
USCA1 Opinion

	




          October 3, 1995   United States Court of Appeals                                For the First Circuit                                 ____________________          No. 92-1923                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               JULIO LUCIANO-MOSQUERA,                                Defendant, Appellant.                                 ____________________          No. 92-1924                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   RAUL LUGO-MAYA,                                Defendant, Appellant.                                 ____________________          No. 92-1925                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 RAFAEL PAVA-BUELBA,                                Defendant, Appellant.                                 ____________________          No. 92-1973                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               CARLOS PAGAN-SAN-MIGUEL,                                Defendant, Appellant.                                 ____________________          No. 92-1974                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               EDGAR GONZALEZ-VALENTIN,                                Defendant, Appellant.                                 ____________________          No. 94-1657                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               CARLOS PAGAN-SAN-MIGUEL,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of this court issued on August 28, 1995 is amended as        follows:            On page 35, lines 8-9, substitute "This argument is meritless."         for "This argument was not raised below, is reviewed for plain error,        and is meritless."                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 92-1923                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               JULIO LUCIANO-MOSQUERA,                                Defendant, Appellant.                                 ____________________        No. 92-1924                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   RAUL LUGO-MAYA,                                Defendant, Appellant.                                 ____________________        No. 92-1925                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 RAFAEL PAVA-BUELBA,                                Defendant, Appellant.                                 ____________________        No. 92-1973                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               CARLOS PAGAN-SAN-MIGUEL,                                Defendant, Appellant.                                 ____________________        No. 92-1974                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               EDGAR GONZALEZ-VALENTIN,                                Defendant, Appellant.                                 ____________________        No. 94-1657                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               CARLOS PAGAN-SAN-MIGUEL,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Lydia Lizarribar-Masini for appellant Luciano-Mosquera.            _______________________            Ramon Garcia for appellant Lugo-Maya.            ____________            Rafael Gonzalez Velez for appellant Pava-Buelba.            _____________________            Frank A. Ortiz for appellant Pagan-San-Miguel.            ______________            Wilfredo Rios Mendez for appellant Gonzalez-Valentin.            ____________________            Epifanio Morales Cruz, Assistant United States Attorney, with            _____________________        whom Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa,             _____________                          _______________________        Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant United                                       _________________        States Attorney, were on brief, for United States.                                 ____________________                                   August 28, 1995                                 ____________________                      LYNCH, Circuit Judge.  At  2:45  a.m. on  March 27,                      LYNCH, Circuit Judge.                             _____________            1991, in  the darkness of the night over a Puerto Rico beach,            government flares  brightened the  sky as waiting  police and            customs  officers surprised  and arrested six  men offloading            eight bales of cocaine from two  yawls.  The men had  brought            232.8  kilograms of  cocaine to  this country  from Colombia.            Others  involved were  arrested on  land and  on sea.   Those            arrests led ultimately to  these appeals by five of  the men,            Carlos Pagan-San-Miguel, Edgar Gonzalez-Valentin,  Raul Lugo-            Maya, Rafael Pava-Buelba and Julio Luciano-Mosquera.                        The  appeals  variously  raise  challenges  to  the            sufficiency  of  the  evidence,   to  limitation  of   cross-            examination,   to  the   admissibility  of   one  defendant's            statement, to  remarks made during summation,  to the reading            of the transcript  of trial  testimony to the  jury, to  jury            instructions,   to  the  delay   in  transcribing  the  trial            transcript, and  to  their sentences.    Of these,  only  one            raises serious issues --  the question of the sufficiency  of            the  evidence  to support  the  convictions  for carrying  or            aiding and abetting the  carrying of a firearm during  and in            relation to the drug offense as to certain defendants.                      The convictions of defendants Pava-Buelba and Lugo-            Maya are reversed on  the firearms count (Count 4)  and their            sentences  on  that  count  are  vacated.    We affirm  their            convictions and  sentences on  the drug counts  (Counts 1-3).                                         -4-                                          4            The convictions and sentences of defendants Pagan-San-Miguel,            Gonzalez-Valentin,  and Luciano-Mosquera are  affirmed on all            counts.                                      I.  FACTS                      The  jury  heard  or   could  properly  infer   the            following facts.   Oscar Fontalvo  arrived in Puerto  Rico in            January 1991  to organize  a scheme  to smuggle cocaine  into            Puerto  Rico.  The scheme involved the drugs being flown from            Colombia, airdropped into the  sea at a prearranged location,            picked up by a waiting boat and then sailed ashore.   In drug            parlance,  this  operation  is  called a  "bombardeo."    The            waiting boat  is called the "mothership."   Fontalvo enlisted            Pagan-San-Miguel and Jose Perez-Perez, who were to be paid in            kind  with   50  kilograms  of  cocaine.     Pagan-San-Miguel            introduced Fontalvo to  Luis Soltero-Lopez,  who agreed  that            his  boat, the F/V Marlyn,  would be used  as the mothership.            Soltero-Lopez  recruited Jonas Castillo-Ramos  to be captain,            and Castillo-Ramos  recruited two  crew members for  the drug            run.                      The operation  was planned at a  number of meetings            in Puerto  Rico in  March 1991.   Fontalvo, Pagan-San-Miguel,            Perez-Perez  and  Soltero-Lopez attended  the  meetings.   At            least two of  these meetings  were at the  home of  Gonzalez-            Valentin and, the jury could have inferred, Gonzalez-Valentin            was there for at least one.                                         -5-                                          5                      Perez-Perez brought a bag to one of the meetings at            Gonzalez-Valentin's house.  Pagan-San-Miguel  and Perez-Perez            opened  the bag  and  showed Fontalvo  and  the others  there            (including  Gonzalez-Valentin) a  Colt M-16, Model  A-1, 5.56            caliber fully automatic sub-machine  gun with an  obliterated            serial number (the "M-16").  Later during the meeting, Perez-            Perez  brought Fontalvo over to  his pick-up truck and pulled            out from under the front seat an Intratec, Model TEC-9, semi-            automatic .9mm pistol (the  "Intratec pistol").  Referring to            the weapons, Pagan-San-Miguel said they had brought them.                        Communication  amongst  the  Colombian  and  Puerto            Rican  participants,  the  plane,  and  the  F/V  Marlyn  was            essential.   Pagan-San-Miguel and Fontalvo went  to Miami and            purchased a  radio and antenna.   Pagan-San-Miguel and Perez-            Perez installed them on the F/V Marlyn in Puerto Rico.   Code            names  were  used for  radio  transmissions.   The  Colombian            dispatcher  was "Khadafi"; Pagan-San-Miguel  was "Gigante" or            "Padrino"  or  "Godfather."   Fontalvo  and  Pagan-San-Miguel            handled  radio  communications  and set  up  a  radio in  the            backyard of Gonzalez-Valentin's house, hiding it in a child's            playhouse.                      Soltero-Lopez,  the F/V  Marlyn's  owner,  flew  to            Colombia to board the  plane so that during the  bombardeo he            could identify his boat and  insure the drop was not  made to            the wrong boat  (a not uncommon event).  