, if the initial stop was
    illegal, the seized contraband is subject to exclusion under
    the ``fruit of the poison tree' doctrine." 
    875 F.2d 268
    , 269 &
    n.2 (10th Cir. 1989) (citing Wong Sun v. United States, 
    371 U.S. 471
    , 484 (1963)). The rationale of Erwin , however,
    does not apply in this context. Instead, we find the
    reasoning of Justice Kennedy in his concurrence in Carter
    to be on point. He posed the following hypothetical where
    the entry was illegal: "If respondents here had been visiting
    twenty homes, each for a minute or two, to drop off a bag
    of cocaine and were apprehended by a policeman
    wrongfully present in the nineteenth home, . . . we would
    have said that Rakas compels the rejection of any privacy
    interest respondents might assert." 525 U.S. at 102
    (Kennedy, J., concurring); Rakas, 439 U.S. at 143.
    In sum, we find no evidence that the Appellants were at
    Del Rosario's apartment for any purpose other than to
    engage in drug-related activities. They therefore have no
    reasonable expectation of privacy in Del Rosario's
    apartment to challenge the items seized therefrom under
    the Fourth Amendment and their claims are rejected on
    that basis. See United States v. Vega, 
    221 F.3d 789
    , 797
    (5th Cir. 2000) (rejecting appellant's challenge of a search
    where he presented no evidence to meet his burden of
    showing that he had a legitimate expectation of privacy in
    the residence searched).
    Alcantera and Batoon also argue, and the Government
    concedes, that they had a reasonable expectation of privacy
    with respect to the items seized from them personally. From
    Alcantera the Government seized a cell phone with battery
    and a pager; from Batoon a small amount of
    methamphetamine consistent with personal use and a
    pager. However, in light of all of the other evidence properly
    _________________________________________________________________
    come out differently. . . ."); see also United States v. Baker, 
    221 F.3d 438
    (3d Cir. 2000) (using "standing" interchangeably with "reasonable
    expectation of privacy" in discussing the right to challenge the search of
    a car). Nonetheless, "the better analysis forthrightly focuses on the
    extent of a particular defendant's rights under the Fourth Amendment
    rather than on any theoretically separate, but invariably intertwined
    concept of standing." Felton, 
    753 F.2d at
    259 n.1.
    27
    seized from Del Rosario's apartment pursuant to the search
    warrant (see discussion below), any alleged error in the
    admission of this evidence is rendered harmless. See United
    States v. Price, 
    13 F.3d 711
    , 720 (3d Cir. 1994) (finding
    harmless the erroneous denial of a motion to suppress
    fourteen kilograms of cocaine in light of the testimony of
    several witnesses that appellant delivered cocaine for
    distribution, wore a ring associated with a drug-trafficking
    organization, and worked with members of that
    organization).
    B. Independent Source Doctrine and Probable Cause
    The District Court denied Appellants' motion to suppress
    evidence based in part on the long-standing independent
    source doctrine. That doctrine serves as an exception to the
    exclusionary rule and permits the introduction of illegally
    obtained evidence where the police had an independent
    source for the discovery of the evidence.
    The essence of a provision forbidding the acquisition of
    evidence in a certain way is that not merely evidence so
    acquired shall not be used before the Court but that it
    shall not be used at all. Of course this does not mean
    that the facts thus obtained become sacred and
    inaccessible. If knowledge of them is gained from an
    independent source they may be proved like any
    others.
    Silverthorne Lumber Co. v. United States, 
    251 U.S. 385
    , 392
    (1920); see also Segura v. United States, 
    468 U.S. 796
    , 805
    (1984) (noting that evidence is not to be excluded if police
    had an independent source); Wong Sun v. United States,
    
    371 U.S. 471
     (1963) (same). The basis for the rule is the
    well-established principle that "evidence is not to be
    excluded if the connection between the illegal police
    conduct and the discovery and seizure of the evidence is ``so
    attenuated as to dissipate the taint'." Segura, 
    468 U.S. at
    797 (citing Nardone v. United States, 
    308 U.S. 338
    , 341
    (1939)).
    The facts and legal issues presented in this case are
    similar to those in Segura. There, New York Drug
    Enforcement Task Force agents began surveillance of
    Segura based on information that he and another petitioner
    28
    were "probably" trafficking in cocaine from their apartment.
    
    468 U.S. at 799
    . After observing the delivery of a bulky
    package suspected to be cocaine as per an informant's tip,
    the officers stopped the recipient couple, found them to
    possess cocaine, and placed them under arrest. From this
    couple, the officers learned that they had purchased
    cocaine from Segura. Given that Segura was to call the
    couple at approximately 10:00 p.m. to learn if they had sold
    the cocaine, and that because of the lateness of the hour a
    search warrant could not be obtained, the officers decided
    to "secure" Segura's apartment to prevent destruction of the
    evidence. The officers knocked and entered without the
    consent of the woman who opened the door. They
    conducted a limited security check while others went to
    obtain a search warrant. After nineteen hours, the warrant
    was issued and the search performed. In concluding that
    probable cause existed, although not ruling on the lower
    courts' conclusion that the entry and initial search were not
    justified by exigent circumstances, the Supreme Court held
    that
    the evidence discovered during the subsequent search
    of the apartment the following day pursuant to the
    valid search warrant issued wholly on information
    known to the officers before the entry into the
    apartment need not have been suppressed as ``fruit' of
    the illegal entry because the warrant and the
    information on which it was based were unrelated to
    the entry and therefore constituted an independent
    source for the evidence . . . .
    
    468 U.S. at 799
    .
    The Supreme Court did not answer directly the question
    presented by this case -- whether probable cause exists if
    it was not clearly established that drugs were in the
    apartment. But it did conclude that probable cause existed
    under the facts of that case, and noted that "[t]he illegality
    of the initial entry . . . has no bearing on . . . whether the
    evidence first discovered during the search of the
    apartment pursuant to a valid warrant issued the day after
    the entry should have been suppressed as ``fruit' of the
    illegal entry." 
    Id. at 798
    . But see United States v. Dice, 
    200 F.3d 978
     (6th Cir. 2000) (holding that violation of knock-
    29
    and-announce rule during execution of valid search
    warrant warranted suppression of evidence seized in search
    following violation).
    Our case law follows the reasoning in Segura. In United
    States v. Herrold, we found that the affidavit for the warrant
    in question contained sufficient probable cause to justify
    the search apart from information the officers learned in
    the initial entry. 
    962 F.2d 1131
     (3d. Cir. 1992).
    In sum, the district court should have asked two
    questions: (1) whether a neutral justice would have
    issued the search warrant even if not presented with
    information that had been obtained during an unlawful
    search and (2) whether the first search prompted the
    officers to obtain the search warrant. If the answers to
    these questions are yes and no respectively, which they
    are in this case, then the evidence seized during the
    warranted search, even if already discovered in the
    original entry, is admissible. Otherwise the police
    would indeed be in a worse position than they would
    have been in had they not violated Herrold's Fourth
    Amendment rights.
    
    Id. at 1144
    . Our ruling in Herrold harmonized the tainted
    warrant and independent source doctrines. See 
    id.
