USCA1 Opinion

June 7, 1995

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 93-1558

UNITED STATES,
Appellee,

v.

ERIC FLORES-RIVERA,
Defendant - Appellant.

____________________

ERRATA SHEET

The

opinion of

this

Court issueed

on

June 1,

1995,

is

corrected as follows:

On page 5, line 4 - change "by" to "be"

On page 5, lines 24-25 - replace "intent to agree and intent

to commit the

substantive offense."

(citation omitted)" with

effectuate the

"an intent

commission of

Garc a, 983
______
to agree and

1165

an intent

the substantive offense."

States v. Piper, 35 F.3d 611, 615 (1st Cir. 1994),

______
_____
115 S. Ct. 1118 (1995)"

F.2d at

to

United
______

cert. denied,
_____ ______

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 93-1558

UNITED STATES,

Appellee,

v.

ERIC FLORES-RIVERA,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Selya and Stahl, Circuit Judges.

______________

_____________________

Robert G. Levitt for appellant.

________________
David S. Kris, Attorney,
______________

U.S. Department of

Justice, with

whom Guillermo Gil, United States Attorney,

______________

and Salixto Medina_______________

Malav ,
______

were

Assistant

United States

Attorney,

appellee.

____________________

June 1, 1995
____________________

on brief

for

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
____________

On April

11, 1991, defendant

Eric Flores-Rivera ("Flores-Rivera"), along with

persons not party

count

superseding

offenses.

one

On April

to this

appeal, was named

indictment

charging

seventeen other

in a

various

14, 1993, a jury convicted

thirty-four-

drug-related

Flores-Rivera on

count of conspiracy to import cocaine and to possess cocaine

with intent

to distribute it, in

violation of 21

U.S.C.

846

and 963 (Count 2), and two counts of assaulting a federal officer

with a deadly weapon, in violation

and 6).

111, (Counts 5

The jury acquitted Flores-Rivera on Counts 3, 4, and 34,

which charged importation of

intent

of 18 U.S.C.

to distribute,

cocaine, possession of cocaine with

and

use of

a communication

commit a drug crime, in violation of 21 U.S.C.

and 843(b),

respectively.

The district

facility to

952, 841(a)(1),

court sentenced Flores-

Rivera to 324 months' imprisonment, to be followed by a five-year

term

of supervised release.

Flores-Rivera now appeals.

For the

following reasons, we affirm.

I.
I.

We

government.

BACKGROUND
BACKGROUND

recite the facts in the light most favorable to the

United States
_____________

v. Echeverri, 982 F.2d 675,

_________

676 (1st

Cir. 1993).

conspiracy.

The focus of

The

this case was a large drug trafficking

conspirators, headed

by co-defendant

Eusebio

Escobar-de Jes s ("Escobar"), worked with members of the Medell n

and Cali drug cartels to import cocaine from Colombia into Puerto

Rico and New York.

-2-

The linchpin witness for

Flores-Rivera

informant.

was

William

the government's case against

Cedr s

("Cedr s"),

confidential

Cedr s testified that he

infiltrated the conspiracy

and gained the confidence of Escobar.

In 1990, Cedr s became the

"number

that

two man"

in Escobar's

organization.

Cedr s testified

Escobar informed him that Flores-Rivera was a member of the

organization.

Cedr s

also

testified

accompanied him to the island of

that

Flores-Rivera

had

Vieques to look for sites where

an airplane could land or drop-off kilogram quantities of cocaine

in

the

future.

planning

kilograms

to use

Cedr s

the

of cocaine.

indicated that

new sites

The

cocaine, and the importation

shipments.

to

the

conspirators were

import approximately

Medell n cartel

was to

1,500

supply the

was to be divided into four or five

Cedr s

also

testified

that

Escobar

had

instructed

Flores-Rivera to supervise the importation of between 300 and 500

kilograms

of

cocaine from

recorded

discussing

Escobar.

The tape

the

Colombia.

importation

recording,

Flores-Rivera was

plans

along

indicate that Flores-Rivera was to

with

with Cedr s'

Cedr s

tape

and

testimony,

travel to Colombia and return

in a boat loaded with cocaine to one of Escobar's properties.

The

government

Rivera's involvement

Customs

agents.

in

also

presented

the April

1986

evidence

shooting of

of

Flores-

two

U.S.

Two witnesses testified that on April 14, 1986,

they saw Flores-Rivera arrive at the Isla Grande Flying School in

a yellow, flatbed

tanker-truck and purchase over 100

-3-

gallons of

aviation fuel.

he

drove the

Two U.S. Customs agents followed Flores-Rivera as

tanker-truck

from the

flying

housing a covert landing strip used by the

school to

farm

Escobar organization.

From their surveillance post outside the farm, the Customs agents

observed Flores-Rivera and codefendant Andr s

the

farm.

airplane

Later

land

that night,

at the

farm.

the Customs

Shortly

Morales-Cruz enter

agents saw

thereafter,

a small

the Customs

agents witnessed an

unidentified man clad in army

the farm in a white van.

The Customs agents followed.

van got to a small curve in the road,

U-turn.

As the

occupants

opened fire

fatigues exit

Customs agents

it stopped as if to make a

tried to

on them,

When the

drive by,

severely injuring

the van's

both agents.

The agents were never able to identify the attackers.

II.
II.

A.
A.

Sufficiency of the Evidence

Sufficiency of the Evidence
___________________________

Flores-Rivera

insufficient

DISCUSSION
DISCUSSION

to

support

contends

his

that

convictions

the

for

evidence

was

conspiracy

and

assault on a federal officer.