The  F/V Marlyn went                                         -6-                                          6            to  the Dominican Republic to  prepare for the  airdrop.  The            Colombian drug owners, assigned a Colombian,  Pava-Buelba, as            a "load watcher" to  observe the operation and report  to the            Colombian suppliers about  the fate of  the delivery.   Pava-            Buelba went to the  Dominican Republic to meet Castillo-Ramos            and the mothership.                      On March 25, 1991, the F/V Marlyn and its crew left            the  Dominican  Republic  for   its  drug  rendezvous.    The            Colombian load watcher, Pava-Buelba, joined the F/V Marlyn at            sea after it  had cleared  Dominican Republic  customs.   The            next morning, March  26, 1991,  the boat and  the plane  made            radio contact.   The  plane dropped  eight bales  of cocaine,            which were taken aboard the F/V Marlyn.                      Waiting in Puerto Rico, Fontalvo, Pagan-San-Miguel,            Luciano-Mosquera and Gonzalez-Valentin received word that the            airdrop  had been successful.   A call came  in to Pagan-San-            Miguel on a cellular phone in Luciano-Mosquera's car, warning            that the  operation had been  discovered and that  the police            were watching.  Pagan-San-Miguel reassured everyone, claiming            he had  "informants in  the authorities" who  would give  him            information  and that he had a police scanner.  Fontalvo went            back to his cabin, leaving the others to proceed.                        The  F/V  Marlyn  anchored  in  Dominican  Republic            waters until approximately 5:30 p.m. and then began  the trip            to Buoy #8, the  designated meeting place for the  F/V Marlyn                                         -7-                                          7            and  the two smaller boats  ("yawls").  Around  12:30 a.m. or            1:30 a.m.  on March  27, the  F/V Marlyn and  the yawls,  all            operating without running lights in the darkness, met several            miles  off the western coast of Puerto  Rico at Buoy #8.  The            cocaine was  roped down into  the yawls.   Pava-Buelba, Lugo-            Maya, Perez-Perez  and Gonzalez-Valentin sailed the  yawls to            Guanajibo Beach, near Mayaguez, Puerto Rico.                      The landing site on  Guanajibo Beach that night was            immediately  behind the  home  of Pagan-San-Miguel's  father.            Two men, one fitting the description of Pagan-San-Miguel, the            other  of Luciano-Mosquera, approached the landing yawls from            the beach and helped to offload the bales of cocaine.                        Law  enforcement officials had indeed been silently            monitoring  the  operation.  The airdrop had been observed by            U.S.   Customs  Service   airplanes,  which   videotaped  the            mothership.   Coast Guard vessels  had tracked the F/V Marlyn            and  the yawls.  Camouflaged agents, hidden on the beach, had            watched the offloading.   Flares went up; arrest signals were            given.  The conspirators  scattered, leaving bales in  a line            from  the yawls  to  the home  of Pagan-San-Miguel's  father,            along the roughly five-meter wide beach.                      Pagan-San-Miguel sprinted and  sought refuge  under            an  abandoned Volkswagen at a house  next to the beach.  When            found, he was  wet and had his jeans rolled  up to his knees.            Gonzalez-Valentin, dressed in  camouflage pants and  black T-                                         -8-                                          8            shirt,  completely wet and covered with sand, ran to the gate            of  Pagan-San-Miguel's  father's house.    He  called out  to            Pagan-San-Miguel's  father to  open  up, as  the police  were            there.  He was arrested at the gate.                      Luciano-Mosquera and Pava-Buelba were  found, about            forty minutes after the  flares went up, under a  jeep parked            in  a carport  by the  building where  bales of  cocaine were            left.   Pava-Buelba  was  under the  driver's side,  Luciano-            Mosquera  under  the  passenger's.    Pava-Buelba   was  wet,            Luciano-Mosquera was dry.                      Lugo-Maya headed to sea in one of the yawls and was            intercepted  by   Coast  Guard  vessels.1    Perez-Perez  was            arrested  near  the beach.    A later  search  of Lugo-Maya's            escape  yawl  found  a  well-hidden   box  of  50  rounds  of            ammunition.   That ammunition fit the  Intratec pistol, which            was found in the beached other yawl.                        The   M-16   was   later   found   hidden   in  the            undercarriage  of the  jeep where Luciano-Mosquera  and Pava-            Buelba  had hidden  in  vain.    The  M-16  was  on  Luciano-            Mosquera's side "at the place where the chass[is] and the [ ]            springs of  the front of  the jeep are  located."  Two  small            beepers were found above  the chassis on the same  side where                                            ____________________            1.  The F/V Marlyn was not forgotten.  The U.S.S. Shark, a            Coast Guard vessel, intercepted it, and a boarding party led            by Lt. Wendy Abrisz arrested Castillo-Ramos and the two crew            members.  Fontalvo was later arrested in Miami.                                         -9-                                          9            the M-16 was found.   Two M-16 magazines with  twenty bullets            in each  of them  were found  on the side  of the  Pagan-San-            Miguel house.   The machine gun and the pistol  were the same            ones Pagan-San-Miguel and  Perez-Perez had shown  to Fontalvo            earlier.                      No weapons were seen  during the observation of the            offloading  operation and no weapons were found on any of the            defendants.  There  had been  no weapons on  the F/V  Marlyn.            Neither  Luciano-Mosquera nor Pava-Buelba  had arrived at the            beach by the jeep.  There was no evidence as to who owned the            jeep or how the jeep got there.                        After being given  his Miranda warnings, Pagan-San-                                             _______            Miguel later bemoaned his arrest to a police officer,  saying            he would have  been given $300,000 for his role  in the deal.            Instead, he was given a sentence of 60 years in prison by the            court.    Fontalvo  and  Castillo-Ramos  were key  government            witnesses at trial.                      The  five appellants,  Luciano-Mosquera, Lugo-Maya,            Pava-Buelba,  Pagan-San-Miguel  and  Gonzalez-Valentin,  were            found guilty of conspiracy to import cocaine, in violation of            21 U.S.C.    960 and 963 (Count 1); importing 232.8 kilograms            of cocaine, in violation of 21 U.S.C.   952 and 18 U.S.C.   2            (aiding and abetting) (Count  2); possessing the cocaine with            intent  to distribute, in violation of  21 U.S.C.   841(a)(1)            and 18  U.S.C.   2  (Count 3);  and of knowingly  carrying or                                         -10-                                          10            aiding and abetting the  carrying of firearms in  relation to            the  drug  trafficking crime  of  importing  the cocaine,  in            violation of 18 U.S.C.   924(c)(1)  and 18 U.S.C.   2 (Counts            4 and 5).                        The  district  court  sentenced  the  appellants on            Counts 1, 2, and 3 to terms  of imprisonment ranging from 188            to  360 months  and to  terms of  supervised release  of five            years.   It  also sentenced  the appellants  on Count  4, the            firearms  count as to the  M-16, to the  mandatory minimum of            360 months  imprisonment, to  be served consecutively  to the            terms of  imprisonment imposed  on Counts  1, 2  and 3.   The            court dismissed  Count  5, the Intratec pistol count,  out of                                         -11-                                          11            double  jeopardy  concerns.2    It  also  ordered  a  special                                            ____________________            2.  At oral argument a question arose as to whether the            district court had in fact dismissed Count 5 or had simply            not sentenced on that count.  We asked the government to             inform us as to the disposition of the convictions for Count            5.  In its response, the government represented that Count 5            had not been dismissed and that the district court had simply            not sentenced on that count.  Our own review of the docket            sheet, however, reveals plainly an order dismissing Count 5,            which the government acknowledged when the court called the            order to counsels' attention.  