USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1221
UNITED STATES,
Appellee,
v.
LUIS E. OVALLE-MARQUEZ,
Defendant - Appellant.
____________________
No. 93-1458
UNITED STATES,
Appellee,
v.
MIGUEL A. RIVERA-SANTIAGO,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________

____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Carter,* District Judge.
______________
____________________
*

Of the District of Maine, sitting by designation.

_____________________

Beverly P. Myrberg for appellant Luis E. Ovalle-M rquez.

__________________
H. Manuel Hern ndez, by Appointment of the Court, for
_____________________
appellant Miguel A. Rivera-Santiago.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with
________________________
whom Guillermo Gil, United States Attorney, was on brief for
_____________
appellee.

____________________
September 29, 1994
____________________

-2-

TORRUELLA,
seven-count

Circuit Judge.
_____________

indictment

appellants Luis Enrique

charging

A grand
nine

jury returned

defendants,

including

Ovalle-M rquez ("Ovalle") and Miguel

A.

Rivera-

Santiago

("Rivera"),

with

offenses

related

to

the

importation of cocaine, and possession of cocaine with the intent

to distribute.
verdicts

against

Pursuant to
court

A trial

was held and

Ovalle

and

the applicable

then sentenced

imprisonment.

Ovalle

their convictions

the jury

Rivera

on four

returned guilty
of

sentencing guidelines,

both Ovalle

and Rivera

and Rivera

now appeal,

and their sentences

the

counts.

the district

to terms

of life

challenging both

on a variety

of grounds.

We affirm.
I.
I.
A.
A.

BACKGROUND
BACKGROUND
__________

Facts
Facts

The testimony and other evidence properly introduced at

trial,

viewed

established

in

the light

most

favorable

to the

verdicts,

the following facts.

See United States v. Rivera___ ______________

_______

F.2d 1073, 1078-79

(1st Cir.), cert. denied, 492

_____________

Santiago, 872
________

U.S. 910 (1989).

A
Linder,

paid

alerted

Administration

government
special

("DEA") to

Lajas/Cabo Rojo area of

confidential
agents

a drug

of

informant,

the

Drug

Enforcement

trafficking operation

Puerto Rico.

Linder, a

Willie

in the

German citizen,

is a fisherman who has lived in Puerto Rico since 1960.

On November
co-defendants

Sergio

27, 1991, Linder met

Monteagudo-Mart nez
-3-

with Ovalle, Rivera,

("Monteagudo"),

and

Humberto

Artunduaga-Alvarado

in

Las

Cuebas,

Puerto

Rico.

(Monteagudo entered into a plea agreement with the government and

testified

for

the

prosecution).

individuals planned
cocaine

to

At

this

import approximately

(approximately

22

bales),

which

meeting,

800
was

these

kilograms
to

be

of

first

airdropped in waters off the coast of the Dominican Republic, and

then

brought

into

planned to use

Puerto

Rico.

The

meeting's

two vessels - Linder would captain

and Monteagudo would captain the other boat.

depart from

Puerto Rico

Espada, Dominican
people

unknown to

vessels.

for a location

Republic, where, with

them, they

participants

his own boat,

These vessels would

off the coast

the help of

would load

Tentatively, they scheduled the

of Punta

some other

the cocaine

onto the

smuggling venture for

sometime between December 8-13, 1991.

On November

29, 1991, Ovalle and

$1000 to Linder for the purpose

boat.

of enabling Linder to repair his

Thereafter, and up until December 9, Ovalle and Artunduaga

sporadically met with Linder

repairs

Artunduaga delivered

to inquire about the status

of the

to his boat, and to provide Linder with additional money

to complete the repairs.

Rivera apparently

became suspicious of Linder, and the

defendants did not then include Linder in the smuggling operation

planned

for early

December.

On

or

about December

7,

1991,

Ovalle, Rivera and Monteagudo, as well as others, met to finalize

the plans for the smuggling operation, without Linder's help.
this December 7

meeting, Rivera gave Monteagudo two

At

firearms, a

-4-

.38 caliber revolver and a .22 caliber pistol.

Ovalle loaded the

firearms for Monteagudo.

On
Victor

December 9,

Chala-Ramos

1991, Monteagudo,

("Chala"),

and

two

co-defendant Santos
other

Dominican Republic, picked up 21 bales, containing

800

kilograms of

cocaine,

off

the

coast

of

men

from

the

approximately
Santo

Domingo,

Dominican Republic, after giving a pre-arranged signal to a plane

flying

nearby.

Because one

planned to use to pick up

take one boat
cocaine hidden

of the

boats that

Monteagudo had

the cocaine was damaged, he decided to

with 11 bales

of cocaine, and

leave 10 bales

of

on a nearby beach, guarded by the two man crew of

the damaged boat.

On December 11, 1991, Monteagudo proceeded to import 11

of

the 21 bales

however, began
the

other

of cocaine into Puerto

to pursue

Dominican

Rico.

Unknown persons,

Monteagudo's boat, and

man

on

board

(known

to

Monteagudo and
Monteagudo

as

"Queque"), threw seven bales into the water in an attempt to halt

the pursuit and minimize the loss of the entire load.
eventually

delivered

the remaining

four

bales

Monteagudo

to Ovalle

and

Rivera.
The defendants then arranged to import the rest
cocaine that had been left behind in
December 12, Ovalle and

of the

the Dominican Republic.

Rivera met with Linder to

On

survey areas,

including Playita Rosada in La Parguera, Puerto Rico for possible

landing sites to import the additional cocaine.
On December 13, Ovalle,

Rivera and Artunduaga met with

-5-

Linder at his home to obtain his help in importing

bales

of cocaine.

Ponce

for further instructions.

another man

Linder was instructed

as arranged.

where Linder left

his car,

the other ten

to meet with Ovalle in

Linder then met with Ovalle and

The men then

went to Rivera's

and Rivera, Ovalle,

other man then proceeded to a pier in Ponce.

Linder and

home,

the

Monteagudo met them

there,

and Monteagudo

Lajas,

Puerto Rico.

and Linder

then departed

Sometime during the

in a

boat for

day, Linder contacted

DEA agents and advised them of the planned venture.

On December 14,

Monteagudo and Linder departed

Rico to a rendezvous point

Puerto

near Saona, Dominican Republic, where

they were assisted by several Dominican men in the loading of the

remaining ten bales of cocaine (372 kilograms).
day,

On the following

Monteagudo and Linder returned to Playita Rosada, where DEA

agents seized

the cocaine and

arrested Monteagudo.

DEA agents

subsequently arrested Ovalle and Rivera.

B.
B.

Procedural Background
Procedural Background

On

June

3,

1992,

a grand

jury

returned

second

superseding seven count indictment against Ovalle and Rivera, and

seven other defendants.
charged
with

the defendants

the intent

Counts

One and Two

with conspiring

to distribute,

of the

to import,

approximately 800

indictment

and possess

kilograms of

cocaine from November 27 to December 17, 1991, in violation of 21

U.S.C.
the

841(a)(1),

defendants

approximately

with

846, 952(a) and

aiding

418 kilograms of

963.

and abetting

Count
the

Three charged
importation

cocaine on December
-6-

of

11, 1991 in

violation of 21 U.S.C.
charged the

952(a) and 18

defendants with

with intent to distribute

on December 11, 1991,

U.S.C.

aiding and abetting

Count

Four

the possession

approximately 150 kilograms of cocaine

in violation of 21 U.S.C.

18 U.S.C.

2.

aiding and

abetting the importation, and

to

2.