     In
    response to the fear that police will have an incentive to
    avoid the warrant requirement, we noted that the
    independent source doctrine
    by its very nature . . . is only applicable where the
    police have in fact obtained a warrant. In addition, it
    will not give the police incentive to search first without
    a warrant, because any information discovered in an
    unlawful search is useless to the police in a
    subsequent warrant application. Moreover, our result
    is dependent upon our conclusion that the police
    would have obtained the warrant even if Hill had not
    made his original entry.
    
    Id.
     This reasoning applies with equal force to the case
    before us.
    Thus we turn to whether the tainted information from the
    illegal entry improperly influenced the issuing of the
    30
    warrant. The Court in United States v. Restrepo , 
    966 F.2d 964
     (5th Cir. 1992), was presented with a warrantless
    security sweep of a residence and the subsequent search of
    that same residence pursuant to a warrant. It held that "in
    all such cases the district court should consider whether
    the warrant affidavit, once purged of tainted facts and
    conclusions, contains sufficient evidence to constitute
    probable cause for issuance of the warrant." 
    Id. at 970
    .
    Separate and apart from this determination, the court must
    also determine "whether information gained through the
    illegal search influenced or motivated the officers' decision
    to procure a warrant." 
    Id. at 971
    . This latter point resulted
    in a remand to the district court.
    In our case, Officer Koehler testified during the
    suppression hearing that he had enough probable cause
    based on the information provided from CI-1 and Zoletta to
    convince an Assistant District Attorney to issue him the
    search warrant even if he had never gone into the
    apartment. But during his testimony Koehler acknowledged
    that the affidavit in support of the search warrant included
    things seen in the apartment after an entry not justified by
    exigent circumstances (and therefore tainted).
    Q: You included in that affidavit, did you not, the
    things you or others had seen in that apartment?
    A: Yes.
    Q: You included the methamphetamine that was in
    plain view in the living room?
    A: Right.
    Q: Did you include those things because you felt they
    were substantial information towards getting the
    search warrant?
    A: They would just be more helpful, more information.
    We nonetheless conclude that probable cause for the
    search warrant existed before the officers decided to enter
    Del Rosario's apartment. See Illinois v. Gates , 
    462 U.S. 213
    ,
    238 (1983). Similar to the situation in Segura , the officers
    in this case had the apartment under surveillance based on
    tips from confidential informants that Del Rosario was
    31
    trafficking methamphetamine from his apartment. The
    officers were also informed that a woman named "Linette"
    would be arriving at J.F.K. Airport from the Philippines
    with bulky packages on February 24, 1999. This
    information and Linette's description were corroborated by
    customs agents. While surveilling Del Rosario's apartment
    the next day, officers observed a stream of cars stop outside
    the apartment building, remain for a few minutes, then
    leave. In similar fashion, Zoletta and Abaia then pulled up
    and parked outside the apartment building. After observing
    Zoletta leave the building with a suspicious package and
    drive away with Abaia, the officers trailed and then stopped
    their car. The package contained approximately 200 grams
    of methamphetamine. Zoletta independently confirmed that
    he dealt drugs for Del Rosario for two years in New York
    and New Jersey, that he had received these drugs from Del
    Rosario, and that he was to deliver them on Del Rosario's
    behalf. Zoletta also confirmed the apartment number and
    that additional people remained in the apartment. This
    information was sufficient to establish probable cause to
    seek a search warrant for the apartment irrespective and
    independent of those items discovered within the apartment
    in connection with the tainted police entry. With this
    independent support, a valid search warrant issued, the
    fruit of that search was not tainted, and thus there was no
    violation of Appellants' Fourth Amendment rights.
    IV. Expert Testimony
    Alcantera claims that the District Court overstepped
    Federal Rule of Evidence 702 by permitting the
    Government's expert witness, Ronald Dixon ("Dixon"), to
    testify about facts purported to be within the common
    knowledge of the jurors. Alcantera did not object to the
    District Court's finding that Dixon was qualified to testify
    as an expert in the area of drug-trafficking practices and
    techniques. Instead, he objected on the ground that there
    was no need for the testimony and that it was unfairly
    prejudicial. We review for abuse of discretion the District
    Court's ruling as to the qualifications of Dixon and the
    reliability of his testimony. In re Paoli R.R. Yard P.C.B.
    Litig., 
    35 F.3d 717
    , 749 (3d Cir. 1993). We also review for
    32
    abuse of discretion the Court's refusal to exclude the
    evidence under Federal Rule of Evidence 403 because any
    unfairly prejudicial effect did not substantially outweigh its
    probative value. United States v. Mathis, 
    264 F.3d 321
    ,
    326-27 (3d Cir. 2001).
    In a landmark ruling that led in December 2000 to the
    amendment of Rule 702 of the Federal Rules of Evidence,
    the Supreme Court in Daubert v. Merrell Dow
    Pharamaceuticals, Inc., 
    509 U.S. 579
     (1993), established the
    trial court as a gatekeeper to exclude unreliable expert
    testimony. Prior to December 2000, Rule 702 read:
    If scientific, technical, or other specialized knowledge
    will assist the trier of fact to understand the evidence
    or to determine a fact in issue, a witness qualified as
    an expert by knowledge, skill, experience, training, or
    education, may testify thereto in the form of an opinion
    or otherwise.
    Fed. R. Evid. 702 (2000). The Rule as amended reads:
    If scientific, technical, or other specialized knowledge
    will assist the trier of fact to understand the evidence
    or to determine a fact in issue, a witness qualified as
    an expert by knowledge, skill, experience, training, or
    education, may testify thereto in the form of an opinion
    or otherwise, if (1) the testimony is based upon
    sufficient facts or data, (2) the testimony is the product
    of reliable principles and methods, and (3) the witness
    has applied the principles and methods reliably to the
    facts of the case.
    Fed. R. Evid. 702 (2001).
    In both versions, the purpose of expert testimony is to
    assist the trier of facts to understand, evaluate, and decide
    complex evidential material. United States v. R. J. Reynolds
    Tobacco Co., 
    416 F. Supp. 313
     (D.N.J. 1976)."The basic
    approach to opinions, lay and expert, in these rules is to
    admit them when helpful to the trier of fact." Fed. R. Evid.
    704, advisory committee's note.
    Although this Court has not specifically declared the
    modus operandi of drug trafficking as an appropriate or
    reliable field for expert opinion, several courts of appeal
    33
    have consistently admitted such testimony. See United
    States v. Gil, 
    58 F.3d 1414
    , 1421-22 (9th Cir. 1995) (ruling
    expert testimony regarding how drug-traffickers employ
    telephone pagers and public telephones to avoid detection
    by police was properly admitted); United States v. Tapia-
    Ortiz, 
    23 F.3d 738
    , 741 (2d Cir. 1994) (affirming the
    admission of expert testimony of how drug traffickers
    employed telephone pagers "in order to avoid detection");
    see also United States v. Gastiaburo, 
    16 F.3d 582
    , 589 (4th
    Cir. 1994) (ruling that expert testimony about "tools of the
    trade" of drug traffickers, including "beepers," was properly
    admitted); United States v. Solis, 
    923 F.2d 548
    , 549-51 (7th
    Cir. 1991) (concluding that expert testimony that the use of
    "beepers' by drug traffickers permit them to be anonymous
    and mobile was properly admitted). We join those courts.
