

                    [NOT FOR PUBLICATION]

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No.  97-1772

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                  MADELINE VALENT N-OQUENDO,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Salvador E. Casellas, U.S. District Judge]                                                                  

                                         

                            Before

                   Torruella, Chief Judge,                                                     
                Aldrich, Senior Circuit Judge,                                                         
                  and Lynch, Circuit Judge.                                                      

                                         

          Linda Backiel on brief for appellant.                                   
          Guillermo  Gil,  United  States  Attorney, Jose  A.                                                                         
Quiles-Espinosa, Senior  Litigation Counsel,  and Antonio  R.                                                                         
Bazan, Assistant U.S. Attorney, on brief for appellee.                 

                                         

                      December 12, 1997
                                         

          Per   Curiam.     Madeline   Valent n-Oquendo   was                      Per   Curiam.                                  

convicted  of  three  counts  of  dealing  in  semi-automatic

weapons  prohibited  by 18 U.S.C.   922(v)  and was sentenced

to 51 months of incarceration.

          She  appeals  her  conviction,  arguing  that   the

indictment, at Count I, merged the substantive and conspiracy

offenses such that she did not have fair notice of that which

she  was being accused  and that, therefore,  double jeopardy

concerns  are raised by  her conviction.   A co-conspirator's

statement was erroneously admitted and there were other trial

errors, she says, and she complains that  she was not given a

theory of the defense instruction.  Her sentence is improper,

she also argues, because she  should not have received a two-

point upward adjustment as an organizer or supervisor and she

should  have  been  given a  downward  departure  for extreme

family hardship.

          Many of  the claimed errors were not objected to in

the trial  court and  Valent n's arguments  fail for  reasons

which require only brief explanation.

                              I

          Valent n worked as a manager at a weapons shop, the

Armer a  del Oeste  in  Bayam n, Puerto  Rico.   The  federal

firearms  license for the shop was  issued to Carmen V squez-

V squez.   Valent n wanted to  assume the business and  had a

pending application to obtain her  own license.  The  undoing

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of Valent n  and her  co-defendants, including  Jose S nchez-

Toledo,  came when  a package,  sent though  the U.S.  Mails,

arrived at the Bayam n Post Office with the muzzle of a rifle

sticking out.  It was addressed to the post office box of the

Armer a del  Oeste, but the  return address, in  Florida, was

fictitious.  Valent n  claimed the package and turned it over

to S nchez, an  employee of the Puerto Rican  Police, who put

the package into  a police car and drove  to another location

where he returned  the package to  Valent n.  [S nchez  would

later plead guilty and provide evidence against Valent n.] 

          Within  two weeks a  second package arrived  at the

Bayam n Post Office from the same fictitious Florida address.

This package was  picked up by co-defendant  Maritza Emerson-

de-Jes s, who  presented false identification.   Emerson also

worked at the Armer a.  Emerson used Valent n's pick-up truck

to get  the package.   She  also turned  the package  over to

S nchez,  who again  put it  into  his police  car, in  which

Gonz lez-Rom n  was a passenger.  The postal authorities, who

had  been   monitoring  these  transactions   with  interest,

immediately arrested the two men, and later, the women.  

          These transactions  were not recorded on  the books

of  the  Armer a.   Indeed,  documents  appear to  have  been

falsified in  an effort to  show that the transaction  in the

weapons  was  authorized.   The  two  packages  contained six

Norinco rifles  and two large  capacity magazines, prohibited

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by law.  The two women acknowledged receiving $750.00 for the

transactions,  but  argued  that  they  thought  the  weapons

belonged  to the  Puerto Rican  Police and  had been  sent to

Miami for repair.  The jury rejected that theory.

                              II

The Indictment

          While  not   artfully  drafted,  Count  I   of  the

Indictment alleged that the defendants did "unlawfully engage

in the business of dealing in firearms as the term is defined

in Title 18,  United States Code, Section 921(3),  that is, a

conspiracy to violate  Title 18, United States  Code, Section

922(a)(1)."  The  indictment went on to allege  the object of

the conspiracy  and a series  of overt acts,  giving specific

places and times.  Valent n never objected to  the indictment

before the  trial court,  so review is  for plain  error. See                                                                         

United States  v. Olano, 507 U.S.  725 (1993).  There  was no                                   

plain error. 

           The   combination   of  the   references   in  the

indictment   to  the  statutory  sections  involved  and  the

description of the  overt acts gave Valent n  ample notice of

the  charges.    To  the  extent  Valent n  argues  there was

ambiguity as to  whether the transaction was  illegal because

she   was  unlicensed  or   because  she  was   licensed  but

nonetheless  engaged in an  illegal transaction, Valent n was

given  discovery showing that  the government would  show she

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did  not  have   a  valid  license  at  the   time  of  these

transactions.  There was no  due process notice problem.  The

district court  sensibly construed  Count I  as a  conspiracy

count and so instructed, without objection.  

          As to any  hypothetical double jeopardy  issue, the

issue is at present exactly that:  hypothetical.  If there is

a  future prosecution, Valent n may raise the double jeopardy

issue at that time.

Co-Conspirator Statement and Other Alleged Trial Errors

          Applying  this  circuit's  oft-recited  test  under

United  States v.  Petrozziello, 548  F.2d 20,  23 (1st  Cir.                                           

1977), the district  court conditionally held  admissible the

statement of  Gonz lez-Rom n, as reported  by S nchez-Toledo.

The statement concerned the relationship between Valent n and

Gonz lez,   that  they  had made  arrangements  to  send  the

packages from  Florida to Puerto  Rico and that all  of those

involved were  aware that the packages contained weapons.  At

the  end  of  the trial,  the  district  court revisited  the

question and again determined the statements were admissible.

Valent n argues  that there was  no evidence of  a conspiracy

other than these statements and so admission of the testimony

was error.  The argument  is without merit, as the recitation

of the evidence demonstrates.

          Nor  was Valent n entitled to an instruction on the

defense theory  that these transactions  were legitimate  and

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the guns were intended for the Puerto Rico Police.  There was

no evidence to support the theory.  The document proffered in

support  were not established  to be official  documents from

San Juan Police; rather, they  appear to have been falsified,

and rather ineptly at that.

          We have reviewed the remaining alleged trial errors

and find the arguments to be without merit.

Sentencing

          The district court found that Valent n was a leader

or organizer  in the  offense and  accordingly increased  the

offense level  by two points  under U.S.S.G.   3B1.1(c).   On

the  evidence, this conclusion was plainly correct.  Valent n

gave Gonz lez  the address  to which the  weapons were  to be

shipped,  twice called S nchez-Toledo to pick up the weapons,

appeared herself to pick up the guns, and let Emerson use her

truck when  Emerson picked up the  guns.  As to  the downward

departure argument  made here,  no request  was  made to  the

district court for a downward departure and there is no clear

error.

          Affirmed.                              

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