USCA1 Opinion

October 3, 1995

United States Court of Appeals

For the First Circuit

____________________

No. 92-1923

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO LUCIANO-MOSQUERA,

Defendant, Appellant.

____________________

No. 92-1924

UNITED STATES OF AMERICA,

Appellee,

v.

RAUL LUGO-MAYA,

Defendant, Appellant.

____________________

No. 92-1925

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL PAVA-BUELBA,

Defendant, Appellant.

____________________

No. 92-1973

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS PAGAN-SAN-MIGUEL,

Defendant, Appellant.

____________________

No. 92-1974

UNITED STATES OF AMERICA,

Appellee,

v.

EDGAR GONZALEZ-VALENTIN,

Defendant, Appellant.

____________________

No. 94-1657

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS PAGAN-SAN-MIGUEL,

Defendant, Appellant.

____________________

ERRATA SHEET

The opinion of this court issued on August 28, 1995 is amended

follows:

On page 35, lines 8-9, substitute "This argument is meritless."

for "This argument was not raised below, is reviewed for plain erro
and is meritless."

United States Court of Appeals

For the First Circuit

____________________

No. 92-1923

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO LUCIANO-MOSQUERA,

Defendant, Appellant.

____________________

No. 92-1924

UNITED STATES OF AMERICA,

Appellee,

v.

RAUL LUGO-MAYA,

Defendant, Appellant.

____________________

No. 92-1925

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL PAVA-BUELBA,

Defendant, Appellant.

____________________

No. 92-1973

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS PAGAN-SAN-MIGUEL,

Defendant, Appellant.

____________________

No. 92-1974

UNITED STATES OF AMERICA,

Appellee,

v.

EDGAR GONZALEZ-VALENTIN,

Defendant, Appellant.

____________________

No. 94-1657

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS PAGAN-SAN-MIGUEL,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

___________________

____________________

Before

Selya, Boudin and Lynch,

Circuit Judges.
______________

____________________

Lydia Lizarribar-Masini for appellant Luciano-Mosquera.

_______________________
Ramon Garcia for appellant Lugo-Maya.
____________
Rafael Gonzalez Velez for appellant Pava-Buelba.
_____________________
Frank A. Ortiz for appellant Pagan-San-Miguel.
______________
Wilfredo Rios Mendez for appellant Gonzalez-Valentin.
____________________

Epifanio Morales Cruz, Assistant United States Attorney, with

_____________________

whom Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa

_____________
_______________________
Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant United
_________________
States Attorney, were on brief, for United States.

____________________

August 28, 1995

____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

At

2:45

a.m. on

March 27,

1991, in

the darkness of the night over a Puerto Rico beach,

government flares

customs

brightened the

officers surprised

sky as waiting

and arrested six

eight bales of cocaine from two

yawls.

232.8

this country

Others

kilograms of

cocaine to

involved were

arrested on

arrests led ultimately to

police and

men offloading

The men had

land and

brought

from Colombia.

on sea.

these appeals by five of

Carlos Pagan-San-Miguel, Edgar Gonzalez-Valentin,

Those

the men,

Raul Lugo-

Maya, Rafael Pava-Buelba and Julio Luciano-Mosquera.

The

sufficiency

appeals

of

the

the

variously

evidence,

raise

to

admissibility

challenges

limitation

examination,

to

of

statement, to

remarks made during summation,

one

of

to

the

cross-

defendant's

to the reading

of the transcript

instructions,

transcript, and

of trial

to

to

the

delay

evidence

in

Of these,

jury

the

trial

only

one

the question of the sufficiency

to support

aiding and abetting the

jury, to

transcribing

their sentences.

raises serious issues --

the

testimony to the

the

convictions

for carrying

carrying of a firearm during

of

or

and in

relation to the drug offense as to certain defendants.

The convictions of defendants Pava-Buelba and Lugo-

Maya are reversed on

sentences

on

convictions and

that

the firearms count (Count 4)

count

are

sentences on

vacated.

We affirm

the drug counts

-44

and their

their

(Counts 1-3).

The convictions and sentences of defendants Pagan-San-Miguel,

Gonzalez-Valentin,

and Luciano-Mosquera are

affirmed on all

counts.

I.

The

jury

following facts.

January 1991

Puerto

Rico.

heard

FACTS

or

could

Oscar Fontalvo

to organize

a scheme

properly

infer

arrived in Puerto

the

Rico in

to smuggle cocaine

into

The scheme involved the drugs being flown from

Colombia, airdropped into the

sea at a prearranged location,

picked up by a waiting boat and then sailed ashore.

parlance,

this

waiting boat

operation

is

called a

In drug

"bombardeo."

is called the "mothership."

The

Fontalvo enlisted

Pagan-San-Miguel and Jose Perez-Perez, who were to be paid in

kind

with

50

kilograms

introduced Fontalvo to

his

cocaine.

Pagan-San-Miguel

Luis Soltero-Lopez,

boat, the F/V Marlyn,

Soltero-Lopez

of

would be used

who agreed

as the mothership.

recruited Jonas Castillo-Ramos

and Castillo-Ramos

recruited two

that

to be captain,

crew members for

the drug

run.

The operation

in Puerto

Rico in

was planned at a

March 1991.

number of meetings

Fontalvo, Pagan-San-Miguel,

Perez-Perez

least two of

and

Soltero-Lopez attended

these meetings

were at the

the

meetings.

home of

At

Gonzalez-

Valentin and, the jury could have inferred, Gonzalez-Valentin

was there for at least one.

-55

Perez-Perez brought a bag to one of the meetings at

Gonzalez-Valentin's house.

opened

the bag

(including

and

Pagan-San-Miguel

showed Fontalvo

Gonzalez-Valentin) a

Perez

the others

Colt M-16, Model

caliber fully automatic sub-machine

serial number (the "M-16").

and

and Perez-Perez

gun with an

there

A-1, 5.56

obliterated

Later during the meeting, Perez-

brought Fontalvo over to

his pick-up truck and pulled

out from under the front seat an Intratec, Model TEC-9, semi-

automatic .9mm pistol (the

"Intratec pistol").

Referring to

the weapons, Pagan-San-Miguel said they had brought them.

Communication

Rican

participants,

the

amongst

plane,

the

and

Colombian

the

F/V

essential.

Pagan-San-Miguel and Fontalvo went

purchased a

radio and antenna.

and

Puerto

Marlyn

was

to Miami and

Pagan-San-Miguel and Perez-

Perez installed them on the F/V Marlyn in Puerto Rico.

names

were

dispatcher

"Padrino"

handled

used for

radio

transmissions.

was "Khadafi"; Pagan-San-Miguel

or

radio

"Godfather."

Fontalvo

communications

and set

and

up

The

Code

Colombian

was "Gigante" or

Pagan-San-Miguel

radio in

the

backyard of Gonzalez-Valentin's house, hiding it in a child's

playhouse.

Soltero-Lopez,

Colombia to board the

the F/V

owner,

plane so that during the

could identify his boat and

the wrong boat

Marlyn's

-66

The

to

bombardeo he

insure the drop was not

(a not uncommon event).

flew

made to

F/V Marlyn went

to

the Dominican Republic to

prepare for the

Colombian drug owners, assigned a Colombian,

a "load watcher" to

the fate of

The

Pava-Buelba, as

observe the operation and report

Colombian suppliers about

Buelba went to the

airdrop.

the delivery.

to the

Pava-

Dominican Republic to meet Castillo-Ramos

and the mothership.

On March 25, 1991, the F/V Marlyn and its crew left

the

Dominican

Republic

for

its

drug

rendezvous.

The

Colombian load watcher, Pava-Buelba, joined the F/V Marlyn at

sea after it

had cleared

next morning, March

radio contact.

Dominican Republic

26, 1991,

The

the boat and

plane dropped

customs.

