October 7, 1992
October 7, 1992
____________________
____________________
No. 91-1020
No. 91-1020
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
ANGEL LUIS FIGUEROA,
ANGEL LUIS FIGUEROA,
Defendant, Appellant.
Defendant, Appellant.
_____________________
_____________________
No. 91-1021
No. 91-1021
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
TOMAS FIGUEROA,
TOMAS FIGUEROA,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
No. 91-1049
No. 91-1049
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
ISABEL RIVERA-SERRANO,
ISABEL RIVERA-SERRANO,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
No. 91-1050
No. 91-1050
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
CARMEN MILAGROS-VASQUEZ,
CARMEN MILAGROS-VASQUEZ,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
____________________
Before
Before
Breyer, Chief Circuit Judge,
Breyer, Chief Circuit Judge,
___________________
Cyr, Circuit Judge,
Cyr, Circuit Judge,
_____________
and Boyle,* District Judge.
and Boyle,* District Judge.
______________
____________________
____________________
Charles W. Rankin with whom Rankin & Sultan was on brief for
Charles W. Rankin with whom Rankin & Sultan was on brief for
__________________ ________________
appellant Angel Luis-Figueroa.
appellant Angel Luis-Figueroa.
Raymond E. Gillespie for appellant Tomas Figueroa.
Raymond E. Gillespie for appellant Tomas Figueroa.
____________________
Ellen G. Grant with whom Sally & Fitch was on brief for appel-
Ellen G. Grant with whom Sally & Fitch was on brief for appel-
_______________ ______________
lants Isabel Rivera-Serrano and Carmen Milagros-Vasquez.
lants Isabel Rivera-Serrano and Carmen Milagros-Vasquez.
Dina Michael Chaitowitz, Assistant United States Attorney, with
Dina Michael Chaitowitz, Assistant United States Attorney, with
________________________
whom Wayne A. Budd, United States Attorney, was on brief for appellee.
whom Wayne A. Budd, United States Attorney, was on brief for appellee.
_____________
____________________
____________________
____________________
____________________
*Of the District of Rhode Island, sitting by designation.
*Of the District of Rhode Island, sitting by designation.
2
2
CYR, Circuit Judge. Appellants Angel Luis Figueroa, Tomas
CYR, Circuit Judge.
______________
Figueroa, Isabel Rivera-Serrano ("Rivera") and Carmen Milagros-Vasquez
("Milagros"), and three codefendants, were arrested in January, 1990,
as a result of a "reverse sting" operation conducted by the United
States Drug Enforcement Agency ("DEA"). The grand jury indicted each
of the four appellants for conspiring, and attempting, to possess,
with intent to distribute, 500 or more grams of cocaine, in violation
of 21 U.S.C. 841(a)(1), (b)(1)(B)(ii) and 846. Following a ten-day
jury trial, each appellant was convicted of both charges, while their
two codefendants were acquitted.1 Angel Figueroa received a prison
sentence of 188 months; Tomas Figueroa 97 months; and Rivera and
Milagros 63 months. These appeals followed.
I
I
BACKGROUND
BACKGROUND
__________
According to the evidence presented at trial, Rivera, the
wife of Angel Figueroa, met Estaban Mendoza aboard a plane bound from
Boston to San Juan on December 24, 1989. Unbeknown to Rivera, Mendoza
had been cooperating with the DEA for thirteen years. During their
conversation aboard the plane, Mendoza told Rivera that he was in the
drug business. Rivera responded that her husband, Angel Figueroa, was
in the drug business as well and sold cocaine from his record shop in
____________________
1The seventh defendant pled guilty to an information.
3
the Roxbury area. Rivera told Mendoza that she was collecting welfare
benefits, even though she and Angel had substantial property and
savings in Puerto Rico. Mendoza told Rivera that he could sell her
and her husband cocaine at $18,000 per kilogram provided they pur-
chased at least three kilograms. Rivera expressed satisfaction with
the price and said she would speak with her husband. By the end of
the conversation, it had been agreed that Mendoza would contact Angel
Figueroa at the record shop.
On or about January 8, 1990, Mendoza related his conversa-
tion with Rivera to DEA Special Agent Doyle, who asked him to verify
the existence of the record shop. On January 17, Mendoza went to the
shop, along with Ramon Santiago, another cooperating witness, where
they met Tomas Figueroa, Angel's brother, who explained that he and
Angel were partners and were interested in doing business with Mendoza
based on Mendoza's discussion with Rivera. Tomas indicated that they
were selling $6,000 to $7,000 a day in "dime" bags from the record
store. Mendoza gave Tomas his "beeper" number and told Tomas to have
Angel call.
Later that day, Mendoza placed a tape-recorded telephone
call to the record shop and spoke with Tomas, who confirmed that he
had spoken with Angel and that they wanted to buy cocaine from Mendoz-
a. As a result of another recorded call to Tomas, Mendoza arranged a
meeting with Angel at Las Brisas Restaurant, in Boston, for the
following day. Surveillance was established outside the restaurant
and Mendoza was fitted with a body transmitter. Mendoza and Santiago
4
were seen meeting with Angel, while Milagros waited in Angel's car.
During a recorded conversation, Angel confirmed that he was in the
drug business, selling approximately $6,000 worth of cocaine per day.
Angel indicated that he was interested in purchasing at least two
kilograms from Mendoza. Mendoza responded that he could sell him
three, at $18,000 per kilogram.
The next day Mendoza and Santiago went to the record shop,
where Angel told them that the shop had been searched and that he had
been arrested.2 Angel nevertheless expressed an abiding interest in
doing business with Mendoza and gave Mendoza his home phone number.
Two days later, on January 22, Mendoza had phone conversations with
Rivera and, later, with Angel, which resulted in a meeting at Las
Brisas the next day. These phone conversations too were recorded.
Once again wearing a body wire, Mendoza went to the restaurant, and
Angel Figueroa confirmed his interest in buying cocaine, stating that
the quantity would depend on the wishes of other people he knew.
Mendoza offered to sell Angel three kilograms for $20,000 in cash and
$40,000 later.
Following further conversations between Mendoza and Angel, it was
agreed that Mendoza would sell Angel three kilograms for $30,000 in
cash and $30,000 later.
