
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2034                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JOSE HERNANDEZ,                                Defendant, Appellant.                                _____________________        No. 91-2035                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                AGUILINO JOSE SANCHEZ,                                Defendant, Appellant.                                                                                     _____________________        No. 91-2036                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JORGE L. SOSTRE,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________             Robert R. Anderson for appellant Hernandez.             __________________             Ernest Barone for appellant Sanchez.             _____________             Joel D. Landry for appellant Sostre.             ______________             Margaret E.  Curran, Assistant United States  Attorney, with whom             ___________________        Lincoln C.  Almond, United States Attorney, James H. Leavey, Assistant        __________________                          _______________        United States Attorney, and Kenneth P. Madden, Assistant United States                                    _________________        Attorney, were on brief for appellee.                                 ____________________                                     May 12, 1993                                 ____________________                    CYR, Circuit Judge.   Following trial,  defendants Jose                    CYR, Circuit Judge.                         _____________          Hernandez, Aguilino Jose Sanchez,  and Jorge Luis Sostre (herein-          after, collectively:  "appellants")  were convicted and sentenced          on various charges arising out of an undercover cocaine  transac-          tion in Providence, Rhode Island.  Finding no error, we affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    In February  1991, Rodrigo Sostre  ("Rodrigo"), through          an  intermediary, offered to sell  a kilogram of  cocaine to Frdy          Vegas, a paid  DEA informant.   While consulting  with his  usual          cocaine  source, one  Luis  Guillermo Santiago-Martinez,  Rodrigo          repeatedly spoke by telephone with Vegas between February 15  and          February 19, finally  arranging for the drug  transaction to take          place at Rodrigo's apartment on the afternoon of February 19.                      At 2:00 p.m.  on February 19,  Rodrigo and his  brother          Jorge Luis  Sostre  ("Jorge") met  Vegas  and an  undercover  DEA          agent, Anthony Roberto, on the front porch of Rodrigo's apartment          building.    Agent Roberto  asked  Rodrigo  if "everything  [was]          ready,"  and Rodrigo  responded that  "the  people were  on their          way."  Rodrigo  went upstairs  to his second  floor apartment  to          phone  his  "source."   When he  returned  to the  porch, Rodrigo          stated that the cocaine was of  good quality, and that his neigh-          borhood was a  much safer  place for a  drug transaction  because                                          3          there  was "less police activity."   Jorge agreed  with his brot-          her's assessment.                    At 2:15  the cocaine had  not yet arrived,  and Rodrigo          returned to his apartment to make another phone call.  Jorge, who          remained on the front porch with Vegas and Agent Roberto, stated:          "I don't blame you guys to leave [sic], you've got a lot of money          and  that's a  lot  of merchandise  to  be waiting  around  for."          Rodrigo returned, informing Vegas and Agent Roberto:  "they [are]          on their way."  After a third unsuccessful phone call by Rodrigo,          Vegas told  the Sostre  brothers that he  would wait at  a nearby          store until notified by beeper that the cocaine had arrived.                    In the meantime, DEA agents observed appellants Sanchez          and Hernandez as they  arrived by car at the residence of Santia-          go-Martinez,  Rodrigo's usual  drug supplier.   Santiago-Martinez          entered the  back seat of  the car, which  then proceeded to  Ro-          drigo's apartment,  arriving at approximately 2:54.   At approxi-          mately  the  same time,  Vegas's  beeper  was  activated, and  he          returned with  Agent Roberto to Rodrigo's  apartment house, where          the Sostre brothers met them on the front porch.  Rodrigo brought          them  upstairs, while Jorge remained  on the porch.   Once inside          the  upstairs  apartment,  Rodrigo  locked the  door.    Sanchez,          Santiago-Martinez,  and Hernandez  were inside  the apartment  as          well, standing  around  a table  upon  which lay  a  one-kilogram          package  of cocaine which later  tested 94% pure.   Agent Roberto          inquired  in Spanish:   "Why do you need  three people?"  Sanchez          responded in  Spanish:  "That's  the way I  do business."   After                                          4          inspecting  the cocaine,  Agent  Roberto  went  out to  his  car,          ostensibly to get  the $28,000 purchase money,  and signalled for          the  waiting DEA agents  to raid the  apartment.   Just after the          raid commenced, DEA agents saw Jorge walk off the front porch "in          a rapid manner," then "start casually slowing down and walking up          the sidewalk."   Jorge was  arrested, as were  Rodrigo, Santiago-          Martinez, Sanchez, and Hernandez.   