Counts Five and Six charged

841(a)(1) and

the defendants with

possession with intent

distribute, 372 kilograms of cocaine on December 15, 1991, in

violation of 21 U.S.C.
Count Seven charged
use and carrying

841(a)(1) and 952(a), and 18 U.S.C.

the defendants with aiding

of firearms in relation

violation of 18 U.S.C.
The trial

2.

and abetting the

to a drug

offense, in

924(c)(1).

commenced on August

25, 1992, and

the jury

returned guilty verdicts against Ovalle and Rivera on Counts One,

Two,

Five and Six.

The jury

acquitted all

of the defendants,

including Ovalle and Rivera, of the charges in Counts Three, Four

and Seven.
On

January

22,

1993,

the court

hearing and determined that Ovalle's

and that his

held

Criminal History Category

Ovalle

to

four

sentencing

total offense level was 46,

was I, therefore

his guideline sentencing range life imprisonment.

sentenced

concurrent

making

The court then

sentences

of

life

imprisonment.
At

a sentencing hearing

on April

2, 1993,

the court

determined that Rivera's total offense level was 47, and that his

Criminal History Category was I, which also mandated a sentencing

guideline range of

life imprisonment.

The court

then sentenced

-7-

Rivera to four concurrent sentences of life imprisonment.

Rivera and

Ovalle now

allege a

number of

challenge both their convictions and sentences.

grounds to

-8-

II.
II.

DID THE DISTRICT COURT IMPROPERLY LIMIT CROSS-EXAMINATION?

DID THE DISTRICT COURT IMPROPERLY LIMIT CROSS-EXAMINATION?
_________________________________________________________
Rivera

limited

his

contends

counsel's

witnesses, and that

that

the

right

court improperly

of

two

government

this denied Rivera his Sixth Amendment right

guarantees an

"to be

district

cross-examination

to confront adverse witnesses.

Sixth Amendment

the

The Confrontation Clause of

accused in a

confronted with

the

criminal proceeding

the witnesses

against him."

U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678
________
___________
(1986);
cert.

United States v. Alvarez,

______________
_______
denied, 114 S. Ct.

987 F.2d 77, 82

147 (1993).

(1st Cir.),

The Confrontation Clause

_____________
secures an

accused the right to

cross-examine adverse witnesses

in order to test "the believability of a witness and the truth of

his testimony."

United States v. Carty, 993 F.2d 1005, 1009 (1st

_____________
_____

Cir. 1993) (quoting Davis

_____

v. Alaska, 415 U.S. 308,

______

Alvarez, 987 F.2d at 82 (citations omitted).

_______
examine an adverse

witness, however, is

States v. Corgain, 5 F.3d

______
_______

316 (1974));

The right to cross-

not unlimited.

United
______

5, 8 (1st Cir. 1993); Carty,

_____

993 F.2d

at 1009; Alvarez, 987 F.2d at 82.

_______
[T]rial
judges retain
wide latitude
insofar as the Confrontation Clause is
concerned to impose reasonable limits on
such cross-examination based on concerns
about, among other things, harassment,
prejudice, confusion of the issues, the
witness' safety, or interrogation that is
repetitive or only marginally relevant.

Van Arsdall, 475 U.S. at 679; see also Carty, 993 F.2d at 1010;
____________
_________ _____
Alvarez, 987
_______

F.2d at 82; United States v. Moore, 923

______________
_____

F.2d 910,

913 (1st Cir. 1991).

We

review a

trial

court's decision
-9-

to limit

cross-

examination under an
F.2d

abuse of discretion

at 1011; United States v. Twomey,

_____________
______

standard.

Carty,
_____

993

806 F.2d 1136, 1140 (1st

Cir. 1986).
In order to establish that the trial
judge abused his discretion in limiting
cross-examination, the
defendant must
show that the restrictions imposed were
clearly prejudicial. . . .
An abuse of
discretion has occurred only if the jury
is left without "sufficient information
concerning formative events to make a
'discriminating appraisal' of a witness's
motives and bias."
Twomey,
______
F.2d

806 F.2d at 1140 (quoting United States v. Campbell, 426

_____________
________

547,

550 (2d

Cir.

1970))

(internal citations

omitted).

Rivera has made no such showing.

Rivera contends that his right to cross-examine adverse

witnesses

was unfairly

Rivera argues that

restricted

he was not

on four

occasions.

fully permitted to

First,

cross-examine

the confidential informant, Linder, regarding whether Linder

had

ever been a member of "Hitler's Youth League," or a member of the

French Foreign
of

fortune.

Legion, an organization known

Rivera claims

for being soldiers

that this testimony

was relevant in

order to show that Linder was familiar with guns, and that Linder
was a mercenary willing to do anything for money.

With respect to Linder's alleged membership in Hitler's

Youth League, Rivera's counsel failed to establish any foundation

showing how this line of questioning would establish that

Linder

was

familiar with

trial judge

guns.

The record

very patiently informed

establish the relevance of

indicates that
counsel that

after the

he needed

this question, and that he

to

needed to

-10-

lay some

sort of foundation for this

question, Rivera's counsel

did not pursue this specific line of questioning.

Thus, counsel,

and not the court, effectively cut off his own cross-examination.

Moreover, the fact that Linder may have been a member of Hitler's
Youth

League

when he

was

years

old

was of

virtually

no

relevance to this case, and the trial judge would have acted well

within his discretion in not permitting this line of questioning.

With respect to Linder's membership in the French Foreign Legion,

the record shows that Rivera's

counsel was able to cross-examine

Linder adequately, and that Linder admitted that he learned about

guns while in the French Foreign Legion, and that he was paid for
serving in this organization.1
Second,
limited his

Rivera

"Queque,"

that

the

court

cross-examination of Monteagudo with

attempts to cast doubt

Rivera's

contends

counsel
the

man

asked
who

improperly

respect to his

on Monteagudo's veracity and objectivity.

Monteagudo
had

about

accompanied

the

true

name

of

Monteagudo

when

he

attempted to smuggle the eleven bales of cocaine into Puerto Rico

____________________

1
Rivera claims that he was prejudiced by the fact that he was
only able to pursue his cross-examination regarding Linder's
involvement in the French Foreign Legion after being "required to
fully explain the basis of this line of questioning, within ear
shot of the witness, thereby revealing his defense strategy . .
."
After examining the record, we find Rivera's allegation that
the trial court somehow required him to disclose his defense
strategy
within hearing
distance of
the witness
to be
preposterous. Moreover, if Rivera's counsel was worried that the
witness would overhear him explain the basis of his line of
questioning, counsel should have
kept his voice down, or
requested that the witness be repositioned during the sidebar
conference.
-11-

on December 11,2 and

the true name

of Monteagudo's wife, in

an

attempt to show that "Queque" and his wife were cousins, and that
Monteagudo had a reason to steal part of

the shipment of cocaine

with "Queque."
Defense Counsel:
Okay, So you were
traveling with this fellow Queque and
he's Dominican like you; yes or no?
Monteagudo:

Yes, sir.

Defense Counsel:
yours?
Monteagudo:

And

Yes, sir.

who is a friend of

Defense Counsel:
And whose real name is
Nelson Mota; yes or no?
Monteagudo:

I don't know his true name.

Defense Counsel:
Your
Iris Mota; isn't it?
Prosecutor:
A

lengthy sidebar

wife's

name is

We have an objection.

conference was

then held,

and the

district

court stated that defense counsel could ask Monteagudo if he knew

what

"Queque's"

true name

was,

but

that

counsel

could

not

interject Nelson Mota's name into the question unless he had some
good

faith basis to

Nelson

Mota.

show that "Queque's" true

Defense

counsel

stated

name was in fact

that his

investigation

showed that "Queque's" true name was Nelson Mota, but counsel was
not

able to

point

to any

specific

identify any potential witness

fact, or

to

specifically

who would be able to

support the

____________________

2
In the indictment, "Queque" was identified as co-defendant
Carlos Cruz-Santiago, and he remained a fugitive throughout the
proceedings.
-12-

conclusion

of his

then refused to

supposed investigation.

permit Rivera's

The

counsel to pursue

district court
the line

of

questioning which

expressly linked the

name of

Nelson Mota

to

"Queque."
The

district court

determining that

did not

abuse its

discretion in

Rivera's counsel had failed to establish a good

faith basis to warrant further inquiry regarding the true name of

"Queque."