____________________
2Angel's arrest stemmed from an unrelated observation, by the Boston
Police Department Drug Control Unit, of a cocaine transaction conduct-
ed outside the record shop. After arresting two of the participants,
the Boston Police executed a search warrant at the shop. Eight "dime"
bags of cocaine were found inside the shop. The Boston Police arrest-
ed Tomas Figueroa at the same time.
5
On January 25, Mendoza again met Rivera, Milagros and Angel
at the restaurant. Upon Mendoza's arrival, Rivera said to Angel:
"that's the man." Rivera and Milagros immediately left the presence
of Angel and Mendoza. Angel told Mendoza: "I got the 30 thousand,"
and indicated that Milagros and another person would be bringing the
money. Angel, Milagros and Rivera left. Milagros later returned with
another man. Mendoza entered their car, where Milagros pulled a bag
from under the seat and showed the cash to Mendoza, stating: "It's
always right on the money, it's here." Upon leaving the car, ostensi-
bly to tell Santiago that the money had been delivered, Mendoza gave a
prearranged signal to nearby DEA agents, who arrested Milagros and her
companion. The arrests of Angel Figueroa, Tomas Figueroa and Rivera
followed. A search of Angel Figueroa and his apartment disclosed
records indicating that Rivera was receiving welfare benefits and that
she and Angel had Puerto Rico bank account balances totalling over
$86,000.3
II
II
DISCUSSION
DISCUSSION
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1. Severance
1. Severance
_________
Rivera asserts error in the denial of her motion to sever
under Federal Rule of Criminal Procedure 14. The motion claimed that
Rivera would be "unduly prejudiced because the mutually inconsistent
____________________
3Angel had an unrestricted right to withdraw from another bank ac-
count, in the name of Ruben Figueroa, containing more than $30,000.
6
defenses between herself and the other co-defendants w[ould] deny her
the opportunity to a fundamentally fair trial." A proper motion for
severance is within the sound discretion of the trial court and
reversal is warranted only "upon the appellant's maintenance of the
heavy burden of showing substantial prejudice as a result of joint
trial, amounting to a miscarriage of justice." United States v.
______________
Perkins, 926 F.2d 1271, 1280 (1st Cir. 1991).
_______
Rivera offers three related grounds for her contention that
the joint trial resulted in a miscarriage of justice: first, the
substantial evidence against her codefendants was attributed to her
and overshadowed her minor role in the conspiracy; second, the numer-
ous recorded conversations among her codefendants were improperly
imputed to her, whereas in fact nothing on the tapes implicated her in
any illegal activity; third, she was found guilty by reason of her
marital association with Angel Figueroa.
The evidence was sufficient to prompt a rational juror to
conclude, beyond a reasonable doubt, that Rivera was a founding member
of the conspiracy who was responsible for all actions in furtherance
of the conspiracy. See, e.g., United States v. Crocker, 788 F.2d 802,
___ ____ _____________ _______
806 (1st Cir. 1986); United States v. Cranston, 686 F.2d 56, 62 (1st
______________ ________
Cir. 1982). Mendoza testified that, during their conversation on the
plane, Rivera promoted the illicit agreement which led to the attempt
to purchase cocaine. Although the jury was entitled to credit Mendoz-
a's uncorroborated testimony, it no doubt found the credibility
determination less problematic in light of the evidence that a later
7
tape-recorded meeting confirmed that Mendoza and Rivera had met and
that their conversation on the plane had been related to Angel. Other
testimony indicated that Rivera played a significant role in arranging
negotiations for the cocaine purchase. Thus, there was ample evidence
that Rivera, far from being a peripheral participant, promoted the
conspiracy and actively furthered its purpose.
Even though she did not participate in the taped conversa-
tions between Mendoza and other coconspirators, the coconspirators'
statements were admissible against Rivera. See, e.g., United States
___ ____ ______________
v. Sabatino, 943 F.2d 94, 96 (1st Cir. 1991) ("[U]nder a basic tenet
________
of traditional conspiracy theory, . . . a conspirator is responsible
for acts his or her co-conspirators executed during the existence and
in furtherance of the conspiracy"); Perkins, 926 F.2d at 1281 (taped
_______
remarks of husband admissible against wife once it could be inferred
they were involved in the same conspiracy). The "evidentiary spillov-
er" claim is groundless, as the evidence was directly admissible
against Rivera.
The court was not required to sever the trial simply because
Rivera's spouse was a codefendant. At least where the marital status
results in no special evidentiary problems, the mere fact that co-
conspirators are married does not warrant severance provided suffi-
cient evidence is presented against each. Id. at 1282 (evidence that
___
wife was knowing participant in cocaine sale obviated any special
evidentiary problem stemming from marriage to codefendant). The
evidence established that Rivera independently embraced the overture
8
from Mendoza, and actively promoted the illicit agreement to distrib-
ute cocaine by facilitating the subsequent negotiations for the
purchase of cocaine. The direct evidence against Rivera was suffi-
cient to support her convictions.
Finally, even assuming some evidentiary spillover, any
prejudice was minimized by the limiting instructions given before and
after the closing arguments. The jury was instructed to treat each
defendant separately and that mere association was an insufficient
basis for finding any defendant guilty of conspiracy. See United
___ ______
States v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert. denied,
______ _______ ____ ______
112 S. Ct. 986 (1992) (in reviewing rulings on motions for severance,
appellate courts consistently find comfort in such cautionary instruc-
tions). The fact that two of Rivera's codefendants were acquitted
provides further assurance that the jury distinguished the evidence
relating to individual defendants as instructed. See United States v.
___ _____________
Dworken, 855 F.2d 12, 29 (1st Cir. 1988) (verdict acquitting defen-
_______
dants of conspiracy and reaching impasse on another count, while not
dispositive of severance claim, demonstrated "the jury's ability to
segregate the evidence and carefully weigh against which defendant it
was applicable").
