181 F.3d 206 (2nd Cir.

1999)

UNITED STATES OF AMERICA, Appellee,

v.
OLGA MORENO, HECTOR BECERRA, Defendants,
OSCAR FABIO MORENO, HERNAN MORENO, DefendantsAppellants.
Docket Nos. 98-1293(L), 98-1296(CON)
August Term, 1998

UNITED STATES COURT OF APPEALS

THE SECOND CIRCUIT
Argued: March 8, 1999
Decided: June 22, 1999

[Copyrighted Material Omitted][Copyrighted Material Omitted]

M. KATHERINE BAIRD, Assistant United States Attorney for the
Southern District of New York, New York, NY (Mary Jo White, United
States Attorney, Christine H. Chung, Assistant United States Attorney,
New York, NY, of counsel), for Appellee.
EDWARD S. PANZER, New York, NY (Robert A. Culp, of counsel), for
Defendant-Appellant Oscar Fabio Moreno.
Jorge Guttlein, Aranda & Guttlein, New York, NY (Christine E.
Fernandez, of counsel), for Defendant-Appellant Hernan Moreno.
Before: CARDAMONE, STRAUB, and KEITH,* Circuit Judges.
STRAUB, Circuit Judge:

Defendants Appellants Oscar Fabio Moreno ("Oscar") and Hernan Moreno

("Hernan") (collectively, the "Morenos") appeal from judgments of the United
States District Court for the Southern District of New York (Sonia Sotomayor,
Judge) convicting them, following a jury trial, of conspiring to violate the
narcotics laws, in violation of 21 U.S.C. 846, maintaining a place for the
purpose of manufacturing, distributing, or using narcotics, in violation of 21

U.S.C. 856, and conspiring to tamper with a witness, in violation of 18 U.S.C.

371, and sentencing them both to life imprisonment. On appeal, the Morenos
contend, inter alia, that (1) the evidence was insufficient to convict them; (2) a
new trial is required because of alleged perjury committed by several
government witnesses; and, (3) the District Court erred in its determination of
the amount of crack cocaine (also known as "cocaine base" or "crack")
involved in the offense. Following our decision in United States v. Barnes, 158
F.3d 662 (2d Cir. 1998), the defendants raised an additional argument-that
because they were convicted by general verdict of conspiracy to violate the
narcotics laws, we should assume that the conviction was for conspiracy to
distribute the controlled substance, either crack or powder cocaine, with the
more lenient statutory maximum penalty. Accordingly, they argue that the
forty-year statutory maximum for distribution of between 500 grams and 5
kilograms of powder cocaine set forth in 21 U.S.C. 841(b)(1)(B), and not the
statutory maximum of life imprisonment for 50 grams of crack cocaine
provided in 21 U.S.C. 841(b)(1)(A), applies and that we should order them
resentenced accordingly. Because we agree that the defendants should be
sentenced based upon the type of narcotics involved in the drug conspiracy that
yields the lower statutory maximum sentence, we remand for a determination
of the amount of powder cocaine involved in the offense. See Barnes, 158 F.3d
at 668. We reject the Morenos' remaining arguments and affirm in all other
respects.
BACKGROUND
2

On appeal of a judgment of conviction where a defendant raises a claim of

insufficient evidence, we view the evidence in the light most favorable to the
government. See United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998). At
trial, the government introduced the testimony of four cooperating witnesses
who described various aspects of a drug distribution business in the Bronx that
the Morenos operated from 1989 until February 1994. Mateo Pimentel
("Pimentel"), who worked for several other drug dealers during the period of
the Morenos' operation, testified that between 1989 and 1990, Hernan ran a
drug "spot" on a staircase inside 1020 Walton Avenue in the Bronx that
employed seven or eight workers. Oscar supplied the workers with fifty bag
bunches of cocaine in small amounts and collected the money from purchases.
Pimentel testified that in 1990, Hernan's organization left the staircase at 1020
Walton and began selling drugs in front of the building. During this time, Oscar
was not only supplying drugs but was also selling powder cocaine and crack
cocaine and occasionally bartering drugs for other merchandise. Later, the
Morenos moved their operation to the corner of 165th Street and Walton
Avenue.