See,
___

872 F.2d

e.g., Carty, 993 F.2d at

____ _____

at 1085.

impeach

the

While the

credibility

impeachment

cannot

evidentiary

foundation.

There

was

theory

simply no

that
Nor

based

this

purpose of cross-examination is to

of

witness,

speculation

evidentiary

was there

the

and

basis

basis

innuendo

Rivera-Santiago,
_______________

"Queque" and

related.
on

be

1010; Rivera-Santiago,
_______________

872

F.2d

wife,

with

no

counsel's

Iris Mota,

any substantiated basis

alleged relationship,

the

at 1085.

for defense

Monteagudo's

for

Monteagudo

were

showing that,
and

"Queque"

collaborated to steal some of the cocaine.

The third
curtailing
questioning

of

Monteagudo

told

him

that

possibility that he could

if he

involved

regarding

the government.

the

the

court

improperly

defense

counsel's

terms

of

Specifically, Rivera's

his

plea

counsel

Monteagudo if when he entered into the plea agreement, the

government

at all.

instance of

cross-examination

agreement with
asked

alleged

if

cooperated

there

go free without serving any

Monteagudo replied no.

otherwise knew that

he

Rivera's

there was a
-13-

was

the

jail time

counsel then asked him

possibility he could

go

free

if

objected,

he

entered

and the

into

plea

court sustained

agreement.

The

the objection,

government

stating that

Monteagudo had just testified that he had not been told that.

A review of the record makes it clear that the jury was

well aware
agreement

of the fact that

with

the

government,

favorable treatment in
examination,
agreement
into

Monteagudo had entered into

and

that

he

would

a plea

receive

exchange for

his testimony.

Monteagudo stated that

he had entered

into a plea

the agreement

was admitted

with the

evidence.

government, and

The

benefits Monteagudo

jury

could therefore

was given

see

in exchange for

On

precisely what

his cooperation.

On cross-examination, Monteagudo also stated that he knew

facing a

sentence

of

15

years

cooperate with the government.

to life

when

direct

he

he was

decided

This evidence provided the

to

jury

with sufficient information to make a discriminating appraisal of

Monteagudo's motives and

biases.3

See,
___

e.g., Twomey, 806

____ ______

F.2d

____________________

3 After the court excluded the question of Rivera's counsel, the

court stated that it would instruct the jury regarding the plea
agreement.
In its final charge, the court explained the
circumstances surrounding the testimony of a co-defendant who had
pled guilty. The court stated:

In this case, there has been testimony

from a government witness who pled guilty
after entering into an agreement with the
government to testify. There is evidence
that the government agreed to dismiss
some charges against the
witness in
exchange for the witness' agreement to
plead guilty and testify at this trial
against the defendants.
The government also promised to bring the
witness' cooperation to the attention of
the sentencing court, and you all heard
-14-

at 1139-40.
As

fourth

ground,

Rivera claims

that

the

court

improperly cut off his cross-examination

of Monteagudo regarding

his understanding

the truth.

sustained

an

Monteagudo

of his

objection

knew that

record shows

oath to
by

he

that Rivera's

the

tell

prosecutor

was suppose

The

regarding

to tell

court

whether

the truth.

counsel had previously

The

made several

references to the fact that Monteagudo was under oath and that he
had an
court

obligation to tell the

sustained

the

truth.

objection,

it

On the

occasion that the

acted

well

within

its

discretion by cutting off repetitive questioning.

As

a final matter, we have

____________________

reviewed the entire cross-

that.
The government is permitted to
enter into this kind of plea agreement.
You in turn may accept the testimony of
such a witness and convict the defendants
on the basis of this testimony alone, if
it convinces you of the defendants' guilt
beyond a reasonable doubt. However, you
should bear in mind that a witness who
has entered into such an agreement has
an interest in this case different than
the ordinary witness.
A witness who
realizes that he may be able to obtain
his own freedom or receive a lighter
sentence by giving testimony favorable to
the prosecution has a motive to testify
falsely. Therefore, you must examine the
testimony with caution and weigh it with
great care and if after scrutinizing his
testimony you decide to accept it you may
give it whatever weight, if any, you find
it deserves.

We do not believe that the court improperly limited crossexamination regarding the plea agreement.
Moreover, in light of
this final instruction, we do not believe that Rivera has grounds
to complain that any limitation on cross-examination in that
regard prejudiced his ability to attack Monteagudo's credibility.
-15-

examination of both Linder and Monteagudo.

of each witness was

thorough, and we believe

sufficient

information

biases

judge

to

The cross-examination

the

regarding

the

credibility

of

truthfulness of their testimony.

that the jury

witnesses'
the

motives

witnesses

and

had

and

the

III.
III.
Rivera
engaged in

and

PROSECUTORIAL MISCONDUCT?
PROSECUTORIAL MISCONDUCT?
________________________
Ovalle

misconduct by

conspiracy with Colombian

any

such

both

claim

that

improperly tying the

ties, despite the lack

international drug

ring.

the

prosecutor

defendants to

of evidence of

Specifically, Rivera

and

Ovalle claim that references in the prosecutor's closing argument

to certain testimony by Monteagudo were improper.

The prosecutor

stated:
This is a well organized conspiracy. And
from where you can reason that?
You
remember November 27, the planning. From
where that cocaine was coming?
From
Colombia, South America.
Therefore, you
_______________________
can reasonably infer that some of these
defendants have contacts in Colombia,
________
because otherwise who would call them to
bring and to make the airdrop . . . .
This
is an
organization.
conspiracy not only in Puerto
also in Colombia.
________

It's a
Rico, but

The prosecutor also argued:

It's the fact that when Sergio Monteagudo
communicated with the plane using this
code the plane responded. He knew what
that man at the sea was talking about.
Therefore, someone
in the conspiracy
contacted back to Colombia and say to the
________
plane or some person:
Hey, the code for
the load, the air drop of the cocaine,
that the code is "Leandro" and "Matilde."
-16-

Rivera

and

inflame

Ovalle suggest

that

the remarks

were

intended to

the passions of the jury, members of which are bombarded

daily with superheated rhetoric of the government's war on drugs,

and

the prominent role that Colombia plays as a principal source

of drugs.
of

To warrant

reversal of a conviction

on the grounds

a prosecutor's improper jury argument, a court must find that

the

prosecutor's remarks

were both

See United States v. Young, 470

___ _____________
_____
which

urge a

jury to

impartial arbiter
arguments

that

act

of the
serve

inappropriate

U.S. 1, 11-12 (1985).

in any

capacity other

facts in the

no

and harmful.

Arguments

than as

case before it,

purpose other

than

to

passions and prejudices of the jury, are improper.

the

such as

inflame

the

United States
_____________

v. Manning, 23 F.3d 570, 574 (1st Cir. 1994); Arrieta-Agressot v.