2. Evidentiary Rulings
2. Evidentiary Rulings
___________________
Three appellants, Angel and Tomas Figueroa and Milagros,
challenge evidentiary rulings relating to (1) a Department of Public
Welfare card in the name of Angel Figueroa, (2) the testimony of an
9
IRS agent that Angel and Rivera had not filed tax returns for the
years 1986 through 1989, and (3) a Department of Public Welfare notice
advising Rivera of a January 31, 1990 appointment to review her
receipt of welfare benefits. The evidence was offered to show that
Angel and Rivera possessed "a significant amount of cash which was not
derived from legitimate sources of income."4 The welfare evidence
was offered to corroborate that Mendoza and Rivera did have a discus-
sion aboard the plane to Puerto Rico, concerning a future cocaine
transaction and Rivera's receipt of welfare payments. The rulings
admitting the IRS agent's testimony and the welfare notice5 were
accompanied by limiting instructions that the defendants were not
charged with income tax violations or welfare fraud and that the jury
was to consider the evidence only in determining "whether or not
[defendants are] guilty of the offenses charged in this case . . . ."
Similar cautionary instructions were given before and after closing
argument.
Angel insists on appeal that the welfare card was inadmissi-
ble, as it was not relevant for any permissible purpose identified in
Evidence Rule 404(b). At trial, however, the only objection to the
____________________
4The government established that, aside from the $29,850 in cash
Milagros tendered for the cocaine, another $110,000 had been deposited
between 1986 and 1989 in Puerto Rico bank accounts in Angel's name or
in accounts to which Angel had withdrawal rights. See supra note 3.
___ _____
5No cautionary instruction was requested or given at the time of the
introduction of the welfare card. See infra note 6.
___ _____
10
welfare card was its alleged invalidity.6 No timely objection was
interposed under Rule 401, 403 or 404(b). Thus, the district court
was given no opportunity to address the Rule 404(b) claim presented on
appeal. See Fed. R. Evid. 103(a)(1) (grounds of objection must be
___
specific). We therefore review for plain error. See id. 103(d); see
___ ___ ___
also United States v. Castiello, 915 F.2d 1, 4 (1st Cir. 1990) (where
____ _____________ _________
Rule 702 was sole basis for objection at trial, appellate court would
review Rule 404(b) claim for plain error), cert. denied, 111 S. Ct.
_____ ______
787 (1991); United States v. Walters, 904 F.2d 765, 769 (1st Cir.
_____________ _______
1990) (declining to consider appellate claim absent specific Rule 403
objection below). We find no plain error.
As we have explained:
The admissibility of "other acts" evidence
depends on a two-part analysis. First, "other
acts" evidence must be excluded if "it is relevant
only because it shows bad character (i.e., the
____ ____
proposed logical inference includes character as a
necessary link)." United States v. Ferrer-Cruz,
_________ ______________ ___________
899 F.2d 135, 137 (1st Cir. 1990) (emphasis in
original). Second, the district court must weigh
the probative value of the "other acts" evidence
against any unfair prejudice to the defendant; and
it is only when the risk of unfair prejudice "sub-
stantially" outweighs its probative value that the
evidence is to be excluded.
United States v. Shenker, 933 F.2d 61, 63 (1st Cir. 1991) (citations
_____________ _______
omitted). Under Rule 404(b), "other acts" evidence is admissible if
relevant for any material purpose other than "to prove the character
____________________
6Angel's sole objection was "that the Welfare card does not indicate
whether or not that card was valid at the time Mr. Figueroa was
arrested."
11
of a person in order to show action in conformity therewith," unless
its probative value is substantially outweighed by the danger of
unfair prejudice. Fed. R. Evid. 403. The welfare card bearing the
name Angel Figueroa corroborated a portion of the content of the
unrecorded conversation between Rivera and Mendoza aboard the plane en
route to Puerto Rico; that is, that Rivera told Mendoza that she was
collecting welfare benefits, even though the couple had substantial
property and savings.
Angel argues that corroboration is not one of the purposes
enumerated in Rule 404(b) for "other acts" evidence. It is clear from
the language of Rule 404(b), however, that "other acts" evidence is
admissible for relevant purposes beyond those recited in the rule.
See Fed. R. Evid. 404(b) (other acts evidence "may, however, be
___
admissible for other purposes, such as . . . .") (emphasis added).
____ __
See also Walters, 904 F.2d at 768. Although courts have recognized a
___ ____ _______
potential for abuse of "other acts" evidence offered for corroborative
purposes, its admission to corroborate matters significant to the
prosecution's case has been held proper. See, e.g., United States v.
___ ____ _____________
Porter, 881 F.2d 878, 886 n.8 (10th Cir.), cert. denied, 493 U.S. 944
______ ____ ______
(1989) ("other acts" evidence "properly" admitted to corroborate
testimony of prosecution witness whose credibility had been attacked
in relation to an issue subsidiary to a matter of "critical impor-
tance" to prosecution's case); United States v. Everett, 825 F.2d 658,
_____________ _______
660 (2d Cir. 1987), cert. denied, 484 U.S. 1069 (1988) (evidence
____ ______
admissible under Rule 404(b) if it corroborates "significant" matter).
12
The "other acts" evidence relating to the possession of the welfare
card provided direct corroboration of the subject matter Mendoza
testified to having discussed with Rivera aboard the plane, thereby
tending to make it more likely that Mendoza "accurately and truthfully
testified" to the significant conspiracy-related discussions he had
with Rivera. See Porter, 881 F.2d at 886; see also Everett, 825 F.2d
___ ______ ___ ____ _______
at 660 (defining "significant" and "direct" corroborating evidence).
The welfare card was also relevant to the conspiracy charge
because it indicated that Angel Figueroa had not revealed to the
welfare authorities the source of the wealth he had accumulated.7
Evidence that the defendant possessed or controlled substantial sums
of money from unexplained sources is relevant in a prosecution for
drug trafficking. See United States v. Newton, 891 F.2d 944, 948 (1st
___ _____________ ______
Cir. 1989) (possession of large amounts of unexplained cash relevant
in connection with drug trafficking); United States v. Ariza-Ibarra,
______________ ____________
605 F.2d 1216, 1224-25 (1st Cir. 1979), cert. denied, 454 U.S. 895
____ ______
(1981) (evidence of large amounts of cash from undisclosed source
relevant to charge of drug trafficking).
Figueroa objected to the welfare evidence at trial, and now,
for the first time, challenges the admissibility of the tax evidence,
on the ground that the cumulative spillover effect of the evidence was
to brand the entire family as "welfare cheats" attempting to perpe-
____________________
7The evidence revealed that Angel Figueroa's wealth included over
$117,000 in bank accounts and withdrawal rights to an additional
$30,000. See supra note 3.