The

sufficiency of

standard of

review governing

the evidence is

a challenge

well established.

to the

An appellate

court must

determine whether a

beyond a reasonable doubt.

States
______

v. Garc a, 983
______

making this

evidence,

drawn

rational jury

could find

Echeverri, 982 F.2d at 677;

_________

F.2d 1160, 1163-64

from it, in the

all inferences

In

must examine the

that may

light most favorable

-4-

United
______

(1st Cir. 1993).

determination, the reviewing court

together with

guilt

be reasonably

to the prosecution.

Echeverri,
_________

982 F.2d

at 677.

Furthermore, the

does

evaluate

witness

credibility,

not

credibility issues in favor of the verdict.

1164

(quoting United States v.

_____________

(1st Cir. 1991)).

and need

that

is,

the

17.

to

circumstantial

innocence

the

support

of the

Garc a, 983 F.2d at

______

crime

decide

of innocence;

among

reasonable

Batista-Polanco,
_______________

927 F.2d at

the 'evidence viewed in the

verdict

to a

all

be entirely circumstantial,

may

the evidence."

Nevertheless, "[i]f

favorable

resolves

every reasonable hypothesis

factfinder

interpretations of

but

Batista-Polanco, 927 F.2d 14, 17

_______________

"The evidence may

not exclude

reviewing court

gives

equal

theory of

charged,' this

guilt

or

light most

nearly

and a

court must

equal

theory of

reverse the

conviction.

This

is so because .

equal theory of guilt and

the

evidence

prosecution,

viewed

equal or nearly

a theory of innocence is supported

in

the

'a reasonable

reasonable doubt.'"

. . where an

jury

light

most

favorable

to

the

must necessarily entertain

___________________________

United States v. S nchez,

______________
_______

961 F.2d

by

1169,

1173 (5th Cir.) (citations omitted), cert. denied, 113 S. Ct. 330
____________

(1992).

With the scope of

our review thus defined,

we move to

the appellants' claims.

1.
1.

Conspiracy
Conspiracy

To establish a

conspiracy conviction, the

must prove, inter alia, that

_____ ____

to commit the substantive

the defendant entered an

prosecution

agreement

offense, and that the defendant

was a

voluntary participant in the conspiracy.

679.

The

government must

prove

Echeverri, 982 F.2d at

_________

that the

defendant possessed

-5-

both

"an intent

to

agree

and

an

intent

commission of the substantive offense."

35 F.3d 611,

(1995).

to

"[d]ue to the

the

United States v. Piper,

______ ______
_____

615 (1st Cir. 1994), cert. denied,

_____ ______

However,

effectuate

115 S. Ct. 1118

clandestine nature of

criminal

conspiracies, the

law recognizes that the

illegal agreement may

be either 'express or tacit' and that a '"common purpose and plan

may

be

inferred

circumstance."'"

from

development

United States
_____________

and

v. S nchez, 917
_______

collocation

of

F.2d 607,

610

(1st Cir. 1990)(citations omitted), cert. denied, 111 S. Ct. 1625

____________

(1991).

"Mere presence

at the scene and close

association with

those involved are insufficient factors alone; nevertheless, they

are relevant factors for

________

the jury."

S nchez, 961 F.2d at

_______

1174

(5th Cir.) (citation omitted).

Although

he

does not

dispute

the

existence of

the

Escobar drug-trafficking conspiracy, Flores-Rivera maintains that

the evidence fails to establish that he was a member.

Given that

we resolve any

find

fails

credibility issues

that Flores-Rivera's

because

conspiracy

the

Cedr s' testimony

entire

operation.

member

of

accompanied

the

Cedr s

Escobar

him to

includes a

contains

ample

reasonable jury

support

could

that Flores-Rivera was deeply

testified that

conspiracy,

Vieques

sites for drug drop-offs.

Rivera

the verdict,

we

sufficiency-of-the-evidence challenge

record

conviction.

in favor of

to search

and

for

infer

his

from

involved in the

Flores-Rivera was

that

Flores-Rivera

for appropriate

landing

Moreover, the evidence against Flores-

tape-recorded

-6-

conversation in

which Flores-

Rivera discusses importation plans with Escobar and Cedr s.

tape recording also indicates that

Colombia and

return in a boat

The

Flores-Rivera agreed to go to

laden with cocaine.

In sum, the

evidence demonstrates clearly and convincingly that Flores-Rivera

was

a knowing and voluntary

Escobar drug conspiracy.

participant in many

aspects of the

-7-

2.
2.

Assault on a federal agent

Assault on a federal agent

Under the well settled Pinkerton doctrine, members of a

_________

conspiracy

may

be

held

liable

for

the

substantive

crimes

committed

by

co-conspirators,

provided

crimes were committed in furtherance of the

the

defendant was a member of

United States,
______________

328 U.S.

Torres-Maldonado, 14 F.3d
________________

S.

Ct. 193 (1994).

to prove

that the

April 14, 1986,

We

think

(1946); United States v.

______________

assault on the

by members of the Escobar

of the conspiracy, and at

1229, 1234 (1st

(1995).

See Pinkerton v.
___ _________

95, 101 (1st Cir.), cert. denied, 115

_____________

was still a member of the conspiracy.

F.3d

substantive

conspiracy and while

the conspiracy.

640, 646-48

the

Under Pinkerton, the government was required

_________

agents was carried out

furtherance

that

this

conspiracy, in

a time when Flores-Rivera

United States v. Mu oz, 36

_____________
_____

Cir. 1994), cert. denied,

____________

it met

U.S. Customs

burden.

