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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-1659 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>               LUIS CANDELARIA-SILVA, A/K/A CANDY, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Lynch and Lipez, Circuit Judges. <br> <br>                      _____________________ <br> <br>    Thomas R. Lincoln, by appointment of the Court, with whom Law <br>Offices of Thomas R. Lincoln was on brief, for appellant. <br>    Grace Chung Becker, Trial Attorney, Narcotic and Dangerous <br>Drug Division, Criminal Division, U.S. Department of Justice, with <br>whom James K. Robinson, Assistant Attorney General, Criminal <br>Division, U.S. Department of Justice, and Theresa M.B Van Vliet, <br>Chief, Narcotic and Dangerous Drug Division, Criminal Division, <br>U.S. Department of Justice, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                       December 10, 1998 <br>                                 <br>                      ____________________

          TORRUELLA, Chief Judge.  Following a jury trial, <br>appellant Luis Candelaria-Silva ("Candelaria-Silva") was convicted <br>of conspiracy to possess with intent to distribute and distribution <br>of amounts in excess of fifty grams of cocaine base, five kilograms <br>of cocaine, one kilogram of heroin and an undetermined amount of <br>marijuana, in violation of 21 U.S.C.  841(a)(1) & 846.  <br>Candelaria-Silva was additionally convicted on a criminal <br>forfeiture count.  On appeal, he raises numerous evidentiary and <br>procedural issues.  For the following reasons, we affirm. <br>                            BACKGROUND <br>          We review the facts of a criminal case on appeal from a <br>conviction in the light most favorable to the verdict.  See United <br>States v. Gonzlez-Maldonado, 115 F.3d 9, 12 (1st Cir. 1997).  We  <br>sketch the facts presented at trial, providing further details as <br>they become relevant to the discussion. <br>          Candelaria-Silva belonged to a drug distribution ring led <br>by Israel Santiago-Lugo.  Santiago-Lugo's organization distributed <br>heroin (known by the brand name "Cristal"), cocaine powder, crack <br>cocaine, and marijuana.  The drugs were distributed at a number of <br>puntos -- drug distribution points.  Each punto consisted of a <br>supervisor and several employees such as lookouts, vendors, <br>runners, etc. <br>     Candelaria-Silva, along with his mother and two brothers, <br>ran the punto in the Villa Evangelina housing project in Manat, <br>Puerto Rico.  Three members of the Santiago conspiracy -- Otero, <br>Romn, and Hidalgo -- identified Candelaria-Silva as a participant <br>in the Villa Evangelina punto.  Candelaria-Silva was in charge of <br>crack capsules, while his brothers supervised the distribution of <br>other drugs. <br>     The government presented evidence of Candelaria-Silva's <br>three drug-related arrests.  The first arrest occurred on <br>August 19, 1992, at the Villa Evangelina Housing Project in front <br>of Building C, the location of the punto.  An officer arrested <br>Candelaria-Silva with ten baggies of cocaine and a marijuana <br>cigarette.  During the booking process, Candelaria-Silva indicated <br>that he lived at Villa Evangelina Housing Project T-251 in Manat.  <br>On cross-examination, the arresting officer testified that there is <br>no Building T in the housing project. <br>     On February 14, 1993, an officer arrested Candelaria- <br>Silva at the same location.  Upon hearing the approach of the <br>officers' vehicle Candelaria-Silva:  (1) ran into an apartment; (2) <br>gave a woman standing there a large brown paper bag; and (3) told <br>her to throw it out in the bathroom.  However, the officer seized <br>the bag before she could destroy it.  Inside the bag were 100 <br>colorless, transparent heat-sealed plastic ziplock bags.  Inside <br>each of these bags were blue, transparent plastic bags which <br>contained cocaine.  In addition, there were ten transparent, light <br>blue plastic bags, each containing a vial of crack.  The brown bag <br>also contained sixty-two packets of heroin wrapped in aluminum foil <br>with orange colored stickers with black lettering that said <br>"Cristal." <br>     Candelaria-Silva's third arrest occurred on October 31, <br>1994.  At the time of the arrest, Candelaria-Silva was driving a <br>BMW automobile with another passenger.  