    Dixon, the Lieutenant of Detectives for the Middlesex
    County, New Jersey Prosecutor's Office, and a thirty-two
    year law enforcement veteran, testified that cellular
    telephones can be used by drug traffickers to frustrate
    police investigations. He explained that police who intercept
    a cellular call will often be ignorant of the location of the
    caller. The police are unable to engage in simultaneous
    wire-tapping and surveillance of the caller, a useful
    investigative technique that often leads police to the
    location of a drug delivery. Dixon also testified that drug
    traffickers employ telephone pagers to transmit numeric
    coded messages. He explained that even if police are able to
    intercept the coded message, they will likely be unable to
    decode it.
    We conclude that Dixon's testimony meets the "helpful to
    the trier of fact" threshold established in Rule 702. It is not
    common knowledge among lay persons serving as jurors
    that police are unable simultaneously to wire-tap cellular
    phone calls and keep under surveillance those who make
    them, or that numeric pagers are used by drug traffickers
    to transmit coded messages. Since this testimony was
    helpful and relevant, we likewise conclude that the District
    Court acted within its discretion in refusing to exclude it
    under Rule 403. Therefore, the District Court in this case
    properly exercised its discretion to admit Dixon's testimony
    with respect to drug traffickers' use of cell phones and
    pagers to evade location by police investigators.
    34
    V. Sufficiency of Evidence of a Single Conspiracy
    Appellants Alcantera and Batoon contend that the
    evidence was insufficient to sustain their convictions of
    conspiring to distribute methamphetamine. First, they
    argue that the proofs at trial do not support the jury's
    verdict as to each of them. Second, they contend that the
    Government failed to prove that they were members of a
    single conspiracy as charged in the indictment. We review
    the sufficiency of the evidence in the light most favorable to
    the Government, and credit all reasonable inferences that
    support the verdicts. See Glasser v. United States, 
    315 U.S. 60
    , 80 (1942); Riddick, 
    156 F.3d at 508
    . The verdict will be
    sustained if "any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt."
    United States v. Voigt, 
    89 F.3d 1050
    , 1080 (3d Cir. 1996).
    The essential elements of conspiracy are "(1) a shared
    ``unity of purpose,' (2) an intent to achieve a common goal,
    and (3) an agreement to work together toward the goal."
    United States v. Mastrangelo, 
    172 F.3d 288
    , 292 (3d Cir.
    1999) (citing United States v. Wexler, 
    838 F.2d 88
    , 90-91
    (3d Cir. 1988)). "This proof incorporates a demonstration
    that a defendant has ``knowledge of the illegal objective
    contemplated by the conspiracy'." 
    Id.
     (citing Wexler, 
    838 F.2d at 91
    ). "The elements of a conspiracy may be proven
    entirely by circumstantial evidence, but each element of the
    offense must be proven beyond a reasonable doubt."
    Wexler, 
    838 F.2d at 90
    ; see also United States v. Kapp, 
    781 F.2d 1008
    , 1010 (3d Cir.), cert. denied, 
    475 U.S. 1024
    (1986); United States v. Samuels, 
    741 F.2d 570
    , 573 (3d
    Cir. 1984).
    A. Sufficiency of the Evidence of Conspiracy
    Alcantera and Batoon argue that the evidence does not
    support their role as co-conspirators. They contend that
    neither had the requisite knowledge of the illegal objective
    of the scheme to distribute methamphetamine such that
    they could form an intent or agreement to join the
    conspiracy. Moreover, they posit that uncorroborated co-
    conspirator testimony is insufficient to support a
    conspiracy conviction. Instead, Batoon insists that he was
    merely in a buyer-seller relationship with Del Rosario that
    35
    did not rise to the level of a co-conspirator, while Alcantera
    claims that he was at Del Rosario's apartment to receive a
    gift for his newborn son and had no knowledge of the
    presence of illegal drugs.
    The Government need not prove that each defendant
    knew all of the conspiracy's details, goals, or other
    participants. See United States v. Theodoropoulos, 
    866 F.2d 587
    , 593 (3d Cir. 1989), overruled on other grounds by
    United States v. Price, 
    13 F.3d 711
    , 727 (3d Cir. 1994).
    However, the Government must proffer sufficient evidence
    from which a jury could conclude that the drug transaction
    in which Appellants were involved was "a step in achieving
    the conspiracy's common goal of distributing cocaine for
    profit." Theodoropoulos, 
    866 F.2d at 593
    . As Appellants
    point out, "a simple buyer-seller relationship, without any
    prior or contemporaneous understanding beyond the sales
    agreement itself, is insufficient to establish that the buyer
    was a member of the seller's conspiracy." United States v.
    Gibbs, 
    190 F.3d 188
    , 198 (3d Cir. 1999) (citing United
    States v. McGlory, 
    968 F.2d 309
    , 324-25 (3d Cir. 1992),
    cert. denied, 
    507 U.S. 962
     (1993)); see also United States v.
    Kozinski, 
    16 F.3d 795
    , 808 (7th Cir. 1994). However, in
    Price and Theodoropoulos we reasoned that "even an
    occasional supplier (and by implication an occasional buyer
    for redistribution) can be shown to be a member of the
    conspiracy by evidence, direct or inferential, of knowledge
    that she or he was part of a larger operation." Price, 
    13 F.3d at 728
    ; Theodoropoulos, 
    866 F.2d at 594
    .
    Among the factors the Court considers to determine a
    defendant's knowledge of the conspiracy are: (1) the length
    of affiliation between the defendant and the conspiracy; (2)
    whether there is an established method of payment; (3) the
    extent to which transactions are standardized; and (4)
    whether there is a demonstrated level of mutual trust.
    Gibbs, 
    190 F.3d at
    199 (citing United States v. Hach, 
    162 F.3d 937
    , 943 (7th Cir. 1998), cert. denied, 
    526 U.S. 1103
    (1999)).
    While these factors are not necessarily dispositive of
    the issue, their presence suggests that a defendant has
    full knowledge of, if not a stake in, a conspiracy: when
    a defendant drug buyer has repeated, familiar dealings
    36
    with members of a conspiracy, that buyer probably
    comprehends fully the nature of the group with whom
    he is dealing, is more likely to depend heavily on the
    conspiracy as the sole source of his drugs, and is more
    likely to perform drug-related acts for conspiracy
    members in an effort to maintain his connection to
    them.
    Gibbs, 
    190 F.3d at 199
    .
    Alcantera and Batoon cite to the Tenth Circuit case of
    United States v. Evans, 
    970 F.2d 663
     (1992), to support
    their argument that "[m]ere knowledge of an illegal activity,
    even in conjunction with participation in a small part of the
    conspiracy, does not by itself establish that a person has
    joined in the grand conspiracy." 
    Id. at 670
    . What is needed
    is "a general awareness of both the scope and the objective
    of the enterprise to be regarded as a co-conspirator." 
    Id.
    Most damaging to this argument is that seven of the
    eight indicted defendants, including Alcantera and Batoon,
    were present in Del Rosario's apartment on February 25,
    1999, when the N.Y.P.D. officers entered the apartment,
    with nearly 100 grams of crystal methamphetamine in plain
    view. Both were present in the apartment while the
    methamphetamine was distributed to other persons to be
    delivered or sold, and both arguably were providing
    "security" to Del Rosario. Alcantera knew of the plan to
    have Perez smuggle methamphetamine into the United
    States after he met with Daluro, and Batoon met with Perez
    the night she returned from her trip to the Philippines.
