USCA1 Opinion

[NOT FOR PUBLICATION]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.
Per
Curiam.
____________

convicted

weapons

of

three

prohibited

Madeline

counts

of

by 18 U.S.C.

Valent n-Oquendo

dealing

in

922(v)

was

semi-automatic

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

concerns

are raised by

and that, therefore,

her conviction.

double jeopardy

A co-conspirator's

statement was erroneously admitted and there were other trial

errors, she says, and she complains that

theory of the defense instruction.

she also argues, because she

she was not given a

Her sentence is improper,

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 trial

the claimed errors were not objected to in

court and

Valent n's arguments

fail for

reasons

which require only brief explanation.

Valent n worked as a manager at a weapons shop, the

Armer a

firearms

V squez.

del Oeste

in

Bayam n, Puerto

license for the shop was

Valent n wanted to

Rico.

The

issued to Carmen V squez-

assume the business and

pending application to obtain her

-22

federal

own license.

The

had a

undoing

of Valent n

Toledo,

and her

came when

co-defendants, including

a package,

sent though

Jose S nchez-

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

fictitious.

Valent n

to S nchez, an

return address, in

Florida, was

claimed the package and turned it over

employee of the Puerto Rican

Police, who put

the package into

a police car and drove

where he returned

the package to

to another location

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

de-Jes s, who

picked up by co-defendant

presented false identification.

worked at the Armer a.

to get

She

who again

put it

Gonz lez-Rom n

had

been

also turned

into

was a passenger.

monitoring

Emerson also

Emerson used Valent n's pick-up truck

the package.

S nchez,

Maritza Emerson-

these

the package

his police

over to

car, in

which

The postal authorities, who

transactions

with

interest,

immediately arrested the two men, and later, the women.

These transactions

of

the

Armer a.

were not recorded on

Indeed,

documents

appear to

the books

have

falsified in

an effort to

show that the transaction

weapons

authorized.

The

was

Norinco rifles

and two large

two

packages

been

in the

contained six

capacity magazines, prohibited

-33

by law.

The two women acknowledged receiving $750.00 for the

transactions,

belonged

but

to the

argued

that

Puerto Rican

Miami for repair.

they

thought

Police and

the

weapons

had been

sent to

The jury rejected that theory.

II

The Indictment

While

not

artfully

drafted,

Count

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),

conspiracy to violate

922(a)(1)."

The

the conspiracy

that is, a

Title 18, United States

Code, Section

indictment went on to allege

the object of

and a series

of overt acts,

giving specific

places and times.

before the

Valent n never objected to

trial court,

United States
_____________

so review is

v. Olano, 507 U.S.

_____

the indictment

for plain

725 (1993).

error. See
___

There

was no

plain error.

The

indictment

to

combination

the

description of the

the

charges.

she

was

nonetheless

given

statutory

the

references

in

the

involved

and

the

sections

overt acts gave Valent n

To

ambiguity as to

of

the

extent

Valent n

ample notice of

argues

whether the transaction was

unlicensed

or

engaged in an

because

she

was

there was

illegal because

licensed

but

illegal transaction, Valent n was

discovery showing that

the government would

show she

-44

did

not

have

transactions.

district court

valid

There was no

license

at

the

time

of

due process notice problem.

sensibly construed

Count I

these

The

as a

conspiracy

hypothetical double jeopardy

issue, the

count and so instructed, without objection.

As to any

issue is at present exactly that:

hypothetical.

If there is

future prosecution, Valent n may raise the double jeopardy

issue at that time.

Co-Conspirator Statement and Other Alleged Trial Errors

Applying

this

United States v.
______________

Petrozziello, 548
____________

1977), the district

statement of

circuit's

oft-recited

test

under

F.2d 20,

23 (1st

Cir.

court conditionally held

Gonz lez-Rom n, as reported

admissible the

by S nchez-Toledo.

The statement concerned the relationship between Valent n and

Gonz lez,

that

they

had made

arrangements

to

packages from

Florida to Puerto

involved were

aware that the packages contained weapons.

the

end

of

the trial,

the

Rico and that all

send

district

the

of those

court revisited

At

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

defense theory

was Valent n entitled to an instruction on the

that these transactions

-55

were legitimate

and

the guns were intended for the Puerto Rico Police.

no evidence to support the theory.

support

were not established

San Juan Police; rather, they

There was

The document proffered in

to be official

documents from

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

offense level

the

in the

offense and

by two points

accordingly increased

under U.S.S.G.

3B1.1(c).

evidence, this conclusion was plainly correct.

gave Gonz lez

the address

to which the

the

On

Valent n

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

departure argument

made here,

guns.

no request

As to

was

the downward

made to

the

district court for a downward departure and there is no clear

error.

Affirmed.
________

-66