___ _____
13
trate a scam. We review the timely challenge to the admission of the
welfare evidence for "abuse of discretion," Dworken, 855 F.2d at 28,
_______
and the unpreserved claim of error relating to the tax evidence for
"plain error," Castiello, 915 F.2d at 4.
_________
The district court minimized any danger from prejudicial
spillover through its repeated instructions that the jury was to give
separate consideration to each charge against each defendant. See
___
Dworken, 855 F.2d at 29 (limiting instructions sufficient to safeguard
_______
against spillover prejudice); United States v. David, 940 F.2d 722,
_____________ _____
737 (1st Cir. 1991), cert. denied, 112 S. Ct. 2301 (1992) (same). The
____ ______
efficacy of the district court instructions is demonstrated by the
jury's discernment in acquitting two other Figueroa family members of
the same conspiracy charge, providing an uncommonly convincing "ex
__
post validation" of the jury instructions. See id.; Dworken, 855 F.2d
____ ___ ___ _______
at 29.
Finally, Milagros claims, for the first time,8 that the tax
and welfare evidence was "calculated to inflame the jury as an appeal
to ethnic bias," in contravention of our decision in United States v.
_____________
Rodriguez Cortes, 949 F.2d 532 (1st Cir. 1991) (Rule 403 analysis), by
________________
portraying the family as "hispanic welfare cheats."9 We review for
____________________
8Milagros objected to the introduction of the welfare evidence solely
on the ground that it prejudicially portrayed appellants as "welfare
cheats." At trial, she made no allusion to ethnic bias, and no
objection at all to the tax evidence.
9The instant case is readily distinguishable from Rodriguez Cortes,
________________
where the district court admitted a Colombian identification card
offered to show that the Colombian defendant from whom it had been
14
plain error. Castiello, 915 F.2d at 4. In contrast to Rodriguez
_________ _________
Cortes, even though any direct relevance of the welfare evidence was
______
marginal at most, its corroboration of Rivera's admissions to Mendoza
not only supported Mendoza's credibility but was highly probative of
Rivera's intent, as well as the existence and purpose of the criminal
agreement. The tax evidence tended to make it less likely that the
large bank deposits during these tax periods derived from legitimate
sources.
Moreover, Milagros has identified no prosecutorial appeal
to ethnic bias, either implicit or explicit. The prosecution at no
time attempted to link the Hispanic community to welfare fraud, let
alone drug trafficking or tax fraud. Given the repeated cautionary
instructions and their apparent impact, see supra at 15, the Milagros
___ _____
contention is too speculative and attenuated to stand.
Assuming error in the admission of the "other acts" evi-
dence, however, it must be considered harmless if it is "'highly
probable' that the error did not contribute to the verdict." United
______
States v. Arias-Montoya, No. 91-1908, slip op. at 15 (1st Cir.
______ _____________
____________________
seized would more likely be trusted by the Colombian members of the
alleged cocaine conspiracy. This court found the card inherently
prejudicial and lacking in probative value. Rodriguez Cortes, 949
_________________
F.2d at 541-42. Noting that the generalization about Colombian
natives was "disturb[ing]," id. at 541, the court expressed particular
___
concern that the prosecutor had argued to the jury that the fact that
______ __ ___ ____
the defendant was Colombian could enable the jury to "reasonably infer
why [an alleged co-conspirator] was calling him a friend," id. The
___
court viewed the evidence as an invitation to the jury to conclude
that "a person . . . born in Colombia . . . must be involved in drug
trafficking." Id.
___
15
June 23, 1992) (quoting United States v. Garcia Rosa, 876 F.2d 209,
_____________ ___________
222 (1st Cir. 1989)). There was overwhelming independent evidence
against Angel and Tomas Figueroa, much of it corroborated by record-
ings. See United States v. Sabatino, 943 F.2d 94, 98 (1st Cir. 1991)
___ _____________ ________
(error harmless if there was overwhelming independent evidence of
guilt). The evidence against Milagros, though somewhat less exten-
sive, was nonetheless substantial. She accompanied Angel to every
meeting with Mendoza, was at the record shop when the Boston police
found the cocaine during their search in January and, most impor-
tantly, she delivered the $29,850 in cash which was to be used to
purchase the cocaine. Furthermore, the evidence to which Milagros
objects did not implicate her directly. See United States v. Benefie-
___ _____________ ________
ld, 942 F.2d 60, 64 (1st Cir. 1991) (holding error harmless if court
__
can say with "fair assurance" that judgment was not substantially
swayed by error).
3. Rule 609(a) Claim
3. Rule 609(a) Claim
_________________
Ramon Santiago, another cooperating individual, accompanied
Mendoza during the reverse sting operation. The day before Santiago
was scheduled to testify, the government informed the defense that
Santiago had a criminal record,10 consisting of two convictions for
operating under the influence of alcohol and one conviction for non-
____________________
10Government counsel informed the court that the delay in producing
Santiago's criminal record had been due to the fact that "the agent"
had advised that Santiago had no criminal record.
16
support.11 The government sought to preclude use of these convic-
tions for impeachment purposes, on the ground that they did not bear
on Santiago's truthfulness. Although Angel Figueroa objected, the
district court was never alerted that Santiago's crimes were punish-
able by imprisonment for more than one year. The court precluded the
proposed impeachment.12
Angel contends that the district court erred because the
version of Rule 609(a) in effect at the time of trial required the
court to balance the probative value of the impeachment evidence
against its prejudicial effect upon the defendant only, and mandated
____ ___ _________ ________
the admission of any conviction punishable by more than one year
absent unfair prejudice to the defendant. On appeal, he argues for
_________
the first time that the district court ruling unconstitutionally
restricted his Sixth Amendment right to confront the witnesses against
him. Since he neither raised a Sixth Amendment claim below, nor
alerted the court that Santiago's convictions were punishable by more
than one year, we review for plain error. See Fed. R. Evid. 103(d);
___
____________________
11At the time Santiago was convicted, each offense of conviction was
punishable by imprisonment for more than one year. See Mass. Gen. L.
___
ch. 90, 24(1)(a)(1) (driving under the influence of alcohol punish-
able by not more than two years) and Mass. Gen. L. ch. 273, 15
(crime of non-support punishable by not more than two years).
