US v. Ovalle Marquez
Case Date: 09/29/1994
Court: United States Court of Appeals
Docket No: 93-1221
|
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, Circuit Judge. A grand jury returned a _____________ seven-count indictment charging nine defendants, including appellants Luis Enrique 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. A trial was held and the jury returned guilty verdicts against Ovalle and Rivera on four of the counts. Pursuant to the applicable sentencing guidelines, the district court then sentenced both Ovalle and Rivera to terms of life imprisonment. Ovalle and Rivera now appeal, challenging both their convictions and their sentences on a variety of grounds. We affirm. I. BACKGROUND I. BACKGROUND __________ A. Facts A. Facts The testimony and other evidence properly introduced at trial, viewed in the light most favorable to the verdicts, established the following facts. See United States v. Rivera- ___ ______________ _______ Santiago, 872 F.2d 1073, 1078-79 (1st Cir.), cert. denied, 492 ________ _____________ U.S. 910 (1989). A paid government confidential informant, Willie Linder, alerted special agents of the Drug Enforcement Administration ("DEA") to a drug trafficking operation in the Lajas/Cabo Rojo area of Puerto Rico. Linder, a German citizen, is a fisherman who has lived in Puerto Rico since 1960. On November 27, 1991, Linder met with Ovalle, Rivera, co-defendants Sergio Monteagudo-Mart nez ("Monteagudo"), and -3- Humberto Artunduaga-Alvarado in Las Cuebas, Puerto Rico. (Monteagudo entered into a plea agreement with the government and testified for the prosecution). At this meeting, these individuals planned to import approximately 800 kilograms of cocaine (approximately 22 bales), which was to be first airdropped in waters off the coast of the Dominican Republic, and then brought into Puerto Rico. The meeting's participants planned to use two vessels - Linder would captain his own boat, and Monteagudo would captain the other boat. These vessels would depart from Puerto Rico for a location off the coast of Punta Espada, Dominican Republic, where, with the help of some other people unknown to them, they would load the cocaine onto the vessels. Tentatively, they scheduled the smuggling venture for sometime between December 8-13, 1991. On November 29, 1991, Ovalle and Artunduaga delivered $1000 to Linder for the purpose of enabling Linder to repair his boat. Thereafter, and up until December 9, Ovalle and Artunduaga sporadically met with Linder to inquire about the status of the repairs 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. At this December 7 meeting, Rivera gave Monteagudo two firearms, a -4- .38 caliber revolver and a .22 caliber pistol. Ovalle loaded the firearms for Monteagudo. On December 9, 1991, Monteagudo, co-defendant Santos Victor Chala-Ramos ("Chala"), and two other men from the Dominican Republic, picked up 21 bales, containing approximately 800 kilograms of cocaine, off the coast of Santo Domingo, Dominican Republic, after giving a pre-arranged signal to a plane flying nearby. Because one of the boats that Monteagudo had planned to use to pick up the cocaine was damaged, he decided to take one boat with 11 bales of cocaine, and leave 10 bales of cocaine hidden 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 of cocaine into Puerto Rico. Unknown persons, however, began to pursue Monteagudo's boat, and Monteagudo and the other Dominican man on board (known to Monteagudo as "Queque"), threw seven bales into the water in an attempt to halt the pursuit and minimize the loss of the entire load. Monteagudo eventually delivered the remaining four bales to Ovalle and Rivera. The defendants then arranged to import the rest of the cocaine that had been left behind in the Dominican Republic. On December 12, Ovalle and Rivera met with Linder to 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 the other ten bales of cocaine. Linder was instructed to meet with Ovalle in Ponce for further instructions. Linder then met with Ovalle and another man as arranged. The men then went to Rivera's home, where Linder left his car, and Rivera, Ovalle, Linder and the other man then proceeded to a pier in Ponce. Monteagudo met them there, and Monteagudo and Linder then departed in a boat for Lajas, Puerto Rico. Sometime during the day, Linder contacted DEA agents and advised them of the planned venture. On December 14, Monteagudo and Linder departed Puerto Rico to a rendezvous point near Saona, Dominican Republic, where