    Contrary to the claim that he was merely in a buyer-
    seller arrangement with Del Rosario, Alcantera admitted to
    Uy that he was one of Del Rosario's methamphetamine
    distributors. Prior to the arrest, Alcantera obtained twenty
    grams of methamphetamine from Daluro in New Jersey
    expressly for delivery to Del Rosario. Moreover, after
    Alcantera testified that he never called Del Rosario on the
    telephone, the Government confronted him with telephone
    records that established that he made and received
    numerous phone calls to and from Del Rosario around the
    time that the shipment of methamphetamine was due in
    from the Philippines. Like Alcantera, Batoon received
    37
    distribution amounts of methamphetamine from Del
    Rosario several times, once on credit. This evidence is
    sufficient to prove their general awareness of the scope and
    objective of the conspiracy.
    Alcantera and Batoon also argue that the uncorroborated
    testimony of their alleged co-conspirators Almiranez,
    Daluro, Zoletta and Uy is not sufficient to sustain their
    convictions, citing to United States v. Sturman , 
    49 F.3d 1275
     (7th Cir. 1995). However, the Sturman Court left
    "open the question of whether co-conspirator testimony
    alone can support a conspiracy conviction." 
    Id.
     at 1281
    (citing United States v. Martinez de Ortiz, 
    907 F.2d 629
    , 632
    (7th Cir. 1990) (en banc), cert. denied , 
    498 U.S. 1029
    (1991)). The Seventh Circuit followed Sturman with its
    opinion in United States v. Henderson, 
    58 F.3d 1145
     (7th
    Cir. 1995), wherein it held that "[w]e will uphold a
    conviction based solely on the uncorroborated testimony of
    an accomplice unless his testimony is incredible as a
    matter of law." 
    Id. at 1148-49
    .
    In the context of accomplice testimony, we rejected in
    United States v. DeLarosa, 
    450 F.2d 1057
     (3d Cir. 1971),
    the very argument Alcantera and Batoon proffer."We follow
    the Supreme Court in holding that uncorroborated
    accomplice testimony may constitutionally provide the
    exclusive basis for a criminal conviction." 
    Id.
     at 1060 (citing
    Caminetti v. United States, 
    242 U.S. 470
     (1917)). See also
    Jacobs v. Redman, 
    616 F.2d 1251
    , 1255 (3d Cir. 1980).
    This is particularly the case where the defense has ample
    opportunity to cross-examine the Government's witnesses,
    as Alcantera and Batoon had. See United States v.
    Enriquez, 
    201 F.3d 1072
    , 1074 (8th Cir. 2000) ("[Defense]
    counsel cross-examined each of the co-conspirators with
    whom the government had made plea agreements . . . and
    attempted to expose their potential for bias and self-
    interest. Furthermore, the jury was specifically instructed
    as to its role in weighing witnesses' testimony and
    credibility. The jury's decision to credit the testimony of
    those witnesses was within its province, and we will uphold
    the conviction if substantial evidence supports it.").
    Viewing the evidence in the light most favorable to the
    Government, we conclude that a reasonable jury could have
    38
    found Alcantera and Batoon guilty of conspiracy to possess
    with intent to distribute methamphetamine. Alcantera's and
    Batoon's presence at the ringleader's apartment when the
    drug shipment was being doled out, their awareness of and
    involvement with Del Rosario and Perez around the time of
    the delivery, as well as repeated dealings with Del Rosario
    prior to the arrest, are sufficient facts from which a
    reasonable jury can infer a general awareness of the scope
    of the illegal objective. That some of this evidence was
    provided by alleged co-conspirator testimony does not
    render the entire evidence insufficient to support the
    convictions of Alcantera and Batoon. The Government's
    evidence addresses each of the factors discussed in Gibbs,
    establishing Alcantera's and Batoon's knowledge of the
    broader conspiracy and contradicting a mere buyer-seller
    arrangement.17
    B. Variance between single conspiracy as charged and
    the proof at trial
    Alcantera and Batoon also claim that the single
    conspiracy charged in the indictment impermissibly varied
    from the evidence at trial which proved, at most, that two
    separate conspiracies existed. "A defendant alleging a
    variance between a single conspiracy charged in an
    indictment and the proof presented at trial must
    demonstrate, first, that there was such a variance and,
    second, that the variance prejudiced one of his substantial
    rights." United States v. Quintero, 
    38 F.3d 1317
    , 1337 (3d
    Cir. 1994) (citing United States v. Kelly, 
    892 F.2d 255
    , 258
    (3d Cir. 1989)). "Where a single conspiracy is alleged in the
    _________________________________________________________________
    17. The concern of the Tenth Circuit in Evans , echoed by Chief Judge
    Becker in footnote 3 in Gibbs -- that a small time drug dealer could be
    held responsible for all of the drugs originated by the cartel for
    sentencing purposes -- is not implicated in this case. We conclude that
    Alcantera and Batoon had sufficient knowledge of and a stake in the
    larger conspiracy to justify a jury finding them to be co-conspirators.
    See
    Gibbs, 
    190 F.3d at
    199 n.3; Evans, 
    970 F.2d at 670
    . Moreover, we note
    that the District Court in this case instructed the jury that "[a] buyer-
    seller relationship alone is insufficient to prove a conspiracy to
    distribute
    or a conspiracy to possess with intent to distribute an illegal drug. This
    is the case even when the buyer intends to resell the purchased
    narcotics."
    39
    indictment, there is a variance if the evidence at trial proves
    only the existence of multiple conspiracies." Kelly, 892 F.2d
    at 258 (citing United States v. Smith, 
    789 F.2d 196
    , 200 (3d
    Cir.), cert. denied, 
    479 U.S. 1017
     (1986)). The issue of
    whether a single conspiracy or multiple conspiracies exist is
    a fact question to be decided by a jury. United States v.
    Curran, 
    20 F.3d 560
    , 572 (3d Cir. 1994) (citing Smith, 789
    F.2d at 200). We will sustain the jury's verdict if there is
    substantial evidence, viewed in the light most favorable to
    the Government, to support a finding of a single conspiracy.
    Smith, 789 F.2d at 200.
    To provide notice of the charges against a defendant and
    to protect against double jeopardy, the indictment must
    adequately set forth the crime alleged. See Gaither v. United
    States, 
    413 F.2d 1061
    , 1071 (D.C. Cir. 1969). Where
    evidence at trial proves facts different than those alleged in
    the indictment, an impermissible variance may exist. Smith,
    789 F.2d at 200. For example, when a single conspiracy is
    charged in the indictment and the evidence at trial proves
    only the existence of multiple, unrelated conspiracies, there
    is a variance. See Kotteakos v. United States , 
    328 U.S. 750
    (1946); Kelly, 892 F.2d at 258; United States v. Boyd, 
    595 F.2d 120
    , 123 (3d Cir. 1978).
    Multiple conspiracies are "separate networks operating
    independently of each other." United States v. Barr, 
    963 F.2d 641
    , 648 (3d Cir. 1992). "However, a finding of a
    master conspiracy with sub-schemes does not constitute a
    finding of multiple, unrelated conspiracies and, therefore,
    would not create an impermissible variance." Smith, 789
    F.2d at 200. Thus, the relatedness of the activities of the
    co-conspirators in support of the overall illegal scheme can
    defeat a claim of multiple conspiracies.