We take a dim view of the            government's conduct in this matter, even if it is viewed as            nothing more than negligence.                      The government now claims that, in any event, the            order dismissing Count 5 is a nullity because the order was            entered on the docket a few days after each appellant had            filed his notice of appeal.  Pointing out that as a general            rule the entry of a notice of appeal divests the district            court of jurisdiction to adjudicate any matters related to            the appeal, see United States v. Distasio, 820 F.2d 20, 23                        ___ _________________________            (1st Cir. 1987), the government argues that the entry of the            notices of appeal divested the district court of jurisdiction            over the case and that, absent jurisdiction, the order on            Count 5 can have no effect.                        But the government forgets that a criminal judgment            involving multiple counts is not final and appealable unless            the record discloses the precise disposition (e.g., the            sentence) for each count.  See United States v. Wilson, 440                                       ___ _______________________            F.2d 1103 (5th Cir.) (no final judgment where the court            imposed sentence on three counts of a six count indictment            and withheld sentence on three counts)(cited with approval in            15B Charles A. Wright, et al., Federal Practice and                                   ______  ____________________            Procedure,   3918.7 & n.10 (2d ed. 1992)), cert. denied, 404            _________                                  ____________            U.S. 882 (1971).  The district court here had not specified            the disposition of Count 5 by the time the notices of appeal            were docketed.  Absent a disposition on Count 5, there was no            final judgment from which the defendants could appeal.             Because there was no appealable order at the time the notices            were filed, the notices of appeal could not have divested the            district court of its jurisdiction over the case.             Accordingly, the district court had jurisdiction and its            order dismissing Count 5 was not a nullity.                      That the notices were premature does not affect            this court's jurisdiction of these appeals.  The notices            simply relate forward to the entry of judgment.  See  Fed. R.                                                             ___            App. P. 4(b);  cf. Yockey v. Horn, 880 F.2d 945, 948 n.4 (7th                           ___ ______________            Cir. 1989) (where district court inadvertently failed to            dismiss one count of a multi-count complaint, notice of                                         -12-                                          12            assessment of $50 for each  of Counts 1-4.                                 II.  CONVICTION ISSUES                      A.  Sufficiency of the Evidence                          ___________________________                      1.  Count 4, the M-16 Firearm Count.                          _______________________________                      Appellants'  principal focus  is on  the  denial of            their Rule 29 motions at trial for  acquittal on Count 4, the            M-16 firearm  count.   Each appellant  claims that there  was            insufficient evidence to support his conviction under Count 4            for  carrying, or aiding and abetting the carrying of, the M-            16 during and in relation to the drug trafficking offense, in            violation  of 18  U.S.C.    924(c)(1) and  18 U.S.C.    2(a).            Section 924(c)(1) provides, in pertinent part:                      Whoever, during and in  relation to any . .  . drug                      trafficking crime  . . . uses or carries a firearm,                      shall, in  addition to the punishment  provided for                      such . . . drug trafficking  crime, be sentenced to                      imprisonment  for five  years,  . .  .  and if  the                      firearm  is a machine gun . . . to imprisonment for                      thirty years. . . . .             18 U.S.C.     924(c)(1).   Section 2(a)  provides:   "Whoever            commits an  offense against the United States or aids, abets,            counsels, commands,  induces or  procures its commission,  is            punishable as a principal."  18 U.S.C.   2(a).                                            ____________________            appeal that was technically premature related forward after            district court entered an order officially dismissing the            remaining count).  The notices of appeal are treated as if            they were filed on the date the order dismissing Count 5 was            entered on the docket.                        Count 5 is no longer at issue in this case.  The            government did not cross-appeal from the dismissal, nor has            it requested reversal of the dismissal of Count 5.                                         -13-                                          13                      The  standard  of  review  for sufficiency  of  the            evidence is familiar.  "Our  task is to review the  record to            determine  whether  the  evidence and  reasonable  inferences            therefrom, taken as a  whole and in the light  most favorable            to the prosecution, would allow  a rational jury to determine            beyond a reasonable doubt that the defendants were  guilty as            charged."  United  States v. Mena-Robles,  4 F.3d 1026,  1031                       _____________________________            (1st Cir.  1993),  cert. denied  sub  nom. Rivera  v.  United                               ____________  _________ __________________            States, 114 S. Ct. 1550 (1994).            ______                      The  facts of this case do not require us to define            the  precise contours  of the  meaning Congress  intended the            phrase "carries" to have, and we note the variety of views on            both that issue and  the meaning of its companion  term "use"            in 18 U.S.C.    924(c)(1).   See generally  United States  v.                                         ___ _________  _________________            Joseph,  892  F.2d  118,  126  (D.C.  Cir.  1989)  (to  prove            ______            carrying, the government must show that the defendant had the            ability to exercise dominion and control over the firearm and            that  the firearm  was  within  easy  reach  to  protect  the            defendant during the drug trafficking offense); United States                                                            _____________            v.  Evans,  888 F.2d  891,  895  (D.C.  Cir. 1989)  (carrying            _________            comprehends more than actually  physically wearing or bearing            a gun  on one's  person), cert.  denied sub  nom.   Curren v.                                      _____________ _________   _________            United States, 494  U.S. 1019 (1990); see  also United States            _____________                         _________ _____________            v. Bailey, 36 F.3d  106, 125 (D.C. Cir. 1994)  (Williams, J.,            _________            dissenting)  (stating that  carrying included  situations (1)                                         -14-                                          14            where  a weapon was within  easy reach of  the defendant, (2)            where  a defendant had  sufficient control  over confederates            carrying weapons to establish constructive possession, or (3)            where a  defendant had transported a weapon  by motor vehicle            and  had ready  access to  the weapon  as if  it were  in his            pocket), cert.  granted, 115 S.  Ct. 1689 (1995);  Bailey, 36                     ______________                            ______            F.3d 106 at 114-15 & n.1 (stating that what constitutes "use"            depends  upon  the  nature  of   the  underlying  substantive            offense);  United States v. Paulino, 13 F.3d 20, 26 (1st Cir.                       ________________________            1994) (focussing on whether the firearm was available for use            in connection with the  narcotics trade).  Suffice it  to say            that actual  physical carrying  of the  gun comes  within the            scope of the statute.  See Joseph, 892 F.2d at 126.                                    ___ ______                      The  conclusion is  reasonable  that  at least  one            Puerto  Rico  based   participant  in  the  drug   conspiracy            physically carried the  M-16 to the beach.  The M-16 had been            at  Gonzalez-Valentin's house  a  few days  before the  beach            landing.  It was then found in the undercarriage of the  jeep            in  a carport  near the  beach, next  to a  building entryway            where  bales of cocaine had been brought.  Someone brought it            from Gonzalez-Valentin's  house to the  jeep.  The  fact that            the  jeep  was  not  otherwise connected  to  the  defendants            suggests  that  sometime  before  the  arrest,  the  gun  was            somewhere  on the beach and  was then brought  from the beach            and  placed  under the  jeep to  avoid  detection.   