Hernandez had a  loaded semi-          automatic in his possession at the time of his arrest.  The five-          count  indictment followed,  and  Hernandez,  Sanchez, and  Jorge          Sostre were convicted on all charges.1                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Hernandez' Appeal.          A.   Hernandez' Appeal.               _________________                    Hernandez  challenges the  district court's  refusal to          instruct  the jury  that he  could not  be convicted  on Count  3          (using or  carrying a firearm  during and in  relation to  a drug                                        ____________________               1The  original indictment  charged  appellants,  along  with          Santiago-Martinez  and Rodrigo  Sostre, in  two counts:   Count 1          (conspiracy  to distribute  and to  possess with  intent to  dis-          tribute, 21 U.S.C.   846) and Count 2 (possession of cocaine with          intent to  distribute, id.     841(a)(1), (b)(1)(B); 18  U.S.C.                                   ___          2).  Only Sanchez and Jorge  appeal their convictions on counts 1          and 2.               The indictment charged Hernandez  and Sanchez in two counts:          Count 3  (using or carrying a firearm during and in relation to a          drug trafficking offense,  18 U.S.C.   924(c)(1);  id.   2),  and                                                             ___          Count 4 (possession of  a firearm by an illegal alien, id.   922-                                                                 ___          (g)(5); id.   2).  After trial, Sanchez won a judgment of acquit-                  ___          tal on Count 3.  Hernandez appeals his conviction under Count 3.               The  government dismissed Count 4 prior  to trial.  Finally,          Sanchez appeals  his conviction  under Count 5  (possession of  a          firearm by a convicted felon, id.   922(g)(1); id.   2).                                        ___              ___                                          5          trafficking offense, 18 U.S.C.   924(c)(1)) for "mere possession"          of a firearm, but  that the government was required to prove that          the  firearm was an  "integral part" of the  offense, or that his          possession of it was made known to others present during the drug                                    _____          transaction.2  These arguments are without merit.                    The  challenged  instruction recited  the corresponding          principles that a  conviction under section  924(c) would not  be          warranted for "mere possession," and that the jury must find that          the  firearm "facilitated"  the crime.3   As  the district  court          suggested,  the  "facilitation" element  of section  924(c) would          depend on whether Hernandez' intent was reasonably inferable from          the  totality  of the  circumstances, which  is  "a matter  for a          [trier of fact]  applying common sense  theories of human  nature          and  causation."  United States  v. Plummer, 964  F.2d 1251, 1255                            _____________     _______                                        ____________________               2Hernandez'  proposed instruction provided, in its entirety:          "Possession  of a  firearm  constitutes use  in relation  to drug          trafficking  offense if possession is [sic] integral part of, and          facilitates commission of, drug trafficking offense."               3The jury was instructed that:               The term "used or  carried a firearm" includes the  act               of carrying,  wearing, or using a  firearm. The firearm               must be within the Defendant's reach at the time of the               offense. Mere possession of a firearm is not sufficient               proof. The government must prove the firearm facilitat-               ed the drug-trafficking crime. To facilitate is a [sic]               crime does not require actual  use of a firearm. Howev-               er,  a Defendant may  not be convicted  of this offense               unless the  jury finds  beyond a reasonable  doubt from               the circumstances, the  Defendant intended  to use  the                                                 ________  __ ___               firearm  if a  contingency arose  potentially requiring               its use or  that the  Defendant intended to  use it  to               possibly facilitate escape should the need arise.          (Emphasis added.)                                          6          (1st Cir.) (quoting United  States v. Wilkinson, 926 F.2d  22, 26                              ______________    _________          (1st Cir.1991)), cert. denied,  113 S. Ct. 350 (1992).  Given the                           _____ ______          $28,000 in cash being  exchanged for the kilogram of  cocaine, as          well  as Hernandez' proximity to  the cocaine during the exchange          and the  fact that there was a bullet  in the chamber of the gun,          the challenged instruction provided adequate guidance on "facili-          tation."                    As  to Hernandez' second contention, it is simply not a          correct statement of the law that the presence of a  firearm used          to  "facilitate" a drug trafficking offense need be made known to          other  participants in  the transaction.   See  United States  v.                                                     ___  _____________          Abreu, 952 F.2d 1458,  1466 (1st Cir.),  cert. denied, 112 S.  