The

115 S. Ct. 1164

jury heard

the

following

facts:

On

airplane fuel to a

man

While the Customs

plane landed at the farm and,

clad in army

fatigues exited in

agents followed the van.

and

1986,

Flores-Rivera

farm housing a covert landing

by the conspirators.

the farm, a

April 14,

brought

strip operated

agents were surveilling

shortly thereafter, a

a white van.

The Customs

The van stopped as if to make a U-turn,

as the Customs agents drove by,

they were fired upon by the

van's occupants.

In these circumstances, a reasonable jury could

have

the shooting

found that

conspiracy, in

Rivera

was committed

furtherance of the conspiracy,

was still a member of the conspiracy.

-8-

by members

of the

and while Flores-

Therefore, we find

that there was sufficient evidence to convict Flores-Rivera under

Pinkerton liability for assault on a federal officer.

_________

Accordingly, we

reject both

of his challenges

to the

sufficiency of the evidence.

B.
B.

Separate Trials
Separate Trials
_______________

Flores-Rivera

alleges

that

the

district

erroneously denied his Rule 14 motion for severance.

court

See Fed. R.
___

Crim. P. 14.1

We disagree.

The First Circuit law regarding severance is clear:

As

rule,

persons

together should be
practice

resources
Thus,

are

indicted

tried together.

helps

inconsistent

who

both

verdicts

to

and

This

prevent

to

conserve

(judicial and prosecutorial).

when

multiple

defendants

are

named in a single indictment, a defendant

who seeks a separate trial can ordinarily
succeed
a

in obtaining one

strong

showing of

only by making

evident prejudice.

The hurdle is intentionally

high; recent

Supreme Court precedent instructs that "a

district court should
under Rule 14 only

grant a

if there is a serious

risk that a joint trial

a

specific

defendants,

trial
or

severance

would compromise

right of

prevent

the

one

of the

jury

from

making a reliable judgment about guilt or

innocence."

United States
______________

v.

1993)(quoting Zafiro

O'Bryant,
________

v.

United

998

F.2d

States,

21,

113 S.

25

Ct.

(1st

933,

Cir.

938

______

______________

(1993))(internal citations omitted).

____________________

The rule authorizing motions for severance states in pertinent

part:

"If it appears that

a defendant . . . is prejudiced

joinder . . . of

defendants . . . for trial together,

may

a severance of

. . . grant

other relief justice requires."

by a

the court

defendants, or provide whatever

Fed. R. Crim. P. 14.

-9-

The decision to grant or deny a motion for severance is

committed to the sound

reverse

its refusal

abuse of discretion.

discretion of the trial court and we will

to sever

only upon

a finding

of manifest

Zafiro, 113 S. Ct. at 938; United States v.

______
_____________

Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir. 1991); United States
_____________
_____________

v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991),

_______

cert. denied, 112

____________

S. Ct. 986 (1992); Boylan, 898 F.2d 230, 246 (1st Cir. 1990).
______

Essentially, Flores-Rivera contends that

severance was

required because of the "spillover" effect of prosecuting him, an

alleged

That

minor participant,

is, Flores-Rivera

limited

the jury's

alongside

claims that

ability

to sift

the

major

the joint

through

conspirators.

trial "seriously

all the

evidence

against each individual defendant and increased the risk that the

jury would base its verdicts on evidence which

the

guilt

or

involvement

409,

innocence

of

in the scheme."

defendants

has no bearing on

with

United States v.
_____________

more

limited

Brandon, 17 F.3d
_______

440 (1st Cir.), cert. denied, Granoff v. United States, 115

____________ _______
_____________

S. Ct. 80

that he

(1994).

In support of this

was named in

less than

contention, he points out

ten percent of

the of

all the

overt acts charged in the indictment and that his alleged role in

the

conspiracy

codefendants.

mandatory.

was

significantly

less

than

that

of

These facts, without more, do not render severance

We rejected this argument in O'Bryant, stating:

________

To

his

be

sure,

appellant's
(O'Bryant)

there

is

complaint
and a

trial together.

some
that

truth
a

to

minnow

kingfish (Puleo) stood

It is also true that the

prosecution

drew

aimed

of

most

bead

its

on

Puleo and

ammunition

in

his

-10-

direction.
more,

did

trial for
that,

But, these
not

necessitate

O'Bryant.

"[e]ven

testimony

are

defendant,

or

truths, without

It is

where

involvement in an

large

well settled
amounts

irrelevant
where

one

overall

separate

to

of
one

defendant's
agreement

is

far less than the involvement of others,"

the

court of appeals

must be "reluctant

to second guess severance denials."

Such

reluctance is fully justified here.

O'Bryant,
________

998

F.2d

at 26

(quoting

Boylan,
______

898

F.2d at

246

(collecting cases)).

Moreover,

conspiracy,

Brandon,
_______

severance

theory,

have held

will

17 F.3d at 440

F.2d 960, 965

24-26.

we

(8th

rarely,

Rivera

and

his

if

ever,

(quoting United States

_____________

any of

the

the government had to

to import

"'[i]n

Cir. 1993)); see also

________

To convict

scheme

that

and

the context

be

O'Bryant, 998 F.2d at

________

show the existence

codefendants were

charged

required.'"

v. Searing, 984
_______

defendants under

distribute cocaine;

of

a conspiracy

of an illicit

and because

as

Flores-

coconspirators,

virtually all the evidence relating to the other conspirators was

also

directly

relevant

to,

and,

therefore,

independently

admissible in, the prosecution's case against him.

998

F.2d at

26 (citing United States v.