That the                                         -15-                                          15            bullets  for the  machine  gun were  found behind  Pagan-San-            Miguel's house near the bales of cocaine further supports the            inference  that the  gun was  either carried  onto the  beach            during the offloading or was nearby as part of the operation.            Still, the  gun was not found  in the hands of  anyone at the            beach and there is  no direct evidence as to who  carried the            gun.  None of  the agents watching the offloading  saw anyone            with a weapon of any kind.                      Our initial focus then is on the sufficiency of the            evidence  on  the aiding  and  abetting charge.    Aiding and            abetting  requires  that  "the  defendant  [have]  associated            himself with the venture, participated  in it as in something            he wished to bring about,  and sought by his actions  to make            it succeed."  United States v.  Alvarez, 987 F.2d 77, 83 (1st                          _________________________            Cir.), cert. denied, 114 S. Ct. 147 (1993).  Mere association                   ____________            with the principal, or mere presence at the scene of a crime,            even  when  combined  with  knowledge that  a  crime  will be            committed, is not sufficient to establish aiding and abetting            liability.   Id.;  see  also United  States  v. De  la  Cruz-                         ___   _________ ________________________________            Paulino, No. 94-1985  (1st Cir. Aug. 3, 1995).  The defendant            _______            must  have taken  some  affirmative  action that  facilitated            violation of   924(c)(1).3   Of course, knowledge that  a gun                                            ____________________            3.  A Pinkerton instruction was never given to the jury, nor                  _________            did the government argue at trial or on appeal that Pinkerton                                                                _________            liability should apply.  See Pinkerton v. United States, 328                                     ___ __________________________            U.S. 640, 646-47 (1946).  We therefore could not support the            convictions on a Pinkerton theory.  See United States v.                             _________          ___ ________________                                         -16-                                          16            would  be carried  is also  required.   See United  States v.                                                    ___ _________________            Torres-Maldonado, 14  F.3d 95, 103 (1st  Cir.), cert. denied,            ________________                                ____________            115 S. Ct. 193 (1994); see  also  United States v. DeMasi, 40                                   _________  _______________________            F.3d  1306,   1316  (1st  Cir.  1994)   (knowledge  that  co-            conspirators  would  be using  a  gun  may be  inferred  from            defendant's  activity in  planning  and attempting  to rob  a            Brink's  armored truck  guarded by  two armed  guards), cert.                                                                    _____            denied  sub nom.  Bonasia v.  United States,  115 S.  Ct. 947            ______  ________  _________________________            (1995).                      The question  here, then, is  whether the  evidence            was  sufficient  to show  that  each  appellant  knew that  a            firearm would be involved in the drug trafficking offense and            took some action in relation to the M-16 that was intended to            cause the firearm to be carried during and in relation to the            drug  trafficking offense.  We believe  that the evidence was            sufficient to convict Pagan-San-Miguel,  Luciano-Mosquera and            Gonzalez-Valentin under this standard, but was not sufficient            to convict Pava-Buelba and Lugo-Maya as to the M-16.                      As  to  Pagan-San-Miguel,   there  was   sufficient            evidence  that  he knowingly  assisted  the  carrying of  the            weapon.  He  was the ringleader of  the importation operation            in  Puerto Rico.  He was a  key participant in the meeting at                                            ____________________            Torres-Maldonado, 14 F.3d 95, 101 (1st Cir.) ("On appeal, we            ________________            will not infer either that the jury found guilt based on a            theory upon which it was not instructed, or that the jury            would have found guilt had it been given a Pinkerton                                                       _________            instruction."), cert. denied, 115 S. Ct. 193 (1994).                            ____________                                         -17-                                          17            Gonzalez-Valentin's  house  during which  he  and Perez-Perez            showed Fontalvo the M-16.   He showed Fontalvo the  weapon at            the meeting  and said they  had brought  it.  The  jury could            certainly infer  that he, or Perez-Perez at  his direction or            with his assistance, procured the  M-16 for purposes of using            it to protect the operation.                      The  evidence  is  also  sufficient  to  show  that            Gonzalez-Valentin  knowingly  assisted  the  carrying  of the            weapon.   Gonzalez-Valentin is  chargeable with  knowledge of            the M-16, since the M-16 was displayed in his presence during            one of  the meetings at  his house  and the jury  could infer            that  he was present.   Moreover, by providing  his house for            the meeting  at which the guns were  displayed and discussed,            Gonzalez-Valentin   assisted   the  substantive     924(c)(1)            offense.                      As  for Luciano-Mosquera, when  viewed in the light            most favorable to the government, the evidence was sufficient            for the  jury to  infer that he  either carried  or aided  in            carrying the weapon  to or  from the beach  and hid the  M-16            under the  jeep at the  time he  hid or had  placed it  there            sometime before the  arrests.  The weapon  was directly above            him  in the undercarriage, no  more than an  arm's span away.            It  was  also placed  up  in  the undercarriage  between  the            chassis and the springs, so clearly someone took  some effort            to  place the weapon there.  He  was at the beach with Pagan-                                         -18-                                          18            San-Miguel  to meet the yawls;  he arrived at  the beach with            Pagan-San-Miguel, who supplied the weapon; magazines from the            M-16 were nearby; beepers were found near the gun (suggesting            a connection between the  gun and the drug offense);  and the            call  tipping  the  conspirators  off that  the  police  were            watching came into  a car phone  in his  car.  This  evidence            supports the  reasonable inference that his  proximity to the            weapon was more than  a mere fortuity.  A jury could conclude            from these circumstances  that Luciano-Mosquera either placed            the weapon in the  jeep before the arrest signals  were given            or  that he  carried the  weapon from  the beach  and hid  it            underneath  the jeep as he was  hiding from the police.  From            these circumstances,  a jury  could reasonably  conclude that            Luciano-Mosquera had  carried the weapon sometime  during and            in relation to  the offense or at least that  he aided in the            carrying of the  weapon during  and in relation  to the  drug            offense.   See United States v. Olbres, No. 94-2123, slip op.                       ___ _______________________            at 17 (1st  Cir. July 26, 1995) (evidence must  be taken as a            whole, in cumulation).                       All of the appellants  have argued that, regardless            of whether  the evidence  was sufficient  to show  aiding and            abetting  "carrying," it  was insufficient  to show  that any            carrying  was  done "during  and  in  relation to"  the  drug            importation  offense.     They  argue   that,  because  their            importation efforts ended  the moment the flares went up, the                                         -19-                                          19            subsequently found  M-16 machine gun could  not have "related            to"  the drug trafficking.   That argument  is inventive, but            wrong.  The jury could easily infer from the discovery of the            weapon in  close proximity to the  offloading operation after            the arrest signals were given that  it had been carried at  a            time when the offense was in progress, particularly  in light            of the evidence that it was brought by the conspirators to  a            planning meeting and shown off,  ammunition for it was  found            nearby,  and  it was  found close  to  the bales  of cocaine.            