In 1992, Pimentel both worked for a dealer named "Fon" and began to sell
drugs on his own, purchasing his drugs from Hernan and Oscar at Oscar's
apartment at 1055 Walton Avenue For example, Pimentel testified that on one
occasion he went to 1055 Walton Avenue and watched Oscar weigh out
fourteen grams of cocaine; on two other occasions, the first of which was in
July or August 1992, Pimentel made two one-kilogram purchases of cocaine.
Another witness at trial, Pedro Silva Maldonado ("Silva"), who also worked for
Fon, testified that he and Pimentel purchased drugs from Hernan and Oscar on
several occasions. In November 1992, Silva was present when Oscar gave
Pimentel a shopping bag full of cocaine inside 1055 Walton. Silva and Pimentel
made an $11,000 purchase of cocaine from the Morenos at Oscar's apartment at
1055 Walton in December 1992. Silva and another cooperating witness who
testified at trial, Pablo Reyes ("Reyes"), were arrested in a raid on Fon's drug
apartment at 1062 Walton Avenue on December 17, 1992. Pimentel escaped by
jumping out a window; Hernan, who was also present, left before the police
arrived.

The government also introduced testimony concerning the "controlled delivery"

of a package that had been intercepted by the United States Customs Service
and was discovered to contain cocaine. The package was addressed to Olga
Moreno ("Olga"), Hernan's and Oscar's sister, at the apartment she shared with
Oscar-Apartment 6C, 1055 Walton Avenue. The Customs Service delivered a
dummy package to the apartment, and Olga's boyfriend, Hector Becerra, was
arrested when he left the apartment with the package shortly after the delivery.
Olga and Oscar were also arrested, and the apartment was searched by agents
of the Customs Service, revealing, inter alia, a black electronic scale, two air
pistols, cash, stereo equipment, baking soda, a balance scale, and gloves.1

The government's witnesses also testified concerning threats made by the

defendants to potential cooperating witnesses. In particular, Pimentel's common
law wife, Milagros Taveras, testified about several visits Hernan Moreno, his
wife Marina Nunez, and Oscar Moreno made, both prior to the first trial of
Olga and Oscar and prior to Oscar's retrial, in which Hernan and Oscar made
various threats concerning the possibility that Pimentel would testify against
Oscar.

After a jury trial held from May 19, 1997 until May 30, 1997, both Oscar and
Hernan were found guilty of each of the three counts in the third superseding
indictment. On April 9, 1998, the District Court conducted a Fatico hearing to
determine the amount of crack cocaine involved in the offense. See United
States v. Fatico, 579 F.2d 707 (2d Cir. 1978), cert. denied, 440 U.S. 910 (1979).
Pimentel, the sole witness at the hearing, testified that while he worked for a

rival drug dealer inside of 1020 Walton, he observed that over a period of three
to four months in 1989, Hernan's operation sold 200 to 300 bags of crack
cocaine a day, and up to 500 bags per day on the weekends. Each bag of
cocaine contained three to four lines of crack, or three to four tenths of a gram
of crack. For about five or six months thereafter, the workers in the Morenos'
operation sold 100 to 200 bags of crack a day. Based on this testimony, the
District Court concluded that the government had met its burden of proving that
Hernan and Oscar were responsible for over 1.5 kilograms of crack cocaine.
However, the District Court did not make a corresponding determination of the
amount of powder cocaine involved in the offense.
7

On May 26, 1998, the District Court sentenced the defendants principally to life
imprisonment. Both defendants received upward adjustments for obstruction of
justice for witness tampering pursuant to Sentencing Guideline 3C1.1 and for
leadership roles (four levels for Hernan, three for Oscar) pursuant to 3B1.1.
Oscar also received a two-level upward adjustment for possession of a firearm
in connection with the offense pursuant to Guideline 2D1.1(b)(1).