Ct          _____                                    _____ ______          1695  (1992); United States v.  Hadfield, 919 F.2d  987, 997 (1st                        _____________     ________          Cir. 1990), cert. denied, 111 S. Ct. 2036 (1991); see also United                      _____ ______                          ___ ____ ______          States v. Jones, 965 F.2d 1507, 1514-15 (8th Cir.), cert. denied,          ______    _____                                     _____ ______          113 S. Ct. 346 (1992); United  States v. Contreras, 950 F.2d 232,                                 ______________    _________          241 (5th Cir. 1991), cert. denied, 112 S. Ct. 2276 (1992); United                               _____ ______                          ______          States v.  Torres-Medina, 935  F.2d 1047,  1049 (9th  Cir. 1991);          ______     _____________          United States v.  Paz, 927 F.2d 176, 179 (4th  Cir. 1991); United          _____________     ___                                      ______          States v. Torres, 901 F.2d 205, 217 (2d Cir. 1990); United States          ______    ______                                    _____________          v.  McKinnell, 888  F.2d  669, 674-75  (10th  Cir. 1989);  United              _________                                              ______          States v.  Acosta-Cazares, 878  F.2d 945,  951 (6th Cir.),  cert.          ______     ______________                                   _____          denied, 493 U.S. 899 (1989).  The challenged instruction provided          ______          the jury with an accurate statement of the law.          B.   Sanchez' Appeal.          B.   Sanchez' Appeal.               _______________                                          7                    Sanchez  advances  four  claims  on  appeal,  which  we          consider in turn.                                          8               1. Sufficiency of Evidence of Conspiracy and Possession.               1. Sufficiency of Evidence of Conspiracy and Possession.                  ____________________________________________________                    Sanchez contends that the  government did not introduce          enough evidence to support his conviction under Count 1 (conspir-          acy  to distribute and to  possess with intent  to distribute, 21          U.S.C.   846)  and Count 2 (possession of cocaine  with intent to          distribute, id.    841(a)(1), (b)(1)(B); 18 U.S.C.   2), but that                      ___          the  evidence instead proved "mere  presence" at the  site of the          crime, and that he was therefore entitled to judgments of acquit-          tal.  On review of a district court ruling under Fed. R. Crim. P.          29, we evaluate the evidence, draw all reasonable inferences, and          resolve all  credibility determinations in the  light most favor-          able to  the government. United  States v.  Yefsky, No.  90-1174,                                   ______________     ______          slip  op. at 6 (1st Cir. May  ___, 1992); United States v. Wight,                                                    _____________    _____          968 F.2d 1393, 1395 (1st Cir. 1992).                    Our review satisfies us that the jury supportably could          have  found,  beyond a  reasonable  doubt, that  Sanchez  was the          individual who transported the  cocaine to Rodrigo's apartment on          February  19, 1991.   Vegas  and Agent  Roberto  had asked  to be          summoned by  beeper as soon  as the  cocaine arrived.   They were          summoned at  approximately the same  time Sanchez arrived  at the          apartment, giving rise to a reasonable inference that Sanchez was          the "source," or that a person "in charge" of the transaction had          finally  arrived.4  Moreover,  inside the apartment,  it was San-                                        ____________________               4The record provides no  direct support for the government's          contention that the beeper was activated  at precisely 2:55 p.m.,          i.e., one minute following Sanchez' and Hernandez' arrival at the          ____          crime  scene.  We note, however, that Agent Roberto merely testi-          fied that  the beeper  signal came  at "approximately 2:50,"  and                                                  _____________                                          9          chez who advised Agent Roberto:  "That's the way I do  business."          In  the circumstances  revealed by  the evidence,  this admission          would support a jury determination that Sanchez not only partici-          pated  in  the transaction  but was  in  charge of  supplying the          cocaine to Rodrigo for sale to Roberto.5                    In  an effort  to negate  the latter  evidence, Sanchez          contends  that, without  his alleged  incriminatory  statement to          Agent  Roberto,  the government  would  not  have had  sufficient          evidence to convict.   Citing two allegedly erroneous evidentiary          rulings,  Sanchez  argues  that  the  district  court  improperly          restricted  his defense,  by which  he sought  to establish  that          Agent  Roberto was  less  than fluent  in  Spanish and  may  have          mistranslated  Sanchez' Spanish  statement  into  English  during          direct examination at trial.6                                        ____________________          Vegas and Roberto, who  were waiting at a nearby  store, returned          to Rodrigo's apartment at 2:58.               