    Variances "are examined on a case-by-case basis and
    constitute reversible error only if the defendant was
    prejudiced." Smith, 789 F.2d at 200 (citing United States v.
    Castro, 
    776 F.2d 1118
    , 1121 (3d Cir. 1985)); United States
    v. Somers, 
    496 F.2d 723
    , 743 (3d Cir.), cert. denied, 
    419 U.S. 832
     (1974)). This "variance doctrine" protects a
    defendant from being tried "en masse for the
    conglomeration of distinct and separate offenses committed
    by others." United States v. Salmon, 
    944 F.2d 1106
    , 1116
    40
    (3d Cir. 1991), cert. denied, 
    502 U.S. 1110
     (1992) (quoting
    Kelly, 892 F.2d at 258). "The doctrine is intended to prevent
    a situation in which the jury might ``be unable to separate
    offenders and offenses and easily could ... transfer[ ] the
    guilt from one alleged co-schemer to another.' " Barr, 
    963 F.2d at 648
     (quoting United States v. Camiel, 
    689 F.2d 31
    ,
    38 (3d Cir. 1982)).
    Several courts have focused on the interdependency of
    the sub-schemes in support of the overall conspiracy. See,
    e.g., Evans, 
    970 F.2d at 670
     ("the defendant's actions must
    ``facilitate the endeavors of other alleged co-conspirators or
    facilitate the venture as a whole' ") (citing United States v.
    Horn, 
    946 F.2d 738
    , 743 (10th Cir. 1991)); United States v.
    Sophie, 
    900 F.2d 1064
    , 1080 (7th Cir.), cert. denied, 
    498 U.S. 843
     (1990); United States v. Kenny, 
    462 F.2d 1205
    ,
    1217 (3d Cir.), cert. denied, 
    409 U.S. 914
     (1972).
    Interdependency, however, is merely "evidence of an
    agreement." United States v. Taylor, 
    562 F.2d 1345
    , 1352
    (2d Cir.), cert. denied, 
    432 U.S. 909
     (1977). It is not an
    element of the offense. United States v. DiPasquale, 
    740 F.2d 1282
    , 1291 (3d Cir. 1984) (citing United States v.
    Shoup, 
    608 F.2d 950
    , 957 n.12 (3d Cir. 1979)).
    In support of their argument, Alcantera and Batoon cite
    to a snippet from the uncorroborated co-conspirator
    testimony of Almiranez.
    Q.: (Direct examination of Almiranez by Government)
    When individuals came over to [Del Rosario's]
    apartment, what happened?
    A.: Oh, they get their drugs too. Everybody that went
    there, they get their own drugs.
    * * * *
    Q.: Were there any discussions in [Del Rosario's]
    apartment between you and the other individuals in
    the apartment regarding the distribution of crystal
    meth?
    A.: No, we don't -- we don't discuss those distribution
    . . . we don't discuss distribution, none.
    Q.: Why not, why don't you discuss it?
    41
    A.: Because they distribute in New York. I do in
    Jersey. It's different areas.
    This testimony, Alcantera and Batoon contend, disproves
    their knowledge of and interdependency with the"New
    Jersey" conspiracy. Consequently, they argue, the
    Government's allegation and the jury's finding that the two
    were part of single conspiracy must fail.
    We disagree. "To establish a single conspiracy, the
    prosecutor need not prove that each defendant knew all the
    details, goals or other participants." United States v.
    Padilla, 
    982 F.2d 110
     (3d Cir. 1992). "The prosecution
    must, however, demonstrate that a defendant, charging
    variance, knew that he was part of a larger drug operation."
    Quintero, 
    38 F.3d at
    1337 (citing Padilla , 
    982 F.2d at 114
    ).
    As we noted above in Part V.A., the Government met this
    burden of proof.
    Moreover, we find that there is sufficient evidence from
    which a reasonable jury can find interdependency among
    the co-conspirators. The Government demonstrated that
    methamphetamine is difficult to prepare, find, and
    purchase on the streets. Alcantera and Batoon depended on
    a scheme involving Del Rosario, Perez and the shipment
    from the Philippines to possess and distribute the illegal
    drug. In turn, Del Rosario depended on the two to
    distribute the methamphetamine once it came in. In
    addition, because Alcantera and Batoon stayed with Del
    Rosario throughout the morning and afternoon of the
    arrest, the jury could have logically concluded that the two
    provided security to Del Rosario as the drugs were
    distributed. See United States v. Reyes, 
    930 F.2d 310
    , 312-
    13 (3d Cir. 1991) (finding a single conspiracy to be proven
    when there is "evidence of a large general scheme, and of
    aid given by some conspirators to others in aid of that
    scheme") (citing Kenny, 462 F.2d at 1216).
    The concern with a "spillover of evidence" is unfounded in
    this case. The Government presented evidence that directly
    implicated both Alcantera and Batoon in the conspiracy.
    The majority of the remaining evidence, including the
    testimony of Zoletta about his own and Perez's role in the
    conspiracy, was relevant to both Alcantera and Batoon
    42
    regardless whether there was a single or multiple
    conspiracies.
    Moreover, the District Court's jury instructions in this
    case dispel the concerns of prejudice to Alcantera and
    Batoon. With respect to the finding of a single conspiracy,
    the Court instructed the jury to acquit if the evidence
    established "separate or independent conspiracies[that]
    would be at variance with that charged," and that"proof of
    a different conspiracy, that is, one without that specific
    objective [alleged in the indictment], would not be proof of
    the conspiracy charged in the indictment and would require
    a verdict of not guilty." With respect to individualized
    findings of innocence or guilt, the District Court instructed
    the jury to give "separate consideration to and render a
    separate verdict as to each defendant based solely on the
    evidence pertaining to that defendant," and to"exercise
    great care to evaluate the evidence or lack of evidence
    against each defendant individually . . . without regard as
    to what your decision as to any other defendant might be."
    In sum, we find that Alcantera and Batoon have failed to
    demonstrate (1) a variance between the single conspiracy as
    charged in the indictment and the evidence offered at trial
    to prove that conspiracy and, (2) regardless of the alleged
    variance, any prejudice to them as a result of the
    Government's proof at trial.
    VI. Refusal to Immunize Del Rosario and Brady
    Violation
    Appellants Perez and Batoon claim that the District Court
    erroneously refused to immunize Del Rosario so that he
    could testify as a defense witness at trial. Based on the
    same set of facts, Perez and Batoon also claim that the
    Government failed to reveal exculpatory evidence to the
    defense with respect to Del Rosario's statements to
    investigators, thereby warranting a new trial. We review the
    District Court's refusal to immunize Del Rosario for abuse
    of discretion. United States v. Herman, 
    589 F.2d 1191
    ,
    1213-14 (3d Cir. 1978). The District Court's factual findings
    regarding the likely effect of undisclosed information are
    reviewed only for clear error. United States v. Pelullo, 
    173 F.3d 131
    , 135 (3d Cir. 1999).
    43
    Immediately following his arrest and after waiving his
    Miranda rights, Del Rosario told investigators that Perez
    had smuggled multiple kilograms of methamphetamine into
    the United States from the Philippines and delivered them
    to Del Rosario. Months later, Del Rosario changed his story
    and told investigators that Zoletta, not Perez, had delivered
    the drugs to Del Rosario. Perez sought to present Del
    Rosario as a defense witness and question him about the
    second statement. The District Court had Del Rosario and
    his attorney appear before it to determine if he would
    testify. Del Rosario, outside the presence of the jury,
    asserted his Fifth Amendment privilege against self-
    incrimination and refused to answer any questions. Perez
    then asked the District Court to confer immunity on Del
    Rosario so that he could be compelled to testify as a
    defense witness, in the hope that he would testify in
    accordance with his second statement and exculpate Perez.