Candelaria-Silva engaged <br>the police car in a chase.  At one point, the BMW stopped, and the <br>officer saw a hand holding a firearm extended from an open <br>passenger side car door.  Upon seeing the officer's rifle, however, <br>the car sped away.  During the subsequent chase, the officer saw a <br>gun and other objects looking like trash and papers being thrown <br>from the vehicle.  Although the gun was never recovered, when the <br>car was eventually stopped at a roadblock, the officer seized <br>several bags of marijuana from inside the vehicle. <br>     The government also presented evidence that the <br>Candelaria family used their home to process narcotics and to store <br>weapons.  On November 3, 1993, police officers executed search <br>warrants for the two Candelaria homes located at 30 Sabana Seca <br>Ward, Manat.  In the first home, which belonged to Candelaria- <br>Silva's mother, the officers seized fifty-eight bags of marijuana, <br>thirty-eight bags of Cristal heroin, and 206 bags of cocaine.  In <br>the second home, where Candelaria-Silva's brother Eulalio resided, <br>officers seized two pistols. <br>     Again on February 14, 1995, officers executed a set of <br>search warrants on both homes, resulting in the seizure of two <br>kilograms of cocaine, heroin, marijuana, a revolver, a rifle, four <br>AK-47 machine guns, ammunition for the weapons, masks, the cutting <br>agent lactose, scales, envelopes, and vials. <br>     Additionally, the government presented the following <br>evidence of Candelaria-Silva's flight from Puerto Rico.  Deputy <br>U.S. Marshal Anthony Visalli testified that he was assigned the <br>task of locating Candelaria-Silva and returning him to Puerto Rico.  <br>As part of this investigation, he arrested Candelaria-Silva as he <br>exited his residence in Dorchester, Massachusetts on April 17, <br>1996.  When arrested, Candelaria-Silva stated that his name was <br>Arturo Martnez.  Upon being asked for identification, he told the <br>officers it was in his apartment.  The officers conducted a <br>protective sweep of the apartment incident to the arrest.  After <br>not finding any identification in the apartment, they brought <br>Candelaria-Silva outside, and read him his Miranda warnings in <br>Spanish and English.  Thereafter, Candelaria-Silva revealed his <br>true identity.  In response to Visalli's question regarding whether <br>he understood "what this was all about, did he know that . . . he <br>was wanted in Puerto Rico," Candelaria-Silva said yes.  During a <br>pat-down incident to Candelaria-Silva's arrest, a Deputy Marshal <br>seized Candelaria-Silva's wallet containing: (1) a New York State <br>identification card for Arturo Martnez with a picture of <br>Candelaria-Silva; and (2) a purchase receipt for a roller bed from <br>Dick's Furniture City in Detroit, Michigan on January 12, 1995.  <br>The Deputy Marshal also recovered other papers bearing the name of <br>Arturo Martnez. <br>     Candelaria-Silva was brought back to Puerto Rico to stand <br>trial on charges stemming from an indictment returned June 7, <br>1995.  Trial commenced on October 21, 1996.  On October 29, 1996, <br>a jury found Candelaria-Silva guilty on two counts:  the narcotics <br>conspiracy count and a criminal forfeiture count.  On March 13, <br>1997, the district court sentenced Candelaria-Silva to 200 months <br>imprisonment, followed by a five year term of supervised release, <br>along with a $50 special assessment. <br>                            DISCUSSION <br>I.  Rule 12(d) Claim <br>     Candelaria-Silva argues that the district court abused <br>its discretion in admitting evidence of his Dorchester arrest, <br>including testimony about his attempt to use a false name, because <br>the government failed to meet the notice requirements of Fed. R. <br>Crim. P. 12(d).  We find his argument without merit. <br>     Fed. R. Crim. P. 12(d)(2) provides that: <br>      <br>     At the arraignment or as soon thereafter as is <br>     practicable the defendant may in order to <br>     afford an opportunity to move to suppress <br>     evidence under subdivision (b)(3) of this <br>     rule, request notice of the government's <br>     intention to use (in its evidence in chief at <br>     trial) any evidence which the defendant may be <br>     entitled to discover under Rule 16 subject to <br>     any relevant limitations prescribed in Rule <br>     16. <br> <br>     To establish a discovery violation under Rule 12(d)(2), <br>a defendant must prove that the alleged violation prejudiced his <br>case.  