they were assisted by several Dominican men in the loading of the remaining ten bales of cocaine (372 kilograms). On the following day, Monteagudo and Linder returned to Playita Rosada, where DEA agents seized the cocaine and arrested Monteagudo. DEA agents subsequently arrested Ovalle and Rivera. B. Procedural Background B. Procedural Background On June 3, 1992, a grand jury returned a second superseding seven count indictment against Ovalle and Rivera, and seven other defendants. Counts One and Two of the indictment charged the defendants with conspiring to import, and possess with the intent to distribute, approximately 800 kilograms of cocaine from November 27 to December 17, 1991, in violation of 21 U.S.C. 841(a)(1), 846, 952(a) and 963. Count Three charged the defendants with aiding and abetting the importation of approximately 418 kilograms of cocaine on December 11, 1991 in -6- violation of 21 U.S.C. 952(a) and 18 U.S.C. 2. Count Four charged the defendants with aiding and abetting the possession with intent to distribute approximately 150 kilograms of cocaine on December 11, 1991, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. Counts Five and Six charged the defendants with aiding and abetting the importation, and possession with intent to distribute, 372 kilograms of cocaine on December 15, 1991, in violation of 21 U.S.C. 841(a)(1) and 952(a), and 18 U.S.C. 2. Count Seven charged the defendants with aiding and abetting the use and carrying of firearms in relation to a drug offense, in violation of 18 U.S.C. 924(c)(1). The trial 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 held a sentencing hearing and determined that Ovalle's total offense level was 46, and that his Criminal History Category was I, therefore making his guideline sentencing range life imprisonment. The court then sentenced Ovalle to four concurrent 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 grounds to challenge both their convictions and sentences. -8- II. DID THE DISTRICT COURT IMPROPERLY LIMIT CROSS-EXAMINATION? II. DID THE DISTRICT COURT IMPROPERLY LIMIT CROSS-EXAMINATION? _________________________________________________________ Rivera contends that the district court improperly limited his counsel's cross-examination of two government witnesses, and that this denied Rivera his Sixth Amendment right to confront adverse witnesses. The Confrontation Clause of the Sixth Amendment guarantees an accused in a criminal proceeding the right "to be confronted with the witnesses against him." U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678 ________ ___________ (1986); United States v. Alvarez, 987 F.2d 77, 82 (1st Cir.), ______________ _______ cert. denied, 114 S. Ct. 147 (1993). 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, 316 (1974)); _____ ______ Alvarez, 987 F.2d at 82 (citations omitted). The right to cross- _______ examine an adverse witness, however, is not unlimited. United ______ States v. Corgain, 5 F.3d 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 to limit cross- -9- examination under an abuse of discretion standard. Carty, 993 _____ F.2d at 1011; United States v. Twomey, 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, 806 F.2d at 1140 (quoting United States v. Campbell, 426 ______ _____________ ________ F.2d 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 restricted on four occasions. First, Rivera argues that he was not fully permitted to 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 Legion, an organization known for being soldiers of fortune. Rivera claims 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 guns. The record indicates that after the trial judge very patiently informed counsel that he needed to establish the relevance of this question, and that he 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 9 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, Rivera contends that the court improperly limited his cross-examination of Monteagudo with respect to his attempts to cast doubt on Monteagudo's veracity and objectivity. Rivera's counsel asked Monteagudo about the true name of "Queque," the man who had accompanied 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: And who is a friend of yours? Monteagudo: Yes, sir. Defense Counsel: And whose real name is Nelson Mota; yes or no? Monteagudo: I don't know his true name. Defense Counsel: Your wife's name is Iris Mota; isn't it? Prosecutor: We have an objection. A lengthy sidebar 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 