_______
________________
United States, 3 F.3d 525, 527 (1st Cir. 1993).
_____________
We do

not believe that the prosecutor's remarks in his

closing were

improper.

that

had

Ovalle

told him

Colombia, and this was

conspirator.4

During the trial,

the

cocaine

was coming

an admissible hearsay statement of

See Fed. R.
___

____________________

that

Monteagudo testified

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

from

a co-

In his closing

4
Defense counsel argues that the court erred in admitting
Monteagudo's testimony that Ovalle had told him the cocaine was
coming from Colombia.
Defense counsel had previously objected
that Monteagudo could not testify that he knew that the cocaine
was coming from Colombia unless he in fact had such personal
knowledge.
The court effectively sustained this objection and
Monteagudo did not testify that he had personal knowledge that
the cocaine was coming from Colombia. Rather, Monteagudo then
testified that he only had second hand knowledge that the cocaine
came from Colombia based on Ovalle's statement to him, and
defense counsel did not object to this testimony. Any error in
the admission of the evidence was not preserved for appeal. See
___
United States v. Rosales, 19 F.3d 763, 765 (1st Cir. 1994). Our
_____________
_______
-17-

argument, the prosecutor

ask the

jury to

admitted

during

cocaine

from

Tajeddini,
_________

996

then did what he was

draw warrantable
trial

--

F.2d

inferences from

that the

Colombia into
1278,

Puerto
1283

omitted); see also United States

_________ _____________

conspiracy
Rico.

(1st

thus

the evidence
was

1993)

v. Moreno, 947 F.2d

______

of the conspiracy's

v.

(citations

7, 8 (1st

948 F.2d 1168,

1991), cert. denied, 113 S. Ct. 107 (1992).

____________

had a complete view

importing

United States
______________

Cir.

Cir. 1991); United States v. Abello-Silva,

______________
____________
(10th Cir.

entitled to do --

1182

The jury

efforts to import

cocaine -- conspirators picked up cocaine in Colombia, airdropped

it to waiting associates off the coast of the Dominican Republic,

who then

transported

the

cocaine

by boat

into

Puerto

Rico.

Despite the contentions of Ovalle and Rivera to the contrary, the

prosecutor's
level,

of

because
and

remarks were not the type, and did not approach the
rhetoric

we have

it served no other

previously
purpose but to

prejudices of the jury.

at 527

(finding that

found

to

be improper

inflame the passions

See, e.g., Arrieta-Agressot, 3 F.3d

___ ____ ________________

prosecutor's remarks

which urged

jury to

consider case as a battle in the war against drugs and defendants

as enemy soldiers,
of

"our

society"

and remarks which referred

and

the

poisoning

of

to the corruption
"our

children,"

____________________

standard of review under the circumstances is therefore "plain

error," and we will reverse only if the error "seriously affected
the fairness, integrity, or public reputation of [the] judicial
proceeding."
Id. (citations omitted). We answer the underlying
__
question -- did the court err in admitting the evidence -- in the
negative. We do not believe that the prejudice associated with
admitting Ovalle's statement outweighed the relevance of that
evidence, and the court did not abuse its discretion in admitting
that statement.
-18-

inflammatory
Machor,
______

and not

879

prosecutor's
"poisoning

permissible

F.2d

945,

955-56

remarks

in

closing

our community and our

argument);
(1st

Cir.

statement

United States
_____________
1989)
that

kids die because

v.

(finding

cocaine

was

of this" was

inappropriate), cert. denied, 493 U.S. 1081 (1990).5

____________
IV.
IV.
Rivera

INEFFECTIVE ASSISTANCE OF COUNSEL?

INEFFECTIVE ASSISTANCE OF COUNSEL?
_________________________________
claims

on

effective assistance of
conflict

of

interest

appeal

that

he

was

deprived

counsel at trial, because of

based

on the

relationship

of

an alleged
between

his

attorney and the attorney who represented Monteagudo, who was one
of

the main

government witnesses

attempt to raise this claim for

ill-timed.

"[A]

assistance cannot
criminal

district court."

claim

raised initially

conviction, but

must

trial.

Rivera's

the first time here on appeal is

fact-specific
be

during the

of
on

ineffective
direct review

originally be

presented to

United States v. Hunnewell, 891 F.2d

______________
_________

legal
of

the

955, 956

____________________

5 Ovalle and Rivera argue that there was a continuing pattern of

prosecutorial misconduct in this case due to the government's
endless objections during cross-examination, derogatory comments
about defense counsel in front of the jury, demeaning lectures to
defense counsel, and other
abusive tactics which deprived
defendants of a fair trial.
Specifically, they point to an
incident where the prosecutor allegedly improperly vouched for
the credibility of a government witness by stating that the
witness was telling the truth.
We have reviewed the record with
respect to this instance, and after considering the prosecutor's
alleged indiscretion in the context of an awkward colloquy
following defense counsel's question regarding
whether the
witness understood he had an obligation to tell the truth, and
the court's subsequent instruction that it was up to the jury to

determine if the witness was telling the truth, we do not believe

that there was any prejudicial error.
Additionally, we have
reviewed the entire record with a view for the other alleged
improprieties, and we do not believe that there was a continuing
pattern of prosecutorial misconduct.
-19-

(1st

Cir. 1989) (quoting United States v. Costa,

______________
_____

482-83 (1st
not

Cir. 1989)) (other

present

a claim

to the

conflict of interest deprived

Additionally,

the record is

matter to

enable us to

890

at

F.2d

483.

citations omitted).
district

Rivera did

court showing

that this

him of effective legal assistance.

not developed

enough as

consider this issue.

We

890 F.2d 480,

therefore

reject

a factual

See, e.g., Costa,

___ ____ _____
Rivera's

claim

as

premature, but do so without prejudice to Rivera's right to bring

such a claim under 28 U.S.C.
V.
V.
A.
A.

sentences

SENTENCING ISSUES
SENTENCING ISSUES
_________________

Standard of Review
Standard of Review

Ovalle
application of

2255.

and

Rivera

the sentencing

on a number

challenge
guidelines

of grounds.

When

the

district

in determining
we review

court's

their

a district

court's

application

bifurcated

of a

process.

First,

meaning and scope de novo.

_______
54
698,

(1st Cir.
701

sentencing
we

guideline,

review

the guideline's

legal

United States v. Brewster, 1 F.3d 51,

_____________
________

Cir.

1992)).

Next,

factfinding for clear error, giving

we

F.3d at 54

Corcimiglia,
___________

court's

724, 726

3742(e);

F.2d at 701).

We

sentencing need only

preponderance of the evidence.

967 F.2d

the

18 U.S.C.

(citing St. Cyr, 977

_______

also note that factbound matters related to

be supported by a

review

due deference to the court's

application of the guidelines to the facts.

v.

1993) (citing United States v. St. Cyr, 977 F.2d

______________
________

(1st

Brewster, 1
________

we utilize

(1st Cir.

United States
_____________

1992) (citations

omitted).
-20-

B.
B.

Rivera's Sentencing Challenges

Rivera's Sentencing Challenges

Rivera was convicted of four

sentencing, the court
analysis

that

drug related charges.

accepted the Presentence Report's

because Rivera

was

convicted

At

("PSR")

of conspiracy

to

import approximately 800 kilograms

of cocaine, and conspiracy to

possess with the intent to distribute approximately 800 kilograms

of cocaine,
The

the appropriate

base offense level

which

is based

involved.

on

sentencing guideline was

("BOL") is determined

the total

Because

the

amount

offenses

by

2D1.1(c)(2),

of controlled

involved

2Dl.1.6

800

substances

kilograms

of

cocaine, the BOL was determined to be 40.7

The

court then

enhanced the

upward adjustments, over Rivera's

a

two level

enhancement,

BOL by

applying several

objections.

pursuant to

The court applied

U.S.S.G.

2D1.1(b)(1),

because the court found that Rivera possessed firearms during the
commission of the
increased the
supervisor

BOL by three

in

participants.
under

offense.

criminal

The court

U.S.S.G.

Pursuant to
because it found
activity

3Bl.1(b), the

court

that Rivera

was a

involving

five

or

also made an upward adjustment

3C1.1,

based

on

its

finding

more

of two,

that

Rivera

obstructed justice by perjuring himself, and attempting to coax a

co-defendant

into providing

false

information

to a

probation

____________________

6
All references to the Sentencing Guidelines are to the 1992
guidelines, which were in effect at the time the court sentenced
Rivera and Ovalle.