The

the plane

made

eight bales

of cocaine,

which were taken aboard the F/V Marlyn.

Waiting in Puerto Rico, Fontalvo, Pagan-San-Miguel,

Luciano-Mosquera and Gonzalez-Valentin received word that the

airdrop

had been successful.

A call came

in to Pagan-San-

Miguel on a cellular phone in Luciano-Mosquera's car, warning

that the

operation had been

were watching.

he had

the police

Pagan-San-Miguel reassured everyone, claiming

"informants in

information

discovered and that

the authorities" who

and that he had a police scanner.

would give

him

Fontalvo went

back to his cabin, leaving the others to proceed.

The

Dominican

Republic

waters until approximately 5:30 p.m. and then began

the trip

to Buoy #8, the

F/V

Marlyn

anchored

in

designated meeting place for the

F/V Marlyn

-77

and

the two smaller boats

("yawls").

Around

12:30 a.m. or

1:30 a.m.

on March

27, the

F/V Marlyn and

the yawls,

all

operating without running lights in the darkness, met several

miles

off the western coast of Puerto

cocaine was

roped down into

Maya, Perez-Perez

the yawls.

Rico at Buoy #8.

The

Pava-Buelba, Lugo-

and Gonzalez-Valentin sailed the

yawls to

Guanajibo Beach, near Mayaguez, Puerto Rico.

The landing site on

immediately

behind the

home

Guanajibo Beach that night was

of Pagan-San-Miguel's

father.

Two men, one fitting the description of Pagan-San-Miguel, the

other

of Luciano-Mosquera, approached the landing yawls from

the beach and helped to offload the bales of cocaine.

Law

monitoring

the

enforcement officials had indeed been silently

operation.

The airdrop had been observed by

U.S.

Customs

mothership.

and

Service

airplanes,

Coast Guard vessels

the yawls.

which

videotaped

the

had tracked the F/V Marlyn

Camouflaged agents, hidden on the beach, had

watched the offloading.

Flares went up; arrest signals were

given.

scattered, leaving bales in

from

The conspirators

the yawls

to

the home

a line

of Pagan-San-Miguel's

father,

along the roughly five-meter wide beach.

Pagan-San-Miguel sprinted and

an

abandoned Volkswagen at a house

found, he was

sought refuge

next to the beach.

wet and had his jeans rolled

Gonzalez-Valentin, dressed in

When

up to his knees.

camouflage pants and

-88

under

black T-

shirt,

of

completely wet and covered with sand, ran to the gate

Pagan-San-Miguel's

Pagan-San-Miguel's

there.

father's house.

father to

open

He

up, as

called out

the police

forty minutes after the

a carport

left.

were

He was arrested at the gate.

Luciano-Mosquera and Pava-Buelba were

in

to

by the

Pava-Buelba

flares went up, under a

building where

was

under the

bales of

found, about

jeep parked

cocaine were

driver's side,

Luciano-

Mosquera

under

the

passenger's.

Pava-Buelba

was

wet,

Luciano-Mosquera was dry.

Lugo-Maya headed to sea in one of the yawls and was

intercepted

arrested

escape

by

near

yawl

Coast

the beach.

found

ammunition.

Guard

vessels.1

A later

Perez-Perez

search

well-hidden

box

That ammunition fit the

was

of Lugo-Maya's

of

50

rounds

of

Intratec pistol, which

was found in the beached other yawl.

The

undercarriage

Buelba

M-16

was

of the

had hidden

later

found

hidden

jeep where Luciano-Mosquera

in

vain.

The

M-16

was

on

in

the

and Pava-

Luciano-

Mosquera's side "at the place where the chass[is] and the [ ]

springs of

the front of

the jeep are

located."

Two

small

beepers were found above

the chassis on the same

side where

____________________

1.

The F/V Marlyn was not forgotten.

The U.S.S. Shark, a

Coast Guard vessel, intercepted it, and a boarding party led

by Lt. Wendy Abrisz arrested Castillo-Ramos and the two crew
members.

Fontalvo was later arrested in Miami.

-99

the M-16 was found.

Two M-16 magazines with

twenty bullets

in each

of them

Miguel house.

were found

on the side

of the

The machine gun and the pistol

ones Pagan-San-Miguel and

Perez-Perez had shown

Pagan-San-

were the same

to Fontalvo

earlier.

No weapons were seen

offloading

operation and no weapons were found on any of the

defendants.

Neither

during the observation of the

There

had been

no weapons on

Luciano-Mosquera nor Pava-Buelba

beach by the jeep.

the F/V

Marlyn.

had arrived at the

There was no evidence as to who owned the

jeep or how the jeep got there.

After being given

his Miranda warnings, Pagan-San_______

Miguel later bemoaned his arrest to a police officer,

he would have

been given $300,000 for his role

saying

in the deal.

Instead, he was given a sentence of 60 years in prison by the

court.

Fontalvo

and

Castillo-Ramos

were key

government

witnesses at trial.

The

five appellants,

Pava-Buelba,

Pagan-San-Miguel

Luciano-Mosquera, Lugo-Maya,

and

Gonzalez-Valentin,

were

found guilty of conspiracy to import cocaine, in violation of

21 U.S.C.

960 and 963 (Count 1); importing 232.8 kilograms

of cocaine, in violation of 21 U.S.C.

(aiding and abetting) (Count

2); possessing the cocaine with

intent

to distribute, in violation of

and 18

U.S.C.

952 and 18 U.S.C.

(Count 3);

21 U.S.C.

and of knowingly

-1010

841(a)(1)

carrying or

aiding and abetting the

the

drug

carrying of firearms in

trafficking crime

violation of 18 U.S.C.

of

importing

924(c)(1)

relation to

the cocaine,

and 18 U.S.C.

in

2 (Counts

4 and 5).

The

district

court

Counts 1, 2, and 3 to terms

to

360 months

and to

sentenced

the

appellants on

of imprisonment ranging from 188

terms of

supervised release

of five

years.

It

firearms

360 months

terms of

also sentenced

count as to the

the appellants

M-16, to the

imprisonment, to

imprisonment imposed

court dismissed

Count

on Count

mandatory minimum of

be served consecutively

on Counts

4, the

1, 2

and 3.

5, the Intratec pistol count,

to the

The

out of

-1111

double

jeopardy

concerns.2

It

also

ordered

special

____________________

2.

At oral argument a question arose as to whether the

district court had in fact dismissed Count 5 or had simply

not sentenced on that count.

We asked the government to

inform us as to the disposition of the convictions for Count

5.

In its response, the government represented that Count 5

had not been dismissed and that the district court had simply
not sentenced on that count.

Our own review of the docket

sheet, however, reveals plainly an order dismissing Count 5,

which the government acknowledged when the court called the
order to counsels' attention.

We take a dim view of the

government's conduct in this matter, even if it is viewed as

nothing more than negligence.
The government now claims that, in any event, the
order dismissing Count 5 is a nullity because the order was
entered on the docket a few days after each appellant had
filed his notice of appeal.

Pointing out that as a general

rule the entry of a notice of appeal divests the district

court of jurisdiction to adjudicate any matters related to
the appeal, see United States v. Distasio, 820 F.2d 20, 23
___ _________________________
(1st Cir. 1987), the government argues that the entry of the
notices of appeal divested the district court of jurisdiction
over the case and that, absent jurisdiction, the order on

Count 5 can have no effect.

But the government forgets that a criminal judgment
involving multiple counts is not final and appealable unless
the record discloses the precise disposition (e.g., the
sentence) for each count.

See United States v. Wilson, 440

___ _______________________

F.2d 1103 (5th Cir.) (no final judgment where the court
imposed sentence on three counts of a six count indictment
and withheld sentence on three counts)(cited with approval in
15B Charles A. Wright, et al., Federal Practice and
______ ____________________
Procedure,
_________

3918.7 & n.10 (2d ed. 1992)), cert. denied, 404

____________

U.S. 882 (1971).