show that "Queque's" true name was in fact Nelson Mota. Defense counsel stated that his investigation showed that "Queque's" true name was Nelson Mota, but counsel was not able to point to any specific fact, or to specifically identify any potential witness 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 supposed investigation. The district court then refused to permit Rivera's counsel to pursue the line of questioning which expressly linked the name of Nelson Mota to "Queque." The district court did not abuse its discretion in determining that Rivera's counsel had failed to establish a good faith basis to warrant further inquiry regarding the true name of "Queque." See, e.g., Carty, 993 F.2d at 1010; Rivera-Santiago, ___ ____ _____ _______________ 872 F.2d at 1085. While the purpose of cross-examination is to impeach the credibility of a witness, the basis for the impeachment cannot be speculation and innuendo with no evidentiary foundation. Rivera-Santiago, 872 F.2d at 1085. _______________ There was simply no evidentiary basis for defense counsel's theory that "Queque" and Monteagudo's wife, Iris Mota, were related. Nor was there any substantiated basis showing that, based on this alleged relationship, Monteagudo and "Queque" collaborated to steal some of the cocaine. The third alleged instance of the court improperly curtailing cross-examination involved defense counsel's questioning of Monteagudo regarding the terms of his plea agreement with the government. Specifically, Rivera's counsel asked Monteagudo if when he entered into the plea agreement, the government told him that if he cooperated there was the possibility that he could go free without serving any jail time at all. Monteagudo replied no. Rivera's counsel then asked him if he otherwise knew that there was a possibility he could go -13- free if he entered into a plea agreement. The government objected, and the court sustained the objection, 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 of the fact that Monteagudo had entered into a plea agreement with the government, and that he would receive favorable treatment in exchange for his testimony. On direct examination, Monteagudo stated that he had entered into a plea agreement with the government, and the agreement was admitted into evidence. The jury could therefore see precisely what benefits Monteagudo was given in exchange for his cooperation. On cross-examination, Monteagudo also stated that he knew he was facing a sentence of 15 years to life when he decided to cooperate with the government. This evidence provided the 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 a fourth ground, Rivera claims that the court improperly cut off his cross-examination of Monteagudo regarding his understanding of his oath to tell the truth. The court sustained an objection by the prosecutor regarding whether Monteagudo knew that he was suppose to tell the truth. The record shows that Rivera's counsel had previously made several references to the fact that Monteagudo was under oath and that he had an obligation to tell the truth. On the occasion that the court sustained the objection, it 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 cross- examination 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. The cross-examination of each witness was thorough, and we believe that the jury had sufficient information regarding the witnesses' motives and biases to judge the credibility of the witnesses and the truthfulness of their testimony. III. PROSECUTORIAL MISCONDUCT? III. PROSECUTORIAL MISCONDUCT? ________________________ Rivera and Ovalle both claim that the prosecutor engaged in misconduct by improperly tying the defendants to a conspiracy with Colombian ties, despite the lack of evidence of any such international drug ring. 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. It's a conspiracy not only in Puerto Rico, but also in Colombia. ________ 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 Ovalle suggest that the remarks were intended to inflame 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. To warrant reversal of a conviction on the grounds of a prosecutor's improper jury argument, a court must find that the prosecutor's remarks were both inappropriate and harmful. See United States v. Young, 470 U.S. 1, 11-12 (1985). Arguments ___ _____________ _____ which urge a jury to act in any capacity other than as the impartial arbiter of the facts in the case before it, such as arguments that serve no purpose other than to inflame the passions and prejudices of the jury, are improper. 