5Sanchez  argues  that   Santiago-Martinez  testified   that          Sanchez  did not  make this  comment to  Agent  Roberto.   To the          extent this  alleged conflict in testimony  necessitated a credi-          bility determination, we must presume the jury found Roberto more          credible.   Furthermore,  Santiago-Martinez'  testimony could  be          understood  as indicating  his  lack of  recollection ("I  wasn't          paying attention"), rather than  as stating that no  such comment          was made.               6Roberto, a DEA  agent since the early 1980s, testified that          he had taken a  four-month Spanish course in 1984,  was stationed          in Monterey, Mexico from 1984 through 1986,  attended an advanced          Spanish course in 1986, and used his Spanish language  experience          daily as a  DEA agent.  Sanchez does not  appear to challenge the          original admission  of Roberto's interpretive testimony, to which          defense counsel raised  no objection at  trial.  Accordingly,  we          deem the issue waived.  He merely argues that he should have been          allowed more opportunity to impeach Roberto on  cross-examination          and on rebuttal.                                          10                    The trial court has broad discretion over the scope and          extent of cross-examination. United  States v. Figueroa, 976 F.2d                                       ______________    ________          1446, 1457 (1st Cir. 1992); United States v.  Berrio-Londono, 946                                      _____________     ______________          F.2d  158, 160  (1st Cir.  1991), cert. denied,  112 S.  Ct. 1223                                            _____ ______          (1992).  Sanchez contends  that the district court cut  short his          cross-examination  of Agent  Roberto  concerning his  proficiency          with the Spanish language.  We do not agree.  Out of  the hearing          of the jury,  the district court merely questioned  the relevancy          of defense counsel's line of  questioning, which had become mired          in  minute  detail concerning  the  identity  of Agent  Roberto's          neighbors while he was  residing in Monterey during 1986.   At no          time  did the court prohibit defense  counsel from continuing the          line of questioning, nor does the record reflect any objection to          the  district court's  statements.   In fact,  when the  jury was          returned  to the  courtroom,  defense counsel  posed a  follow-up          question along the same line.  There was no error.                    Sanchez also  claims that his Sixth  Amendment right to          confrontation was violated by the court's refusal to allow him to          call the person who was serving as the court-appointed interpret-          er during  Agent Roberto's  direct examination.7   Sanchez argues                                        ____________________               7The court explained its ruling as follows:               I was advised yesterday afternoon that the  Interpreter               whom we had here  yesterday afternoon had been told  to               appear here today to  testify.  I advised, I  sent work               [sic] to him  that he was  not to come  here today.   I                                                                     _               can't for the  life of  me understand why  he would  be               _____ ___ ___  ____ __  __ __________ ___  __ _____  __               asked to testify  in the  first place.   In the  second               _____ __ _______  __ ___  _____ ______               place, I'm not  going to  permit someone  to come  into               this courtroom,  and in  front  of the  jury  interpret               testimony and then put that  same person on the witness               stand to give  opinion testimony as to one's control of                                          11          that the interpreter could have testified that Roberto's transla-          tion of Sanchez' incriminatory  statement was unreliable, or that          Sanchez'  statement  was  susceptible  to  a  less  incriminating          English rendition.  However,  defense counsel neither objected to          the  district court's exclusionary  ruling nor  made an  offer of          proof  pursuant  to Fed.  R.  Evid.  103(d), notwithstanding  the          court's express statement that  it could not understand  "why the          [interpreter] would be asked to testify in the first place."  See                                                                        ___          supra note 7.  Accordingly, we review for "plain error" affecting          _____          the  "fundamental  fairness" of  the trial.     United  States v.                                                          ______________          Tracy, Nos. 92-1459, 92-1461, 92-1554, 1993 U.S. App. LEXIS 6245,          _____          at 12 (1st Cir. Mar. 29, 1993); United States v. McGill, 952 F.2d                                          _____________    ______          16, 18 (1st Cir. 1991).                    Sanchez argues that the interpreter's testimony was the          only practicable way to convey to a non-Spanish-speaking jury the          untrustworthiness of Agent Roberto's testimony.  Even discounting          defense counsel's unexplained failure to come forward with either          an objection or the "invited" offer of proof, cf. Hernandez-Garza                                                        ___ _______________          v.  