12The district court observed:
The rule is clear and I am not going to go beyond that. The rule
is that [it is admissible] only if it was punishable by more than
one year and I determined [sic] that the probative value of
admitting it outweighs the prejudicial effect to the defendant or
involved dishonest or false statements.
17
see also Castiello, 915 F.2d at 4. We find none.
___ ____ _________
First, Angel failed to demonstrate in the district court
that Santiago's convictions were admissible under Rule 609(a).13
See United States v. Cunningham, 638 F.2d 696, 698 (4th Cir. 1981) (no
___ _____________ __________
error in restricting cross-examination absent proffer sufficient to
support admissibility under Rule 609(a)). Furthermore, there was a
conflict in the caselaw construing the pre-amendment version of Rule
609(a) in effect at the time of trial, relating to whether the trial
court was to consider the prejudicial effect, from the admission of
____________________
13Prior to its amendment, Rule 609(a) stated, in pertinent part:
(a) General Rule. For the purpose of attacking the credi-
(a) General Rule.
bility of a witness, evidence that the witness has been
convicted of a crime shall be admitted if elicited from the
witness or established by public record during cross exami-
nation but only if the crime (1) was punishable by death or
imprisonment in excess of one year under the law under which
the witness was convicted, and the court determines that the
___
probative value of admitting this evidence outweighs the
_________ _____ _________ ___
prejudicial effect to the defendant, or (2) involved dishon-
___________ ______ __ ___ _________
esty or false statement. (Emphasis added.)
Amended Rule 609(a)(1), effective December 1, 1990, reads:
(a) General Rule. For the purpose of attacking the credi-
(a) General Rule.
bility of a witness,
(1) evidence that a witness other than an accused has
(1)
been convicted of a crime shall be admitted, subject to
_______ __
Rule 403, if the crime was punishable by death or
____ ___
imprisonment in excess of one year under the law under
which the witness was convicted, and evidence that an
accused has been convicted shall be admitted if the
court determines that the probative value of admitting
this evidence outweighs its prejudicial effect to the
accused. (Emphasis added.)
18
the prior conviction, upon anyone other than the defendant.14 In
view of the conflict among the circuits, and the absence of First
Circuit precedent, we find that any error in the exclusion of Santiag-
o's convictions did not so "'seriously affect[] the fairness, integ-
rity, or public reputation of judicial proceedings'" as to amount to
plain error. La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689, 692
__________________________ ______
(1st Cir. 1991) (quoting 9 C. Wright & A. Miller, Federal Practice &
__________________
Procedure 00 2258, at 675 (1971)) (plain error standard).
_________
Our conclusion finds confirmation in the fact that, subse-
quent to the trial in this case, Rule 609 was amended to resolve "an
ambiguity as to the relationship of Rules 609 and 403 with respect to
impeachment of witnesses other than the criminal defendant." Fed. R.
Evid. 609 advisory committee's note (1990). The current rule explic-
itly "applies the general balancing test of Rule 403 to protect all
___
litigants against unfair impeachment of witnesses." Id. (emphasis
_________ ___
added). See supra note 13. Finally, considering the overwhelming
___ _____
evidence against Angel, corroborated by recordings and other witness-
es, and that Angel concedes that the amended version of Rule 609(a)(1)
____________________
14At the time of trial, the explicit language of Rule 609(a) spoke
exclusively of the "prejudicial effect to the defendant," Fed. R.
Evid. 609(a) (1987), and several courts ruled that no other prejudice
could be considered, see, e.g., United States v. Nevitt, 563 F.2d 406,
___ ____ _____________ ______
408-09 (9th Cir. 1977), cert. denied, 444 U.S. 847 (1979); United
____ ______ ______
States v. Martin, 562 F.2d 673, 680 n.16 (D.C. Cir. 1977) (dictum of
______ ______
Bazelon, J.). Some courts nevertheless considered prejudice to
others, including government witnesses. See, e.g., Radtke v. Cessna
___ ____ ______ ______
Aircraft Co., 707 F.2d 999, 1000 (8th Cir. 1983); Shows v. M/V Red
____________ _____ ________
Eagle, 695 F.2d 114, 119 (5th Cir. 1983). We did not rule on the
_____
issue. See, e.g., Linskey v. Hecker, 753 F.2d 199, 201-02 (1st Cir.
___ ____ _______ ______
1985) (citing authority on both sides).
19
would apply at any retrial, we find no plain error.
4. Tape Transcripts
4. Tape Transcripts
________________
The court ordered that the defendants, not later than
June 20, 1990, either stipulate to the accuracy of the government's
Spanish and English language translations of the tape recordings made
during the DEA investigation, or provide their own translations. See
___
United States v. Rengifo, 789 F.2d 975, 983 (1st Cir. 1986) ("it is
_____________ _______
advisable for the district court to try to obtain a stipulated tran-
script from the parties before trial . . . Failing such stipulation,
each party should be allowed to introduce its own transcript . . . ."-
). Appellants failed to respond to the order. On June 22, the court
allowed appellants until July 6 to file objections to the transcripts
submitted by the government. None were filed until July 11, when
Tomas Figueroa filed "Objections to the Use of Certain Tapes and
Transcriptions at Trial," which neither included specific objections
to the government transcripts, nor proposed alternative translations.
The district court overruled the objections.
At trial, Tomas Figueroa objected to the English language
transcript submitted by the government.15 The court informed Figuero-
a's counsel that he would be allowed to cross-examine the translator
regarding any particular objection to the government transcripts,
____________________
15Later, Tomas Figueroa's counsel represented that the government
translation was not in error, but that "alternative equally valid
translations [exist] for maybe three or four phrases."
20
provided the objection was presented to the translator for review
beforehand. Counsel cross-examined the translator but raised no
specific objection to any translation. Tomas now asserts that the
restriction on his right to cross-examine the government's translator
violated his Sixth Amendment right to confrontation.
The Sixth Amendment guarantees every criminal defendant the
right to conduct adequate cross-examination of adverse witnesses.
United States v. McLaughlin, 957 F.2d 12, 17 (1st Cir. 1992), United
_____________ __________ ______
States v. Butt, 955 F.2d 77, 86 (1st Cir. 1992). Nevertheless, the
______ ____
trial court may limit the scope of cross-examination, United States v.