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. During the trial, Monteagudo testified that Ovalle had told him that the cocaine was coming from Colombia, and this was an admissible hearsay statement of a co- conspirator.4 See Fed. R. Evid. 801(d)(2)(E). 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 then did what he was entitled to do -- ask the jury to draw warrantable inferences from the evidence admitted during trial -- that the conspiracy was importing cocaine from Colombia into Puerto Rico. United States v. ______________ Tajeddini, 996 F.2d 1278, 1283 (1st Cir. 1993) (citations _________ omitted); see also United States v. Moreno, 947 F.2d 7, 8 (1st _________ _____________ ______ Cir. 1991); United States v. Abello-Silva, 948 F.2d 1168, 1182 ______________ ____________ (10th Cir. 1991), cert. denied, 113 S. Ct. 107 (1992). The jury ____________ thus had a complete view of the conspiracy's 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 remarks were not the type, and did not approach the level, of rhetoric we have previously found to be improper because it served no other purpose but to inflame the passions and prejudices of the jury. See, e.g., Arrieta-Agressot, 3 F.3d ___ ____ ________________ at 527 (finding that prosecutor's remarks which urged jury to consider case as a battle in the war against drugs and defendants as enemy soldiers, and remarks which referred to the corruption of "our society" and the poisoning of "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 and not permissible argument); United States v. _____________ Machor, 879 F.2d 945, 955-56 (1st Cir. 1989) (finding ______ prosecutor's remarks in closing statement that cocaine was "poisoning our community and our kids die because of this" was inappropriate), cert. denied, 493 U.S. 1081 (1990).5 ____________ IV. INEFFECTIVE ASSISTANCE OF COUNSEL? IV. INEFFECTIVE ASSISTANCE OF COUNSEL? _________________________________ Rivera claims on appeal that he was deprived of effective assistance of counsel at trial, because of an alleged conflict of interest based on the relationship between his attorney and the attorney who represented Monteagudo, who was one of the main government witnesses during the trial. Rivera's attempt to raise this claim for the first time here on appeal is ill-timed. "[A] fact-specific claim of ineffective legal assistance cannot be raised initially on direct review of a criminal conviction, but must originally be presented to the district court." United States v. Hunnewell, 891 F.2d 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, 890 F.2d 480, ______________ _____ 482-83 (1st Cir. 1989)) (other citations omitted). Rivera did not present a claim to the district court showing that this conflict of interest deprived him of effective legal assistance. Additionally, the record is not developed enough as a factual matter to enable us to consider this issue. See, e.g., Costa, ___ ____ _____ 890 F.2d at 483. We therefore reject Rivera's claim as premature, but do so without prejudice to Rivera's right to bring such a claim under 28 U.S.C. 2255. V. SENTENCING ISSUES V. SENTENCING ISSUES _________________ A. Standard of Review A. Standard of Review Ovalle and Rivera challenge the district court's application of the sentencing guidelines in determining their sentences on a number of grounds. When we review a district court's application of a sentencing guideline, we utilize a bifurcated process. First, we review the guideline's legal meaning and scope de novo. United States v. Brewster, 1 F.3d 51, _______ _____________ ________ 54 (1st Cir. 1993) (citing United States v. St. Cyr, 977 F.2d ______________ ________ 698, 701 (1st Cir. 1992)). Next, we review the court's factfinding for clear error, giving due deference to the court's application of the guidelines to the facts. 