DocketNumber： 97-1772
Filed Date： 12/22/1997
Status： Precedential
Modified Date： 9/21/2015
[NOT FOR PUBLICATION]
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________
No. 97-1772
UNITED STATES OF AMERICA,
Appellee,
v.
MADELINE VALENT N-OQUENDO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Aldrich, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____ _____________
____________________
Linda Backiel on brief for appellant. _____________
Guillermo Gil, United States Attorney, Jose A. ______________ ________
Quiles-Espinosa, Senior Litigation Counsel, and Antonio R. _______________ ___________
Bazan, Assistant U.S. Attorney, on brief for appellee. _____
____________________
December 12, 1997
____________________
Per Curiam. Madeline Valent n-Oquendo was Per Curiam. ____________
convicted of three counts of dealing in semi-automatic
weapons prohibited by 18 U.S.C. 922(v) and was sentenced
to 51 months of incarceration.
She appeals her conviction, arguing that the
indictment, at Count I, merged the substantive and conspiracy
offenses such that she did not have fair notice of that which
she was being accused and that, therefore, double jeopardy
concerns are raised by her conviction. A co-conspirator's
statement was erroneously admitted and there were other trial
errors, she says, and she complains that she was not given a
theory of the defense instruction. Her sentence is improper,
she also argues, because she should not have received a two-
point upward adjustment as an organizer or supervisor and she
should have been given a downward departure for extreme
family hardship.
Many of the claimed errors were not objected to in
the trial court and Valent n's arguments fail for reasons
which require only brief explanation.
I
Valent n worked as a manager at a weapons shop, the
Armer a del Oeste in Bayam n, Puerto Rico. The federal
firearms license for the shop was issued to Carmen V squez-
V squez. Valent n wanted to assume the business and had a
pending application to obtain her own license. The undoing
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of Valent n and her co-defendants, including Jose S nchez-
Toledo, came when a package, sent though the U.S. Mails,
arrived at the Bayam n Post Office with the muzzle of a rifle
sticking out. It was addressed to the post office box of the
Armer a del Oeste, but the return address, in Florida, was
fictitious. Valent n claimed the package and turned it over
to S nchez, an employee of the Puerto Rican Police, who put
the package into a police car and drove to another location
where he returned the package to Valent n. [S nchez would
later plead guilty and provide evidence against Valent n.]
Within two weeks a second package arrived at the
Bayam n Post Office from the same fictitious Florida address.
This package was picked up by co-defendant Maritza Emerson-
de-Jes s, who presented false identification. Emerson also
worked at the Armer a. Emerson used Valent n's pick-up truck
to get the package. She also turned the package over to
S nchez, who again put it into his police car, in which
Gonz lez-Rom n was a passenger. The postal authorities, who
had been monitoring these transactions with interest,
immediately arrested the two men, and later, the women.
These transactions were not recorded on the books
of the Armer a. Indeed, documents appear to have been
falsified in an effort to show that the transaction in the
weapons was authorized. The two packages contained six
Norinco rifles and two large capacity magazines, prohibited
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by law. The two women acknowledged receiving $750.00 for the
transactions, but argued that they thought the weapons
belonged to the Puerto Rican Police and had been sent to
Miami for repair. The jury rejected that theory.
II
The Indictment
While not artfully drafted, Count I of the
Indictment alleged that the defendants did "unlawfully engage
in the business of dealing in firearms as the term is defined
in Title 18, United States Code, Section 921(3), that is, a
conspiracy to violate Title 18, United States Code, Section
922(a)(1)." The indictment went on to allege the object of
the conspiracy and a series of overt acts, giving specific
places and times. Valent n never objected to the indictment
before the trial court, so review is for plain error. See ___
United States v. Olano, 507 U.S. 725 (1993). There was no _____________ _____
plain error.
The combination of the references in the
indictment to the statutory sections involved and the
description of the overt acts gave Valent n ample notice of
the charges. To the extent Valent n argues there was
ambiguity as to whether the transaction was illegal because
she was unlicensed or because she was licensed but
nonetheless engaged in an illegal transaction, Valent n was
given discovery showing that the government would show she
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did not have a valid license at the time of these
transactions. There was no due process notice problem. The
district court sensibly construed Count I as a conspiracy
count and so instructed, without objection.
As to any hypothetical double jeopardy issue, the
issue is at present exactly that: hypothetical. If there is
a future prosecution, Valent n may raise the double jeopardy
issue at that time.
Co-Conspirator Statement and Other Alleged Trial Errors
Applying this circuit's oft-recited test under
United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. ______________ ____________
1977), the district court conditionally held admissible the
statement of Gonz lez-Rom n, as reported by S nchez-Toledo.
The statement concerned the relationship between Valent n and
Gonz lez, that they had made arrangements to send the
packages from Florida to Puerto Rico and that all of those
involved were aware that the packages contained weapons. At
the end of the trial, the district court revisited the
question and again determined the statements were admissible.
Valent n argues that there was no evidence of a conspiracy
other than these statements and so admission of the testimony
was error. The argument is without merit, as the recitation
of the evidence demonstrates.
Nor was Valent n entitled to an instruction on the
defense theory that these transactions were legitimate and
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the guns were intended for the Puerto Rico Police. There was
no evidence to support the theory. The document proffered in
support were not established to be official documents from
San Juan Police; rather, they appear to have been falsified,
and rather ineptly at that.
We have reviewed the remaining alleged trial errors
and find the arguments to be without merit.
Sentencing
The district court found that Valent n was a leader
or organizer in the offense and accordingly increased the
offense level by two points under U.S.S.G. 3B1.1(c). On
the evidence, this conclusion was plainly correct. Valent n
gave Gonz lez the address to which the weapons were to be
shipped, twice called S nchez-Toledo to pick up the weapons,
appeared herself to pick up the guns, and let Emerson use her
truck when Emerson picked up the guns. As to the downward
departure argument made here, no request was made to the
district court for a downward departure and there is no clear
error.
Affirmed. ________
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