INS, 882  F.2d 945,  948 (5th  Cir. 1989)  (immigration judge              ___          erred by  refusing to allow party to  test INS agent's fluency in          Spanish, and by dismissing  party's observation "that a qualified                                        ____________________               the Spanish language.   That's vouching in the  highest               order.  Anything else?          (Emphasis added.)                                          12          interpreter was  present"),8 Sanchez does not explain  why it was          necessary that the court-appointed interpreter  testify, particu-          larly in  light of the  district court's  plainly stated  concern          that the interpreter might be placed in the position of appearing          to  vouch for or against a translation previously rendered in his          role as court-appointed interpreter.  Agent Roberto's proficiency          in Spanish could as  well have been tested  on cross-examination9          or  through an  interpreter selected  by  the defense,  as indeed          could  other  possible  translations  of  Sanchez'  incriminating          remark.  Therefore, even if defense counsel believed the district          court was adamantly opposed to calling the court-appointed inter-          preter,  there was no apparent reason  for neither explaining the          defense's  position nor  requesting  a continuance  to obtain  an          interpreter.  Finally, since  Sanchez has never suggested another          English  translation of  the incriminating  statement, there  has          been no showing of plain error.               2.   Evidence of Constructive               2.   Evidence of Constructive                                        ____________________               8At oral  argument, Sanchez' counsel explained  that not all          objections can be  made in "the heat  of trial."  Yet  it is pre-          cisely in the "heat of  trial" that counsel's timely articulation          of grounds for proposing or opposing the admission of evidence is          most  important to  the  trial court.   Similarly,  "[i]f lawyers          could  pursue on appeal  issues not properly  raised below, there          would  be little incentive to get it  right the first time and no          end of  retrials."  Poliquin  v. Garden Way, Inc.,  ___ F.2d ___,                              ________     ________________          ___ (1st Cir. 1993)  [Nos. 92-1115, 92-1116,  slip op. at 8  (1st          Cir. Mar. 24, 1993)].               9Indeed,  during  his  extended  cross-examination  of Agent          Roberto, Sanchez' counsel was allowed great latitude, and engaged          Roberto in a prolonged exercise in which he asked Roberto to give          Spanish-English and English-Spanish translations for a series  of          common expressions.                                          13                    Possession of Firearm.                     Possession of Firearm.                    _____________________                    Sanchez argues that he could  not be convicted on Count          5 (transportation of a firearm by a convicted  felon, 18 U.S.C.            922(g)(1))  for "constructive  possession" of  Hernandez' firearm          because the government introduced no direct evidence that Sanchez                                               ______          knew that Hernandez was  carrying it.  Sanchez' argument  depends          ____          primarily  on his  unsuccessful attempt  to undermine  Agent Rob-          erto's  testimony concerning the  incriminating statement Sanchez          made on February 19, 1991.  The government points out  that since          Sanchez proclaimed  that he  was in charge  of the drug  deal, he          could  be found  to have  "controlled" Hernandez.   A  reasonable          inference  could then be drawn  that Hernandez was  there at San-          chez' behest to protect the drugs, and Sanchez.  "[A]s  long as a          convicted  felon knowingly has the  power and the  intention at a          given  time of  exercising dominion  and control over  a firearm,          . . . directly or through others, he is in [constructive] posses-                         __ _______ ______          sion of  the firearm."   United States v.  Wight, 968  F.2d 1393,                                   _____________     _____          1398  (1st Cir. 1992) (emphasis added); see also United States v.                                                  ___ ____ _____________          McAnderson, 914 F.2d 934,  947-48 (7th Cir. 1990).   The evidence          __________          was sufficient to  establish Sanchez' constructive  possession of          the firearm carried by Hernandez.                 3.   Entrapment Defense.                3.   Entrapment Defense                    __________________                    Sanchez contends that he  was entitled to an entrapment          instruction.   Since there  was no  post-charge objection  to the          refusal to give an entrapment instruction, however, we review for          plain  error.  See United States v. Arias-Santana, 964 F.2d 1262,                         ___ _____________    _____________                                          14          1268  (1st Cir.  1992)  (citing Fed.  R.  Crim. P.  52(b),  which          mandates renewed  objection after court's charge  and before jury          retires to deliberate).                    The entrapment defense consists of two components:  (1)          government inducement of the crime, and (2) an absence of predis-          position  on  the part  of the  defendant  to commit  the alleged          crime.   