The district court here had not specified

the disposition of Count 5 by the time the notices of appeal

were docketed.

Absent a disposition on Count 5, there was no

final judgment from which the defendants could appeal.

Because there was no appealable order at the time the notices
were filed, the notices of appeal could not have divested the
district court of its jurisdiction over the case.
Accordingly, the district court had jurisdiction and its
order dismissing Count 5 was not a nullity.
That the notices were premature does not affect
this court's jurisdiction of these appeals.

The notices

simply relate forward to the entry of judgment.

App. P. 4(b);

See
___

Fed. R.

cf. Yockey v. Horn, 880 F.2d 945, 948 n.4 (7th

___ ______________

Cir. 1989) (where district court inadvertently failed to

dismiss one count of a multi-count complaint, notice of

-1212

assessment of $50 for each

II.

of Counts 1-4.

CONVICTION ISSUES

A.

Sufficiency of the Evidence

___________________________

1.

Count 4, the M-16 Firearm Count.

_______________________________

Appellants'

principal focus

is on

the

denial of

their Rule 29 motions at trial for

M-16 firearm

count.

acquittal on Count 4, the

Each appellant

claims that there

was

insufficient evidence to support his conviction under Count 4

for

carrying, or aiding and abetting the carrying of, the M-

16 during and in relation to the drug trafficking offense, in

violation

of 18

U.S.C.

924(c)(1) and

18 U.S.C.

2(a).

Section 924(c)(1) provides, in pertinent part:

Whoever, during and in

trafficking crime
shall, in

relation to any . .

. . . uses or carries a firearm,

addition to the punishment

such . . . drug trafficking

imprisonment
firearm

. drug

for five

provided for

crime, be sentenced to

years,

. .

and if

the

is a machine gun . . . to imprisonment for

thirty years. . . . .

18 U.S.C.

commits an

924(c)(1).

Section 2(a)

provides:

"Whoever

offense against the United States or aids, abets,

counsels, commands,

induces or

punishable as a principal."

procures its commission,

18 U.S.C.

is

2(a).

____________________

appeal that was technically premature related forward after

district court entered an order officially dismissing the
remaining count).

The notices of appeal are treated as if

they were filed on the date the order dismissing Count 5 was
entered on the docket.
Count 5 is no longer at issue in this case.

The

government did not cross-appeal from the dismissal, nor has

it requested reversal of the dismissal of Count 5.

-1313

The

standard

evidence is familiar.

determine

whether

the

therefrom, taken as a

of

"Our

review

for sufficiency

task is to review the

evidence and

reasonable

whole and in the light

to the prosecution, would allow

the

record to

inferences

most favorable

a rational jury to determine

beyond a reasonable doubt that the defendants were

charged."

United States v. Mena-Robles,

_____________________________

(1st Cir.

1993),

cert. denied
____________

of

guilty as

4 F.3d 1026,

1031

sub nom. Rivera v. United

_________ __________________

States, 114 S. Ct. 1550 (1994).

______

The

the

facts of this case do not require us to define

precise contours

of the

meaning Congress

intended the

phrase "carries" to have, and we note the variety of views on

both that issue and

in 18 U.S.C.

Joseph,
______

892

the meaning of its companion

924(c)(1).

F.2d

118,

See generally
___ _________

126

(D.C.

Cir.

term "use"

United States v.
_________________

1989)

(to

prove

carrying, the government must show that the defendant had the

ability to exercise dominion and control over the firearm and

that

the firearm

was

within

easy

reach

to

protect

the

defendant during the drug trafficking offense); United States

_____________

v. Evans,
_________

888 F.2d

891,

895

comprehends more than actually

a gun

on one's

(D.C.

Cir. 1989)

physically wearing or bearing

person), cert. denied sub nom.

_____________ _________

United States, 494

_____________

(carrying

Curren v.
_________

U.S. 1019 (1990); see also United States

_________ _____________

v. Bailey, 36 F.3d
_________

dissenting)

106, 125 (D.C. Cir. 1994)

(stating that

carrying included

(Williams, J.,

situations (1)

-1414

where

a weapon was within

where

a defendant had

easy reach of

sufficient control

the defendant, (2)

over confederates

carrying weapons to establish constructive possession, or (3)

where a

and

defendant had transported a weapon

had ready

access to

the weapon

pocket), cert. granted, 115 S.

______________

by motor vehicle

as if

it were

Ct. 1689 (1995);

in his

Bailey, 36
______

F.3d 106 at 114-15 & n.1 (stating that what constitutes "use"

depends

upon

offense);

the

nature

of

the

underlying

substantive

United States v. Paulino, 13 F.3d 20, 26 (1st Cir.

________________________

1994) (focussing on whether the firearm was available for use

in connection with the

that actual

physical carrying

scope of the statute.

The

Puerto

Rico

narcotics trade).

gun comes

to say

within the

See Joseph, 892 F.2d at 126.

___ ______

conclusion is

based

of the

Suffice it

reasonable

participant

in

the

that

drug

at least

one

conspiracy

physically carried the

at

Gonzalez-Valentin's house

landing.

in

near the

few days

beach, next

jeep

suggests

before the

to a

bales of cocaine had been brought.

from Gonzalez-Valentin's

was

that

somewhere

and

The M-16 had been

It was then found in the undercarriage of the

a carport

where

the

M-16 to the beach.

placed

not

house to the

sometime

before

on the beach and

under the

the

Someone brought it

to

arrest,

was then brought

jeep to

-1515

avoid

jeep

building entryway

jeep.

otherwise connected

beach

The

the

the

fact that

defendants

gun

was

from the beach

detection.

That the

bullets

for the

machine

gun were

found behind

Pagan-San-

Miguel's house near the bales of cocaine further supports the

inference

that the

gun was

either carried

onto the

beach

during the offloading or was nearby as part of the operation.

Still, the

gun was not found

beach and there is

gun.

None of

in the hands of

anyone at the

no direct evidence as to who

the agents watching the offloading

with a weapon of any kind.

carried the

saw anyone

Our initial focus then is on the sufficiency of the

evidence

on

the aiding

abetting

requires

and

that

"the

abetting charge.

defendant

himself with the venture, participated

he wished to bring about,

it succeed."

Aiding and

[have]

associated

in it as in something

and sought by his actions

to make

United States v. Alvarez, 987 F.2d 77, 83 (1st

_________________________

Cir.), cert. denied, 114 S. Ct. 147 (1993).

____________

Mere association

with the principal, or mere presence at the scene of a crime,

even

when

combined

with

knowledge that

crime

will be

committed, is not sufficient to establish aiding and abetting

liability.

Id.;
___

see also United States v. De la Cruz_________ ________________________________

Paulino, No. 94-1985

_______

must

have taken

some

(1st Cir. Aug. 3, 1995).

affirmative

action that

The defendant

facilitated

violation of

924(c)(1).3

Of course, knowledge that

a gun

____________________

3.

A Pinkerton instruction was never given to the jury, nor

_________

did the government argue at trial or on appeal that Pinkerton

_________
liability should apply.

See Pinkerton v. United States, 328

___ __________________________

U.S. 640, 646-47 (1946).

We therefore could not support the

convictions on a Pinkerton theory.

_________

-1616

See United States v.

___ ________________

would

be carried

is also

Torres-Maldonado, 14
________________

required.

F.3d 95, 103 (1st

115 S. Ct. 193 (1994); see also

_________

F.3d

1306,

conspirators

defendant's

Brink's

denied
______

1316

(1st

would

Cir.

be using

activity in

armored truck

sub nom.
________

See United States v.

___ _________________

Cir.), cert. denied,

____________

United States v. DeMasi, 40

_______________________

1994)

gun

planning

guarded by

(knowledge

may be

inferred

and attempting

two armed

Bonasia v. United States,

_________________________

that

co-

from

to rob

guards), cert.
_____

115 S.

Ct. 947

(1995).