This timely appeal followed.

DISCUSSION
I. Sufficiency of the Evidence
9

The Morenos assert that the evidence at trial was not sufficient to sustain their
convictions.2 A defendant "carries a heavy burden" when challenging the
sufficiency of the evidence on appeal. Morrison, 153 F.3d at 49. When
considering such a claim, we

10

must consider the evidence in the light most favorable to the government,
crediting every inference that the jury might have drawn in favor of the
government, and we may overturn the conviction only if no rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt. We defer to the jury's determination of the weight of the evidence and
the credibility of the witnesses, and to the jury's choice of the competing
inferences that can be drawn from the evidence.

11

Id. (internal quotation marks and citations omitted).

12

In essence, the Morenos claim that the testimony of the four cooperating
witnesses at trial was contradictory, that none of these witnesses had any direct

experience with the Morenos' operation because they did not work for it, and
that their testimony regarding rival drug dealers sharing space and working
together was incredible. However, it was plainly for the jury to assess the
credibility of the witnesses and to decide whether their testimony was
believable. The evidence was more than sufficient for the jury to find that
Hernan and Oscar engaged in a conspiracy with many others to sell powder
cocaine and crack. Pimentel testified, for example, that he observed Hernan
actively involved in the sale of drugs in and around Walton and 165th Street
from 1989 to 1992, and that Oscar took drugs from Apartment 6C at 1055
Walton and collected money from the sellers. Similarly, the evidence of
Hernan's presence at the 1055 Walton apartment, Oscar's constant trips back
and forth from 1055 Walton to replenish the dealers' supplies, Pimentel's and
Silva's purchases of cocaine from Hernan and Oscar for Fon at 1055 Walton,
and the drug paraphernalia seized in Apartment 6C supports the conviction for
maintaining a place for distributing drugs. Finally, there was ample evidence of
threats to a witness to support the convictions for conspiracy to commit witness
tampering.
13

Accordingly, the Morenos' insufficient evidence claim fails.

II. Alleged Perjury By Government Witnesses

14

Both defendants argue that they are entitled to a new trial because two
government witnesses, Simon Enoa and Reyes, committed perjury. Pursuant to
Rule 33 of the Federal Rules of Criminal Procedure, a district court "on motion
of a defendant may grant a new trial to that defendant if required in the interest
of justice." Fed. R. Crim. P. 33. The motion must be made "within 7 days after
verdict . . . or within such further time as the court may fix during the 7-day
period," or, in the case of newly discovered evidence, within two years after
final judgment. Id.

15

In this case, the defendants failed to make a new trial motion before the District
Court within seven days. Instead, counsel for Hernan Moreno suggested that he
would make such a motion at a sentencing hearing on December 16, 1997-six
months after the guilty verdicts-in response to the District Court's refusal to
credit Enoa's testimony for sentencing. The District Court rejected this
suggested motion and stated that such a motion would amount to "wasting your
client's time" because even without Enoa's testimony the evidence against the
defendants was "overwhelming." The District Court also stated that Enoa "was
one among many informants who took the stand in this case....There [was]
certainly nothing intentional about the government's use of a confidential
informant who comes forth with the type of information this one did."