7
Pursuant to
3D1.2(d), counts one, two, five and six were
grouped together into a combined offense level because the counts
involve the same general type of offense.
-21-

officer.
47,

The court

and because

therefore

faced

imprisonment.

determined that the total offense

Rivera's Criminal
a
The

guideline
court

then

History Category

level was
was I,

he

sentencing

range

of

life

sentenced

Rivera

to

serve

concurrent terms of life imprisonment as to the four counts.

-22-

1.
1.
Quantity
Quantity

The District
The District
of Drugs
of Drugs

Court's
Court's

Finding
Finding

Regarding
Regarding

the
the

The district court determined Rivera's BOL on the basis

of

his and his co-conspirators' conduct, and the total amount of

drugs involved in the

cocaine.

conspiracy, approximately 800 kilograms of

The court rejected Rivera's contention

decrease

the

relevant

because

Rivera

was

quantity

acquitted

importing and possessing

of cocaine
on the

372

substantive

418 kilograms of

cocaine involved in the case.8

to

that it should

kilograms
charges

of

the 800 kilograms

of

The court stated:

[I]n any event, on the preponderance of

the evidence the Court finds that this
defendant had jointly undertaken this
criminal activity and is held accountable
of the conduct of others. And that he
was found guilty by the jury on eight
hundred kilos [in] the Count charged.
And so that the Court finds that -- rules
that it's not going to lessen by two
points the three hundred and seventy-two
kilo amount under the relevant conduct

issue.
When

a defendant has been

convicted of a drug related

offense, a key factor in constructing the defendant's sentence is

the

quantity of narcotics attributable to him, a factor which is

determined

by looking at the sum of the charged conduct of which

____________________

8
Rivera argues that in denying each of Rivera's objections to
his sentence, the court incorrectly believed that its hands were
tied and that the court believed that it was required as a matter
of law to reject Rivera's contentions. Other than making this
general allegation, however, Rivera does not point to any
specific instances.
Moreover, we do not read the record this
way, and do not believe that the court incorrectly interpreted
its legal authority with respect to the various sentencing
issues.
-23-

the defendant was

convicted, plus his

United States v.
______________

Garc a,
______

(citations omitted);
F.2d

see also
________

456, 488 (1st Cir.),

U.S.S.G.

2D1.1.

954

The

F.2d

"relevant" conduct.
12,

15

(1st

United States v.
_____________

cert. denied, 114

____________
court determines

Cir.

See
___

1992)

Innamorati, 996
__________

S. Ct. 409 (1993);

the drug

quantity by

looking at all acts "that were part of the same course of conduct

or common scheme or plan as the offense of conviction."

1B1.3(a)(2); Garc a, 954 F.2d at
______

U.S.S.G.

15; United States v. Mak, 926

_____________
___

F.2d 112, 113 (1st Cir. 1991).

In the case of jointly undertaken

criminal

activity,

such

as

conspiracy,

defendant

is

accountable for "all reasonably foreseeable acts and omissions of

others

in

activity,

furtherance

of

the

jointly

that occurred during the

conviction, [or]
U.S.S.G.

in

that

1B1.3(a)(1)(B); see Innamorati,

___ __________

offense .

an offense

will only be

erroneous.

See Innamorati, 996 F.2d at 489.

___ __________

. .

996 F.2d at

regarding the amount of

set aside

criminal

commission of the offense of

preparation for

court's determination

undertaken

"

488.

drugs involved in

on appeal if

it is

clearly

The jury convicted Rivera of Counts One and Two, which

charged Rivera

with conspiracy

kilograms of cocaine.
to

U.S.S.G.

cohorts,

had

finding

all 800

was supported

and

found that

undertaken this

Rivera was accountable for

import and possess

and to

At sentencing, the court

1B1.3(a)(1)(B)
jointly

to import,

possess, 800

seemingly looked
Rivera,

criminal

and his

activity,

the other's conduct in attempting

kilograms of cocaine.

by evidence
-24-

introduced

The

at trial.

and

to

court's

Both

Linder

and

Monteagudo

Ovalle, and another

testified

that they

met

with

co-defendant on November 27,

Rivera,

1991, and that

at this meeting they planned to import into Puerto Rico, 22 bales

of

cocaine (800 kilograms) which

coast of the Dominican Republic.

that

the original scheme to

precisely
pursuit

according
by

of

the

Monteagudo

cocaine

and

Monteagudo

that

the

problems

unexpectedly

Testimony

Rivera

and Ovalle

by

chased

then

the

to dump

helped

and

to

by calling Linder into

boat,

so

that Linder

helped plan the

and

pick up and

Thus, the court did

that Rivera

and a

Linder

Dominican Republic, and

the cocaine.

implicitly concluding

did not proceed

on December 11, forcing them

him obtain

could go to the

by Monteagudo showed

of boat

plan and adapt it -

helping

import the rest of

who

overboard.

indicated

salvage the original

service

because

individuals

conspirators in their boat

some

Testimony

airdropped off the

import the cocaine

to plan,

unknown

were to be

not err by

logistics of

scheme to import the entire 800 kilograms, and therefore the

subsequent

acts by

his co-conspirators

were in furtherance of,

to execute

this scheme

and reasonably foreseeable in connection

with, the jointly undertaken felonious plan.

Rivera
substantive drug
the

correct

charges.
involved

The
in

contends

that

charges should

quantity

of

the

guide the court

cocaine

operative indictment
the December

verdicts

11, 1991

instead

of

regarding

in determining
the

grouped all of
and

the

conspiracy

the cocaine

the December

15, 1991

shipments

of cocaine together

(800 kilograms) in

Count One and

-25-

Two,

the conspiracy charges.

substantive charges
that

the

possess.
charges

into the

defendants

had

The jury

only

related

to

the

The indictment then broke down the

two distinct shipments

allegedly

attempted

convicted Rivera
December 15

of

of cocaine

to

import

and

the substantive

shipment,

involving

372

kilograms of cocaine (Counts Five and Six), and acquitted Rivera,

and

all of his co-defendants,

1991 shipment,
and Four).
the

involving 418 kilograms of

Therefore,

court to

with respect to

include

the December 11,

cocaine (Counts Three

Rivera contends that it was

the amount

of

improper for

cocaine involved

in

the

charges of which he was acquitted, in determining his BOL.

The fact
charges involving
however,
"relevant

that

that Rivera was acquitted

the 418

the

court

conduct."

sentencing court may

well as the facts
"appear

reliable."

When

kilograms of
could not

consider acts

cocaine does not

consider

determining

of the substantive

that

relevant

which were

F.2d at

conduct as
conduct,

not charged,

underlying a prior acquittal when

Garc a, 954

mean,

15; United

as

these facts

States v.

______

______________

Mocciola, 891 F.2d 13, 17 (1st Cir. 1989) (citation omitted); see
________
___
also United States v. Weston, 960 F.2d
____ ______________
______
(stating in dicta that
an issue for
proof).
and

an acquittal is not always

sentencing purposes due

As we have

Monteagudo

212, 218 (1st Cir. 1992)

conclusive on

to differing standards

previously noted, testimony

indicated

kilograms

of cocaine,

which was

the basis for

that

Rivera planned

including

the 418

Counts Three

of

by both Linder
to

import

kilograms of

and Four.

800

cocaine

There was

no

-26-

clear

error in the court's

Linder and
conduct
court

decision to credit

Monteagudo at sentencing, and

with respect to the

the testimony of

then consider Rivera's

800 kilograms of

cocaine, when the

determined Rivera's BOL.

See, e.g., Innamorati, 996 F.2d

___ ____ __________

at 489; Garc a, 954 F.2d at 16;

______

United States v. Sklar, 920 F.2d

_____________
_____

107, 110 (1st Cir. 1990).