The question

was

sufficient

to show

here, then, is

that

each

whether the

appellant

evidence

knew that

firearm would be involved in the drug trafficking offense and

took some action in relation to the M-16 that was intended to

cause the firearm to be carried during and in relation to the

drug

trafficking offense.

We believe

that the evidence was

sufficient to convict Pagan-San-Miguel,

Luciano-Mosquera and

Gonzalez-Valentin under this standard, but was not sufficient

to convict Pava-Buelba and Lugo-Maya as to the M-16.

As

evidence

weapon.

in

to

that

He

Pagan-San-Miguel,

he knowingly

assisted

was the ringleader of

Puerto Rico.

He was a

there

the

was

sufficient

carrying of

the

the importation operation

key participant in the meeting at

____________________

Torres-Maldonado, 14 F.3d 95, 101 (1st Cir.) ("On appeal, we

________________
will not infer either that the jury found guilt based on a

theory upon which it was not instructed, or that the jury

would have found guilt had it been given a Pinkerton
_________
instruction."), cert. denied, 115 S. Ct. 193 (1994).
____________

-1717

Gonzalez-Valentin's

house

during which

he

and Perez-Perez

showed Fontalvo the M-16.

He showed Fontalvo the

the meeting

had brought

and said they

certainly infer

it.

that he, or Perez-Perez at

The

weapon at

jury could

his direction or

with his assistance, procured the

M-16 for purposes of using

it to protect the operation.

The

evidence

Gonzalez-Valentin

weapon.

is

also

knowingly

Gonzalez-Valentin is

sufficient

assisted

the

to

show

carrying

chargeable with

that

of the

knowledge of

the M-16, since the M-16 was displayed in his presence during

one of

that

the meetings at

he was present.

the meeting

his house

Moreover, by providing

at which the guns were

Gonzalez-Valentin

and the jury

assisted

the

could infer

his house for

displayed and discussed,

substantive

924(c)(1)

offense.

As

for Luciano-Mosquera, when

viewed in the light

most favorable to the government, the evidence was sufficient

for the

jury to

infer that he

carrying the weapon

under the

jeep at the

sometime before the

him

It

to or

from the beach

time he

arrests.

also placed

up

in

hid or had

The weapon

in the undercarriage, no

was

either carried

more than an

place the weapon there.

M-16

placed it

there

was directly above

arm's span away.

the undercarriage

He

-1818

in

and hid the

chassis and the springs, so clearly someone took

to

or aided

between

the

some effort

was at the beach with Pagan-

San-Miguel

to meet the yawls;

he arrived at

the beach with

Pagan-San-Miguel, who supplied the weapon; magazines from the

M-16 were nearby; beepers were found near the gun (suggesting

a connection between the

call

tipping

the

conspirators

watching came into

supports the

gun and the drug offense);

a car phone

off that

in his

car.

reasonable inference that his

weapon was more than

a mere fortuity.

from these circumstances

the weapon in the

the

and the

police

This

were

evidence

proximity to the

A jury could conclude

that Luciano-Mosquera either placed

jeep before the arrest signals

were given

or

that he

underneath

carried the

weapon from

the jeep as he was

the beach

and hid

hiding from the police.

these circumstances,

a jury

Luciano-Mosquera had

carried the weapon sometime

in relation to

carrying of the

offense.

could reasonably

the offense or at least that

weapon during

it

From

conclude that

during and

he aided in the

and in relation

to the

drug

See United States v. Olbres, No. 94-2123, slip op.

___ _______________________

at 17 (1st

Cir. July 26, 1995) (evidence must

be taken as a

whole, in cumulation).

All of the appellants

of whether

the evidence

abetting

"carrying," it

carrying

was

importation

was sufficient

to show

was insufficient

done "during

offense.

have argued that, regardless

and

They

in

argue

to show

relation to"

that,

aiding and

that any

the

because

drug

their

importation efforts ended

the moment the flares went up, the

-1919

subsequently found

to"

M-16 machine gun could

the drug trafficking.

wrong.

That argument

not have "related

is inventive, but

The jury could easily infer from the discovery of the

weapon in

close proximity to the

offloading operation after

the arrest signals were given that

it had been carried at

time when the offense was in progress, particularly

in light

of the evidence that it was brought by the conspirators to

planning meeting and shown off,

nearby,

and

it was

found close

Further, the legislative history

924(c)

the

to

the bales

found

of cocaine.

of the 1984 amendment

to

is explicit that where the defendant had a gun during

underlying

displayed),

circumstances

offense

(even

if

the

gun

had

the

section

is

violated

"if

or

otherwise

it

could

found

defendant intended to use

to

ammunition for it was

make his escape."

be

the gun if a contingency

S. Rep.

not

been

from

the

that

the

arose or

No. 225, 98th Cong., 2d Sess.

1, 314 n.10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492

____________

n.10; see also

___ ____

United States v. Feliz-Cordero, 859 F.2d 250,

______________________________

254 (2d Cir. 1988).

In

sum, the

Pagan-San-Miguel,

carrying

evidence

was

sufficient to

Gonzalez-Valentin and

the M-16 on an

convict

Luciano-Mosquera of

aiding and abetting

theory.

Their

convictions on Count 4 are, therefore, affirmed.

The

evidence

as

to

Lugo-Maya

and

Pava-Buelba,

however, was insufficient to sustain a conviction on Count 4.

-2020

The only evidence the government

to

the

M-16

was

ammunition for the

Evidence of

have

been

the

evidence

that

50

rounds

Intratec pistol were found

his involvement

enough

presented linking Lugo-Maya

to show

of

.9mm

in the yawls.

with the Intratec

knowledge

of

the

pistol might

M-16 on

the

inference that the two firearms were together when the Puerto

Rico-based participants met

to launch the

Marlyn, and that knowledge of

knowledge of

the other.

showing that he took

yawls to the

one supports the inference

There

was

no evidence,

any step to assist the

F/V

of

however,

carrying of the

M-16 in relation

the

meeting

presented

procure or

was also

There

was

to the drug offense.

where

no

the

M-16 was

evidence

that

Lugo-Maya

shown.

The

Lugo-Maya took

otherwise supply the

government

any

steps

weapons or ammunition.

nowhere near the weapon at

simply insufficient

was not at

to

He

the time of his arrest.

evidence

reasonable doubt that he either carried or

to

show beyond

aided and abetted

the carrying of the M-16.

The

government's

Buelba to the M-16 was

jeep

in which

the M-16

Mosquera, however,

the

only

evidence connecting

the fact that he was found

had been

Pava-Buelba was

jeep from where the M-16

hidden.

under the

Unlike Luciano-

on the opposite

was found.

Pava-

side of

Given the darkness

and the

and

fact that the gun

the springs

it is

was stuck up

not reasonable

between the chassis

to infer

that Pava-

-2121

Buelba

saw the weapon when he was

under the jeep.

And also

unlike Luciano-Mosquera, there was no evidence linking him to

the activities in Puerto Rico, specifically the activities on

the beach on the evening of the arrest from which it would be

reasonable

before

to infer

the requisite

he hid under the jeep.

knowledge of

Indeed, Fontalvo's testimony

never associated Pava-Buelba with any weapons.

was simply a

load watcher

report

to the

back

cocaine was

whose job it

Colombian

the weapon

supplier

successfully delivered.

His

Pava-Buelba

was to observe

and

about whether

the

interests were not

the same as the interests of the Puerto Rico-based importers.

The first time he set foot in Puerto Rico

this case was when he

of

the yawls.