______________

457-58 (3d Cir. 1972)).

featuring

one defendant

codefendant,

improper

And

the

latter

spillover

See O'Bryant,
___ ________

Riehl, 460
_____

F.2d 454,

as we have held, "[w]here

is independently

cannot

effect."

admissible against

convincingly

Id.
___

evidence

complain

(collecting

of

an

cases).2

____________________

We also note that the

jury acquitted Flores-Rivera on Counts

3, 4, and 34, which charged importation of cocaine, possession of

cocaine with

intent to

distribute, and

-11-

use of a

communication

Accordingly,

discretion

we find that the

in

refusing

to

district court did

grant

not abuse its

Flores-Rivera's

motion

for

severance.

C.
C.

Jury Selection
Jury Selection
______________

Defendant asserts two claims regarding

First,

jury

rights

he contends

that the

selection system

because

it

jury selection.

"English only" requirement

violates

his Fifth

and Sixth

effectively

excludes

two-thirds

population of Puerto Rico.3

of the

Amendment

This argument is foreclosed

of

the

by our

decision in United States v. Aponte-Su rez, in which we held that

_____________
_____________

even if the English-only requirement "[results] in a smaller pool

of

eligible jurors

and

selection process, the

the

requiring

14,

exclusion'

in the

overwhelming national interest

jury

served by

use of English in a United States court justifies conducting

proceedings

483,

a 'systematic

in the

District

of

jurors to be proficient

492 (1st Cir.)(citing

19 (1st

Cir. 1981),

Puerto

Rico

in

English

in that language."

United States v.
_____________

cert. denied,
____________

and

905 F.2d

Benmuhar, 658 F.2d

________

457 U.S.

1117 (1982)),

____________________

facility to commit a drug crime.

able

to sift through the

that the alleged spillover

to enter a

This suggests that the jury was

evidence in an

analytical fashion and

effect did not cause the

lump conviction against Flores-Rivera.

jury merely

See Brandon,
___ _______

17

F.3d at 440

upholding

(finding acquittals to

a district

court's denial of

be a relevant

factor in

a severance)(collecting

cases).

Federal law requires that all grand and petit

ability

to speak English and read,

with proficiency sufficient to

qualification form.

28 U.S.C.

jurors have the

write and understand English

fill out satisfactorily the juror

1865(b)(2) & (3).

-12-

cert. denied, 498 U.S.

____________

contention.

990 (1990).

Accordingly, we

reject this

Second, Flores-Rivera maintains that the district court

did not

adequately inquire

whether the

understand English as required

jurors could speak

by 28 U.S.C.

1865(b)(2)

and

& (3),

and that "[p]resumably, there were many . . . jurors who actually

sat on

this case

who may

not have comprehended

English."

We

disagree.

28 U.S.C.

if

1865(b) requires that

jurors be dismissed

they cannot demonstrate a minimum proficiency in English.

U.S.C.

1867 sets forth the proper procedure for challenging the

district

court's

compliance

requires that the defendant

seven

days

"after

discovered,

by the

failure

28

the

with

selection

procedures,

and

make an appropriate challenge within

defendant

exercise

discovered

of diligence,

. .

or

could

have

. substantial

to comply with the provisions of this title in selecting

the

grand or petit jury."

the

English

proficiency

prescribed time frame.

the defendant failed

Here, Flores-Rivera did not challenge

of

the empaneled

jurors

within

the

In similar cases, we have held that where

to raise a timely

objection, "later doubts

as to a juror's linguistic competence will not constitute grounds

for relief without a showing of 'manifest' or 'clear' injustice."

United States v. Nickens, 955 F.2d 112, 117 (1st Cir.)(collecting

_____________
_______

cases), cert. denied, 113

____________

shown

no such

injustice.

"presumably, there

S. Ct. 108 (1992).

In

were many .

fact,

his bald

. . jurors

-13-

Flores-Rivera has

assertion

who actually sat

that

on

this case who may not have comprehended English" is unaccompanied

by any support whatsoever.

Accordingly, we reject his challenge

to the empaneled jury, not only because it was untimely, but also

because it is devoid of factual support.4

D.
D.

Double Jeopardy
Double Jeopardy
_______________

Flores-Rivera

maintains

conspiracy to import cocaine

to

distribute cannot stand

that

his

conviction

and to possess cocaine

because it is

for

with intent

inconsistent with his

acquittal

on the

(importation

substantive crimes

of cocaine,

distribute, and use of a

of

cocaine).5

charged in

possession of

the indictment

cocaine with

intent to

telephone to facilitate the importation

We have addressed similar claims before and found

____________________

Flores-Rivera further contends

that it was

district court to conduct a portion of its

and that this constitutes
to identify

courts conduct voir dire

voir dire in Spanish,

reversible error.

any statute or

improper for the

Flores-Rivera fails

caselaw requiring that

entirely in English.

the district

Moreover,

not explained how he

was prejudiced by the bilingual

especially

of

in light

district court perform

the fact

that

he requested
_________

its voir dire in Spanish.

we deem this argument waived.

he has

voir dire,
that

the

Consequently,

See United States v. Zannino,

___ _____________
_______

895

F.2d 1, 17 (1st Cir.)(discussing "the settled appellate rule that

issues adverted to in a perfunctory manner, unaccompanied by some

effort

at developed argumentation, are deemed waived)(collecting

cases), cert. denied, 494 U.S. 1082 (1990).

____________

Flores-Rivera

multiplicitous

also

and violates

maintains

that

the Double

the

indictment

Jeopardy Clause

is

of the

United States Constitution because the substantive crimes charged

in Counts 3,
overt acts

4 and 34 are "in fact and

alleged under

falls short for two

the conspiracy

reasons.

in law" identical to the

Count.

First, the Double

This argument

Jeopardy Clause

is not implicated here because Flores-Rivera was acquitted of the

substantive crimes

charged in the indictment,

and therefore the

sentencing court did not impose multiple punishments for the same
offense.