See United States v. Cruz-Paulino, 61 F.3d 986, 993 (1st <br>Cir. 1995).  Rule 12(d) is a matter of procedure, rather than a <br>rule designed to ensure fairness at trial.  See id.  As we have <br>stated in the past, the rule serves to:  (1) afford the defendant <br>an opportunity to move to suppress evidence under Rule 12(b)(3); <br>and (2) avoid the necessity of the defendant moving to suppress <br>evidence which the government does not intend to present.  See id.  <br>Rule 12(d) differs from discovery rules designed to ensure fairness <br>in that it was not designed to aid the defendant in ascertaining <br>the government's trial strategy.  See id.  The advisory committee's <br>notes state that no sanction is provided for a violation of Rule <br>12(d)(2) because automatic exclusion would be too harsh a remedy <br>given the opportunity for discovery under Rule 16.  See id. at 995 <br>n.6. <br>     Prior to trial, Candelaria-Silva filed an omnibus <br>discovery motion.  On October 21, 1996, the prosecutor gave <br>Candelaria-Silva's counsel a copy of an April 17, 1996 report <br>prepared by the Deputy Marshal who arrested the appellant in <br>Dorchester.  The government admits that its designation of flight <br>evidence was belated.   <br>     Although appellant's counsel initially gave the district <br>court the impression that he was arguing that the false name was an <br>involuntary statement under 18 U.S.C.  3501, see Tr. 10/23/96 at <br>449 (district court stating "[y]ou did not mention the rule, that's <br>the impression you gave me before"), he eventually contended that <br>Fed. R. Evid. 403 prohibited introduction of the arrest as evidence <br>of flight.  See id. at 456.  The district court heard and responded <br>to the defendant's arguments.  See Tr. 10/24/96 at 591-612.  <br>Moreover, counsel for Candelaria-Silva explicitly stated that "I <br>don't think they have to designate the evidence under Rule <br>12(d)(2)."  See Tr. 10/23/96 at 452.  Candelaria-Silva had numerous <br>opportunities to raise his arguments relating to suppression, and <br>thus, the purpose of Rule 12(d) -- to afford the defense a chance <br>to move to suppress evidence under Rule 12(b)(3) -- has been <br>satisfied.  <br>     Proof positive of the "if at first you don't succeed" <br>adage, Candelaria-Silva now argues that the items could have been <br>suppressed as the fruits of an illegal search because the Deputy <br>Marshal testified on cross-examination that he entered Candelaria- <br>Silva's apartment as part of a protective sweep.  As an initial <br>matter, we note that the district court was inclined just to admit  <br>into evidence the false identification card found in Candelaria- <br>Silva's wallet during the pat-down incident to his arrest.  See Tr. <br>10/24/96 at 643.  Incredibly, it was actually Candelaria-Silva who <br>requested the admission of:  (1) the additional items found in the <br>wallet, including a receipt for a bed from a Detroit store dated <br>January 12, 1995, see id. (Candelaria-Silva's counsel stating:  <br>"Oh, no, to me the documents inside the wallet are important."); <br>and (2)  envelopes found in his apartment with a return address in <br>Detroit, Michigan.  See id. at 644-647 (Candelaria-Silva's counsel <br>stating: "I don't have a problem [with admitting the envelopes into <br>evidence]."). <br>     Since Candelaria-Silva did not raise the Rule 12(b)(3) <br>issue in the trial court, he cannot successfully litigate it on <br>appeal.  See United States v. Delutis, 722 F.2d 902, 909 (1st Cir. <br>1983).  Further, there is no chance of Candelaria-Silva's proving <br>that the alleged violation prejudiced his case thereby warranting <br>a reversal under Cruz-Paulino, since he himself sought admission of <br>the evidence to corroborate his theory that he was in the <br>continental United States prior to the return of the indictment. <br>II.  Rule 16 Violation <br>     Candelaria-Silva argues that the district court abused <br>its discretion in failing to exclude evidence that he gave a false <br>name when he was arrested in Dorchester because of the government's <br>delayed disclosure of the arrest report.  