Further, the legislative history  of the 1984 amendment  to              924(c)  is explicit that where the defendant had a gun during            the  underlying  offense  (even  if  the  gun  had  not  been            displayed),   the   section   is  violated   "if   from   the            circumstances  or  otherwise  it  could  be  found  that  the            defendant intended to use  the gun if a contingency  arose or            to  make his escape."  S. Rep.  No. 225, 98th Cong., 2d Sess.            1, 314 n.10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492                                ____________            n.10; see also  United States v. Feliz-Cordero, 859 F.2d 250,                  ___ ____  ______________________________            254 (2d Cir. 1988).                      In  sum, the  evidence  was  sufficient to  convict            Pagan-San-Miguel,  Gonzalez-Valentin and  Luciano-Mosquera of            carrying  the M-16 on an  aiding and abetting  theory.  Their            convictions on Count 4 are, therefore, affirmed.                      The  evidence  as  to  Lugo-Maya  and  Pava-Buelba,            however, was insufficient to sustain a conviction on Count 4.                                         -20-                                          20            The only evidence the government  presented linking Lugo-Maya            to  the  M-16  was  the  evidence  that  50  rounds  of  .9mm            ammunition for the  Intratec pistol were found  in the yawls.            Evidence of  his involvement  with the Intratec  pistol might            have  been  enough  to show  knowledge  of  the  M-16 on  the            inference that the two firearms were together when the Puerto            Rico-based participants met  to launch the  yawls to the  F/V            Marlyn, and that knowledge of  one supports the inference  of            knowledge of  the other.   There  was  no evidence,  however,            showing that he took  any step to assist the  carrying of the            M-16 in relation  to the drug offense.  Lugo-Maya  was not at            the  meeting  where  the  M-16 was  shown.    The  government            presented  no  evidence  that  Lugo-Maya took  any  steps  to            procure or  otherwise supply the  weapons or ammunition.   He            was also  nowhere near the weapon at  the time of his arrest.            There  was  simply insufficient  evidence  to  show beyond  a            reasonable doubt that he either carried or  aided and abetted            the carrying of the M-16.                      The  government's  only  evidence connecting  Pava-            Buelba to the M-16 was  the fact that he was found  under the            jeep  in which  the M-16  had been  hidden.   Unlike Luciano-            Mosquera, however,  Pava-Buelba was  on the opposite  side of            the  jeep from where the M-16  was found.  Given the darkness            and the  fact that the gun  was stuck up  between the chassis            and  the springs  it is  not reasonable  to infer  that Pava-                                         -21-                                          21            Buelba  saw the weapon when he was  under the jeep.  And also            unlike Luciano-Mosquera, there was no evidence linking him to            the activities in Puerto Rico, specifically the activities on            the beach on the evening of the arrest from which it would be            reasonable  to infer  the requisite  knowledge of  the weapon            before  he hid under the jeep.   Indeed, Fontalvo's testimony            never associated Pava-Buelba with any weapons.    Pava-Buelba            was simply a  load watcher  whose job it  was to observe  and            report  back  to the  Colombian  supplier  about whether  the            cocaine was  successfully delivered.  His  interests were not            the same as the interests of the Puerto Rico-based importers.            The first time he set foot in Puerto Rico  in connection with            this case was when he  arrived at the offloading site  in one            of  the yawls.   There  was no  evidence linking  him to  the            Puerto Rico end of the operation where he would have  been in            a position to know about the specific weapon.  Therefore, the            inference that he knew  about the weapon is much  weaker than            the  inference with  respect to Luciano-Mosquera.   Moreover,            even if there were  evidence sufficient to infer that  he saw            the hidden weapon in  the darkness once he crawled  under the            jeep, given  his disconnection with  the Puerto Rico  side of            the  operation,  such  knowledge   would  have  been  a  mere            fortuity.   Unlike Luciano-Mosquera,  who was  found directly            beneath the  weapon and had substantial  dealings with Pagan-            San-Miguel  during  the hours  before  the  arrest, there  is                                         -22-                                          22            insufficient evidence to  conclude beyond a reasonable  doubt            that Pava-Buelba  hid under the jeep  to be next  to the M-16            with  the  idea that  he  would  carry  it.   In  short,  the            government did  not present  evidence  that Pava-Buelba  knew            about the weapon sufficient to support a   924(c) conviction,            even on an aiding and abetting theory.                      Furthermore, there was no evidence that Pava-Buelba            ever had  actual  possession of  the weapon.   With  Luciano-            Mosquera  lying underneath the gun, it is far from clear that            Pava-Buelba  was  in  a  position to  exercise  dominion  and            control over the  weapon.  Even if his proximity  to the M-16            under the  jeep gave  him sufficient  possession, at  most, a            theory of constructive possession might have been argued.  In            this  case,   however,   the  district   court   specifically            instructed  the  jury  that  a conviction  for  "carrying"  a            firearm could not  be based on constructive possession of the            firearm.   Such  an  instruction sets  the benchmark  against            which  the  sufficiency of  the  evidence  must be  measured.            United  States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992);            _______________________            United  States  v.  Angiulo,  897  F.2d  1169,  1196-97  (1st            ___________________________            Cir.)(appellate   determination   of   sufficiency  must   be            constrained by  trial court's instructions; "otherwise  . . .            we would be  sustaining a  conviction on appeal  on a  theory            upon which the jury was not instructed below"), cert. denied,                                                            ____________            498  U.S.  845   (1990).    While  the  correctness  of  that                                         -23-                                          23            instruction  might  otherwise   be  open  to  question,   the            government did  not object  to the instruction  at trial  nor            does it  argue on appeal  that the  instruction was error.               See  Saylor v. Cornelius, 845 F.2d 1401, 1408 (6th Cir. 1988)            ___  ___________________            (although reversal  due to  a trial  error normally  does not            raise double jeopardy concerns,  double jeopardy bar would be            triggered  where  government  had  failed to  object  to  the            error).                      Issues   of  the   sufficiency   of  the   evidence            necessarily  involve the  tension  between deference  to  the            jury's  role under  the Seventh  Amendment  as the  finder of            fact,  see Olbres,  No.  94-2123, slip  op.  at 18,  and  the                   ___ ______            appellate  court's role  in  providing  meaningful review  of            whether  the government has indeed met its burden of proof of            guilt  beyond   a  reasonable  doubt.       That   burden  is            constitutionally  mandated.   In  re  Winship,  397 U.S.  358                                          __  __  _______            (1970).    The  Supreme  Court  has  said that  the  relevant            question is  whether "after viewing the evidence in the light            most favorable to the prosecution, any rational trier of fact            could have found the essential elements of the crime beyond a            reasonable doubt."   Jackson v.  Virginia, 443 U.S.  307, 319                                 ____________________            (1979) (emphasis removed).    The    difficulty    of   these            questions of  sufficiency of the evidence  to draw reasonable            inferences is  illustrated  in  the  case law.    See,  e.g.,                                                              ___   ____            Stewart  v. Coalter,  48 F.3d  610 (1st  Cir.) (each  of four            ___________________                                         -24-                                          24            courts reviewing a conviction reach  different conclusions as            to sufficiency, culminating in a split decision by a panel of            this  court upholding  the  conviction), petition  for  cert.                                                     ____________________            filed, No. 94-9742 (U.S. June 19, 1995).            _____                      In sum, we believe there was insufficient evidence,            in  light of  the  government's burden  of proof,  to convict            either  Lugo-Maya or  Pava-Buelba of  carrying or  aiding and            abetting  the  carrying  of  the M-16  and  so  reverse their            convictions  on Count 4.   There is no  direct evidence as to            either and an insufficient basis to  draw inferences of guilt            beyond a reasonable doubt.                      2.  Drug Counts.                             ___________                      Gonzalez-Valentin  and Luciano-Mosquera  also raise            sufficiency  challenges on  the drug  counts.   As the  facts            above amply demonstrate,  there was overwhelming evidence  of            each  appellant's  complicity in  the  scheme  to import  the            cocaine  and   of  their  guilt on  the drug  counts.   Their            convictions on the drug counts are affirmed.                       B.  Other Issues Going To The Verdict                          _________________________________                      The appellants4 -- principally  Pagan-San-Miguel --            have raised six other claims of error concerning the district            court's conduct of the  trial:  (1) the limitation  of Pagan-                                            ____________________            4.  Appellants Gonzalez-Valentin and Pava-Buelba have            incorporated all arguments made by the other appellants not            inconsistent with those otherwise made in their briefs.  Our            review of the issues applies therefore to their appeals as            well.                                         -25-                                          25            San-Miguel's cross-examination of  two government  witnesses,            (2)  the  admission of  an  incriminating  statement made  by            Pagan-San-Miguel, (3)  the refusal to grant  a mistrial after            allegedly   improper   remarks  were   made   during  closing            statements, (4) the jury instruction  on   924(c)(1), (5) the            jury  instruction on  the defendants'  flight from  the crime            scene, and (6) the allowance of a read-back of testimony by a            government witness to the jury during its deliberation.  None            of these claims of error provides a ground for reversal.                                         -26-                                          26                      1.  Cross-Examination.                          _________________                      Pagan-San-Miguel complains that the  district court            erred in cutting off his cross-examination into the penalties            Castillo-Ramos would have faced on firearms counts which were            dropped against him.  Pagan-San-Miguel attempted to establish            bias  by showing that the government had been able to procure            Castillo-Ramos'  cooperation  by   deciding  not  to   charge            Castillo-Ramos  under  the  firearms  counts  in  the  second            superseding indictment.    After questioning  on this  topic,            Pagan-San-Miguel  asked  Castillo-Ramos whether  his attorney            had informed  him that if  he had  been "found guilty  of the            possession of  the firearm  during the  commission of  a drug            offense  [he  would be]  sentenced  to  thirty-five years  in            addition to the drug offense."   The district court sustained            an objection  to this question  on the  ground that,  because            defendants  faced  the  same  firearms  charges,  it  was  an            impermissible   attempt  to   inform   the  jury   about  the            defendants' possible punishment on the firearms counts.                        Pagan-San-Miguel claims that this truncating of his            cross-examination impermissibly interfered with his  right to            confrontation  under  the  Sixth  Amendment.    We  disagree.            Pagan-San-Miguel  had  a  sufficient  opportunity  to  expose            potential  biases,  including  any  bias  resulting from  any            benefit   Castillo-Ramos  received   as   a  result   of  his            cooperation.  Pagan-San-Miguel was able to ask Castillo-Ramos                                         -27-                                          27            repeatedly  whether  he  had   received  a  benefit  for  his            testimony.   Any  probative  value of  information about  the            precise number  of years Castillo-Ramos would  have faced had            he been charged  for the  firearms offense was  slight.   The            district  court  properly  decided  that  the  value  of  the            information was outweighed by  the potential for prejudice by            having  the jury  learn  what penalties  the defendants  were            facing.                        Although   cross-examination    is   an   important            component of  a defendant's Sixth Amendment  rights under the            confrontation  clause, a  defendant's right  to cross-examine            witnesses is  not unlimited.   Delaware  v. Van  Arsdall, 475                                           _________________________            U.S. 673,  679 (1986).  A  district court is  entitled to cut            off cross-examination that may  create prejudice or confusion            of the issues, or may be harassing or unduly repetitive.  Id.                                                                      ___            Assuming  that the minimal  constitutional threshold level of            inquiry was allowed, as here, a trial court has discretion in            limiting cross-examination.  A trial court does not abuse its            discretion if  there is  sufficient evidence before  the jury            (absent  the excluded  evidence)  from which  the jury  could            "make a  discriminating appraisal of the  possible biases and            motivations  of the witnesses."  Brown v. Powell, 975 F.2d 1,                                             _______________            5 (1st Cir. 1992),  cert. dismissed, 113 S. Ct.  1035 (1993).                                _______________            That was the case here.                                         -28-                                          28                      2. Pagan-San-Miguel's Incriminating Statement.                         __________________________________________                      Pagan-San-Miguel  argues  that  the district  court            erred by not conducting a hearing out of the jury's presence,            pursuant to Jackson  v. Denno,  378 U.S. 368  (1964), and  18                        _________________            U.S.C.    3501(a),5  to  determine the  voluntariness of  his            incriminating  statements.    Police  Officer  Samuel  Jusino            testified that Pagan-San-Miguel,  while being held  following            his  arrest, told Jusino  that he  "would make  three hundred            thousand  dollars out  of [the  drug venture]" and,  once the            arrest  signals  were given,  "that  he ran  and  hid himself            underneath a metal plank, and if he had found a hole he would            have gone through that place."                        Before the issue of a Jackson v. Denno hearing  may                                            ________________            be raised  on appeal,  the issue  of voluntariness  must have            been  placed  before  the  district  court  in  a timely  and            coherent manner.   See  United States  v. Santiago Soto,  871                               ___  _______________________________            F.2d  200,  201 (1st  Cir.) (failure  to  raise the  issue of            voluntariness in  a way  that would  have  alerted the  trial            judge that a  Jackson v. Denno  hearing was desirable  waives                          ________________            right to  hearing), cert.  denied, 493 U.S.  831 (1989);  see                                _____________                         ___            also  United States  v. Berry,  977 F.2d  915, 918  (5th Cir.            ____  _______________________            1992)  (a  generic  objection  to the  admissibility  of  the                                            ____________________            5.  Section 3501(a) provides, in pertinent part, that            "[b]efore such confession is received in evidence, the trial            judge shall, out of the presence of the jury, determine any            issue as to voluntariness."  18 U.S.C.   3501(a).                                         -29-                                          29            confession was insufficient to  put the court on  notice that            defendant sought a Jackson v. Denno hearing and therefore the                               ________________            court's  ruling was  reviewed for  plain error).   Pagan-San-            Miguel failed to  place the issue  properly before the  trial            court here.                      