United States v. Reed, 977  F.2d 14, 18 (1st Cir. 1992);                   _____________    ____          United  States  v. Tejeda,  974 F.2d  210,  217 (1st  Cir. 1992).          ______________     ______          Sanchez contends that the  district court improperly required him          to produce evidence of lack of predisposition, whereas the burden          of  production should  have shifted  to the  government to  prove          predisposition  once  Sanchez established  government inducement.          The argument is irreparably flawed in at least two respects.                    First, Sanchez was entitled  to an entrapment  instruc-          tion  only if he first  produced "some evidence"     on both ele-                                                                  ____          ments  of the entrapment defense    sufficient to raise a reason-          able doubt as to whether he "was an 'unwary innocent' rather than          an 'unwary  criminal.'"  Id.  (quoting Mathews v.  United States,                                   ___           _______     _____________          485 U.S. 58, 63 (1988)).  Second, Sanchez produced no evidence of          government inducement.   Before he  arrived at the  scene of  the          drug  transaction on  February 19,  1991, Sanchez  had no  direct          contact  with any government agent.   "[T]his court [has] refused          to extend the entrapment  defense to a defendant in  contact only                                                                       ____          with  an intermediary,  and not  the government agent,  absent 'a          ____  __ ____________          showing that pressure had  been put upon him by  the intermediary          at the instruction of  the government agent.'"  United  States v.          __ ___ ___________ __  ___ __________ _____     ______________                                          15          Murphy, 852 F.2d  1, 6 (1st Cir. 1988)  (quoting United States v.          ______                                           _____________          Bradley, 820 F.2d 3,  8 (1st Cir. 1987)) (emphasis  added), cert.          _______                                                     _____          denied,  489 U.S. 1022 (1989); see also United States v. McKenna,          ______                         ___ ____ _____________    _______          889 F.2d 1168, 1174  (1st Cir. 1989).  Sanchez  does not suggest,          nor does the record disclose any evidence, that government agents          even knew about Sanchez  or his involvement in the  offense prior          to his arrival at the scene of the undercover drug buy, let alone          that agents instructed  anyone to pressure Sanchez to  take part.          Absent  any evidence  of government  inducement, Sanchez  was not          entitled  to a jury charge on entrapment, and the court committed          no error, plain or otherwise.               4.   Refusal to Depart.                4.   Refusal to Depart                    _________________                    Finally,  citing 18  U.S.C.    3553  ("The court  shall          impose  a sentence  sufficient,  but not  greater than  necessary                                               ____________________________          . . . .") (emphasis added), Sanchez says the district court erred          in refusing to depart below the "excessive" thirty-year guideline          sentence to reflect Sanchez' "minimal" role in the offense.  Even          accepting Sanchez'  characterization of his role  in the offense,          the refusal to depart is not reviewable unless the district court          mistakenly believed it  lacked the authority  to depart.   United                                                                     ______          States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113          ______    ______                                _____ ______          S. Ct.  224 (1992); United  States v. Lauzon,  938 F.2d  326, 330                              ______________    ______          (1st Cir.), cert. denied, 112 S. Ct 450 (1991).   As the district                      _____ ______          court  was  fully cognizant  of  its  authority, we  are  without          jurisdiction to consider Sanchez' guideline sentencing appeal.                                          16          C.   Jorge's Appeal.           C.   Jorge's Appeal.                ______________                    Jorge Sostre claims that his convictions under Count 1           (conspiracy to distribute and to possess with intent  to distrib-          ute, 21  U.S.C.   846)  and Count 2  (possession of cocaine  with          intent to distribute, id.    841(a)(1), (b)(1)(B); 18 U.S.C.   2)                                ___          were  based solely on his "mere  presence" in the vicinity of the          drug transaction.   Jorge contends  that he  was simply  visiting          brother Rodrigo's  apartment, and  that the casual  statements he          made to Vegas  and Agent Roberto, though  arguably indicating his          general  awareness of the drug transaction, were far too vague to          establish his active participation.   Jorge says the government's          characterization  of him  as  a "lookout"  is unsupported  by the          evidence, which  shows  that  the front  door  of  the  apartment          building was left open  during the drug transaction, and  that he          never made any attempt to signal  or warn the others when the DEA          raid began. As  to his  constructive possession  of the  cocaine,          Jorge argues that there is  no evidence he ever had access  to it          or power over it.                    