The discovery obligations <br>set forth in Fed. R. Crim. P. 16 are designed: <br>     to contribute to the fair and efficient <br>     administration of justice by providing the <br>     defendant with sufficient information upon <br>     which to base an informed plea and litigation <br>     strategy; by facilitating the raising of <br>     objections to admissibility prior to trial; by <br>     minimizing the undesirable effect of surprise <br>     at trial; and by contributing to the accuracy <br>     of the fact-finding process. <br> <br>Id. (advisory committee note). <br>     The district court has broad discretion to address <br>discovery violations in light of their seriousness.  See United <br>States v. Joselyn, 99 F.3d 1182, 1196 (1st Cir. 1996), cert. denied <br>sub nom.  Billmeyer v. United States, 117 S. Ct. 959 (1997).  This <br>Court will not grant the "draconian relief" of suppression and <br>reversal when it is "grossly disproportionate both to the <br>prosecutor's nonfeasance and any prejudice to the defense."  Id. <br>     Candelaria-Silva's failure to request a continuance <br>resolves his delayed discovery claim.  As we have previously <br>stated: <br>     When discovery material makes a belated <br>     appearance, a criminal defendant must <br>     ordinarily seek a continuance if he intends to <br>     claim prejudice . . . . As a general rule, a <br>     defendant who does not request a continuance <br>     will not be heard to complain on appeal that <br>     he suffered prejudice as a result of late- <br>     arriving discovery.  Thus, in situations where <br>     defense counsel does not seek a continuance <br>     upon belated receipt of discoverable <br>     information, a court often can assume that <br>     counsel did not need more time to incorporate <br>     the information into the defendant's game <br>     plan. <br> <br>United States v. Seplveda, 15 F.3d 1161, 1178 (1st Cir. 1993) <br>(citations omitted).  Because Candelaria-Silva never requested a <br>continuance, we need proceed no further. <br>III.  Rule 404(b) Claim <br>     Candelaria-Silva argues that the district court erred in <br>admitting evidence that Carlos Morales-Garca, a passenger in the <br>car driven by Candelaria-Silva on October 31, 1994, brandished and <br>discarded a handgun during a car chase.  We find no such error. <br>     Because the admission of Rule 404(b) evidence is <br>committed to the sound discretion of the trial judge, we will <br>reverse only for abuse of discretion.  United States v. Manning, 79 <br>F.3d 212, 217 (1st Cir.), cert. denied, 117 S. Ct. 147 (1996). <br>     Fed. R. Evid. 404(b) bars the admission of evidence of <br>"other crimes, wrongs, or acts if used to prove the character of a <br>person in order to show action in conformity therewith."  Rule <br>404(b) provides that although evidence of other crimes, wrongs, or <br>acts is not admissible to prove criminal propensity, it may be <br>admissible for other purposes that do not involve character, such <br>as proof of intent, preparation, knowledge, or absence of mistake.  <br>See Manning, 79 F.3d at 217.  Moreover, when charges of drug <br>trafficking are involved, this Court has often upheld the admission <br>of evidence of prior narcotics involvement to prove knowledge and <br>intent.  See id. <br>     Here, the evidence of the arrest was intrinsic to the <br>conspiracy charge, and consequently, does not fall within the <br>purview of Rule 404(b).  See id.  ("Evidence intrinsic to the crime <br>for which the defendant is on trial, accordingly, is not governed <br>by Rule 404(b).").  The car chase evidence was properly admitted as <br>probative of: (1) Candelaria-Silva's participation in the drug <br>conspiracy because there was marijuana in the car that he was <br>driving; (2) his residence at 30 Sabana Seca Ward, Manat -- the <br>address given on the arrest report; and (3) his consciousness of <br>guilt since Morales was also present with Candelaria-Silva in <br>Dorchester.  Accordingly, we see no error in the admission of the <br>above evidence.