16

Because this purported motion for a new trial was made far outside the sevenday time limit, and there is no suggestion that the motion is based on newly
discovered evidence, it was untimely, and we lack jurisdiction to consider the
defendants' argument on appeal. See, e.g., United States v. Bramlett, 116 F.3d
1403, 1405 (11th Cir. 1997) ("The time limits imposed by Rule 33 are
jurisdictional. District Courts therefore lack jurisdiction to grant a new trial . . .
unless the motion is filed [in timely fashion]."); United States v. Gaydos, 108
F.3d 505, 512 (3d Cir. 1997); United States v. Graham, 97 F.3d 1145, 1147
(8th Cir. 1996). Moreover, even if the half-hearted motion before the District
Court could be deemed a request to extend the time in which to move for a new
trial, the District Court was not permitted to grant such an extension since the
extension was not "fix[ed] during the 7-day period" following "verdict or
finding of guilty." Fed. R. Crim. P. 33; see Fed. R. Crim. P. 45(b) ("[T]he court
may not extendthe time for taking any action under Rule[] . . . 33 . . . except to
the extent and under the conditions stated in [it]."). Since Rule 33 provides no
relevant basis for extending the time to make the motion, the motion was
untimely and was barred.

17

Even if the Morenos' claim were not barred, it lacks merit. "Whether the
introduction of perjured testimony requires a new trial initially depends on the
extent to which the prosecution was aware of the alleged perjury." United
States v. Damblu, 134 F.3d 490, 493 (2d Cir. 1998). If the prosecution "knew
or should have known of the perjury, a new trial is warranted if there is any
reasonable likelihood that the false testimony could have affected the judgment
of the jury." United States v. Wong, 78 F.3d 73, 81 (2d Cir. 1996); accord
United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991), cert. denied, 508
U.S. 939 (1993). Where the government "knowingly permitted the introduction
of false testimony reversal is 'virtually automatic.'" Wallach, 935 F.2d at 456
(quoting United States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975), cert.
denied, 429 U.S. 819 (1976)). However, "[e]ven assuming . . . that the
government knowingly introduced the perjured testimony . . . where
independent evidence supports a defendant's conviction, the subsequent
discovery that a witness's testimony at trial was perjured will not warrant a new
trial." Wong, 78 F.3d at 82; see also United States v. Reyes, 49 F.3d 63, 68 (2d
Cir. 1995) (affirming the district court's alternative holding that newly
discovered evidence did not warrant a new trial because the new evidence did
not directly refute a witness's testimony against the defendant and because
another witness provided even greater inculpatory evidence). On the other
hand, if the government "was unaware of the perjury at the time of trial, a new
trial is warranted only if the testimony was material and the court [is left] with
a firm belief that but for the perjured testimony, the defendant would most
likely not have been convicted." Wong, 78 F.3d at 81 (internal quotation marks

omitted) (alteration in original); accord Wallach, 935 F.2d at 456.

18

In this case, when the potential perjury of Enoa was raised at the December 16,
1997 hearing, the District Court concluded that "[t]here [was] certainly nothing
intentional about the government's use of a confidential informant who comes
forth with the type of information this one did" and that "[t]he evidence . . . was
overwhelming against [the defendants]." We agree on both counts. Similarly,
we conclude that, even assuming that Reyes' testimony was untruthful, the
government neither knew nor should have known of his perjury and the
perjured testimony had no effect on the jury's verdict. Thus, the defendants are
not entitled to a new trial based on the alleged perjury of Enoa and Reyes.
III. Sentencing Issues

19

The Morenos argue that the District Court erred in its determination that over
1.5 kilograms of crack cocaine was involved in the offense, resulting for
Sentencing Guidelines purposes in a base offense level of thirty-eight. See U.S.
Sentencing Guidelines Manual 2D1.1(c)(1). "The quantity of drugs
attributable to a defendant at the time of sentencing is a question of fact for the
district court, subject to a clearly erroneous standard of review." United States
v. Hazut, 140 F.3d 187, 190 (2d Cir. 1998). The government must prove the
amount of narcotics involved by a preponderance of the evidence. See United
States v. Desimone, 119 F.3d 217, 228 (2d Cir. 1997), cert. denied, 119 S. Ct.
174 (1998).