There

in connection with

arrived at the offloading site

was no

evidence linking

him to

Puerto Rico end of the operation where he would have

a position to know about the specific weapon.

in one

the

been in

Therefore, the

inference that he knew

the

inference with

even if there were

the

fortuity.

beneath the

San-Miguel

the darkness once he crawled

such

knowledge

the Puerto Rico

would

Unlike Luciano-Mosquera,

the hours

before

-2222

have

who was

weapon and had substantial

during

Moreover,

evidence sufficient to infer that

his disconnection with

operation,

weaker than

respect to Luciano-Mosquera.

the hidden weapon in

jeep, given

about the weapon is much

been

he saw

under the

side of

mere

found directly

dealings with Pagan-

the

arrest, there

is

insufficient evidence to

that Pava-Buelba

with

the

hid under the jeep

idea that

government did

conclude beyond a reasonable

he

would

not present

to be next

carry

evidence

it.

In

to the M-16

short,

that Pava-Buelba

about the weapon sufficient to support a

doubt

the

knew

924(c) conviction,

even on an aiding and abetting theory.

Furthermore, there was no evidence that Pava-Buelba

ever had

actual

Mosquera

lying underneath the gun, it is far from clear that

Pava-Buelba

was

possession of

in

the weapon.

position to

exercise

With

Luciano-

dominion

and

control over the

under the

weapon.

jeep gave

Even if his proximity

him sufficient

to the M-16

possession, at

most, a

theory of constructive possession might have been argued.

this

case,

instructed

however,

the

jury

firearm could not

firearm.

which

the

Such

the

that

district

court

a conviction

for

In

specifically

"carrying"

be based on constructive possession of the

an

instruction sets

sufficiency of

the

the benchmark

evidence

must be

against

measured.

United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992);
_______________________

United States v. Angiulo,

___________________________

Cir.)(appellate

constrained by

we would be

897

determination

F.2d

of

1169,

1196-97

sufficiency

must

trial court's instructions; "otherwise

sustaining a

conviction on appeal

(1st

on a

be

. . .

theory

upon which the jury was not instructed below"), cert. denied,
____________

498

U.S.

845

(1990).

While

the

correctness

of

that

question,

the

-2323

instruction

might

government did

otherwise

not object

be

open

to

to the instruction

at trial

nor

does it

See
___

argue on appeal

that the

instruction was error.

Saylor v. Cornelius, 845 F.2d 1401, 1408 (6th Cir. 1988)

___________________

(although reversal

due to

a trial

raise double jeopardy concerns,

triggered

where

government

error normally

does not

double jeopardy bar would be

had

failed to

object

to

the

error).

Issues

necessarily

of

involve the

jury's

role under

fact,

see Olbres,
___ ______

appellate

whether

guilt

the

sufficiency

tension

the Seventh

No.

court's role

of

the

evidence

between deference

Amendment

as the

the

finder of

94-2123, slip

op.

in

meaningful review

providing

at 18,

to

and

the

of

the government has indeed met its burden of proof of

beyond

reasonable

doubt.

That

burden

is

constitutionally

(1970).

The

question is

mandated.

Supreme

In
__

Court

re
__

has

Winship,
_______

said that

397 U.S.

the

358

relevant

whether "after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt."

Jackson v. Virginia, 443 U.S.

____________________

(1979) (emphasis removed).

questions of

inferences is

The

difficulty

sufficiency of the evidence

illustrated

Stewart v. Coalter,
___________________

in

48 F.3d

the

-2424

of

these

to draw reasonable

case law.

610 (1st

307, 319

See,
___

Cir.) (each

e.g.,
____

of four

courts reviewing a conviction reach

different conclusions as

to sufficiency, culminating in a split decision by a panel of

this

court upholding

the

conviction), petition for cert.

____________________

filed, No. 94-9742 (U.S. June 19, 1995).

_____

In sum, we believe there was insufficient evidence,

in

light of

either

the

government's burden

Lugo-Maya or

Pava-Buelba of

of proof,

to convict

carrying or

aiding and

abetting

the

convictions

carrying

of

on Count 4.

the M-16

and

There is no

either and an insufficient basis to

so

reverse their

direct evidence as to

draw inferences of guilt

beyond a reasonable doubt.

2.

Drug Counts.
___________

Gonzalez-Valentin

sufficiency

challenges on

above amply demonstrate,

each

appellant's

cocaine

and

of

and Luciano-Mosquera

the drug

As the

facts

there was overwhelming evidence

complicity in

their

counts.

also raise

guilt on

the

scheme

the drug

to import

counts.

of

the

Their

convictions on the drug counts are affirmed.

B.

Other Issues Going To The Verdict

_________________________________

The appellants4 -- principally

Pagan-San-Miguel --

have raised six other claims of error concerning the district

court's conduct of the

trial:

(1) the limitation

of Pagan-

____________________

4.

Appellants Gonzalez-Valentin and Pava-Buelba have

incorporated all arguments made by the other appellants not

inconsistent with those otherwise made in their briefs.

Our

review of the issues applies therefore to their appeals as

well.

-2525

San-Miguel's cross-examination of

(2)

the

admission of

an

two government

incriminating

Pagan-San-Miguel, (3)

the refusal to grant

allegedly

remarks

improper

were

statements, (4) the jury instruction

jury

instruction on

the defendants'

made

on

witnesses,

statement made

by

a mistrial after

during

closing

924(c)(1), (5) the

flight from

the crime

scene, and (6) the allowance of a read-back of testimony by a

government witness to the jury during its deliberation.

of these claims of error provides a ground for reversal.

None

-2626

1.

Cross-Examination.
_________________

Pagan-San-Miguel complains that the

district court

erred in cutting off his cross-examination into the penalties

Castillo-Ramos would have faced on firearms counts which were

dropped against him.

bias

Pagan-San-Miguel attempted to establish

by showing that the government had been able to procure

Castillo-Ramos'

cooperation

Castillo-Ramos

under

the

superseding indictment.

Pagan-San-Miguel

had informed

offense

[he

asked

firearms

he had

defendants

sentenced

to this question

faced

impermissible

the

attempt

to

charge

in

the

second

on this

topic,

same

to

his attorney

been "found guilty

during the

addition to the drug offense."

an objection

counts

not

Castillo-Ramos whether

the firearm

would be]

deciding

After questioning

him that if

possession of

by

to

of the

commission of

a drug

thirty-five years

in

The district court sustained

on the

firearms

inform

ground that,

because

charges,

was

the

jury

it

about

an

the

defendants' possible punishment on the firearms counts.

Pagan-San-Miguel claims that this truncating of his

cross-examination impermissibly interfered with his

confrontation

under

Pagan-San-Miguel

potential

benefit

biases,

the

had

Amendment.

sufficient

including

Castillo-Ramos

cooperation.

Sixth

any

received

We

opportunity

bias

as

right to

disagree.

to

expose

resulting from

any

his

result

of

Pagan-San-Miguel was able to ask Castillo-Ramos

-2727

repeatedly

whether

testimony.

Any

precise number

he

had

probative

value of

benefit

for

his

information about

the

of years Castillo-Ramos would

he been charged

for the

district

properly

court

the jury

learn

have faced had

firearms offense was

decided

information was outweighed by

having

received

that

the

slight.

value

of

The

the

the potential for prejudice by

what penalties

the defendants

were

facing.

Although

component of

confrontation

witnesses is

cross-examination

is

a defendant's Sixth Amendment

clause, a

defendant's right

not unlimited.

an

important

rights under the

to cross-examine

Delaware v. Van Arsdall, 475

_________________________

U.S. 673,

679 (1986).

district court is

off cross-examination that may

entitled to cut

create prejudice or confusion

of the issues, or may be harassing or unduly repetitive.

Assuming

that the minimal

Id.
___

constitutional threshold level of

inquiry was allowed, as here, a trial court has discretion in

limiting cross-examination.

discretion if

there is

A trial court does not abuse its

sufficient evidence before

(absent

the excluded

"make a

discriminating appraisal of the

motivations

evidence)

of the witnesses."