    The Government opposed the request.
    We have prescribed a five-factor analysis when assessing
    a request to grant judicial use immunity18 to a witness who
    refuses to testify: (1) the immunity is properly sought in the
    District Court; (2) the witness is available to testify; (3) the
    proffered testimony is clearly exculpatory; (4) the proffered
    testimony is essential to the defense; and (5) there is no
    strong governmental interest against the immunity. See
    United States v. Cohen, 
    171 F.3d 796
    , 802 (3d Cir. 1999);
    Government of Virgin Islands v. Smith, 
    615 F.2d 964
     (3d
    Cir. 1980). The District Court concluded that, because any
    exculpatory testimony that Del Rosario might offer on
    behalf of Perez would be severely impeached by his prior
    inculpatory statement against her, Perez could not
    establish that the proffered testimony was "clearly
    exculpatory" or "essential to her defense."
    A similar analysis applies to the alleged Brady violation.
    Under Brady v. Maryland, 
    373 U.S. 83
     (1963), the
    _________________________________________________________________
    18. Use immunity, conferred by the judge on a witness who refuses to
    testify, prohibits a witness' compelled testimony and its fruits from
    being
    used in any manner in connection with the criminal prosecution of the
    witness except a prosecution for perjury, giving a false statement, or
    otherwise failing to comply with the order. See 18 U.S.C. SS 6001-6005.
    44
    suppression by the prosecution of evidence favorable to an
    accused warrants a new trial where "the evidence is
    material either to guilt or to punishment, irrespective of the
    good faith or bad faith of the prosecution." 
    Id. at 87
    .
    Evidence is material if there is a reasonable probability
    that, had it been disclosed, the result of the proceeding
    would have been different. Stickler v. Greene , 
    527 U.S. 263
    ,
    281 (1999); see also Holman v. Wilson, 
    158 F.3d 177
    , 181
    (3d Cir. 1998) (evidence is material if it "could reasonably
    be taken to put the whole case in such a different light as
    to undermine confidence in the verdict"); United States v.
    Perdomo, 
    929 F.2d 967
    , 972 (3d Cir. 1991) (evidence is
    favorable if "it may make a difference between conviction
    and acquittal").
    Perez and Batoon argued below that the prosecution
    violated Brady by failing to disclose a statement by Del
    Rosario that Zoletta, not Perez, had delivered the drugs to
    Del Rosario. The District Court concluded that the
    Government had violated a duty under Brady to disclose
    the identity of Zoletta as a potential alternative source for
    the drugs to the defense for two reasons: first, because the
    evidence was "substantially exculpatory," and second,
    because it was untimely offered after the immunity hearing.
    However, the District Court concluded that a new trial was
    not warranted because there was no reasonable probability
    that the result of the proceeding would have been different
    if Del Rosario's statement had been disclosed.19 In other
    words, the allegedly exculpatory evidence was neither
    "essential to the defense" under the immunity test nor
    "material" under the Brady test.
    On appeal, Perez and Batoon offer a litany of reasons
    why the District Court should have granted a new trial.
    First, Perez argues that the suppressed evidence was
    _________________________________________________________________
    19. Here, the District Court slightly misstated the law because "strictly
    speaking, there is never a real ``Brady violation' unless the nondisclosure
    was so serious that there is a reasonable probability that the suppressed
    evidence would have produced a different verdict." Stickler, 
    527 U.S. at 281
    . The Government does not violate Brady unless the undisclosed
    evidence is found to be material. Because the District Court ruled that
    the evidence was not material to Perez's defense, no Brady violation
    occurred.
    45
    material because the defense was prevented from using Del
    Rosario's statement to contradict the prosecution's theory
    of the case. She contends that Del Rosario's statement that
    Zoletta had delivered drugs to his apartment on the night
    before the raid would have been credible because (1) it was
    corroborated by Zoletta's own admission before the jury,
    and (2) he had nothing to gain by contradicting the
    prosecution's theory of the case at a time when he had
    hopes for entering into a cooperating plea agreement.
    However, the District Court addressed this argument and
    concluded that Del Rosario's testimony, even if credible,
    would not have made a difference in the trial because, while
    it may come in to impeach Zoletta, it could not come in for
    substantive consideration by the jury because it was
    inadmissible hearsay -- an out-of-court statement by
    Zoletta offered by Perez to prove the truth of the matter
    asserted.
    This position is supported in cases cited by the
    Government. See Bradley v. Nagle, 
    212 F.3d 559
    , 567 (11th
    Cir. 2000) (finding undisclosed evidence was not material
    where "[e]ach item of evidence was in fact inadmissible at
    trial" and the defendant "presents only speculation that he
    would have uncovered any admissible evidence from these
    three hearsay leads"); United States v. Derrick, 
    163 F.3d 799
    , 818 (4th Cir. 1998) (concluding that undisclosed
    statements by legislators to FBI agents were not material in
    prosecution of legislators for campaign finance violations in
    part because they were inadmissible hearsay); see also
    Wood v. Bartholomew, 
    516 U.S. 1
    , 5 (1995) (per curiam)
    (finding failure to disclose that witness had failed polygraph
    test did not deprive respondent of material evidence
    because polygraph results would have been inadmissible at
    trial, even for impeachment purposes).
    The Government responds that the value of Del Rosario's
    later statement inculpating Zoletta (and thereby exculpating
    Perez) would have been undercut by the fact that Del
    Rosario's initial statement regarding Perez was fully and
    powerfully corroborated by Perez's passport and travel
    itinerary as well as the testimony of Uy and Almiranez. Del
    Rosario's statement is therefore neither essential to Perez's
    defense nor material evidence warranting a new trial. We
    46
    agree. See United States v. Messerlian, 
    832 F.2d 778
    , 795
    (3d Cir. 1987) (finding no Brady violation for failure to
    disclose exculpatory evidence that was not credible); see
    also Buehl v. Vaughn, 
    166 F.3d 163
    , 181 (3d Cir. 1999)
    (holding undisclosed statement that someone other than
    the defendant possessed the murder weapon three weeks
    after the murder was not material exculpatory evidence "[i]n
    light of this overwhelming evidence that Buehl had the
    [murder weapon] at the time of the killings and that he was
    the murderer"); Landano v. Rafferty, 
    856 F.2d 569
    , 572 (3d
    Cir. 1988) (concluding that evidence tending to exculpate
    defendant, Landano, in robbery and murder was not
    material because "any such inference would have been
    directly at odds with other, stronger evidence implicating
    Landano in the crime").
    Perez and Batoon also argue that the suppressed
    evidence was material because the defense was prevented
    from cross-examining Zoletta more vigorously to develop
    further evidence exculpating Perez. The District Court
    concluded that heightened cross-examination of Zoletta
    that might have occurred if the defense had known of Del
    Rosario's statement would not have induced Zoletta to
    admit before the jury that he had been the one to deliver
    the drugs to Del Rosario's apartment.