20

In the present case, the District Court's determination of the amount of crack
cocaine involved in the Morenos' offense was not clearly erroneous. The
District Court based its decision on Pimentel's testimony at the Fatico hearing
on April 9, 1998.Pimentel observed workers for the Morenos selling 200 to 300
bags of crack cocaine over the course of four to five months in 1989 at 1020
Walton. Over the following five to six months, Hernan's group sold 100 to 200
bags of crack per day in front of 1020 Walton. Thus, even assuming that the
Morenos' operation sold only 200 bags of crack per day, they would have sold
1.5 kilograms of crack within twenty-five days. Based on this testimony, the
District Judge had ample basis to conclude that Oscar and Hernan were
responsible for over 1.5 kilograms of crack.3

21

We also reject Oscar's argument that the District Court erred by enhancing his
sentence three levels for his role as a manager or supervisor pursuant to
3B1.1(b) of the Guidelines. Pimentel testified at the Faticohearing and at trial
that Oscar supervised the workers, made managerial decisions, delivered drugs

and collected money, engaged in bartering transactions with customers, and

was, "practically speaking, a partner" with Hernan who negotiated transactions
in Hernan's absence. The District Court found as much, and we perceive no
error.
22

After this appeal was fully briefed, the defendants submitted a supplemental
letter arguing that their sentences should be vacated and that they should be
resentenced in accordance with our recent decision in United States v. Barnes,
158 F.3d 662 (2d Cir. 1998). In Barnes, the defendant was convicted by general
verdict of conspiring to possess with intent to distribute four different controlled
substances-cocaine, cocaine base, heroin, and marijuana. Id.at 666-67. The
District Court sentenced the defendant based upon the cocaine base prong of
the conspiracy, yielding a Guidelines sentencing range of 210 to 262 months.
See id. at 667. Since the sentence involved more than fifty grams of crack, and
Barnes had previously been convicted of a felony, 21 U.S.C. 841(b)(1)(A)
provided a mandatory minimum sentence of twenty years, which "increased the
minimum end of the Guidelines sentencing range by thirty months" to 240
months. Id.

23

On appeal, Barnes challenged the use of crack cocaine to determine the

mandatory minimum under 21 U.S.C. 841(b)(1), and argued that, because the
jury reached a general verdict of guilty on a conspiracy to possess multiple
controlled substances, the verdict only authorized the application of the lowest
mandatory minimum among the drugs charged. In evaluating Barnes's
argument, "we assume[d] that the jury convicted the defendant of conspiring to
possess at least one of those controlled substances as to which the evidence was
sufficient." Id. at 668. However, "[b]ecause the general verdict of guilty [did]
not tell us whether the jury convicted the defendant [of conspiring to possess]
each of [the controlled substances]," we assumed "that the conviction [was] for
conspiracy to possess the controlled substance that carries the most lenient
statutorily prescribed sentence" pursuant to 21 U.S.C. 841(b). Id.; see also
United States v. Orozco-Prada, 732 F.2d 1076, 1083 (2d Cir.) ("[I]n the
absence of a special verdict, there was no way . . . to know whether the jury
intended to convict [the defendant] for a cocaine-related conspiracy, for a
marijuana-related conspiracy, or for a conspiracy involving both drugs."), cert.
denied, 469 U.S. 845 (1984). Accordingly, as in Orozco-Prada, we gave the
government the option of choosing to have the defendant resentenced using
"the controlled substance carrying the lowest mandatory minimum and
permissive maximum penalty"-21 U.S.C. 841(b)(1)(C) for 7.5 grams of
heroin-or retrying the defendant using a special verdict. Barnes, 158 F.3d at
674.

24

Like the defendant in Barnes, the Morenos argue that they should not have been
sentenced based upon the crack prong of the conspiracy, which, given the
District Court's finding that over 1.5 kilograms of cocaine base were involved
in the conspiracy, permits a maximum sentence of life imprisonment. See 21
U.S.C. 841(b)(1)(A). Instead, they maintain that they should have been
sentenced based on the conspiracy to distribute powder cocaine, which they
argue permits a maximum sentence of forty years' imprisonment since the
government proved only that between 500 grams and 5 kilograms of powder
cocaine was involved in their offense.