5 (1st Cir. 1992),

from which

the jury

could

possible biases and

Brown v. Powell, 975 F.2d 1,

_______________

cert. dismissed, 113 S. Ct.

_______________

That was the case here.

the jury

1035 (1993).

-2828

2. Pagan-San-Miguel's Incriminating Statement.

__________________________________________

Pagan-San-Miguel

argues

that

the district

court

erred by not conducting a hearing out of the jury's presence,

pursuant to Jackson v. Denno,

_________________

378 U.S. 368

(1964), and

18

U.S.C.

3501(a),5

incriminating

to

determine the

statements.

Police

testified that Pagan-San-Miguel,

his

arrest, told Jusino

thousand

arrest

dollars out

signals

were given,

Officer

Samuel

while being held

that he

of [the

voluntariness of

"would make

he ran

Jusino

following

three hundred

drug venture]" and,

"that

his

and

once the

hid himself

underneath a metal plank, and if he had found a hole he would

have gone through that place."

Before the issue of a Jackson v. Denno hearing

________________

be raised

been

on appeal,

placed

before

coherent manner.

F.2d

200,

See
___

201 (1st

the issue

the

of voluntariness

district

and

United States v. Santiago Soto,

_______________________________

871

to

in

must have

a timely

Cir.) (failure

court

may

raise the

issue of

voluntariness in

judge that a

right to

also
____

a way

that would

Jackson v. Denno
________________

(a

alerted the

hearing was desirable

hearing), cert. denied, 493 U.S.

_____________

United States v. Berry,

_______________________

1992)

have

generic

objection

977 F.2d

to the

trial

waives

831 (1989);

915, 918

see
___

(5th Cir.

admissibility

of

the

____________________

5.

Section 3501(a) provides, in pertinent part, that

"[b]efore such confession is received in evidence, the trial

judge shall, out of the presence of the jury, determine any
issue as to voluntariness."

18 U.S.C.

-2929

3501(a).

confession was insufficient to

put the court on

notice that

defendant sought a Jackson v. Denno hearing and therefore the

________________

court's

ruling was

Miguel failed to

reviewed for

place the issue

plain error).

Pagan-San-

properly before the

trial

court here.

Pagan-San-Miguel did not specifically object to the

admissibility of the statements on voluntariness grounds.

never

trial.

specifically requested a

He never

He

voluntariness hearing during

raised the voluntariness issue in

his pre-

trial motion

personnel.

the

to suppress statements made

He never raised voluntariness in his objection to

statement

at

foundational one not

time of Officer

that

Miranda
_______

before

he

to law enforcement

trial.

His

objection

going to voluntariness

Jusino's testimony no one

warnings had

made the

been

incriminating

given

was

narrow

-- that at

the

had yet testified

to Pagan-San-Miguel

statements.

specifically asked Pagan-San-Miguel whether his

to

The

court

objection as

foundation was a suppression request and Pagan-San-Miguel

informed

the court

colloquy with

that

it was

not.

the district court over

Indeed

during

the

the testimony, Pagan-

San-Miguel conceded that "there [was] evidence that [Miranda]

_______

warnings were properly made and there was a waiver."

Given

his

disclaimer

statement

that

and the

statements

he

total

was

seeking

absence of

suppression

any evidence

of

the

that the

were made involuntarily, Pagan-San-Miguel did not

-3030

sufficiently

was an issue.

apprise the

district court

that voluntariness

Thus, Pagan-San-Miguel's claim to a Jackson v.

__________

Denno hearing has been waived.

_____

There

district

also is

court

voluntariness

F.2d at 202

was

no

colorable claim

nevertheless

hearing sua
___

sponte.
______

here that

obliged

to

the

hold

See Santiago Soto, 871

___ ______________

(recognizing, without adopting, a rule that such

a hearing must be given sua sponte under circumstances, "such

___ ______

as

defendant's

apparent

abnormal

mental

or

physical

condition, obvious ignorance or lack of awareness," raising a

serious

question over

Miguel's argument

events

voluntariness).

is that he

At

best, Pagan-San-

was so "shell-shocked"

by the

that transpired on the beach that the court must have

been alerted

to the possibility

the Miranda warnings

that he did

that were given

not understand

to him and that,

as a

_______

result, his

statements

made hours

later were

involuntary.

Undoubtedly a defendant who suddenly becomes aware the police

are

on

to him

suffers

jolt,

but that

jolt

does

not

incapacity make.

3.

Remarks During Closing Arguments.

________________________________

Pagan-San-Miguel argues that

during

the closing

points

to four remarks, one

Buelba and three

arguments were

made by

certain remarks

unduly prejudicial.

made by the

the government.

basis for reversal.

-3131

made

He

attorney for Pava-

None provides

Pava-Buelba's

distinguish

his

client

attorney, in

and

charges from the drug charges,

to

an apparent

distinguish

the

effort to

firearms

made the following remarks to

the jury:

I ask you to please keep in mind that the fact

that there

are a number of

not mean that they

defendants here [does]

were all to be treated

as one.

And the fact that they were being charged with five
different counts does not mean that you had to find
them guilty or

innocent or all the

same, but that

you could

choose

discern among

and pick.

And

that you

could

the evidence and determine which, if

any, were guilty of any of the counts charged.

Some might

be guilty

might be guilty of
be careful
be able

to

of one

none.

or more.

Some

And I ask

you to please

watching the evidence so

that you will

distinguish

between

each

and

every

individual and each and every count.

Pagan-San-Miguel

implied that

thus

objected

these

remarks,

arguing they

Pava-Buelba was guilty of the drug offenses and

implicated the

other defendants.

sustained the objection.

a mistrial was

to

The

district court

Pagan-San-Miguel's later motion for

denied, but

the court offered

curative instruction, which all

to provide

defendants declined.

Pagan-

San-Miguel argues that a curative instruction would have been

pointless and

that the district court

in refusing to grant a new trial.

abused its discretion

Fatal to Pagan-San-Miguel's claim, however, is that

to "require a new trial, we must conclude . . . that, despite

the instruction,

the misconduct was likely

the trial's outcome."

to have affected

United States v. Capone, 683 F.2d 582,

_______________________

585-86 (1st Cir. 1982) (internal

-3232

citations omitted).

In the

context of the full

had any

record, these statements could

impact on the outcome of the trial.

Pagan-San-Miguel's

overwhelming.

complicity

Moreover,

on

the

not have

The evidence of

drug

counts

a curative instruction

was

would have

solved any spillover problem created by the statements.

Pagan-San-Miguel

statement

that

association

"Carlos

an impermissible

only

deny

his

terrible, terrible person

a prosecutor on

We think it was not.

an accused's

The government did

that Pagan-San-Miguel "didn't deny his association,"

that he

that this

can't

Pagan-San-Miguel argues this was

comment from

failure to testify.

the government's

Pagan-San-Miguel

with [Fontalvo], that

that was described to you."

not say

also challenges

"can't deny his

comment cut too

association."

close to

Even assuming

the line, "there

is no

reason

to

attention

conclude that

to

the prosecutor

trial."

United
______

States v. Taylor, 54 F.3d 967, 980 (1st Cir. 1995).

_________________

And the

evidence

comment

was

the appellant's

otherwise so

silence

intentionally drew

at

overwhelming

that this

could have had no effect on the jury's judgment.

Pagan-San-Miguel's

next two challenges

Id. at 977.
___

are to the

government's statements that the firearm found under the jeep

"would be used

to protect

the very cocaine

illegally smuggled into Puerto

that was

Rico" and that "Carlos Pagan-

San-Miguel bragged about having bought the firearms."

San-Miguel argues that

being

the first was

-33-

Pagan-

misleading in that

it

33

suggested

that

the jury

planning on using the

could

convict

the defendant

firearm once it had arrived

Rico, an offense

not charged in the

indictment.