IV.  Rule 401 and 403 Claims <br>     Candelaria argues that the district court erred under <br>Federal Rules of Evidence 401 and 403 in admitting evidence of:  <br>(1) his flight to Dorchester; and (2) the February 14, 1995 <br>seizures from the family homes located at 30 Sabana Seca.  Neither <br>claim is persuasive. <br>     A.  The Seizures <br>     Fed. R. Evid. 401 defines "relevant evidence" as <br>"evidence having any tendency to make the existence of any fact <br>that is of consequence to the determination of the action more <br>probable or less probable than it would be without the evidence."  <br>Id.  "Evidence may be 'relevant' under Rule 401's definition, even <br>if it fails to prove or disprove the fact at issue -- whether taken <br>alone or in combination with all other helpful evidence on that <br>issue."  United States v. Schneider, 111 F.3d 197, 202 (1st Cir. <br>1997). <br>     Candelaria-Silva contends that the February 14, 1995 <br>seizure should have been excluded because:  (1) the link between <br>him and 30 Sabana Seca was too attenuated; and (2) the evidence <br>seized was inconsistent with the drug distribution methods of the <br>Santiago-Lugo conspiracy.  Neither claim has merit. <br>     There are at least four reasons why the link between <br>Candelaria-Silva and 30 Sabana Seca is not too attenuated.  First, <br>he concedes, both in his brief and at oral argument, that he <br>maintained an auto body shop at the residence.  Second, the address <br>was the residence of multiple members of the Candelaria-Silva <br>family -- including his mother and brothers -- who were convicted <br>or pled guilty to being part of the Santiago conspiracy.  Third, <br>shortly before the search, Candelaria-Silva gave the address to a <br>police officer while being booked after an arrest.  Fourth, a co- <br>conspirator testified that he saw Candelaria-Silva at the address <br>while delivering shipments of cocaine.  Candelaria-Silva's argument <br>that there is little to connect him to 30 Sabana Seca is thus <br>disingenuous. <br>     Candelaria-Silva further contends that the seizure was <br>irrelevant because the evidence seized was inconsistent with the <br>drug distribution methods of the Santiago conspiracy -- i.e. <br>"Cristal" stickers were not affixed to the decks of heroin that day <br>and the cocaine seized was in different quantities than a co- <br>conspirator said he had delivered at a previous time.  This <br>argument overlooks the government's proof that:  (1) the Santiago <br>conspiracy distributed powder cocaine, crack cocaine, heroin and <br>marijuana; (2) the homes were used to package and store narcotics <br>for sale at the Villa Evangelina punto; (3) Candelaria-Silva's <br>previous arrests involved each of the four types of narcotics <br>distributed by the Santiago organization; (4) Candelaria-Silva was <br>previously arrested with 62 packages of "Cristal" heroin -- the <br>logo of the Santiago conspiracy; and (5) Cristal heroin had been <br>previously seized from the location.  We see no reason why the <br>evidence was not admissible under Rule 401. <br>     In addition, Candelaria-Silva contends that the district <br>court abused its discretion under Fed. R. Evid. 403 in admitting <br>testimony and photographs of firearms, guns, drugs, and drug <br>paraphernalia seized on February 14, 1995. <br>     Rule 403 provides that "[a]lthough relevant, evidence may <br>be excluded if the probative value is substantially outweighed by <br>the danger of unfair prejudice, confusion of the issues, or <br>misleading the jury, or by consideration of undue delay, waste of <br>time, or needless presentation of cumulative evidence."  Id. <br>     Obviously, evidence presented by the government is <br>prejudicial to the defendant's interests. If it were not, the <br>prosecution would not be introducing it.  That is why the "law <br>protects a defendant against unfair prejudice, not against allprejudice."  United States v. Rivera-Gmez, 67 F.3d 993, 997 (1st <br>Cir. 1995) (emphasis in original).  "The admitted evidence must not <br>only be prejudicial, but be unfairly prejudicial, and not only <br>outweigh relevance but substantially outweigh relevance."  United <br>States v. Rivera, 83 F.3d 542, 545 (1st Cir. 1996).  In conducting <br>this balancing test, the district court has "especially wide <br>latitude,"  Rivera-Gmez, 67 F.3d at 997, and "Rule 403 tilts the <br>balance in favor admission."  Rivera, 83 F.3d at 545. <br>     There was nothing improper with the admission of the <br>masks, firearms, and narcotics evidence.  First, most of the <br>evidence from the seizures was presented to the jury via <br>photographs thereby reducing the prejudicial effect.  Second, we <br>cannot say the district court abused its discretion under Rule 403; <br>the evidence was relevant and its admission not substantially <br>outweighed by the Rule 403 factors.  