25

In response, the government argues that we need not remand for resentencing
because the evidence at trial supports the conclusion that the quantity of both
powder cocaine and crack cocaine distributed by the Morenos' organization
would subject them to a statutory maximum penalty of life imprisonment under
21 U.S.C. 841(b)(1)(A) for either substance.4 The District Court had based
the Morenos' sentence on its finding that their offense involved at least 1.5
kilograms of crack, which is more than sufficient to satisfy the 50 gram
minimum to subject the defendants to the statutory range of ten years' to life
imprisonment under 841(b)(1)(A)(iii). The government argues that the trial
record supports the additional conclusion that the Morenos conspired to
distribute at least 5 kilograms of powder cocaine, thereby subjecting them to
the same statutory range of ten years' to life under 841(b)(1)(A)(ii).

26

We need not resolve this dispute with respect to the amount of powder cocaine
involved in the offense because we conclude that the District Court should
make the determination of that amount in the first instance. The Guidelines
require that "[w]hen any factor important to the sentencing determination is
reasonably in dispute, the parties shall be given an adequate opportunity to
present information to the court regarding that factor." U.S. Sentencing
Guidelines Manual 6A1.3(a); see Fatico, 579 F.2d 707 (same); cf. United
States v. Madkour, 930 F.2d 234, 237-38 (2d Cir.), cert. denied, 502 U.S. 911
(1991) (concluding that the district court should make a determination at
sentencing of the quantity of drugs involved, which in turn determines the
applicable statutory minimum and maximum penalties). Here, because this
issue is raised for the first time on appeal,5 the District Court did not have an
opportunity to make a finding with respect to this disputed sentencing issue.
The government concedes that we should remand to the District Court for a
hearing to determine the amount of powder cocaine distributed by the Morenos
if we have "any doubt regarding whether the charged conspiracy distributed
more or less than 5 kg of cocaine."

27

Accordingly, we remand to the District Court for such a determination. We

27

Accordingly, we remand to the District Court for such a determination. We

recognize that in Barnes and Orozco-Prada, we gave the government a choice
between accepting a resentencing of the defendants utilizing a lower mandatory
minimum and permissive maximum, and retrying the defendants and seeking a
special verdict. However, in both of those cases, the applicability of a more
lenient statutory penalty provision was apparently undisputed. Cf. Barnes, 158
F.3d at 674; Orozco-Prada, 732 F.2d at 1084. Here, because the amount of
powder cocaine is disputed, the applicable statutory maximum sentence is
disputed as well. Under these circumstances, we conclude, and the parties
apparently agree, that a remand is the appropriate result. If the District Court
finds that the amount of powder cocaine is greater than 5 kilograms, then the
statutory maximum of life imprisonment pursuant to 21 U.S.C. 841(b)(1)(A)
is available. Since the District Court has already concluded that the Morenos
were responsible for the distribution of more than 1.5 kilograms of crack
cocaine, and since this is plainly "relevant conduct" pursuant to 1B1.3 of the
Sentencing Guidelines, the defendants' sentences will once again be life
imprisonment. However, if the District Court finds that between 500 grams and
5 kilograms of powder cocaine was involved in the offense, the defendants'
sentences would be limited to a maximum of forty years' incarceration pursuant
to 21 U.S.C. 841(b)(1)(B).

CONCLUSION
28

We have reviewed all of the defendants' arguments on appeal, and, except to

the limited extent discussed above, we find them to be without merit.
Accordingly, we affirm the defendants' convictions, but vacate the judgments
and remand to the District Court for further proceedings consistent with this
opinion.

NOTES:
*

The Honorable Damon J. Keith, of the United States Court of Appeals for the
Sixth Circuit, sitting by designation.