18 U.S.C. 3742(e); Brewster, 1 F.3d at 54 (citing St. Cyr, 977 F.2d at 701). We ________ _______ also note that factbound matters related to sentencing need only be supported by a preponderance of the evidence. United States _____________ v. Corcimiglia, 967 F.2d 724, 726 (1st Cir. 1992) (citations ___________ omitted). -20- B. Rivera's Sentencing Challenges B. Rivera's Sentencing Challenges Rivera was convicted of four drug related charges. At sentencing, the court accepted the Presentence Report's ("PSR") analysis that because Rivera was convicted of conspiracy to import approximately 800 kilograms of cocaine, and conspiracy to possess with the intent to distribute approximately 800 kilograms of cocaine, the appropriate sentencing guideline was 2Dl.1.6 The base offense level ("BOL") is determined by 2D1.1(c)(2), which is based on the total amount of controlled substances involved. Because the offenses involved 800 kilograms of cocaine, the BOL was determined to be 40.7 The court then enhanced the BOL by applying several upward adjustments, over Rivera's objections. The court applied a two level enhancement, pursuant to U.S.S.G. 2D1.1(b)(1), because the court found that Rivera possessed firearms during the commission of the offense. Pursuant to 3Bl.1(b), the court increased the BOL by three because it found that Rivera was a supervisor in a criminal activity involving five or more participants. The court also made an upward adjustment of two, under U.S.S.G. 3C1.1, based on its finding 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. The court determined that the total offense level was 47, and because Rivera's Criminal History Category was I, he therefore faced a guideline sentencing range of life imprisonment. The court then sentenced Rivera to serve concurrent terms of life imprisonment as to the four counts. -22- 1. The District Court's Finding Regarding the 1. The District Court's Finding Regarding the Quantity of Drugs Quantity of Drugs 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 conspiracy, approximately 800 kilograms of cocaine. The court rejected Rivera's contention that it should decrease the relevant quantity of cocaine to 372 kilograms because Rivera was acquitted on the substantive charges of importing and possessing 418 kilograms of the 800 kilograms of cocaine involved in the case.8 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 "relevant" conduct. See ___ United States v. Garc a, 954 F.2d 12, 15 (1st Cir. 1992) ______________ ______ (citations omitted); see also United States v. Innamorati, 996 ________ _____________ __________ F.2d 456, 488 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993); ____________ U.S.S.G. 2D1.1. The court determines 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." U.S.S.G. 1B1.3(a)(2); Garc a, 954 F.2d at 15; United States v. Mak, 926 ______ _____________ ___ F.2d 112, 113 (1st Cir. 1991). In the case of jointly undertaken criminal activity, such as a conspiracy, a defendant is accountable for "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, [or] in preparation for that offense . . . . " U.S.S.G. 1B1.3(a)(1)(B); see Innamorati, 996 F.2d at 488. A ___ __________ court's determination regarding the amount of drugs involved in an offense will only be set aside on appeal if it is clearly erroneous. See Innamorati, 996 F.2d at 489. ___ __________ The jury convicted Rivera of Counts One and Two, which charged Rivera with conspiracy to import, and to possess, 800 kilograms of cocaine. At sentencing, the court seemingly looked to U.S.S.G. 1B1.3(a)(1)(B) and found that Rivera, and his cohorts, had jointly undertaken this criminal activity, and Rivera was accountable for the other's conduct in attempting to import and possess all 800 kilograms of cocaine. The court's finding was supported by evidence introduced at trial. Both -24- Linder and Monteagudo testified that they met with Rivera, Ovalle, and another co-defendant on November 27, 1991, and that at this meeting they planned to import into Puerto Rico, 22 bales of cocaine (800 kilograms) which were to be airdropped off the coast of the Dominican Republic. Testimony by Monteagudo showed that the original scheme to import the cocaine did not proceed precisely according to plan, because of boat problems and a pursuit by unknown individuals who unexpectedly chased the conspirators in their boat on December 11, forcing them to dump some of the cocaine overboard. Testimony by Linder and Monteagudo indicated that Rivera and Ovalle then helped to salvage the original plan and adapt it - by calling Linder into service and helping him obtain a boat, so that Linder and Monteagudo could go to the Dominican Republic, and pick up and import the rest of the cocaine. Thus, the court did not err by implicitly concluding that Rivera helped plan the logistics of the scheme to import the entire 800 kilograms, and therefore the subsequent acts by his co-conspirators to execute this scheme were in furtherance of, and reasonably foreseeable in connection with, the jointly undertaken felonious plan. Rivera contends that the verdicts regarding the substantive drug charges