Miguel's reading

is strained, at best.

for

in Puerto

Pagan-San-

The first statement

was consistent with the evidence and the government's theory.

There is no plausible argument that this statement was likely

to have affected the outcome of the trial or was so egregious

that a

F.2d

new trial is needed

at 587.

While

as a sanction.

the second

statement appears

exaggerated the evidence, there was no

not amount to plain error.

4.

See Taylor, 54 F.3d at 977.

___ ______

Jury Instruction on 18 U.S.C.

924(c)(1).
_________________________________________

instructed the jury

the

on an essential element

18 U.S.C.

defendant

to have

objection and it does

Pagan-San-Miguel argues that the

offense,

See Capone, 683

___ ______

924(c)(1).

have

carried

relation

to

district

court, however,

the

court erroneously

of the firearms

That section requires that

firearm

"during

and

[a] drug trafficking crime."

instructed

the jury

that it

in

The

was

enough if the defendant knowingly carried the firearm "during

the

commission of

the crime

of drug

doing, the district court appears

statutory language.

it

any [federal]

the

felony."

In so

to have relied on obsolete

Before 1984,

was a crime to carry

trafficking."

924(c)(1) provided that

a firearm "during the commission of

In 1984, however,

language adding the phrase

-3434

Congress amended

"during and in relation to,"

to

make clear

underlying

S.

Rep.

that

the

felony to come

No.

224,

firearm

must

be

linked

within the scope

supra,
_____

at

312-13,

to

the

of the statute.

reprinted in
_____________

1984

U.S.C.C.A.N. at 3490-92.

Because

instruction,

Pagan-San-Miguel

the instruction

did

not

is reviewed

object

to the

for plain

error.

See Fed. R. Crim. P. 52(b).

___

Pagan-San-Miguel argues that the

court's use

"during the

plain error,

of

the phrase

commission of"

was

claiming it omitted an essential element of the

offense and it broadened the scope of the conduct under which

the jury could convict.

The actual

charge given here

undercuts Pagan-San-

Miguel's argument.6

carrying

underlying

of

The district court

the firearm

drug

offense

emphasized that the

must

be

linked to

for

which

the

be

proven

that

the

specific

defendants

were

convicted:

First,

it

must

a[] defendant[]

committed a crime of drug trafficking for which he

____________________________
may

be

prosecuted

in

second, that during the

the United

States.

And

commission of the crime of

____________

____________________

6.

Faced with a similar challenge the Ninth Circuit has held

that the change in statutory language was not substantive and

that the requirement that the firearm be linked to the crime
was already implicit in the statute.

"Though the legislative

history does not say so expressly, it strongly implies that

the 'in relation to' language did not alter the scope of the
statute, explaining that the original section was directed at
persons who chose to carry a firearm as an offensive weapon
for a specific criminal act."

United States v. Stewart, 779

________________________
F.2d 538, 539-40 (9th Cir. 1985) (internal quotation
omitted), cert. denied, 484 U.S. 867 (1987).
____________

-3535

drug trafficking the defendant[]

________________

knowingly carried

a firearm.

In light of the

actual instruction given, Pagan-San-Miguel's

attack on the instruction does not rise to the level of plain

error.

Pagan-San-Miguel also argues

allowed the

jury to convict

that the

for a crime not

instruction

charged in the

indictment because the firearms charge was limited to Count 2

of

the

cannot

three drug

counts.

Pagan-San-Miguel

articulate how, in the

context of this

possibility created a "miscarriage

affect[ed] the fairness,

judicial

proceedings".

not and

case, such a

of justice" or "seriously

integrity or

See
___

has

public reputation

of

United States v. Olano, 113 S.

_______________________

Ct. 1770, 1779 (1993).

5.

Jury Instruction on Flight.

__________________________

Pagan-San-Miguel

court erroneously

also

instructed the

argues

that

the

jury about his

district

flight and

concealment.

This argument

is meritless.

As long

is an

adequate factual predicate supporting

guilt

on the crime charged,

the

accused's

consciousness

flight may

of guilt.

as there was

be

admitted

as there

an inference of

here, evidence of

at

trial

to

show

See United States v. Hernandez___ _____________________________

Bermudez, 857 F.2d 50, 52 (1st Cir. 1988).

________

6.

Read-Back To The Jury.

_____________________

Pagan-San-Miguel

the district

and Luciano-Mosquera

court committed

error when

-3636

assert that

it failed

to take

certain precautions in

allowing the

Ramos, the boat captain, to

testimony of

be read back to the jury

jury's request, during deliberations.

to

the procedures

agreement among

at the

Counsel did not object

followed; in fact,

counsel.7

Castillo-

To prevail,

what happened

was by

defendants must show

plain error.

It

district

certainly would

court to have

have been

preferable for

taken some precautions.

United States v. Hernandez,

__________________________

the

See, e.g.,
___ ____

27 F.3d 1403, 1408-09 (9th

Cir.

1994) (reversing a conviction

take

precautions to

testimony

that

prevent undue

jury

emphasis on

reviewed during

denied, 115 S. Ct. 1147 (1995).

______

and

where district court failed to

the standard set by Olano

_____

overwhelming evidence

But

deliberation),

counsel did

is not met.

of guilt on

the witness

a miscarriage

precautions

of justice,

seriously

affect

the drug counts

nor did

the

not object

In light of the

Castillo-Ramos' testimony went, the read-back did

in

to which

not result

the absence

fairness,

cert.
_____

of such

integrity

or

____________________

7.

The court reporter entered the jury room unsupervised and

read the testimony.

The court gave the jury no cautionary

instructions (i.e., that the testimony was not to substitute

for the jurors' memories, or that the jury should not focus

on one particular aspect of the evidence to the exclusion of

other evidence).

There was no observation of the court

reporter's reading of the testimony to ensure that no

editorializing or slanting was done during the reading.

No

instructions were given to the court reporter to be careful

not to converse with the jurors or otherwise taint their
deliberations and to be careful not to read to the jury
potentially prejudicial side-bar conferences she had recorded
during the course of Castillo-Ramos' testimony.

-3737

public

reputation

of judicial

proceedings.

There is

no

evidence that anything untoward happened in the jury room and

no

reason to

think

the reporter

did

anything other

than

properly read the pertinent portions of the record.

Pagan-San-Miguel

and

Luciano-Mosquera also

argue

they were never consulted by either of their attorneys or the

court about

whether

they

would waive

present during the read-back.

their

right

to

be

Although the defendant's right

to be present at every stage of the proceedings may be waived

by the defendant,

it is less

attorney can waive it.

418

&

n.24

(1988).

Luciano-Mosquera

actually

gave his

clear whether the

defendant's

See Taylor v. Illinois, 484 U.S. 400,

___ __________________

Nevertheless,

were present

at

testimony and

the

Pagan-San-Miguel

time

so could

and

Castillo-Ramos

"confront" their

accuser.

There was no plain error.

III.

A.

SENTENCING ISSUES

Pagan-San-Miguel
________________

Pagan-San-Miguel

grounds,

not

challenges

neither of which has

have been given

organizer of

Guidelines.

See
___

United

He

level increase

the activity under

Guidelines Manual,
_________________

should have

a four

merit.

his

3B1.1(a)

States

as a

leader or

of the Sentencing

Commission,

He also argues he

downward adjustment of

for acceptance of responsibility under U.S.S.G.

-3838

two

asserts he should

Sentencing

3B1.1(a) (Nov. 1991).

been given a

sentence on

two levels

3E1.1(a).

Absent a

of a

mistake of law, the

district court's determination

defendant's role may be set aside only for clear error.

United States v. Tejada-Beltran, 50 F.3d 105,

________________________________

1995).

There was no error.

The

Miguel's

111 (1st Cir.

facts

leadership

outlined

and

earlier establish

organizational

role.