2.
2.
Rivera

The Firearm Enhancement

The Firearm Enhancement
makes

similar

challenge

to

the

court's

decision to

enhance his sentence

because the court found

commission

of

testimonial
firearm
no

the

that a firearm was possessed

drug

evidence

pursuant to U.S.S.G.

offenses.

linking him

Rivera
and

his

2D1.1,

during the

argues

that

the

co-defendants to

was extremely weak, especially in light of the fact that

firearm

acquitted

was

ever

Rivera and

found.
his

charged them with aiding

in relation

to the

Additionally,

co-defendants of

because

Count Seven,

and abetting the carrying of

commission of the

the jury

which

a firearm

offense, Rivera

contends

that there was no basis for the court to enhance his sentence.
U.S.S.G.
enhance
firearm,

2D1.1(b)(1) directs a

a defendant's
was possessed.

BOL if

a dangerous

The

commentary to

sentencing court

to

weapon, including

2D1.1 states that

the sentencing court should impose the enhancement "if the weapon
was

present, unless it is clearly improbable that the weapon was

connected

with the

United States v.
______________

offense."
Castillo,
________

Corcimiglia, 967 F.2d

___________

at 727.

U.S.S.G.
979 F.2d

8,

The First

-27-

2D1.1
10 (1st

comment (n.3);
Cir.

Circuit has

1992);

followed

this

"clearly improbable"

726; United States v.

_____________

standard.

Corcimiglia, 967
___________

Ruiz, 905 F.2d 499,

____

F.2d at

507 (1st Cir.

1990).

We have found that:

when the weapon's location
makes it
readily available to protect either the
participants
themselves
during
the
commission of the illegal activity or the
drugs and cash involved in the drug
business,
there
will be
sufficient
evidence to connect the weapons to the
offense conduct . . . .
Corcimiglia, 967 F.2d at 727; see also Castillo, 979 F.2d at 10.
___________
________ ________
The defendant then has

the burden to come forward

with evidence

demonstrating the existence of

special circumstances that

would

render it "clearly improbable"

that the weapon's presence

has a

connection to the

narcotics trafficking.

Castillo, 979
________

F.2d at

10;
Corcimiglia, 967 F.2d at 727-28.
___________
As we have previously
to

consider

include
defendant

"relevant"

conduct

which

was

acquitted

discussed, the court is entitled

conduct
was

the

of,

as

at sentencing,
basis
long

establishes that conduct was reliable.

17.

The

court considered

decided to apply

for

this

may

charges

that

the

as the

evidence

which

Mocciola, 891 F.2d at 16________

such relevant

the U.S.S.G.

and

conduct here

2D1.1 enhancement.

found:
There's no question in my mind that there
was
a
gun
there.
Willie,
the

The

when it

court

Confidential Informant, talked about it.

Talked about taking the bullets out. Try
to make it inoperable.
And then we have
Monteagudo who said that he received two
guns, as a
matter of fact, from this
-28-

defendant.

And there is a gun.

The court then acknowledged that Rivera had been acquitted of the

firearms charge, but stated that because the court had found that
guns

were

possessed

in

connection

transactions, and Rivera did

clearly

improbable

connection

that

with these

with

the

narcotics

not convince the court that

the

gun

narcotic

would

have

transactions, it

been

it was
used

in

was going

to

apply the enhancement.

The court's

finding was

supported by evidence

record and was not clearly erroneous.

on December 7, at
finalize

the

Monteagudo testified

a meeting with Rivera, Ovalle, and

plans for

the

in the

smuggling

that

others, to

operation, Rivera

gave

Monteagudo two firearms, a .38 caliber revolver and a .22 caliber

pistol.

It was certainly

that Rivera had

given the

reasonable for the

two firearms to

court to conclude

Monteagudo, who

was

about to leave on his foray to pick up 800

kilograms of cocaine,

to facilitate

the guns,

this smuggling

plan.

With

Monteagudo

could protect
large

himself, and his

co-conspirators, as well

quantity of cocaine they

Linder

testified

were to pick

that Monteagudo

caliber pistol with them

had

in

up.

as the

Additionally,

fact brought

on December 15, when he

.22

and Monteagudo

went to the Dominican Republic to pick up the remaining ten bales

of cocaine and bring
circumstances

the cocaine to

showing that

it was

Puerto Rico.

Thus,

clearly improbable

absent

that the

firearms were connected to the drug offense, there was sufficient

evidence to support the enhancement.

Rivera has not claimed that

-29-

any

such special

circumstances

properly applied the U.S.S.G.

3.

U.S.S.G.
was

an

challenges

a supervisory role
3B1.1(b), claiming
underling,

organization.

The court

therefore

2D1.1 enhancement.

The Supervisory and Managerial Role Enhancement

The Supervisory and Managerial Role Enhancement

Rivera
playing

existed.

who

the

three-level

which the court

enhancement

imposed pursuant to

that the evidence

merely

followed

for

demonstrated he
orders

in

this

The court found that "the defendant's role is of a

manager/supervisor and

it has been adequately

supported by this

record."
error.

We

review this

role-in-the-offense ruling

United States v. Judusingh, 12

_____________
_________

1994) (citation

omitted);

for clear

F.3d 1162, 1169 (1st Cir.

United States
_____________

v. Rodr guez Alvarado,

__________________

985 F.2d 15, 19 (1st Cir. 1993) (citations omitted).

A three-level

enhancement under U.S.S.G.

appropriate if the government

manager

3B1.1(b) is

shows that the defendant 1)

was a

or supervisor of the criminal activity (but not a leader

or organizer); and 2) the criminal activity involved five or more

participants or was otherwise extensive.
F.2d at 20.
in

the

Rodr guez Alvarado, 985

__________________

The terms "manager" and "supervisor" are not defined

guidelines.

A court

can find

that

a defendant

manager or supervisor where he "exercised some degree

over others involved in

is a

of control

the commission of the crime or

he [was]

responsible for organizing others for the purpose of carrying out

the

crime."

See Rodr guez Alvarado, 985

___ ___________________

F.2d at

20 (quoting

United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)).
_____________
______
The court did not

err in finding that Rivera

-30-

played a

managerial or
The

supervisory role in the

record

supports

the

drug smuggling operation.

conclusion

that

Rivera

played

predominant role in planning and organizing the logistics of this

criminal operation:
planning meeting;

1) Rivera

was present at

2) Rivera gave Ovalle

the November

27

and Linder instructions

with respect to making sure Linder's boat was available to import

the cocaine; 3) Rivera initially became suspicious of Linder, and

then held a meeting where it was decided that Linder would be cut
out

of

the initial

attempt to

procured another boat

attempt

to

provided

import

to be used by
the

his cohorts in
of

4) Rivera

the initial

cocaine;

5)

Rivera

Monteagudo with two firearms to be used during the drug

6) Rivera, along with Ovalle, met with

Linder with respect to the

which had

There is also
involved

logistics of importing the

been left

no dispute

behind in the

that more than

in the drug smuggling plan.

the U.S.S.G.

The

five individuals

were

The Obstruction of Justice Enhancement

The Obstruction of Justice Enhancement
government

obstruction of justice.
1) that

requested

that

involved in
presented

the

court

enhance

3C1.1, based on Rivera's

The government based this request on two

Rivera had provided

probation officer at a
he was not

Dominican Republic.