In addition, we note that <br>defense counsel, on the losing side of a Rule 403 argument, always <br>has the option of asking for a limiting instruction "that the <br>evidence should be considered not to show the character of the <br>defendant, but only as proof of intent, operation, plan, knowledge <br>or absence of mistake or accident."  United States v. Cresta, 825 <br>F.2d 538, 554 (1st Cir. 1987).  We hold that the probative value of <br>the evidence -- in establishing Candelaria-Silva's involvement in <br>a far ranging narcotics conspiracy -- outweighed its prejudicial <br>effect. <br>     B.  Evidence of Flight <br>     Evidence of a defendant's flight and attempts to conceal <br>or falsify identity may be presented at trial as probative of a <br>guilty mind if there is an adequate factual predicate creating an <br>inference of guilt of the crime charged.  See United States v. <br>Tracy, 989 F.2d 1279, 1286 (1st Cir.) (citations omitted), cert. <br>denied, 508 U.S. 929 (1993). <br>     Candelaria-Silva's contention is that the adequate <br>factual predicate is missing in this case because he left Puerto <br>Rico prior to the return of the indictment on February 9, 1995.  He <br>alleges that he left Puerto Rico in late 1994 because he was afraid <br>that his probation would be revoked as a result of his October 31, <br>1994 arrest.  In substantiating this proposition, Candelaria-Silva <br>relies on a receipt in his possession at the time of his arrest in <br>Dorchester for a bed purchased in Detroit, Michigan on January 12, <br>1995.   <br>     This receipt does not conclusively prove Candelaria- <br>Silva's continuous presence in the continental United States prior <br>to the return of the indictment.  It is conceivable that <br>Candelaria-Silva visited Detroit, returned to Puerto Rico, and <br>then, upon learning of the indictment, fled to Dorchester.  SeeUnited States v. Amuso, 21 F.3d 1251, 1258 (2d Cir. 1994) ("The <br>fact that a defendant's flight is subject to varying <br>interpretations does not lead inevitably to the conclusion that the <br>district court abused its discretion in admitting flight <br>evidence."). <br>     Here, there was an adequate factual predicate to admit <br>evidence of flight and Candelaria-Silva's continued absence.  <br>Candelaria-Silva admits that he fled because he was afraid that his <br>probation would be revoked as a result of the October 31, 1994 <br>arrest -- an arrest predicated upon conduct that constitutes part <br>of his participation in the conspiracy.  Further still, he <br>attempted to conceal his whereabouts by creating a new identity.  <br>He obtained a false identification card in the name of Arturo <br>Martnez, rented an apartment under that name, and applied for <br>credit using that name.  See United States v. Ortiz-Arrigoita, 996 <br>F.2d 436, 440 (1st Cir. 1993) (establishing that a defendant's <br>attempt to conceal his identity may be relevant evidence of his <br>guilt); United States v. Boyle, 675 F.2d 430, 432 (1st Cir. 1982) <br>(stating that use of a false name after the commission of a crime <br>is commonly accepted as being relevant on the issue of <br>consciousness of guilt). <br>     Most importantly, Candelaria-Silva admitted to the Deputy <br>Marshal after his arrest that he knew he was wanted in Puerto Rico.  <br>See Tr. 10/24/96 at 617.  Based on the above information, there was <br>an adequate factual predicate creating an inference of guilt of the <br>crime charged.  Moreover, any danger that the jury may have given <br>undue weight to the flight evidence was cured by the district <br>court's use of this instruction which emphasizes that flight alone <br>is insufficient to sustain a conviction, and that many innocent <br>people flee.  Consequently, the district court did not abuse its <br>discretion to admit this evidence under Rule 403. <br>V.  Coconspirator Statements <br>     Candelaria-Silva argues that the following statements <br>should have been excluded as inadmissible hearsay:  (1) testimony <br>of Jos Romn-Freites, a manager of the Los Murales punto in <br>Manat, that Candelaria-Silva was selling crack, and that Santiago <br>was supplying drugs other than heroin at the Villa Evangelina <br>punto; and (2) the entire cross-examination testimony of Marcos <br>Hidalgo, a government witness in two prior trials.  We disagree. <br>     A.  Romn-Freites <br>     Federal Rule of Evidence 801(d)(2)(E) excludes from the <br>operation of the hearsay rule "a statement by a coconspirator of a <br>party during the course and in furtherance of the conspiracy."  