See Jones v.
___ _____

that

Double

the

Thomas, 491 U.S.

______

Jeopardy

multiple punishments

for the

Clause

376, 381 (1989)(noting

affords

protection

same offense imposed

in a

against

single

proceeding.); Missouri v. Hunter, 459 U.S. 359, 366 (1983)(noting

________
______

-14-

them unavailing.

See,
___

980 F.2d 788 (1st

Cir. 1992); United States

_____________

33, 41 (1st Cir. 1991).

in a

criminal

verdict

e.g., United States

____ _____________

v. Gonz les-Torres,
_______________

v. L pez, 944
_____

"It is well settled that

does not

require

inconsistency

setting

aside."6 Gonz les-Torres, 980 F.2d at 791 (citing

_______________

F.2d

the

verdict

Dunn v. United
____
______

States, 284 U.S. 390, 393-94 (1932); United States v. Powell, 469
______
_____________
______

U.S. 57, 69 (1984); United States v. Bucuvalas, 909 F.2d 593 (1st
_____________
_________

Cir.1990)).

As we explained in L pez:
_____

Although it may seem inconsistent in this

case to convict on the conspiracy charge,
and

acquit the

same

defendant

substantive charge alleged

on

to have

the
been

the object of the conspiracy, the Supreme

Court

has made

inconsistency
sufficient

it

clear

in

itself

basis

for

that
is

verdict
not

vacating

conviction.

____________________

that

"the Double Jeopardy Clause

sentencing court

from

does no more

than prevent the

prescribing greater punishment

than the

legislature intended").

Second, the

fact that Flores-Rivera's indictment charges both

conspiracy and the substantive

crimes involved in the conspiracy

fails to implicate the Double Jeopardy Clause because it has long

been

the rule

that "a

substantive crime,

and a

conspiracy to

commit that crime, are not the 'same offense' for double jeopardy
purposes."

United States v.
______________

F lix,
_____

(1992)(citing

United
States
_______________

v.

(1947)(noting

that "the same overt acts

112

Bayer,
_____

S.
331

Ct. 1377,
U.S.

532,

1384

542

charged in a conspiracy

count may also be charged and proved as substantive offenses, for

the agreement to do

the act is distinct from the

see also Pinkerton,

________ _________

328 U.S.

substantive

offense and a

at 643 ("[T]he

commission of

conspiracy to commit

and distinct offenses . . . [a]nd the plea of

act itself"));

the

it are separate

double jeopardy is

no defense to a conviction for both offenses.").

Even so,

the verdicts

are not

inconsistent.

As explained

above,
separate

the substantive crime and the conspiracy to commit it are

offenses.

Callanan v. United States, 364 U.S. 587, 593

________
_____________

(1961).

-15-

Verdict inconsistency does not indicate

that the government necessarily failed to
prove
beyond

an essential
a

element of

reasonable doubt.

its case
We cannot

necessarily assume that the acquittal was

proper
meant."
jury,

--

the

one

the

jury

It is equally possible
convinced

of

guilt,

"really
that the
properly

reached

its

conclusion on

and then through mistake,

lenity,

arrived

at

one offense,
compromise, or

an

inconsistent

conclusion on the other offense.

as

the

trial and

convinced

on

appellate

independent

courts are
review

there was sufficient evidence

a

rational verdict

reasonable
properly

of

doubt,
protected

injustice

beyond

defendant

against any

resulting

that

to sustain

guilt

the

As long

a
is

risk of

from

"jury

irrationality."

L pez, 944 F.2d at

_____

quotations omitted).

Rivera's

41 (discussing Powell, 469

______

Accordingly,

conspiracy

conviction

U.S. 57)(internal

because we found that Flores-

is

supported

by

sufficient

evidence, it must stand.

E.
E.

Prosecutorial Misconduct
Prosecutorial Misconduct
________________________

Flores-Rivera

testimony was

claims that

replete with

Agent

Tejada's grand

perjury, that the

jury

government either

cooperated

with Agent Tejada or was negligent in allowing him to

testify falsely,

level

of

that this prosecutorial misconduct

due process

violation,

and

rose to the

that, therefore,

various indictments against him must be dismissed.

the

Specifically,

Flores-Rivera claims that Agent Tejada misled the grand jury when

he testified (1) that the government's informant, William Cedr s,

was a businessman, (2)

and

(3)

that

organization

that Cedr s had been arrested

Cedr s

rather than

had

infiltrated

being

recruited

-16-

the

only once,

defendant's

drug

by authorities

from

within the organization and then "flipping" pursuant to a

cooperation agreement

with the prosecution.

formal

The district court

addressed these issues before trial and found them meritless.

In

particular, the district court found (1) that Cedr s was indeed a

businessman,

(2) that at

the time of

Agent Tejada's testimony,

there was only one arrest listed in Cedr s' criminal history, and

(3) that no evidence substantiated the allegation that Cedr s had

"flipped" pursuant to a formal cooperation agreement.

In Bank of Nova Scotia v. United States, 487

____________________
_____________

(1988),

the

Court

provided

the

applicable

U.S. 250

standard

for

determining when

errors before the grand

of an indictment:

not dismiss an

"[A]s a general matter,

indictment for errors

unless such errors prejudiced

also
____

jury warrant dismissal

a district court may

in grand jury

the defendants."

proceedings

Id. at
__

254; see
___

United States v. Latorre, 922 F.2d 1, 6-7 (1st Cir.), cert.

_____________
_______
_____

denied, 502 U.S. 876 (1991).

______

As we explained in United States v.