This "controlled delivery" formed the basis of the original indictment in this
case, filed March 24, 1994, which charged Olga and Oscar Moreno and Hector
Becerra with conspiracy to distribute and import cocaine and possession with
intent to distribute heroin. A first superseding indictment was then filed, adding
heroin distribution as an object of the narcotics conspiracy, and on February 9,
1995, Becerra pleaded guilty to narcotics conspiracy.
Olga and Oscar Moreno were then charged in a second superseding indictment

with conspiring to distribute heroin and cocaine (Count One), possession with
intent to distribute heroin (Count Two), and maintaining a place for
manufacturing and distributing narcotics-1055 Walton Avenue, Apartment 6C
(Count Three). Following a ten-day jury trial, Olga was convicted on Counts
One and Three, and both Olga and Oscar were acquitted on Count Two. Judge
Cederbaum, before whom the case was tried, declared a mistrial as to Counts
One and Three with respect to Oscar. Olga's conviction was subsequently
affirmed on appeal. See United States v. Becerra, 97 F.3d 669 (2d Cir. 1996),
cert. denied sub nom. Moreno v. United States, 519 U.S. 1137 (1997).
Prior to Oscar's retrial on the second superseding indictment, Oscar and Hernan
(along with Hernan's wife, Marina Nunez) were arrested, and the government
filed a third superseding indictment, which is the indictment upon which the
Morenos were tried and convicted and from which this appeal arises.
2

Since Oscar joins in Hernan's arguments pursuant to Fed. R. App. P. 28(i), we

assume that Oscar joins in Hernan's challenge to the sufficiency of the
evidence.

This is not a case like United States v. Shonubi, 103 F.3d 1085 (2d Cir. 1997),
on which the defendants rely. In Shonubi, we reversed a district court's
sentencing calculation where there was no "specific evidence," such as records,
admissions or live testimony, "that point[ed] specifically to a drug quantity for
which the defendant is responsible." Id. at 1090; see also id. ("[B]y `live
testimony' we were referring to testimony about [the defendant's] drug
transactions."). Rather, the court relied on a combination of drug records,
including government records and records of judicial proceedings, the
defendant's arrest statements, statistical extrapolation of the economics of drug
smuggling by swallowing, and the defendant's demeanor. See id. Here, unlike
in Shonubi, the District Court credited Pimentel, a witness who personally
observed the sales conducted by the defendants' drug organization and had
personal knowledge of the volume of business conducted by the Morenos. As
we explained in Shonubi, this is precisely the type of specific evidence upon
which a district court may rely in making a sentencing determination. See id.

The government also suggests that because the Indictment in this case charged
the defendants with trafficking in a sufficient quantity of either substance to
give rise to a violation of 21 U.S.C. 841(b)(1)(A), Barnes and Orozco-Prada
are not applicable. We have previously stated that "quantity is not an element of
the crimes proscribed by Section [] 841(a)," United States v. Campuzano, 905
F.2d 677, 679 (2d Cir.) (citations omitted), cert. denied, 498 U.S. 947 (1990),
and the District Court charged the jury in accordance with this principle. Thus,
"quantity relates solely to sentencing," United States v. Madkour, 930 F.2d 234,

237 (2d Cir.), cert. denied, 502 U.S. 911 (1991), and to the extent that an
indictment alleges that a particular quantity of drugs is involved or specifically
charges a provision of 21 U.S.C. 841(b), "`the effect is only to put the
defendant on notice that the enhanced penalty provisions of Section 841(b) may
apply,'" id. (quoting Campuzano, 905 F.2d at 679). Accordingly, the fact that
the Indictment charged the defendants with trafficking in sufficient quantities of
both crack and powder cocaine to give rise to a violation of 841(b)(1)(A) does
not allay the concern we expressed in Barnes and Orozco-Prada that we do not
know for which controlled substance(s), or for what quantities of those
substances, the jury concluded that a drug conspiracy existed.
5

The fact that the issue is raised for the first time on appeal does not prevent us
from reaching it. See Barnes, 158 F.3d at 672-73 (rejecting waiver argument).