It <br>is not necessary for the indictment to charge a conspiracy in order <br>to admit coconspirators' statements under Rule 801(d)(2)(E).  See  <br>United States v. Campa, 679 F.2d 1006, 1011 (1st Cir. 1982).  <br>Whether or not a conspiracy has been charged, such statements are <br>admissible if the district court finds that "it is more likely than <br>not that the declarant and the defendant were members of a <br>conspiracy when the hearsay statement was made, and that the <br>statement was in furtherance of the conspiracy."  United States v. <br>Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).  In this circuit, <br>the district court's ultimate finding on such a matter has come to <br>be called a "Petrozziello  determination." <br>     The proper procedure for admitting or rejecting <br>coconspirator statements is set forth in United States v. <br>Ciampaglia, 628 F.2d 632, 638 (1st Cir.), cert. denied, 449 U.S. <br>1038 (1980).  It requires that the district court make its <br>Petrozziello determination "at the close of all the evidence."  Id.  <br>If the defendant fails to offer a timely objection, then the <br>conviction can only be vacated if the record reveals plain error.  <br>See United States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992). <br>     Here, Romn-Freites testified that Candelaria-Silva was <br>in charge at the Villa Evangelina punto and that heroin, cocaine, <br>crack, and marijuana were sold there.  Defense counsel twice <br>objected when Romn-Freites testified that Candelaria-Silva was <br>selling crack at the punto on the grounds that the government <br>failed to elicit the source of Romn-Freites' knowledge.  The <br>government inquired, and Romn-Freites explained that he had been <br>promised by Santiago-Lugo that he would be the sole distributor of <br>Santiago-Lugo's narcotics in Manat.  After hearing that Cristal <br>heroin was being sold at Villa Evangelina, Romn-Freites went to <br>the punto to confirm the information.  During his visit, he learned <br>from "a kid" named El Canito, who was selling cocaine there, that <br>Santiago-Lugo's heroin was being sold there.  He testified about <br>his discovery that Santiago-Lugo was selling heroin, cocaine, <br>marijuana and crack at the Villa Evangelina punto.  Defense counsel <br>failed to raise any hearsay objections to this testimony. <br>     At the close of the government's case and again at the <br>close of Candelaria-Silva's case, the district court made the <br>requisite Petrozziello findings.  At this point, Candelaria-Silva <br>again failed to object specifically to Romn-Freites' testimony on <br>the ground that El Canito was not a member of the Santiago-Lugo <br>organization or that the statement was not made in furtherance of <br>the conspiracy. <br>     For Petrozziello purposes, the critical juncture is the <br>close of all the evidence.  See Ortiz, 966 F.2d at 716.  At that <br>juncture in this case, Romn-Freites' testimony went unremarked.  <br>Under such circumstances, we can vacate the defendant's conviction <br>on this ground only if the record reveals plain error.  See id.  No <br>such error is apparent in this case. <br>     B.  Hidalgo <br>     Candelaria-Silva complains that the government improperly <br>elicited hearsay during its cross-examination of Hidalgo.  The <br>district court did not err in allowing the government's questions. <br>     Here, defense counsel improperly asked Hidalgo about <br>comments around town with respect to the activities in which <br>Eulalio and Moiss Candelaria-Silva were involved.  By limiting his <br>questions to these two brothers, defense counsel elicited that <br>these two brothers were in charge of distributing drugs at Villa <br>Evangelina.  Then, defense counsel asked a broader question about <br>what the witness had heard about their brother Candy, to which <br>Hidalgo answered only that Candy was their brother.  Thus, this <br>portion of the direct examination resulted in inadmissible hearsay, <br>and left the jury with the incorrect impression that Candelaria- <br>Silva was not involved in his brothers' drug distribution <br>activities.  In light of this, the district court reasonably <br>permitted the government to question the witness about whether <br>Candelaria-Silva was also known to have participated in his <br>brothers' activities at the punto.  