_____________

Valencia-Lucena, 925 F.2d 506, 511 (1st Cir. 1991), errors before
_______________

the

were

grand jury will often

subsequently and

be deemed harmless

properly

if the defendants

convicted before

an

petit jury:

[T]he

fact

that

the

convicted by a petit
for

any

during

error which
grand

indictment

jury
returned

defendants

were

jury acts as a cure

may

have resulted

proceedings.
by

An
legally

impartial

constituted and unbiased

valid on its face,
trial

of the

court

sufficiency

of

if

is enough to call for

charge on

should

grand jury,

not

its merits.

inquire

the evidence

indicting grand jury,

jury proceeding is

into

the

before the

because the

merely a

grand

preliminary

-17-

phase and

all constitutional protections

are afforded at trial.

has been

Once a

defendant

convicted by a petit

jury, the

petit jury's verdict

reasonable doubt

of guilty beyond

demonstrates a fortiori

that

there was probable

the

defendants

which

they

point,

with

were

our

cause to charge

the

offenses

convicted.

review

is

limited

determining if the district

its discretion in

At

for
that
to

court abused

failing to dismiss the

indictments.

Valencia-Lucena,
_______________

925

F.2d

citations omitted); cf.

___

763 (1st Cir. 1991).

at

511

(internal

United States v.
_____________

Here, Flores-Rivera

quotations

Osorio, 929 F.2d

______

and

753,

was properly convicted

by a petit jury after he and his codefendants were afforded ample

opportunity to cross-examine Cedr s

Rivera has not

occurred,

much

at trial.

Moreover, Flores-

demonstrated that the alleged misconduct

less

that

Accordingly, we find that

it was

prejudicial

or

outrageous.

Flores-Rivera's proper conviction by a

petit jury cures any alleged error before the grand jury.7
____________________

in fact

Nevertheless,

we

repeat

our

government misconduct, this time

prior

admonishment

in the context of prosecutorial

misconduct before the grand jury:

Before

departing

from these

shores, we

pause to add a qualification:

the use of

supervisory

power

indictment, in the

to

dismiss

absence of injury

an
to

the defendant, may not be entirely a dead

letter.
in

The [Supreme]

[United States v.
______________

read to

leave open the

the goal of

Court's reasoning
Hasting] may
_______

be

possibility that

deterring future

misconduct

would justify using the supervisory power

to

redress

defendants
improper,
not

if

conduct
the

against

not

conduct

indisputably

redressable through

injuring
is

plainly

outrageous, and
the utilization

of less drastic disciplinary tools.

-18-

F.
F.

Evidentiary matters
Evidentiary matters
___________________

Flores-Rivera maintains

four

error.

evidentiary

errors, and

that his

that each

We address his contentions in turn.

trial was

marred by

constitutes reversible

____________________

United States v.
_____________

Santana, 6
_______

F.3d 1, 11

Hasting, 461 U.S. 499, 506 (1983)).

_______

-19-

1.
1.

"Other crimes" evidence:

"Other crimes" evidence:

(1st Cir.

1993)(citing

Flores-Rivera's

first

contends

that

improperly elicited inadmissible evidence of

informant Cedr s.

Escobar

had

spent

immediately

joined

to

prison.

and demanded

in this motion.

government

in

improper

Counsel

mistrial.

its

instructions, and

questions simple

testimony.

in not granting a mistrial.

Generally, "we

instructions

for

Escobar

Flores-Rivera

avoid

eliciting

that

the

and that the court erred

We disagree.

will presume

to

to

admonished the

Flores-Rivera insists

curative instructions were insufficient

follow

that defendant

The court denied the defendants' motions

issued curative

keep

prosecutor

"other crimes" from

did allude to the fact

time

objected

for mistrial,

further

Cedr s

the

disregard

that juries can

and will

inadmissible

evidence

inadvertently

presented."

United States v. Mart nez, 922

_____________
________

F.2d

914 (1st Cir. 1991) (citing United States v. Paiva, 892 F.2d 148,
_____________
_____

160 (1st

Rivera

Cir. 1989)).

was

slim

Here, the risk

because

of prejudice

Cedr s alluded

only

to

to Flores-

codefendant

Escobar's prison time; Cedr s did not indicate that Flores-Rivera

had also served prison time.

timely and

forceful

Moreover, the district court issued

curative instruction,

-20-

to which

neither

Flores-Rivera nor Escobar objected.8

Accordingly, we affirm the

district court's refusal to grant a mistrial.

2.
2.

erred

in

Pre-conspiracy evidence:
Pre-conspiracy evidence:

Flores-Rivera

also

admitting

evidence

codefendants Escobar

month

before the

contends that

that

drugs

the

were

and Santos-Caraballo in March

start of

the conspiracy

district court

imported

by

of 1986, one

alleged in

Count 2.

Flores-Rivera notes

against

the

correctly that

his codefendants, but not

court's

confusing.

instruction to

this

the evidence

against him.

effect

was admissible

He argues that

was insufficient

and

This contention has little merit and can be disposed

of quickly.

To prevent

district court

prejudice

issued an

to

the

other

defendants,

extensive limiting instruction

jury, which included the admonishment:

____________________

The curative instruction states, in pertinent part:

. . . I
made

have stricken the last statement

by Mr. Cedres. . . . You are not to

consider

it

at

all

during

your

deliberation.

[T]he defendants are not on trial today

except

for

whatever is

charged

in the

the

to the

indictment.
when

And

you're not to consider,

deciding the

matters

issues of

this case,

that are outside what is charged

in the indictment.

And I'm admonishing

the government

keep its

questions simple

witness

maintains

testimony

within

questions .
facts

which

. . so
are

his
the

indictment.