_____________
Berrio-Londono, 946 F.2d 158, 160 (1st Cir. 1991) (trial court has
______________
broad discretion to determine scope and extent of cross-examination);
United States v. Garcia-Rosa, 876 F.2d 209, 237 (1st Cir. 1989)
______________ ___________
(same), and delay further cross-examination until later in the trial,
see Butt, 955 F.2d at 86 (no error when court limited cross-examina-
___ ____
tion but held out possibility of reassessing its ruling on question-
by-question basis); United States v. Cutler, 676 F.2d 1245, 1248-49
_____________ ______
(9th Cir. 1982) (no error where court simply delayed but did not
restrict cross-examination).
The district court did not prevent cross-examination of the
translator. It merely required that cross-examination be deferred
until the translator could review any specific objection to the
translation, an eminently reasonable exercise of the court's responsi-
bility to assert "reasonable control over the mode and order of
interrogating witnesses" pursuant to Federal Evidence Rule 611(a).
21
United States v. Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989), cert.
_____________ ______ ____
denied, 494 U.S. 1005 (1990); United States v. Cox, 752 F.2d 741, 748
______ _____________ ___
(1st Cir. 1985). Moreover, although the court afforded a reasonable
opportunity to cross-examine the translator, Tomas never availed
himself of the opportunity. The right to confrontation is not in-
fringed if a defendant for tactical reasons chooses to forego cross-
examination. United States v. Zurosky, 614 F.2d 779, 793 (1st Cir.
_____________ _______
1979) (tactical decision not to cross-examine entails no denial of the
opportunity to do so), cert. denied, 446 U.S. 967 (1980); United
____ ______ ______
States v. Howard, 751 F.2d 336, 338 (10th Cir. 1984), cert. denied,
______ ______ ____ ______
472 U.S. 1030 (1985) ("The sixth amendment right to confrontation is
not denied simply because the prosecution is permitted to examine a
witness who [sic] the defense declines for practical reasons to cross-
examine."). We conclude that Tomas made a tactical decision to forego
cross-examination in circumstances where there was no realistic
prospect that a useful purpose would be served. See supra note 15.
___ _____
We find no abuse of discretion. See United States v. Concemi, 957
___ _____________ _______
F.2d 942, 947 (1st Cir. 1992); McLaughlin, 957 F.2d at 17.
__________
5. Background Hearsay
5. Background Hearsay
__________________
The first government witness, DEA Agent Doyle, was permitted
to testify to the substance of the official debriefings following
Mendoza's various encounters with appellants during the course of the
investigation. Twice the court gave proper limiting instructions to
the jury that the truth of the matters purportedly asserted by Mendoza
22
during these debriefings could only be evidenced through the testimony
of Mendoza. On appeal, for the first time, Tomas Figueroa neverthe-
less contends that Agent Doyle's testimony was inadmissible background
hearsay unfairly used to buttress the later testimony of Mendoza and
Santiago as to what Tomas had told them. Tomas cites to ten referenc-
es in the trial transcript which he contends reflect inadmissible
hearsay testimony by Doyle. Only one of these references contains
matter relating to Tomas.16 As Tomas raised no objection at trial,
we review for plain error. Castiello, 915 F.2d at 4.
_________
Since Doyle's testimony was not admitted for the truth of
the matters asserted by Mendoza, and the jury was so instructed, the
____________________
16The testimony was as follows:
Q. What happened after Mr. Mendoza made that telephone
call [on January 22]?
A. The telephone call was placed and it was in Spanish.
He got off the telephone and started to walk back into
the area of the Aquarium and related to me over the
transmission device that Angel Figueroa was not at the
record shop. And Mr. Mendoza said that he
Ms. Glazer [attorney for acquitted defendant Juanita Figuer-
oa]: Objection.
The Court: Overruled.
The Witness: he is en route. That he had been told by the
party he spoke to at the record shop that Mr.
Mendoza was en route and should be there shortly
and had left approximately an hour ago and should
be operating a red Celica type vehicle.
It was established later, through Mendoza's testimony, that Tomas
Figueroa was the "party" with whom Mendoza spoke at the record shop.
Mendoza's account of the substance of the conversation with Tomas was
corroborated by a tape recording.
23
Doyle testimony was not hearsay. See Fed. R. Evid. 801(c); see also
___ ___ ____
United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir. 1986), cert.
_____________ _____ ____
denied, 479 U.S. 1086 (1987), United States v. Cintolo, 818 F.2d 980,
______ _____________ _______
999 (1st Cir.), cert. denied, 484 U.S. 913 (1987) (same). Although
____ ______
the court has indicated that background testimony of this nature may
pose sufficient risk of unfair prejudice to require its exclusion
under a Rule 403 analysis, see Mazza, 792 F.2d at 1216 (background
___ _____
testimony may improperly sway jury to credit out-of-court statements),
unlike the situation in Mazza only one significant out-of-court
_____
statement implicating Tomas Figueroa was related in the guise of
background testimony. Hence, the risk of prejudice was minimal. See
___
Cintolo, 818 F.2d at 999 (Mazza distinguished on the ground that few
_______ _____
out-of-court statements were involved). Moreover, Doyle's background
testimony was corroborated by Mendoza's tape-recorded conversations,
making it far less likely that the jury was unfairly influenced to
credit the out-of-court statements related in Doyle's background tes-
timony. See id. at 1000 (tape-recorded evidence which conclusively
___ ___
establishes content of conversation renders corroboration immaterial).
Finally, any error in the admission of Doyle's background
testimony was harmless. See Mazza, 792 F.2d at 1221-22 (error held
___ _____
harmless given "overwhelming" evidence properly admitted against
defendants, "particularly the evidence on tape."). In addition to the
Doyle testimony, itself corroborated by tape recordings, testimony was
presented that Tomas was the first member of the conspiracy Mendoza
met upon his return to Boston. Tape-recorded statements were intro-
24
duced that Tomas later helped arrange at least one meeting between
Mendoza and Angel Figueroa. Consequently, we can say "'with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the [jurors'] judgment was not
substantially swayed by the error.'" Id. at 1216-17 (quoting Kotteak-
___ ________
os v. United States, 328 U.S. 750, 765 (1946)) ("harmless error"
__ _____________
standard); see also Cintolo, 818 F.2d at 999 n.11 (any error in
___ ____ _______
admission of out-of-court statement held harmless, given other sub-
stantial evidence documented by reliable recordings).