should guide the court in determining the correct quantity of cocaine instead of the conspiracy charges. The operative indictment grouped all of the cocaine involved in the December 11, 1991 and the December 15, 1991 shipments of cocaine together (800 kilograms) in Count One and -25- Two, the conspiracy charges. The indictment then broke down the substantive charges into the two distinct shipments of cocaine that the defendants had allegedly attempted to import and possess. The jury only convicted Rivera of the substantive charges related to the December 15 shipment, involving 372 kilograms of cocaine (Counts Five and Six), and acquitted Rivera, and all of his co-defendants, with respect to the December 11, 1991 shipment, involving 418 kilograms of cocaine (Counts Three and Four). Therefore, Rivera contends that it was improper for the court to include the amount of cocaine involved in the charges of which he was acquitted, in determining his BOL. The fact that Rivera was acquitted of the substantive charges involving the 418 kilograms of cocaine does not mean, however, that the court could not consider that conduct as "relevant conduct." When determining relevant conduct, a sentencing court may consider acts which were not charged, as well as the facts underlying a prior acquittal when these facts "appear reliable." Garc a, 954 F.2d at 15; United States v. ______ ______________ Mocciola, 891 F.2d 13, 17 (1st Cir. 1989) (citation omitted); see ________ ___ also United States v. Weston, 960 F.2d 212, 218 (1st Cir. 1992) ____ ______________ ______ (stating in dicta that an acquittal is not always conclusive on an issue for sentencing purposes due to differing standards of proof). As we have previously noted, testimony by both Linder and Monteagudo indicated that Rivera planned to import 800 kilograms of cocaine, including the 418 kilograms of cocaine which was the basis for Counts Three and Four. There was no -26- clear error in the court's decision to credit the testimony of Linder and Monteagudo at sentencing, and then consider Rivera's conduct with respect to the 800 kilograms of cocaine, when the court 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. The Firearm Enhancement 2. The Firearm Enhancement Rivera makes a similar challenge to the court's decision to enhance his sentence pursuant to U.S.S.G. 2D1.1, because the court found that a firearm was possessed during the commission of the drug offenses. Rivera argues that the testimonial evidence linking him and his co-defendants to a firearm was extremely weak, especially in light of the fact that no firearm was ever found. Additionally, because the jury acquitted Rivera and his co-defendants of Count Seven, which charged them with aiding and abetting the carrying of a firearm in relation to the commission of the offense, Rivera contends that there was no basis for the court to enhance his sentence. U.S.S.G. 2D1.1(b)(1) directs a sentencing court to enhance a defendant's BOL if a dangerous weapon, including a firearm, was possessed. The commentary to 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 offense." U.S.S.G. 2D1.1 comment (n.3); United States v. Castillo, 979 F.2d 8, 10 (1st Cir. 1992); ______________ ________ Corcimiglia, 967 F.2d at 727. The First Circuit has followed ___________ -27- this "clearly improbable" standard. Corcimiglia, 967 F.2d at ___________ 726; United States v. Ruiz, 905 F.2d 499, 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 discussed, the court is entitled to consider "relevant" conduct at sentencing, and this may include conduct which was the basis for charges that the defendant was acquitted of, as long as the evidence which establishes that conduct was reliable. Mocciola, 891 F.2d at 16- ________ 17. The court considered such relevant conduct here when it decided to apply the U.S.S.G. 2D1.1 enhancement. The court found: There's no question in my mind that there was a gun there. Willie, the 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 with the narcotics transactions, and Rivera did not convince the court that it was clearly improbable that the gun would have been used in connection with these narcotic transactions, it was going to apply the enhancement. The court's finding was supported by evidence in the record and was not clearly erroneous. Monteagudo testified that on December 7, at a meeting with Rivera, Ovalle, and others, to finalize the plans for the smuggling operation, Rivera gave Monteagudo two firearms, a .38 caliber revolver and a .22 caliber |