-21-

so the

answer

confines

as not
not

. . .

of

to bring

alleged

to

in

and
the
in
the

[T]his evidence will

by

you

in

only be

reference

to

considered
defendants

[Escobar]

and [Santos-Caraballo].

evidence

only

doesn't

relates

relate

at

all

Michael Cruz- Gonz lez,

Rivera or to
are

to

This

them.

It

whatsoever

to

to Eric

Flores-

Andr s Morales-Cruz.

not involved

in

that.

consider this evidence, it

They

So if

you

pertains only

to those two defendants.

This instruction clearly instructed

consider

the

Accordingly,

pre-conspiracy

we

reject

the jury that it was

evidence

against

Flores-Rivera's

not to

Flores-Rivera.

contention

that

the

admission of this evidence constituted reversible error.

3.
3.

Statements of co-conspirators:
Statements of co-conspirators:

Flores-Rivera

misapplied the

thus clearly

also

contends that

the

co-conspirator exclusion to the

erred when it admitted

district court

hearsay rule and

the out-of-court statements

of codefendant

Escobar.

Federal Rule of

Evidence 801(d)(2)(E)

excludes from the operation of the hearsay rule "a statement by a

coconspirator

the

of a party during the course and in furtherance of

conspiracy."

Fed. R. Evid. 801(d)(2)(E).

exception, a party who wants to introduce

must

show by a preponderance

invoke the

a particular statement

of the evidence

embracing both the declarant and the

"To

that a conspiracy

defendant existed, and that

the

declarant uttered the statement during and in furtherance of

the

conspiracy."

(1st

Cir.)(citing

United States v. Sep lveda, 15 F.3d 1161, 1180

_____________
_________

Bourjaily v.
_________

175-76 (1987); Ortiz, 966

_____

Ct. 2714 (1994).

United States,
______________

483 U.S.

F.2d at 714-15), cert. denied,

____________

171,

114 S.

-22-

Here, the informant, Cedr s, testified that Escobar had

told

him

that

conspiracy.

Flores-Rivera

Flores-Rivera

was a

contends

member

of

that this

the

narcotics

statement

was

improperly admitted under the co-conspirator exclusion because it

was not

made in furtherance of the conspiracy.

We disagree.

As

we have often explained, a damaging statement is admissible under

801(d)(2)(E)

conspiracy

v.

if

it

"tends

to

advance

as opposed to thwarting its

Fahey, 769
_____

F.2d 829, 839

the

objects

purpose."

(1st Cir.

of

the

United States
_____________

1985); see also United

_________ ______

States v. Masse, 816 F.2d 805, 811 (1st Cir 1987).

______
_____

The evidence

shows that Escobar intended to make Cedr s "the number two man in

his organization."

Clearly, such a person would need to know the

identities of the

players in the organization, and statements to

this end are

Sep lveda,
_________

ground--and

events

by

certainly in

15 F.3d

at

furtherance of the

1180

(explaining

common sense--that

one

conspiracy")(citing

the

coconspirator

United States
_____________

conspiracy.

that

reporting

to

of

another

v. Smith,
_____

"it

is

Cf.
___

common

significant

advances

833 F.2d

the

213, 219

(10th

did

Cir. 1987)).

not clearly

Accordingly, we find that the district court

err in

admitting the

statement under

the co-

conspirator exclusion to the hearsay rule.

4.
4.

Identification testimony:
Identification testimony:

Lastly,

by the

government's use

impermissibly

appears

Flores-Rivera contends that

suggestive.

to argue that the

of photo

spreads

Although

that were

his brief

photo spreads shown

-23-

he was prejudiced

allegedly

is unclear,

he

to two witnesses

were so

impermissibly suggestive

as to render

their subsequent

in-court identifications unreliable and inadmissible.

The framework for our appellate review is well settled.

The

Supreme

Court,

in

Manson
______

v.

Brathwaite, concluded that reliability is

__________
the

"linchpin"

in

admissibility
testimony.
to

the

deciding

the

of

identification

The Court

directed attention

factors

indicating

reliability

previously

set out

in Neil
____

v. Biggers,
_______

[including]

the

opportunity

for

the

witness to view the defendant at the time

of

the

crime, the

attention,

the accuracy

description,

the

demonstrated at the
the

time

witness's

between

confrontation.

level

of

degree of
his

of

certainty

confrontation,
the

crime

prior

and

and
the

United States v.
______________

Fields,
______

Manson v. Brathwaite, 432

______
__________

871 F.2d

188, 195

(1st Cir.)(citing

U.S. 98, 114 (1977); Neil

____

v. Biggers,
_______

409 U.S. 188, 199-200 (1972)), cert. denied, 493 U.S. 955 (1989);
____________

see also United States

________ _____________

v. Guzm n-Rivera, 990 F.2d 681,

_____________

683 (1st

Cir. (1993).

Here, Flores-Rivera has not demonstrated

spreads

were impermissably suggestive,

how the photo

except to aver generally

that Flores-Rivera has different facial characteristics than

other

persons featured in the display.

rejected

this same

spreads were among

the

photo

spreads

averment

at trial,

the fairest he had

had

been

the

The district court judge

stating that

seen.

impermissibly

the photo

Moreover, even

if

suggestive,

the

circumstances

indicate

that

the

subsequent

in-court

identifications were reliable.

-24-

Two

witnesses testified

that

they

had seen

Flores-

Rivera purchase aviation fuel at the Isla Grande Flying School on

April 14, 1986,

the

day

that

the Customs

agents

were

shot.

Awilda Torres de Reyes, the owner of the flying school, testified

that

Flores-Rivera had

arrived

purchased over 100 gallons

in a

flatbed tanker-truck

of aviation fuel, an unusually

and

large

amount.