    Perez and Batoon further argue that the suppressed
    evidence was material because it might have persuaded the
    District Court to grant Del Rosario immunity so that he
    could testify for the defense at trial. The District Court,
    reconsidering its denial of immunity for Zoletta on
    defendants' motions for a new trial, conceded that"had the
    identity of Mr. Zoletta as a potential specific alternative
    source of the drugs been revealed prior to that immunity
    hearing his name would certainly have been mentioned and
    the court would have been asked to evaluate [Del Rosario's]
    immunity request in that light." However, the District Court
    ultimately concluded that its ruling on use immunity would
    not have changed even if the Government had properly
    disclosed Del Rosario's statement implicating Zoletta rather
    than Perez. The Court explained that Del Rosario's
    statement would not have been "clearly exculpatory
    testimony" warranting a grant of immunity because its
    47
    value would have been undercut by Del Rosario's prior
    inconsistent statement implicating Perez.
    In this light, the District Court properly came to the
    conclusion that a retrial was not warranted because there
    was no reasonable probability that the suppressed evidence
    would have changed the outcome of the original proceeding.
    The District Court was best situated to observe Zoletta's
    demeanor and attitude at trial. See Messerlian , 
    832 F.2d at 795
     (concluding that, when considering whether witness's
    testimony is exculpatory evidence for purposes of possible
    Brady violation, the District Court "was best situated to
    observe the demeanor of the two witnesses and to assess
    the consistency of their testimony").
    In addition, we find no merit to Perez and Batoon's
    arguments that they were prejudiced at sentencing by the
    suppressed statement. It had been disclosed by the time of
    sentencing, and the defense lawyer conceded at the
    sentencing hearing that he "did not have grounds to
    dispute" the Probation Office's calculation of the applicable
    drug amount based upon the defendants' participation in
    the conspiracy.
    With respect to Del Rosario's testimony, we conclude that
    the District Court did not abuse its discretion when it
    declined to immunize Del Rosario. In light of the evidence,
    we find reasonable the District Court's determination that
    the disclosure of Del Rosario's statement implicating Zoletta
    would not have changed the decision to deny Del Rosario
    use immunity. See United States v. Steele, 
    685 F.2d 793
    808 (3d Cir. 1982) (judicial immunity properly denied where
    proposed immunized testimony would not have been
    "clearly exculpatory"); United States v. Lowell, 
    649 F.2d 950
    , 965 (3d Cir. 1981) (same); see also United States v.
    Ammar, 
    714 F.2d 238
    , 251 n.8 (3d Cir. 1983) (judicial
    immunity properly denied where "the exculpatory nature of
    [the] testimony is at best speculative").
    VII. Sentencing
    Finally, Alcantera's and Batoon's challenge of their
    sentences--specifically that the District Court erred (1) in
    denying a two level minor role reduction pursuant to the
    48
    U.S. Sentencing Guidelines Manual S 3B1.2 20 and (2) in
    attributing more than between one and three kilograms of
    methamphetamine to Batoon--is without merit. Nor does
    Alcantera's sentence violate Apprendi v. New Jersey, 
    530 U.S. 466
     (2000).
    A. Minor Role Reduction
    In United States v. Haut, 
    107 F.3d 213
    , 218 (3d Cir.
    1997), we held that we must sustain the District Court's
    factual findings as to a S 3B1.2 minimal or minor role
    adjustment unless those findings are clearly erroneous. See
    
    id.
     ("We review under a clearly erroneous standard the
    district court's factual determinations, such as whether a
    defendant receives a reduced or increased offense level
    based on his role in the offense."); United States v. Carr, 
    25 F.3d 1194
    , 1207 (3d Cir. 1994); United States v. Bierley,
    
    922 F.2d 1061
    , 1064 (3d Cir. 1990) (citing United States v.
    Mejia-Orosco, 
    867 F.2d 216
    , 220-21 (5th Cir. 1989) (holding
    that role in the offense is a factual determination, albeit
    complex; a district court's decision not to apply an
    adjustment based on such a determination is reversed only
    for clear error)). A decision is clearly erroneous if the
    reviewing court is left with the definite and firm conviction
    based on all the evidence that the trial court made a
    mistake. United States v. United States Gypsum Co., 
    333 U.S. 364
    , 395 (1948); Davis v. United States Steel Supply,
    No. 2571, 
    1981 WL 26711
    , at *6 (3d Cir. Sept. 24, 1981).
    Here, we cannot say that the District Court committed
    clear error in finding that Alcantera and Batoon were not
    entitled to a minor role reduction. The District Court
    sentenced Alcantera to 190 months imprisonment. In doing
    _________________________________________________________________
    20. Section 3B1.2 states:
    Based on the defendant's role in the offense, decrease the offense
    level as follows:
    (a) If the defendant was a minimal participant in any criminal
    activity, decrease by 4 levels.
    (b) If the defendant was a minor participant in any criminal
    activity, decrease by 2 levels.
    In cases falling between (a) and (b), decrease by 3 levels.
    49
    so, the Court denied his motion for a minor role downward
    departure of two points. It reasoned as follows:
    [T]he definition of a minor participant under Section
    3B1.2 is any participant who is less culpable than
    most other participants, whose role could not be
    described as minimal. . . . [I]f we take a look at the
    others involved here, Batoon, Almiranez, Zoletta, Del
    Rosario, this Court is not in a position to say it has
    been established that Mr. Alcantera is to be considered
    less culpable than those other participants. . . . Their
    role, although different perhaps than Perez or Del
    Rosario, in this Court's view, was significantly
    important, certainly they are as culpable as each other
    in performing those similar functions without which
    the distribution and the conspiracy could not have
    succeeded. So that it's the Court's determination that
    Mr. Alcantera is not entitled to a minor role here .. .
    With respect to Batoon, the District Court denied his
    motion for a minimal or minor role downward departure of
    three points, sentencing him to 152 months imprisonment.
    The Court stated:
    [N]ow to the question of . . . Section 3B1.2 .. . as to
    whether Mr. Batoon is entitled to a mitigating role. He
    asks the Court to consider even his role as minimal
    participant and then minor participant, someone
    entitled to a three level reduction if his conduct would
    be classified between those two roles. . . [F]or the
    purpose of Section 3B1.2, a minor participant means
    any participant less culpable than most other
    participants but whose role should not be discarded as
    minimal. . . . [T]his Court is not in a position to say
    that Mr. Batoon is a person who is less culpable than
    most other participants. . . . We have a number of
    people identified and the Court is not prepared to say
    that Mr. Batoon's role could be considered modest
    . . . . Mr. Batoon . . . [was] on the scene on the
    premises for at least a significant period of time on the
    day in question while couriers or purchasers, as the
    case may be, were coming and going for the purposes
    of receiving varying amounts of meth from Mr. Del
    Rosario. [T]he Court therefore finds . . . Mr. Batoon . . .
    50
    not so less culpable than any others as to be
    determined to be less culpable than most other
    participants . . . . So that, based on that determination
    as well, the Court declines to apply a minimal or even
    a minor role adjustment.
    Based on the record before us, we conclude that the
    District Court's findings as to Alcantera's and Batoon's
    roles in the conspiracy were not clearly erroneous. The
    Court analyzed their respective participation against that of
    each co-defendant and found that each was no less
    culpable than any other, and therefore did not qualify for
    the departure.