6. Sufficiency of Evidence
6. Sufficiency of Evidence
_______________________
Rivera asserts that there was insufficient evidence to
support the jury verdicts on either the conspiracy charge or the
attempt charge. We review challenges to the sufficiency of the
evidence in a criminal case by
assess[ing] the sufficiency of the evidence as a
whole, including all reasonable inferences, in the
light most favorable to the verdict, with a view
to whether a rational trier of fact could have
found the defendant guilty beyond a reasonable
doubt. We do not weigh witness credibility, but
resolve all credibility issues in favor of the
verdict. The evidence may be entirely circumstan-
tial and need not exclude every reasonable hypoth-
esis of innocence; that is, the factfinder may
decide among reasonable interpretations of the
evidence.
United States v. Lopez, 944 F.2d 33, 39 (1st Cir. 1991).
_____________ _____
25
In order to prove the alleged conspiracy, "the government
was required to establish, by direct or circumstantial evidence and
beyond a reasonable doubt, that the defendant and one or more coconsp-
irators intended to agree and . . . to commit the substantive offense
which was the object of their unlawful agreement." Id. (quoting
___
United States v. Sanchez, 917 F.2d 607, 610 (1st Cir. 1990), cert.
_____________ _______ ____
denied, 111 S. Ct. 1625 (1991) (quoting United States v. Rivera-
______ _____________ _______
Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989))). In order to estab-
________
lish a criminal attempt, the government must prove, by direct or
circumstantial evidence and beyond a reasonable doubt, that the
defendant intended to commit the substantive offense identified in the
indictment and took a substantial step toward its commission. Dworke-
_______
n, 855 F.2d at 17.
_
The evidence revealed that, during her conversation with
Mendoza aboard the plane, Rivera invited Mendoza to call her husband,
Angel Figueroa, about a possible cocaine purchase. Upon her return
from Puerto Rico, Rivera communicated her conversation with Mendoza to
Angel and Tomas Figueroa. Later, she participated in the negotiations
for the attempted cocaine purchase charged in the indictment, telling
Mendoza during the course of an unrecorded telephone conversation that
Angel had enough money to purchase two kilograms, and accompanying
Angel to a meeting with Mendoza, on the day of the purchase, during
which she identified Mendoza as the man she had met on the plane.
There was ample evidence to support the verdicts against Rivera on
both counts.
26
7. Sentencing Issues
7. Sentencing Issues
_________________
At sentencing, the district court determined that each
appellant had conspired, and attempted, to possess, with intent to
distribute, two kilograms of cocaine; that Angel and Tomas Figueroa
conspired to distribute at least three more kilograms for which
Milagros and Rivera were not responsible; that Angel merited a four-
level upward adjustment for his leadership role; that Tomas merited a
two-level downward adjustment for his minor role; and that neither
Rivera nor Milagros was entitled to a downward adjustment for a
"minimal role" but each was entitled to a two-level "minor role"
adjustment.17 Each appellant received a sentence at the low end of
the applicable guideline sentencing range ("GSR"): Angel Figueroa 188
months; Tomas Figueroa 97 months; Rivera and Milagros 63 months.
Appellants assign various sentencing errors.
a. Gender Discrimination
a. Gender Discrimination
_____________________
Angel and Tomas Figueroa contend that the district court
discriminated against them on the basis of their gender, because the
court found that the two women involved in the conspiracy were respon-
sible for only two kilograms, but the men for five. Angel and Tomas
____________________
17The court calculated appellants' offense levels as follows: Angel
Figueroa at 36 (32 for five kilograms of cocaine and a four-level
upward adjustment); Tomas Figueroa at 30 (32 for five kilograms of
cocaine and a two-level downward adjustment); Rivera and Milagros at
26 (28 for two kilograms of cocaine and a two-level downward adjust-
ment).
27
contend that there was no rational basis for finding that the female
conspirators were responsible for a lesser quantity of cocaine. Thus,
they say, the court contravened a fundamental guideline sentencing
policy: "reasonable uniformity in sentencing. . . ." U.S.S.G. Ch. 1,
Pt. A at 3 (p.s.); United States v. Williams, 891 F.2d 962, 967 (1st
_____________ ________
Cir. 1989) ("key premise of the guidelines . . . is that similar
conduct of similar offenders should be accorded similar treatment").
As the court has observed, the Sentencing Guidelines provide
a framework designed to "safeguard the macrocosm of the sentencing
universe from differential treatment. . . ," United States v. Wogan,
_____________ _____
938 F.2d 1446, 1449 (1st Cir.), cert. denied, 112 S. Ct. 441 (1991),
____ ______
not a model system of uniform sentences for dissimilar conduct by
individual offenders in the same case. Even a "perceived need to
equalize sentencing outcomes for similarly situated codefendants,
without more, will not permit a departure from a properly calculated
guideline sentencing range." Id. at 1448. Thus, except insofar as
___
Angel and Tomas Figueroa contend that the district court erred in
finding them responsible for five kilograms of cocaine, see infra pt.
____ ___ _____
7b, we review only to assure that their own sentences were imposed
within the correct GSR. United States v. Panet-Collazo, 960 F.2d 256,
_____________ _____________
261 (1st Cir. 1992) ("[W]e have no appellate jurisdiction to review a
sentence within the applicable sentencing guidelines range if that
range was correctly determined") petition for cert. filed (June 29,
_________________________
1992); United States v. Vega-Encarnacion, 914 F.2d 20, 25 (1st Cir.
_____________ ________________
1990), cert. denied, 111 S. Ct. 1626 (1991) (same).
____ ______
28
b. Quantity of Cocaine
b. Quantity of Cocaine
___________________
The court first determined that Tomas and Angel Figueroa
were responsible for the two kilograms they attempted to purchase from
Mendoza on January 25, 1990. Relying on the admissions of Rivera and
Angel Figueroa that "$6,000 of cocaine per day" was being sold
through the record shop the court calculated that Angel and Tomas
were responsible for distributing an additional three kilograms
through the shop during the course of the conspiracy. On appeal,
Tomas claims that the court erred in holding him responsible for any
amount beyond the two kilograms he attempted to purchase from Mendoza
on January 25.