She stated that it required between one and two hours to

complete

the transaction, thus giving her ample time to view the

defendant.

her mind

amount

She

testified further that the

transaction stuck in

because the defendant had purchased

of fuel,

and that

she suspected

an unusually large

that the

purchase was

connected to a drug trafficking scheme because she knew that drug

traffickers often

She indicated

the

required large

that the

quantities

transaction became especially

fuel.

memorable

following day when she read that two U.S. Customs agents had

been shot while investigating a narcotics

the

of aviation

Customs office

and

informed

them

operation.

that

she

She called

had

sold

suspiciously large quantity of

the shooting, and that

aviation fuel on the same

she thought that the two

day as

incidents might

be connected.

The second witness who identified Flores-Rivera as

the April

fuel-purchaser

14

was

Ra l Jim nez,

who

was

then

working as a pilot for the Puerto Rico Department of Justice.

testified that the incident

forced to wait for

was memorable to him because

over an hour while Flores-Rivera

the tanks on the flatbed truck.

he

Mr.

He

he was

was filling

Jim nez also indicated that

contacted Customs agents after he heard rumors that a flatbed

-25-

tanker truck had

agents

on

been involved

the night

circumstances indicate

of the

in the shooting

fuel

purchase.

that the attention of

sufficiently focused on

Flores-Rivera, both at

of two

Customs

Accordingly, the

both witnesses was

the time of

the

viewing and shortly thereafter.

At trial, both witnesses evinced certainty that Flores-

Rivera

was

in

troubling factor

occur until

fact the

April

14

fuel-purchaser.

is that their in-court

February 23,

1993, nearly

initial viewing at the flying school.

The

only

identifications did not

seven years

after their

Nevertheless, we find that

the

other reliability criteria

were sufficiently

persuasive to

overcome any unreliability engendered by the delay.

the district court

did not err

in admitting the

Accordingly,

identification

evidence.

G.
G.

Sentencing challenge
Sentencing challenge
____________________

Flores-Rivera

contends

that

the

district

court

improperly determined his appropriate base offense level ("BOL").

The district court determined Flores-Rivera's

it

BOL to be 40 after

concluded that between 500 and 1500 kilograms of cocaine were

attributable to

U.S.S.G.

Flores-Rivera

2D1.1(c)(2).

for

sentencing

purposes.

See
___

Flores-Rivera contends that the evidence

does not support this conclusion.

The

determinative

factor

for

sentencing

under

the

guidelines

F.3d 29,

charged

is the quantity of drugs.

31 (1st Cir.

conduct

for

1993).

which

That

United States v. Reyes, 3

_____________
_____

quantity is the sum

defendant

is

convicted

of the

plus

his

-26-

"relevant" uncharged conduct.

United States v. Bradley, 917 F.2d

_____________
_______

601, 604

(1st Cir. 1990).

"The drug quantity is

from all

acts 'that were part

of the same course

to be derived

of conduct or

common scheme or

States
______

v.

U.S.S.G.

criminal

plan as

Garc a,
______

1B1.3

954

the offense of

F.2d

(a)(2)).

In the

activity -- whether or

relevant conduct includes all

defendant and committed in

activity.

12,

U.S.S.G.

15 (1st

case

government

must

prove by

sufficient

nexus

between

transaction and the offense

United
______

1992)(quoting

of jointly

undertaken

a conspiracy --

acts reasonably foreseeable by the

furtherance of the jointly undertaken

1B1.3, comment.

To include disputed

Cir.

not charged as

Castellone, 985 F.2d 21, 24 (1st Cir.

__________

15.

conviction.'"

(n.1); United States v.

______________

1993); Garc a, 954 F.2d at

______

transactions as relevant

preponderance

the conduct

of the

underlying

of conviction.

conduct, the

evidence a

the disputed

See Castellone,
___ __________

985

F.2d

at 24; United States v. Sklar,

_____________
_____

1990).

We accord considerable deference to the district court's

determination of whether

the

a given drug transaction

same course of conduct

mistake

of law,

erroneous.

will

as counts of

set aside

its

forms part of

conviction and, absent

finding only

if

clearly

Castellone, 985 F.2d at 24; Garc a, 954 F.2d at 15.

__________
______

Here,

the

court's

conclusion

cocaine

were

purposes.

920 F.2d 107, 110 (1st Cir.

evidence

that

clearly

between

attributable

to

supports

500 and

1,500

Flores-Rivera

the

district

kilograms

for

of

sentencing

Cedr s testified that Escobar ordered Flores-Rivera to

supervise the

importation of

between 300 and

-27-

500 kilograms

of

cocaine from Colombia.

attributed

purposes,

this

and

The district court could reasonably

quantity

Flores-Rivera

testified that the Escobar

approximately

1,500

Vieques.

to look

From

Flores-Rivera

concedes

for

as much.

sentencing

Cedr s

also

Organization was conspiring to import

kilograms

distribution in New York,

Cedr s

to

have

of

cocaine

from

Colombia

for

and that Flores-Rivera had accompanied

for appropriate

this evidence,

"drop zones"

the

on the

district court

island of

could

have

reasonably concluded

that there

was a sufficient

nexus between

Flores-Rivera's conspiracy conviction and the importation efforts

of

the other

between

purposes.

500

members

and

1500

of the

conspiracy

kilograms

of

to attribute

cocaine

for

to

him

sentencing

Accordingly, we find no error in the district court's

determination of Flores-Rivera's BOL.

We have

considered the other issues

Rivera and find them to be similarly meritless.

Affirmed.
________

raised by Flores-

-28-