The court properly applied

Rivera's sentence pursuant to U.S.S.G.

factors:

remaining

3B1.1(b) enhancement.
4.
4.

evidence

the cocaine;

800 kilograms

smuggling operations; and

cocaine

import

a false statement to

presentence interview to the effect

the November 27

at trial

showed

planning meeting,

that

Rivera

was in

the

that

when

fact

-31-

present and

actively participated in this meeting;

being found

guilty, Rivera sent

instructing

him to

officer

to the

provide false

effect that

Chala was unaware of the

be airdropped off the
none of the
operation.

a letter to

and 2) after

co-defendant Chala

information to

Monteagudo had

the probation

misled

Chala, that

plan to pick up the cocaine that was to

coast of the Dominican Republic,

defendants had

anything to do

with this

and that

smuggling

At sentencing, the court found that:

Well, I read the letter and the -- and
unfortunately there are parts of it that
I read and said well this could be an
individual writing to another individual
saying to him that, you know, they're not
guilty.
And
remember -- and
just
reminding him of the fact that they're
not guilty and that they have nothing to
do with it.
Unfortunately, the letter
goes beyond that.
There's instructions.
Actual instructions as to what to tell
people and just to -- . . .
And besides that there is another matter
of the perjury.

The court then applied the two level enhancement

for obstruction

of justice.
United
that

"if

the

States Sentencing
defendant

Guidelines

willfully obstructed

3C1.1 provides
or

impeded,

or

attempted to
during

the

instant

obstruct or

impede, the administration

investigation,

prosecution,

offense, increase the offense

enhancement

or

of justice

sentencing of

level by 2

levels."

the

The

applies where a defendant provides "materially false

information to a probation officer in respect to a presentence or

other investigation for the court."

U.S.S.G.

n.3(h); See United States v. Olea, 987

___ ______________
____

3C1.1, commentary

F.2d 874, 877

(1st Cir.

-32-

1993).

The enhancement also applies where

suborns

or

attempts

commentary n.3(b);
299

(1st Cir.

enhancement was
an

include

believed,

See United States

___ _____________

into

would

determination."

3C1.1,

v. Gonz les, 12
________

F.3d 298,

that the

bearing

the case).

any

U.S.S.G.

obstruction

warranted where the defendant

perjured matter is
to

suborn perjury.

1993) (finding

acquaintance

material to

to

a defendant commits,

The

false

witness

"fact,

statement,

tend to

influence

U.S.S.G.

attempted to coax
about

test for materiality

not a stringent one, and the

or

matter

of an alleged

term is defined

information

or affect

of justice

the

that,

if

issue under

3C1.1, commentary n.5; United States

_____________

v. St. Cyr, 977 F.2d 698, 705 (1st Cir. 1992).

_______

We review a court's factual findings with respect to an

obstruction

of

Gonz les, 12
________
found

justice

enhancement

F.3d at 299;

that Rivera

for

Weston, 960 F.2d

______

had perjured

with the probation officer.

justified

in

alone, because

enhancement

error.

at 220.

himself during

interview

applying the

clear

See
___

The court

the presentence

The court would have been

based

on this

Rivera's prevarication regarding his

finding

role in the

smuggling plan was material, in that it could have influenced the

probation

officer's investigation,

and ultimately

affected his

determination of Rivera's offense level.

Additionally,

the court

regarding the letter Rivera

heard testimony

and argument

sent to Chala, and implicitly

that Chala had

found

that

the letter was authentic,

received it, and

that

Rivera's letter specifically instructed Chala to lie to the

-33-

probation officer.

Statements Chala would make to the

probation

officer

what

smuggling

regarding

occurred

during

the

drug

operation, and statements attempting to portray Monteagudo as the

sole wrongdoer, were
or

affected

material in that they could have influenced

various

determination

of offense

sentencing

issues

levels, such

various defendants' roles in

related

as relevant

the offense.

to

the

conduct and

See, e.g.,
___ ____

Olea, 987
____

F.2d at 877 (defendant's statements that he was an unwitting dupe

and that he
for

had nothing to do with two

purposes

of U.S.S.G.

influence or affect
This

finding

3C1.1

because

the calculation of his

therefore also

enhancement.

drug sales were material

supports

See, e.g., St. Cyr, 977

___ ____ _______

the

they would

tend to

base offense level).

application of

the

F.2d at 705 (stating that

presentence reports are an important ingredient of the sentencing

process,

and

providing

materially

probation officer in respect to a

and can constitute
of

actual

regarding
cannot

not

was

the

application

the court's

to

presentence report is culpable

contends

that

letter is so
of

the

finding that

a showing

the

evidence

dubious that it

enhancement.

however, was for the sentencing

believe that

Rivera to

Rivera

the authenticity of the

determination,

information

obstruction of justice even absent

prejudice).

support

false

That

court, and we do

the letter

sent by

Chala, in an attempt to get Chala to lie, was genuine,

clearly erroneous.

The

court's two-level

obstruction of justice must stand.

C.
C.

Ovalle's Sentencing Challenges

Ovalle's Sentencing Challenges
-34-

enhancement for

Ovalle
charges

as

was convicted

Rivera.

of

the same

At sentencing,

appropriate sentencing guideline was

drug

quantity

cocaine.

attributable

The court

The court then

court found

that the

2Dl.1, and found

that the

Ovalle

it

found

criminal

that

court

kilograms

of

be 40.

activity

was

involving

leader

five

or

or

more

The court also enhanced Ovalle's BOL by applying a

found

that

Ovalle

commission of the offense.

offense

800

Ovalle

two level enhancement pursuant to U.S.S.G.

the

was

increased Ovalle's BOL by four levels pursuant to

of

participants.

related

therefore determined Ovalle's BOL to

3Bl.1(b), because
organizer

to

the

four drug

level

was 46,

and

Category was I, he therefore

possessed

2D1.1(b)(1), because
firearms

during

The court determined that

because

the

the total

Ovalle's Criminal

faced a guideline sentencing

History

range

of life imprisonment.
1.
1.

Were the Required Findings Made?

Were the Required Findings Made?

Ovalle contends that the

district court failed to make

the necessary findings at sentencing as required by Fed. R. Crim.

P.

32(c)(3)(D).

contended that the

Prior to the imposition of his sentence, Ovalle

PSR was incorrect

in that:

1) the

offense

level

of forty

involved (800
convicted
should

(40)

based upon

kilograms) was

of possessing

therefore only

the

total quantity

of

incorrect because Ovalle

372

kilograms, and

be thirty-eight

drugs

was only

the offense

(38); 2) the

level

four level

enhancement based upon Ovalle's role as an organizer or leader of

a

criminal activity was

incorrect because the

evidence did not

-35-

establish that
enhancement
Ovalle

he

for

played such
possession

never possessed

role; and

of firearms
firearm.

3)

was

Ovalle

the two

improper

level

because

contends that

the

quantity of cocaine that was involved, what role he played in the

conspiracy, and

whether he possessed a

firearm, were unresolved

factual matters in controversy prior to sentencing, and the court

failed to make any

findings with respect to these

matters prior

to sentencing him.
When a
inaccuracies, the
the

allegation,

defendant claims that the

PSR contains factual

district court must make

a finding concerning

or make

determination

that no

finding

is

necessary because the court will not take the matter into account
at sentencing.

Fed.

R. Crim. P. 32(c)(3)(D);9 United

States v.

______________
Savoie,
______

985

Gerante,
_______

F.2d 612,

620 (1st

891 F.2d 364, 366-67

Cir.

1993); United States v.

______________

(1st Cir. 1989).

"This protocol

serves the dual purpose of protecting the defendant's due process

rights and supplying a clear record for future proceedings
."

Savoie, 985 F.2d at 620; Gerante, 891

______
_______

F.2d at 367.

. . .