Pagan-San-

Fontalvo

testified

charge

the

that

Pagan-San-Miguel

was "the

of all the merchandise."

operation were

"Gigante,"

Pagan-San-Miguel's argument

finding that at

and control

land

in

Indeed, his

code names in

"Padrino," and

"Godfather."

that the court

made no specific

least four others were under

does not help

person

him.

It was

his leadership

obvious that

nine

others, at the least, were involved in addition to Pagan-San-

Miguel.

And "retention of

control over other participants .

not

attribute

. is

an essential

of organizer

status."

Tejada-Beltran, 50 F.3d at 113.

______________

As

to

determination of

acceptance

the sentencing

deference on review."

fact

that

of

U.S.S.G.

Pagan-San-Miguel

in

responsibility,

judge is entitled

3E1.1,

to great

comment. (n.5).

pre-trial

plea

"the

The

bargaining

unsuccessfully offered to plead guilty

certain

basis

conditions were

to

reverse

the

met does

to the drug counts if

not provide

district court's

adjustment is not intended

a sufficient

decision.

to apply to a defendant

"This

who puts

the government to its burden of proof at trial by denying the

-3939

essential factual

then admits

comment.

His argument

court's

"demonstrate[]

a recognition

U.S.S.G.

is not enough

determination

personal responsibility for his

3E1.1(a);

convicted, and only

guilt and expresses remorse."

(n.2).

district

elements of guilt, is

that

3E1.1,

to reverse the

he

and affirmative

failed

to

acceptance of

criminal conduct."

see also United States v. Curran, 967

________ ________________________

U.S.S.G.

F.2d 5, 7

(1st Cir. 1992).

B.

Gonzalez-Valentin
_________________

Gonzalez-Valentin argues he was a minor participant

and thus

3B1.2(b).

entitled to

a two level

reduction under

The trial judge's determination

U.S.S.G.

was not clearly

erroneous.

See
___

United States v. Lopez-Gil, 965 F.2d

___________________________

1124,

1131 (1st Cir.), cert. denied, 113 S. Ct. 484 (1992).

____________

Gonzalez-Valentin was at the beach to assist in the

offloading; his

house was

used regularly

smuggling; weapons were shown and

communications

There

average

was

radio was

ample

participant.

See
___

drug

discussed at his house;

hidden and

evidence he

to plan the

was

used in

more

U.S.S.G.

his backyard.

culpable than

3B1.2,

the

comment.

(backg'd.).

C.

Lugo-Maya
_________

In addition

on

to the mandatory sentence

Count 4, Lugo-Maya was sentenced

the drug counts,

Counts 1-3.

of 30 years

under the Guidelines on

Lugo-Maya challenges on appeal

-4040

the district court's

calculation of his guidelines

on the

He argues the court erred in not giving

drug counts.

him two-level reductions each

pursuant

to

responsibility,

U.S.S.G.

for being a minor participant,

3B1.2(b),

pursuant to

sentence

and

U.S.S.G.

for

acceptance

3E1.1(a).

As

of

the

district

court properly

found,

participant -- he supplied

Lugo-Maya was

not a

the yawls, sailed one out

mothership, helped to unload the drugs from

minor

to the

the boat, sailed

the drugs to shore and helped unload them to the land.

As to

acceptance of responsibility, Lugo-Maya's claim is factbound,

and

the district

erroneous.

Cir. 1990).

court's resolution

of

it is

not clearly

See United States v. Royer, 895 F.2d

___ ______________________

28, 29 (1st

His sentence on the drug counts is affirmed.

IV. SECTION 2255 MOTION ISSUES

While

these

Pagan-San-Miguel filed

28 U.S.C.

consolidated

in the district court

2255 to vacate and

the ground that the

appeals

set aside his

were

pending,

a motion under

conviction on

court reporter's delay in providing

him

with a transcript

denied him

and, therefore, deprived

his right to

him of

a timely

due process of

appeal

law.8

The

____________________

8.

Pagan-San-Miguel filed his notice of appeal on August 3,

1992.

Around that time, the court reporter agreed to furnish

the necessary transcripts to Pagan-San-Miguel.

The court

reporter, however, did not provide any transcripts to PaganSan-Miguel until mid-1994.

Largely due to the court

reporter's failure to prepare the transcripts, this court

extended the period for briefing the case sixteen times.

On

at least three occasions this court entered Orders to Show

Cause threatening the court reporter with contempt if she did

-4141

district

court denied

the motion.9

On

appeal, Pagan-San-

Miguel argues that this was error.

Although

appeal may

amount

extreme delay

to a

caused by court reporters

for

purposes of

deprived of

16 F.3d

in

the processing

of

an

due process

violation, and

delays

are attributable to the government

determining

whether a

defendant has

been

due process, see, e.g., United States v. Wilson,

___ ____ _______________________

1027, 1030 (9th

itself will not give rise

Cir. 1994), mere

delay, in and

to a due process infraction.

defendant must show prejudice.

of

The

See United States v. Tucker,

___ _______________________

8 F.3d 673, 676-77

114 S. Ct. 1230

in

(9th Cir. 1993) (en banc),

(1994).

prejudice sufficient

rests, most

the appeal or

Whether an appellate

to warrant

importantly, on a

cert. denied,
____________

delay results

reversing

a conviction

showing that it

has impaired

the defense in the event of

retrial.

See id.
___ ___

at 676.

____________________

not produce the transcripts.

9.

We have held that absent extraordinary circumstances a

district court should not entertain a

2255 motion while a

direct appeal from the same conviction is still pending.

United States v. Gordon, 634 F.2d 638 (1st Cir. 1980).
_______________________
Nevertheless, instead of dismissing Pagan-San-Miguel's motion
as being premature, the district court denied the motion.

In

such a case, we may elect to reach the merits of the

motion.

2255

See United States v. Buckley, 847 F.2d 991, 993 n.1,

___ ________________________

1000 n.6 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989);
____________
see also Rule 5, Rules Governing Proceedings in the United
________
States District Courts Under Section 2255 of Title 28, United
States Code, advisory committee note (1976).

-4242

There

appalling

was no

delay in

prejudice.

preparing the

Although

there was

transcripts, there

an

is no

argument

they are incomplete

situation

in

which

unusable transcript.

the

or unreliable.

court

reporter

has

is not a

prepared

an

Compare Wilson, 16 F.3d at 1031 (record

_______ ______

had portion missing or was unintelligible so

totally

This

unreliable).

that record was

Indeed, Pagan-San-Miguel

only argues

that the delay impaired his ability to present "the strongest

possible evidence

the

facts"

testimony

however,

handling of

not

surrounding

to

no

in support

the

the

jury.

objection

was

the read-back.

of the appellant's

read-back

As

of

version of

Castillo-Ramos'

Pagan-San-Miguel

made to

And since

the

district

concedes,

court's

Pagan-San-Miguel has

shown plain error in this regard, this argument does not

make a difference to his appeal.10

The order

of the district court denying his

2255

motion is affirmed.

CONCLUSION

The

convictions

and

sentences

of

appellants

Luciano-Mosquera, Pagan-San-Miguel, and Gonzalez-Valentin are

affirmed on

all counts.

Pava-Buelba are reversed

The

convictions of

on Count 4

Lugo-Maya and

and their sentences

____________________

10.

Alternatively, Pagan-San-Miguel requests that we set

aside his conviction pursuant to our supervisory powers.

This is not an appropriate case for this court to exercise
its supervisory powers.

See Tucker, 8 F.3d at 676.

___ ______

-4343

on

that

count

are

vacated.

Lugo-Maya's

and

Pava-Buelba's

convictions and sentences on the drug counts, Counts 1-3, are

affirmed.

Miguel's

The

district

court's order

2255 motion is affirmed.

denying

Pagan-San-

It is so ordered.
________________

-4444