Pursuant to U.S.S.G. 1B1.3(a)(2), a defendant is responsi-
ble for all acts which "were part of the same course of conduct or
common scheme or plan as the offense charged." See United States v.
___ _____________
Garcia, 954 F.2d 12, 15 (1st Cir. 1992); United States v. Sklar, 920
______ _____________ _____
F.2d 107, 110 (1st Cir. 1990). Count one charged Tomas with conspira-
cy to possess cocaine for distribution from on or about December 24,
1989 to January 25, 1990. According to the testimony and tape record-
ings admitted in evidence, Tomas, as well as Angel, admitted that
$6,000 worth of "dime" bags were being sold daily through the record
shop during the alleged conspiracy.18 Although appellants character-
____________________
18Among the taped conversations was the following:
Angel Figueroa: We were selling $6,000.00 daily.
______________
Mendoza: You were selling $6,000.00 daily?
_______
29
ize these statements as mere "puffery," the sentencing judge who heard
the trial testimony was entitled to credit their admissions. See
___
United States v. Moreno, 947 F.2d 7, 9 (1st Cir. 1991) (no clear error
_____________ ______
where sentencing court found that the amount of cocaine defendant was
negotiating to sell "was not just puffing"). The court permissibly
extrapolated the approximate amount of cocaine distributed during the
relevant period based on the sums of money admittedly received.19
See Sklar, 920 F.2d at 112-13 (if exact quantity cannot be calculated,
___ _____
a preponderance of the reliable information will support a quantity
estimate for sentencing purposes); United States v. Gerante, 891 F.2d
_____________ _______
364, 369 (1st Cir. 1989) (estimation of cocaine quantity based on
amount of money found in defendant's apartment). There was no clear
error in the determination of the quantity of cocaine for which Angel
and Tomas Figueroa were responsible. See Garcia, 954 F.2d at 16;
___ ______
United States v. Bradley, 917 F.2d 601, 605 (1st Cir. 1990).
_____________ _______
c) Quantity of Cocaine
c) Quantity of Cocaine
___________________
Involved on January 25
Involved on January 25
______________________
____________________
Angel Figueroa: (unintelligible) Yes. (unintelligible)
______________
Mendoza: (unintelligible) $6,000. That's a lot of
_______
money.
Angel Figueroa: (unintelligible) $42,000.00 a week.
______________
Mendoza testified that Tomas Figueroa told him that "he was a
partner with his brother and that he was selling about six to seven
thousand dollars a day in dimes out of the store and in the area."
19DEA Special Agent Velasco testified that one kilogram of cocaine
would generate approximately $70,000 when distributed in "dime" bags.
30
Appellants Tomas Figueroa, Rivera and Milagros charge clear
error in the district court finding that they attempted to purchase
two kilograms on January 25, contending that $20,000 was the agreed
kilogram price and that Milagros brought only $29,850 on January 25,
enough to buy only about one and one-half kilograms. We find no
error.
Under U.S.S.G. 2D1.4, comment. (n.1), if a "defendant is
convicted of an offense involving negotiation to traffic in a con-
trolled substance, the weight under negotiation in an uncompleted
distribution shall be used to calculate the applicable guideline
amount." The record is clear that Angel Figueroa and Mendoza agreed,
on the day before the sale, that Angel would buy two kilograms for
$30,000 up front and $10,000 later.20 It is undisputed that on
____________________
20According to the transcript of the taped conversation on January 24,
Angel Figueroa asked Mendoza: "But why don't they give me two, two
[kilograms]?" Following a discussion as to how payment would be made,
the conversation continued:
Mendoza: Can you come up with the three zero, OK?
_______
Angel Figueroa: Yes, I know.
______________
Mendoza: . . . then I can give you the 2, but tomorrow
_______
you'll have to tell me "give me 2" or "give
me 2 tonight" and then I won't have any prob-
lems of my own, okay, because in that case,
then I'll say "well, I gave him 2 because he
gave me so much up front," you get what I'm
saying?
Angel Figueroa: I get you.
______________
. . .
31
January 25 Angel told Mendoza that he had $30,000 which Milagros would
deliver. Later, when Milagros went to pick up the cocaine, she told
Mendoza that there was $30,000 in the bag.21 The evidence was suffi-
cient to support the finding that appellants intended to purchase two
kilograms of cocaine on January 25.
d) Role of Milagros
d) Role of Milagros
________________
Finally, Milagros asserts that the court erred in denying
her request for a four-level downward adjustment as a minimal partici-
pant. See U.S.S.G. 3B1.2(a). Milagros had the burden of establish-
___
ing her entitlement to the downward adjustment and can prevail only on
a showing that the sentencing court committed clear error in its
determination of her role in the offense. Garcia, 954 F.2d at 18
______
(citing cases). The evidence revealed that Milagros was a passenger
in the car used to deliver the money to purchase the two kilograms of
cocaine, pulled the money bag from under the car seat, and showed the
cash to Mendoza. The trial testimony demonstrated that Milagros told
Mendoza, at the time, that there was $30,000 in the bag, which amount
____________________
Mendoza: [To another individual in background] "Compa-
_______
y, if he tells me he wants two and brings
about 30, will that be alright" Will you
take care of talking with the other man? . .
.
[To Angel] It's okay?
Angel Figueroa: Alright.
______________
21We are unpersuaded that there is significance in the fact that the
actual amount in the bag delivered by Milagros was $29,850.
32
was "right on the money." We find no error in the determination that
Milagros was not entitled to a "minimal role" reduction. Cf. United
___ ______
States v. Cepeda, 907 F.2d 11, 12 (1st Cir. 1990) (courier who drove
______ ______
car to deliver cocaine and collect money not entitled to either
"minimal" or "minor" role reduction).22
The district court judgments are affirmed.
_________________________________________
____________________
22Milagros alternatively contends that she was entitled to a three-
level reduction. See U.S.S.G. 3B1.2 (providing for three-level
___
reduction for a defendant whose role falls between that of a minimal
and a minor participant). No such request was made at sentencing,
however, and we deem the claim waived. United States v. Dietz, 950
_____________ _____
F.2d 50, 55 (1st Cir. 1991) (in criminal case, argument not addressed
to court at appropriate time during sentencing deemed waived) (citing
cases). In any event, the claim is meritless. See Cepeda, 907 F.2d
___ ______
at 12.
33