We again view all evidence in the light most  favorable          to the government,  Wight, 968 F.2d  at 1395, while  at the  same                              _____          time recognizing that "'the line that separates mere presence [at          the site of a drug offense] from culpable presence is a thin one,          difficult  to plot,'" United  States v.  O'Campo, 973  F.2d 1015,                                ______________     _______          1020  (1st Cir. 1992) (quoting  United States v.  Ortiz, 966 F.2d                                          _____________     _____          707 (1st Cir. 1992)).  In this case, however, we believe that the          evidence, as  a whole,  adequately supported the  conclusion that                                          17          Jorge  knowingly remained  on the front  porch to  facilitate the          prearranged drug transaction.                    First, Jorge's presence during  Rodrigo's incriminating          conversations with  Vegas and Agent Roberto,  his apparent agree-          ment with his brother's assessments concerning the quality of the          cocaine and the low level of police activity in the neighborhood,          and  his later  statements about  the "money"  and "merchandise,"          provided  firm support for an  inference that Jorge  knew that an          illegal drug transaction was about to occur.                    Second, "jurors are  neither required to divorce  them-          selves from their  common sense  nor to abandon  the dictates  of          mature experience,"  which reasonably may  include their recogni-          tion that "criminals rarely welcome innocent persons as witnesses          to serious crimes."  Cf. Ortiz, 966 F.2d at 712; United States v.                               ___ _____                   _____________          Batista-Polanco,  927 F.2d 14, 18 (1st Cir. 1991).  Jorge did not          _______________          reside at the apartment where the  drug transaction occurred, nor          was  he  a captive  of  the  circumstances.   Although  appellate          counsel  suggested  the possibility  that  Jorge's  visit to  his          brother's  apartment may  have  been occasioned  by the  innocent          impulse to promote  their filial bond, the  jury reasonably could          conclude that an innocent person, with knowledge of  an impending          drug transaction, would not linger outside for  over an hour on a          winter  day in a location  which afforded him  an obvious vantage          point from  which to observe the surrounding neighborhood as well          as the ingress to the site of  the drug deal.  Cf. United  States                                                         ___ ______________          v. Padilla, 961  F.2d 322,  325 (2d Cir.)  (while "mere  negative             _______                                          18          acquiescence," even coupled with "guilty knowledge," is generally          insufficient  to establish participation,  the otherwise innocent          behavior  of "scanning the area" may  support a reasonable infer-          ence that defendant acted as "lookout"), cert. denied, 113 S. Ct.                                                   _____ ______          138 (1992);   see also United  States v. Martinez, 479  F.2d 824,                        ___ ____ ______________    ________          829 (1st  Cir. 1973).  ("[P]resence  itself implies participation          [where]  . . . a companion stands  by during a  [crime], ready to          sound a warning or give other aid if required.").                    Finally, the record indicates  that Jorge, at the onset          of  the DEA  raid, moved off  the front  porch and  away from the          residence "in a  rapid manner," then "casually  slow[ed] down and          walk[ed]  up the sidewalk."  We  have recognized that "[e]vidence          of flight . . . is a particularly eloquent reflection of a guilty          mind," United States  v. Martinez,  922 F.2d 914,  923 (1st  Cir.                 _____________     ________          1991), which "'may be admitted at trial . . . so long as there is          an adequate factual predicate  creating an inference of  guilt of                      _________________          the crime charged.'"  United States v. Montoya, 917 F.2d 680, 683                                _____________    _______          (1st Cir. 1990) (quoting United States v. Hernandez-Bermudez, 857                                   _____________    __________________          F.2d 50,  52 (1st Cir. 1983))  (emphasis added).  While  the evi-          dence of  flight would not have  been enough in and  of itself to          support Jorge  Sostre's convictions,  the jury fairly  could have          found,  beyond a  reasonable  doubt, that  in  so acting  he  was          attempting to flee the crime scene, thereby recasting his earlier          admissions and  conduct as the factual predicate for the ultimate          common-sense inference  of guilt.  Id.  (significance of evidence                                             ___          of flight is exclusively for the jury).                                          19                    The judgments of conviction are affirmed.                    The judgments of conviction are affirmed.                    ________________________________________                                          20