    B. Quantity Attributable to Batoon
    Batoon also argues that the Government failed to prove
    that he was responsible for any of the drugs, let alone the
    one to three kilograms found by the District Court to be the
    quantity seized from Del Rosario's apartment. We review for
    clear error the District Court's findings of fact regarding the
    relevant quantities of drugs attributable to the defendant.
    United States v. Gibbs, 
    190 F.3d 188
    , 214 (3d Cir. 1999).
    Calculation of the applicable drug amount must be
    determined on the basis of Batoon's relevant conduct. See
    U.S. Sentencing Guidelines Manual SS 1B1.3, 2D1.1.
    Relevant conduct includes:
    (1) (A) all acts and omissions committed, aided,
    abetted, counseled, commanded, induced,
    procured, or willfully caused by the defendant; and
    (B) in the case of a jointly undertaken criminal
    activity (a criminal plan, scheme, endeavor, or
    enterprise undertaken by the defendant in concert
    with others, whether or not charged as a
    conspiracy), all reasonably foreseeable acts and
    omissions of others in furtherance of the jointly
    undertaken criminal activity,
    that occurred during the commission of the offense of
    conviction, in preparation for that offense, or in the
    course of attempting to avoid detection or responsibility
    for that offense . . . .
    51
    
    Id.
     S 1B1.3(a)(1). The application notes help clarify the
    definition of relevant conduct. Application note 2 states in
    part:
    In the case of a jointly undertaken criminal activity,
    subsection (a)(1)(B) provides that a defendant is
    accountable for the conduct (acts and omissions) of
    others that was both:
    (i) in furtherance of the jointly undertaken criminal
    activity; and
    (ii) reasonably foreseeable in connection with that
    criminal activity.
    . . .
    In determining the scope of the criminal activity that
    the particular defendant agreed to jointly undertake
    (i.e., the scope of the specific conduct and objectives
    embraced by the defendant's agreement), the court may
    consider any explicit agreement or implicit agreement
    fairly inferred from the conduct of the defendant and
    others.
    . . .
    With respect to offenses involving contraband
    (including controlled substances), the defendant is
    accountable for all quantities of contraband with which
    he was directly involved and, in the case of a jointly
    undertaken criminal activity, all reasonably foreseeable
    quantities of contraband that were within the scope of
    the criminal activity that he jointly undertook.
    
    Id.
     S 1B1.3, cmt. n.2.
    Batoon contends that he should not be responsible for
    the amount of drugs found in Del Rosario's apartment
    because he did not "agree[ ] to jointly undertake" in the
    drug distribution scheme. However, the District Court
    found Batoon responsible for the full amount of drugs
    pursuant to S1B1.3(a)(1)(A) because Batoon personally
    "aided and abetted" the distribution of methamphetamine
    by providing security to Del Rosario. Application note 2
    explains that a finding of joint undertaking under
    subsection (a)(1)(B) is not necessary where the defendant
    52
    personally aids or abets a crime under (a)(1)(A). 
    Id.
     S 1B1.3,
    cmt. n.2.
    In response, Batoon replies that he did not "actually
    agree[ ] to provide such security," and thus, he should not
    be found responsible under this provision. However,
    Batoon's argument fails to recognize that the agreement
    can be explicit or an "implicit agreement fairly inferred from
    the conduct of the defendant and others." U.S. Sentencing
    Guidelines Manual S1B1.3, cmt. n.2. Here, from Batoon's
    conduct (specifically his remaining in Del Rosario's
    apartment for a significant amount of time while several
    others came and went), the District Court found an implied
    agreement between Del Rosario and Batoon to provide
    security.
    I believe it's also a fair inference for the Court to
    conclude that Mr. Del Rosario did not want to be alone
    or virtually alone in the apartment with supplies of
    methamphetamine of this kind while being vested with
    any number of persons who would be looking for
    drugs. . . . [T]he presence of confidants in Mr. Del
    Rosario, such as, Mr. Batoon, . . . certainly had the
    effect of providing some level of security to Mr. Del
    Rosario . . . .
    Furthermore, Batoon can be found responsible for the
    full amount of drugs pursuant to S1B1.3(a)(1)(B) because
    the full amount of drugs present in the apartment and
    Batoon's conduct were "(i) in furtherance of the jointly
    undertaken criminal activity; and (ii) reasonably foreseeable
    in connection with that criminal activity." U.S. Sentencing
    Guidelines Manual S 1B1.3, cmt. n.2. Batoon's conduct was
    in furtherance of the jointly undertaken criminal activity
    because, as already noted and among other things,
    evidence exists that he provided security for Del Rosario
    while distributing the drugs. The full amount was
    reasonably foreseeable to Batoon because he was in the
    apartment for an extended period of time while the drugs
    were being distributed, and there was information
    circulating that a large shipment had arrived from the
    Philippines.
    With the above in mind, it cannot be said that the
    District Court committed clear error in attributing the
    53
    entire amount of the drugs to Batoon as he "is accountable
    for all quantities of contraband with which he was directly
    involved and, in the case of a jointly undertaken criminal
    activity, all reasonably foreseeable quantities of contraband
    that were within the scope of the criminal activity that he
    jointly undertook." Id.; see also Gibbs, 
    190 F.3d at 214-15
    (holding that appellant who acted as enforcer was
    responsible at sentencing for all of the drugs distributed
    during the time he was an enforcer).
    C. Apprendi
    Although not claimed in the District Court, Alcantera, in
    a pro se addendum to his counseled brief, claims before us
    that the District Court erred by calculating the amount of
    methamphetamine attributable to him at sentencing by a
    preponderance of the evidence, rather than requiring the
    amount to be determined by a jury beyond a reasonable
    doubt. He argues that this violates Apprendi v. New Jersey,
    
    530 U.S. 466
     (2000). Because he did not raise this claim in
    the District Court, our Court reviews only for plain error.
    See United States v. Olano, 
    507 U.S. 725
     (1993); United
    States v. Vazquez, 
    271 F.3d 93
     (3d Cir. 2001) (en banc);
    United States v. Mack, 
    229 F.3d 226
    , 234-35 & n.12 (3d
    Cir. 2000); see also United States v. Swatzie , 
    228 F.3d 1278
    , 1281 (11th Cir. 2000).
    The Supreme Court in Apprendi held 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." Apprendi, 
    530 U.S. at 490
    . Here, the
    District Court's finding of the applicable drug amount did
    not increase the penalty for the crime beyond the statutory
    maximum. Alcantera was sentenced to 190 months, far less
    than the lowest statutory maximum for violations of 21
    U.S.C. S 846, which is 20 years. See 21 U.S.C.
    SS 841(b)(1)(C), 846. Thus, there is no error, let alone plain
    error, under Apprendi. See United States v. Williams, 
    235 F.3d 858
    , 863 (3d Cir. 2000) (ruling that "Apprendi is not
    applicable to [appellant's] sentence, because the sentence
    actually imposed . . . was well under the original statutory
    maximum of 20 years."); In re Edmonds, No. 00-3075, 
    2000 WL 1683479
    , at *1 (D.C. Cir. Oct. 12 2000) (per curiam)
    54
    (concluding that because defendant did not exceed the
    S 841(b)(1)(C) statutory maximum, Apprendi "is not
    implicated").
    VIII. Conclusion
    For the reasons stated above, we affirm the convictions
    and sentences of Appellants Perez, Alcantera and Batoon.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    55