While we

____________________
9

Fed. R. Crim. P. 32(c)(3)(D) provides in pertinent part:

If the comments of the defendant and the
defendant's counsel or testimony or other
information introduced by them allege any
factual inaccuracy in the presentence
investigation report or the summary of
the report or part thereof, the court
shall, as to each matter controverted,
make (i) a finding as to the allegation,
or (ii) a determination that no such
finding is necessary because the matter
controverted will not be
taken into
account in sentencing.
-36-

have insisted on strict

found

that a

compliance with this rule, we

court "lawfully

may make

have also

implicit findings

with

regard to sentencing matters, incorporating by reference suitably

detailed

suggestions

advanced by

a party."

limned

the

[Presentence

report]

or

United States v. Tavano, 12 F.3d 301, 307

_____________
______

(1st Cir. 1993) (citations

981 F.2d 613, 619 (1st

in

omitted); see United States v.

___ _____________

Cir. 1992); United States v.

_____________

Cruz,
____

Wells Metal
___________

Finishing, Inc., 922 F.2d 54, 58 (1st Cir. 1991).

_______________
In
contentions

the

present

with respect

case,

after Ovalle

to the PSR,

from

both parties

regarding the

what

increases in the offense

the court

had

his

heard argument

appropriate offense

level were warranted.

then stated:
Allright.
The Court has heard comments
and arguments of counsel and has offered
an opportunity of
the defendant
to
address
the
Court with
respect to
sentencing.
It is the judgment, therefore, the Court
finds that on September the 4th, 1992,
the defendant Luis Enrique Ovalle M rquez
was found guilty by a jury trial as to
counts
One, Two, Five and Six
of
Indictment number - Criminal Indictment
Number 91-397.
Based on Guideline 2D1.1 and the amount
of cocaine involved
in the
offense
committed a base level of forty (40) was
determined.
Since
the firearm
was
possessed during the commission of the
instant offense an increase of two levels
is warranted.
As the defendant is
perceived as having been an organizer or
leader in the overall criminal activity,
the base offense level is increased by
four levels pursuant to Section 3B1.1.
-37-

raised

level and

The court

Incidentally, for purposes of the record

that is my finding with respect to your
arguments.
Based

on this

recommendations
kilograms
commission

record,

the court

and implicitly found

of cocaine,

adopted the

that Ovalle

Ovalle possessed

PSR's

possessed 800

the firearm

during the

of the offense, and Ovalle was an organizer or leader

in the criminal activity.

findings

therefore

in order

The court therefore made the necessary

to adequately

comply with

Fed. R.

Crim. P.

32(c)(3)(D).10
____________________

10 Ovalle also claims that his procedural due process rights

were violated by the court's failure to hear his objections to
the PSR. Ovalle failed to raise his objections to the PSR in the
manner required by District of Puerto Rico Local Rule 418. Local
Rule 418.4 provides that "[n]ot later than ten (10) days after
disclosure of the Presentence Investigation Report, the attorney
for the government and the attorney for the defendant . . . shall
each file with the Court a written statement of objections to any
material facts, sentencing classifications, sentencing guidelines
ranges, policy statements, sentencing options . . . contained in
or omitted [from] the Presentence Investigation Report.
Such
objections, if any, shall specify with particularity the facts
and applications contested. Any objection not presented in this
____________________________________
fashion may not be raised by any party and will not be considered
_________________________________________________________________
by the sentencing judge at the sentencing hearing."
(emphasis
___________________________________________________
added).
Ovalle's counsel only submitted his objections to the
probation officer, and he failed to submit his objections to the
court.
At sentencing, the district court initially stated that
because Ovalle had failed to comply with the local rule, the

court would not entertain his objections to the PSR.

Despite
Ovalle's procedural failure and the court's statement, however,
the record shows that the court then permitted Ovalle to advance
his objections as arguments to mitigate his sentence. The court
then made findings and imposed Ovalle's sentence. Because Ovalle
had ample opportunity to challenged the PSR's recommendations,
and the court heard and considered Ovalle's contentions regarding
sentencing, we do not believe that he was deprived of due
process. See United States v. Romano, 825 F.2d 725, 729-30 (2d
___ _____________
______
Cir. 1987); cf. United States v. Curran, 926 F.2d 59, 62 (1st
___ _____________
______
Cir. 1991) (stating in dicta that district court has broad
discretion to determine the appropriate procedure for availing
the defendant of an opportunity to challenge the accuracy of
presentence information presented to the district court); United
______
-38-

2.
2.

Challenges to the Enhancements

Challenges to the Enhancements

Ovalle claims
sentence

by

ruling

against

sentencing challenges.
a four level increase

that the court erred

him

with

in determining his

respect

to

his

three

With respect to Ovalle's first challenge,

in a defendant's BOL is

appropriate where

"the

defendant was an organizer or leader of a criminal activity

that

involved five

3B1.1(a);

or more

participants .

See United States v.

___ _____________

Cir. 1991); United States

_____________

. .

Sabatino, 943 F.2d

________

"

U.S.S.G.

94, 101 (1st

v. McDowell, 918 F.2d 1004,

________

1011 (1st

Cir. 1990).

The application notes to U.S.S.G.

nonexclusive

factors

which

considering

whether

organizational role
role.

These factors

defendant

of

participation in

the

should

played

consider

leadership

to a managerial

include "the

exercise of

of

the

crime,

planning or organizing the

or

decision making

accomplices, the claimed right

fruits

when

or supervisory

participation in the commission of

offense, the recruitment of

share

court

as compared

authority, the nature of

larger

the

3B1.1 list seven

the

degree

the

to a

of

offense, the nature

and scope of the illegal activity,

and the degree of control and

authority exercised

U.S.S.G.

n.3; Sabatino, 943

________
Rivera played a

over others."
F.2d at 101.

3B1.1, commentary

The sentencing court found that

leadership or organizational

role in this

drug

____________________

States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990) (holding
______
________
that government's failure to provide defendant with pre-trial
notice that it would seek an enhanced sentence pursuant to the
Armed Career Criminal Act did not violate defendant's procedural
due process rights where the defendant had the opportunity to
contest the record prior to sentencing), cert. denied, 498 U.S.
____________
1015 (1990).
-39-

smuggling operation,

and then enhanced his sentence.

The court

did not err.

The evidence in the record supports the conclusion that

Ovalle orchestrated and organized
plan.

The

individual
cocaine.

record
who

reasonably indicated

had

the closest

links

that
to

Ovalle

the

was the

source of

the

Ovalle told Monteagudo that the cocaine was coming from

Colombia, and
be

the logistics of the smuggling

it was Ovalle who was privy to the code that would

utilized to communicate with

Colombia

to

make the

the plane that

airdrop.

After

was coming from

Monteagudo

reported to

Ovalle and Rivera that he had been forced to throw seven bales of
cocaine overboard
individuals,

because his boat

Ovalle took Monteagudo to

called a person, who

and had

had been pursued

what had

Additionally, the evidence indicated

all

planning stages of

operation,
These
of

happened

a higher-up,

to the

that Ovalle directed

and Monteagudo, as well as

Ovalle also

cocaine.

that Ovalle was involved in

the operation, and

the actions of both Linder

conspirators.

a pay phone where Ovalle

was reasonably presumed to be

Monteagudo explain

by unknown

financed

various

other co-

portions of

the

such as providing money to Linder to repair his boat.

factors all suggest that Ovalle was a leader and organizer

the smuggling

operation,

and

the

court

did

not

err

in

respect

to

the

court's

enhancing Ovalle's BOL by four levels.

Ovalle's
determination
enhancement

of

contentions
the

with

quantity

of cocaine

involved,

and

its

based on the presence of a firearm, are analogous to

-40-

Rivera's challenges, which we have previously addressed.

not

rehash those

record

and

findings

discussions.

there

that

Ovalle

cocaine, and that he

drug

offense.

is

ample
was

Rather,
evidence

responsible

we
to
for

have reviewed
support the
800

sentencing determinations

the

court's

kilograms

possessed a firearm in connection

The court's

We will

of

with the

were not

clearly erroneous.

For the foregoing reasons, the decision of the district

court is affirmed.
________

-41-