Thus, the district court <br>properly employed the doctrine of curative admissibility to admit <br>otherwise inadmissible evidence in order to rebut prejudicial <br>evidence which already had been erroneously admitted.  See United <br>States v. Nardi, 633 F.2d 972, 977 (1st Cir. 1980) (citations <br>omitted).  <br>VI.  Jury Instruction <br>     Candelaria-Silva contends that the district court should <br>have instructed the jury not to infer guilt from flight unless it <br>found that the government had proved beyond a reasonable doubt that <br>Candelaria-Silva was aware that he had been accused.  <br>     At trial, the district court gave the following <br>instruction on flight evidence: <br>     Intentional flight or intentional hiding or <br>     evasion by a defendant after he is accused of <br>     the crime for which he is now on trial, may be <br>     considered by you in light of all the other <br>     evidence in the case.  On this issue, like <br>     other matters of evidence, the government has <br>     the burden of proof.  Intentional flight or <br>     intentional hiding or evasion after a <br>     defendant is accused of a crime is not alone <br>     sufficient to conclude that the defendant is <br>     guilty.  Flight, hiding or evasion, does not <br>     create a presumption  of guilt.  At most, it <br>     may provide the basis for an inference of <br>     consciousness of guilt.  But flight, hiding or <br>     evasion may not always reflect feelings of <br>     guilt.  Moreover, feelings of guilt, which are <br>     present in many innocent people, do not <br>     necessarily reflect actual guilt.  In your <br>     consideration of this type of evidence you <br>     should consider that there may be reasons for <br>     defendant's actions that are fully consistent <br>     with innocence. <br>          It is up to you as members of the jury to <br>     determine whether or not evidence of <br>     intentional flight or intentional hiding or <br>     evasion shows a consciousness of guilt and the <br>     weight or significance to be attached to any <br>     such evidence. <br> <br>Tr. 10/29/96 at 1089-90.  Although the model jury instruction <br>merely uses the phrase "intentional flight," the district court <br>employed the additional language "intentional flight or intentional <br>hiding or evasion" to reflect that Candelaria-Silva may have fled <br>prior to the return of the indictment and that his continued <br>absence after he was aware of the charges against him would be a <br>potential basis to infer consciousness of guilt. Despite <br>Candelaria-Silva's objection, the instruction was properly tailored <br>to the facts of this case. <br>VII.  Judicial Bias <br>     Candelaria-Silva contends that the "district court <br>overstepped its bounds and assumed the role of an advocate for the <br>prosecution, constantly interjecting in a manner that indicated <br>annoyance and bias against [] counsel, preventing appellant from <br>having a fair trial."  Candelaria-Silva Br. at 50.  He then argues <br>that "space limitations do not allow," id., for a complete listing <br>of all such instances of inappropriate judicial conduct.  On those <br>occasions in which the lack of paper or failure to recount one <br>instance of judicial bias prevents counsel from arguing his point, <br>our words in United States v. Zannino, 895 F.2d 1 (1st Cir. 1990), <br>are most appropriate: <br>     [I]ssues adverted to in a perfunctory manner, <br>     unaccompanied by some effort at developed <br>     argumentation, are deemed waived.  It is not <br>     enough merely to mention a possible argument <br>     in the most skeletal way, leaving the court to <br>     do counsel's work, create the ossature for the <br>     argument, and put flesh on its bones . . . . <br>     Judges are not expected to be mindreaders.  <br>     Consequently, a litigant has an obligation to <br>     spell out its arguments squarely and <br>     distinctly, or else forever hold its peace. <br> <br>Id. at 17 (internal quotation marks and citations omitted).  We <br>resist counsel's request that we conduct "a reading of the entire <br>record with care," Candelaria-Silva's Br. at 50, as a task that <br>should have been completed by him in the first place. <br>                           CONCLUSION <br>     For the reasons stated in this opinion, we affirm.</pre>

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