Pagan-San-Miguel did not specifically object to the            admissibility of the statements on voluntariness grounds.  He            never  specifically requested a  voluntariness hearing during            trial.  He never  raised the voluntariness issue in  his pre-            trial motion  to suppress statements made  to law enforcement            personnel.  He never raised voluntariness in his objection to            the  statement  at  trial.     His  objection  was  a  narrow            foundational one not  going to voluntariness  -- that at  the            time of Officer  Jusino's testimony no one  had yet testified            that  Miranda  warnings had  been  given  to Pagan-San-Miguel                  _______            before  he  made the  incriminating  statements.   The  court            specifically asked Pagan-San-Miguel whether his  objection as            to  foundation was a suppression request and Pagan-San-Miguel            informed  the court  that  it was  not.   Indeed  during  the            colloquy with  the district court over  the testimony, Pagan-            San-Miguel conceded that "there [was] evidence that [Miranda]                                                                 _______            warnings were properly made and there was a waiver."  Given            his  disclaimer  that  he  was  seeking  suppression  of  the            statement  and the  total  absence of  any evidence  that the            statements  were made involuntarily, Pagan-San-Miguel did not                                         -30-                                          30            sufficiently  apprise the  district court  that voluntariness            was an issue.  Thus, Pagan-San-Miguel's claim to a Jackson v.                                                               __________            Denno hearing has been waived.            _____                      There  also is  no  colorable claim  here that  the            district   court   was   nevertheless  obliged   to   hold  a            voluntariness  hearing sua  sponte.   See Santiago  Soto, 871                                   ___  ______    ___ ______________            F.2d at 202  (recognizing, without adopting, a rule that such            a hearing must be given sua sponte under circumstances, "such                                    ___ ______            as  a  defendant's  apparent  abnormal  mental   or  physical            condition, obvious ignorance or lack of awareness," raising a            serious  question over  voluntariness).  At  best, Pagan-San-            Miguel's argument  is that he  was so "shell-shocked"  by the            events  that transpired on the beach that the court must have            been alerted  to the possibility  that he did  not understand            the Miranda warnings  that were given  to him and that,  as a                _______            result, his  statements  made hours  later were  involuntary.            Undoubtedly a defendant who suddenly becomes aware the police            are  on  to him  suffers  a  jolt,  but that  jolt  does  not            incapacity make.                      3.  Remarks During Closing Arguments.                          ________________________________                      Pagan-San-Miguel argues that  certain remarks  made            during  the closing  arguments were  unduly prejudicial.   He            points  to four remarks, one  made by the  attorney for Pava-            Buelba and three  made by  the government.   None provides  a            basis for reversal.                                         -31-                                          31                      Pava-Buelba's  attorney, in  an apparent  effort to            distinguish  his  client  and  to  distinguish  the  firearms            charges from the drug charges,  made the following remarks to            the jury:                           I ask you to please keep in mind that the fact                      that there  are a number of  defendants here [does]                      not mean that they  were all to be treated  as one.                      And the fact that they were being charged with five                      different counts does not mean that you had to find                      them guilty or  innocent or all the  same, but that                      you could  choose  and pick.   And  that you  could                      discern among  the evidence and determine which, if                      any, were guilty of any of the counts charged.                           Some might  be guilty  of one  or more.   Some                      might be guilty of  none.  And I ask  you to please                      be careful  watching the evidence so  that you will                      be able  to  distinguish  between  each  and  every                      individual and each and every count.            Pagan-San-Miguel  objected  to  these  remarks,  arguing they            implied that  Pava-Buelba was guilty of the drug offenses and            thus  implicated the  other defendants.   The  district court            sustained the objection.  Pagan-San-Miguel's later motion for            a mistrial was  denied, but  the court offered  to provide  a            curative instruction, which all  defendants declined.  Pagan-            San-Miguel argues that a curative instruction would have been            pointless and  that the district court  abused its discretion            in refusing to grant a new trial.                      Fatal to Pagan-San-Miguel's claim, however, is that            to "require a new trial, we must conclude . . . that, despite            the instruction,  the misconduct was likely  to have affected            the trial's outcome."  United States v. Capone, 683 F.2d 582,                                   _______________________            585-86 (1st Cir. 1982) (internal  citations omitted).  In the                                         -32-                                          32            context of the full  record, these statements could  not have            had any  impact on the outcome of the trial.  The evidence of            Pagan-San-Miguel's   complicity  on   the  drug   counts  was            overwhelming.   Moreover,  a curative instruction  would have            solved any spillover problem created by the statements.                      Pagan-San-Miguel  also challenges  the government's            statement   that  "Carlos  Pagan-San-Miguel  can't  deny  his            association  with [Fontalvo], that  terrible, terrible person            that was described to you."  Pagan-San-Miguel argues this was            an impermissible  comment from  a prosecutor on  an accused's            failure to testify.  We think it was not.  The government did            not say  that Pagan-San-Miguel "didn't deny his association,"            only  that he  "can't deny his  association."   Even assuming            that this  comment cut too  close to  the line, "there  is no            reason  to  conclude that  the prosecutor  intentionally drew            attention  to  the appellant's  silence  at  trial."   United                                                                   ______            States v.  Taylor, 54 F.3d 967, 980 (1st Cir. 1995).  And the            _________________            evidence  was  otherwise so  overwhelming  that this  comment            could have had no effect on the jury's judgment.  Id. at 977.                                                              ___                      Pagan-San-Miguel's  next two challenges  are to the            government's statements that the firearm found under the jeep            "would be used  to protect  the very cocaine  that was  being            illegally smuggled into Puerto  Rico" and that "Carlos Pagan-            San-Miguel bragged about having bought the firearms."  Pagan-            San-Miguel argues that  the first was  misleading in that  it                                         -33-                                          33            suggested  that  the jury  could  convict  the defendant  for            planning on using the  firearm once it had arrived  in Puerto            Rico, an offense  not charged in the  indictment.  Pagan-San-            Miguel's reading  is strained, at best.   The first statement            was consistent with the evidence and the government's theory.            There is no plausible argument that this statement was likely            to have affected the outcome of the trial or was so egregious            that a  new trial is needed  as a sanction.   See Capone, 683                                                          ___ ______            F.2d  at 587.   While  the second  statement appears  to have            exaggerated the evidence, there was no  objection and it does            not amount to plain error.  See Taylor, 54 F.3d at 977.                                          ___ ______                      4.  Jury Instruction on 18 U.S.C.   924(c)(1).                          _________________________________________                      Pagan-San-Miguel argues that the  court erroneously            instructed the jury  on an essential element  of the firearms            offense,  18 U.S.C.   924(c)(1).   That section requires that            the  defendant  have  carried  the  firearm  "during  and  in            relation  to    .    .   .  [a] drug trafficking crime."  The            district  court, however,  instructed  the jury  that it  was            enough if the defendant knowingly carried the firearm "during            the  commission of  the crime  of drug  trafficking."   In so            doing, the district court appears  to have relied on obsolete            statutory language.   Before 1984,    924(c)(1) provided that            it  was a crime to carry  a firearm "during the commission of            any [federal]  felony."   In 1984, however,  Congress amended            the  language adding the phrase  "during and in relation to,"                                         -34-                                          34            to  make clear  that  the  firearm  must  be  linked  to  the            underlying  felony to come  within the scope  of the statute.            S.  Rep.  No.  224,  supra,  at  312-13,  reprinted  in  1984                                 _____                _____________            U.S.C.C.A.N. at 3490-92.                      Because  Pagan-San-Miguel  did  not  object  to the            instruction,  the instruction  is reviewed  for plain  error.            See Fed. R. Crim. P. 52(b).  Pagan-San-Miguel argues that the            ___            court's use  of  the phrase  "during the  commission of"  was            plain error,  claiming it omitted an essential element of the            offense and it broadened the scope of the conduct under which            the jury could convict.                        The actual  charge given here  undercuts Pagan-San-            Miguel's argument.6   The district court  emphasized that the            carrying  of  the firearm  must  be  linked to  the  specific            underlying  drug  offense  for  which   the  defendants  were            convicted:                        First,  it  must  be  proven  that  a[] defendant[]                      committed a crime of  drug trafficking for which he                                ____________________________                      may  be  prosecuted  in  the United  States.    And                      second, that during the  commission of the crime of                                                             ____________                                            ____________________            6.  Faced with a similar challenge the Ninth Circuit has held            that the change in statutory language was not substantive and            that the requirement that the firearm be linked to the crime            was already implicit in the statute.  "Though the legislative            history does not say so expressly, it strongly implies that            the 'in relation to' language did not alter the scope of the            statute, explaining that the original section was directed at            persons who chose to carry a firearm as an offensive weapon            for a specific criminal act."  United States v. Stewart, 779                                           ________________________            F.2d 538, 539-40 (9th Cir. 1985) (internal quotation            omitted), cert. denied, 484 U.S. 867 (1987).                        ____________                                         -35-                                          35                      drug trafficking the defendant[]  knowingly carried                      ________________                      a firearm.            In light of the  actual instruction given, Pagan-San-Miguel's            attack on the instruction does not rise to the level of plain            error.                        Pagan-San-Miguel also argues  that the  instruction            allowed the  jury to convict  for a crime not  charged in the            indictment because the firearms charge was limited to Count 2            of  the  three drug  counts.   Pagan-San-Miguel  has  not and            cannot  articulate how, in the  context of this  case, such a            possibility created a "miscarriage  of justice" or "seriously            affect[ed] the fairness,  integrity or  public reputation  of            judicial  proceedings".  See  United States v.  Olano, 113 S.                                     ___  _______________________            Ct. 1770, 1779 (1993).                          5.  Jury Instruction on Flight.                          __________________________                      Pagan-San-Miguel  also  argues  that  the  district            court erroneously  instructed the  jury about his  flight and            concealment.  This argument  is meritless.  As long  as there            is an  adequate factual predicate supporting  an inference of            guilt  on the crime charged,  as there was  here, evidence of            the  accused's  flight may  be  admitted  at  trial  to  show            consciousness  of guilt.    See United  States v.  Hernandez-                                        ___ _____________________________            Bermudez, 857 F.2d 50, 52 (1st Cir. 1988).                ________                      6.  Read-Back To The Jury.                          _____________________                      Pagan-San-Miguel  and Luciano-Mosquera  assert that            the district  court committed  error when  it failed  to take                                         -36-                                          36            certain precautions in  allowing the  testimony of  Castillo-            Ramos, the boat captain, to  be read back to the jury  at the            jury's request, during deliberations.  Counsel did not object            to  the procedures  followed; in fact,  what happened  was by            agreement among  counsel.7  To prevail,  defendants must show            plain error.                      It  certainly would  have been  preferable for  the            district  court to have  taken some precautions.   See, e.g.,                                                               ___  ____            United States v. Hernandez,  27 F.3d 1403, 1408-09 (9th  Cir.            __________________________            1994) (reversing a conviction  where district court failed to            take  precautions to  prevent undue  emphasis on  the witness            testimony  that  jury  reviewed during  deliberation),  cert.                                                                    _____            denied, 115 S. Ct. 1147 (1995).  But  counsel did  not object            ______            and  the standard set by Olano  is not met.   In light of the                                     _____            overwhelming evidence  of guilt on  the drug counts  to which            Castillo-Ramos' testimony went, the read-back did  not result            in  a miscarriage  of justice,  nor did  the absence  of such            precautions  seriously  affect  the  fairness,  integrity  or                                            ____________________            7.  The court reporter entered the jury room unsupervised and            read the testimony.  The court gave the jury no cautionary            instructions (i.e., that the testimony was not to substitute            for the jurors' memories, or that the jury should not focus            on one particular aspect of the evidence to the exclusion of            other evidence).  There was no observation of the court            reporter's reading of the testimony to ensure that no            editorializing or slanting was done during the reading.  No            instructions were given to the court reporter to be careful            not to converse with the jurors or otherwise taint their            deliberations and to be careful not to read to the jury            potentially prejudicial side-bar conferences she had recorded            during the course of Castillo-Ramos' testimony.                                          -37-                                          37            public  reputation  of judicial  proceedings.    There is  no            evidence that anything untoward happened in the jury room and            no  reason to  think  the reporter  did  anything other  than            properly read the pertinent portions of the record.                      Pagan-San-Miguel  and  Luciano-Mosquera also  argue            they were never consulted by either of their attorneys or the            court about  whether  they  would waive  their  right  to  be            present during the read-back.  Although the defendant's right            to be present at every stage of the proceedings may be waived            by the defendant,  it is less  clear whether the  defendant's            attorney can waive it.  See Taylor v. Illinois, 484 U.S. 400,                                    ___ __________________            418  &  n.24  (1988).    Nevertheless,  Pagan-San-Miguel  and            Luciano-Mosquera  were present  at  the  time  Castillo-Ramos            actually  gave his  testimony and  so could  "confront" their            accuser.  There was no plain error.                               III.  SENTENCING ISSUES                      A.  Pagan-San-Miguel                          ________________                      Pagan-San-Miguel  challenges  his  sentence on  two            grounds,  neither of which has  merit.  He  asserts he should            not  have been given  a four  level increase  as a  leader or            organizer of  the activity under  3B1.1(a)  of the Sentencing            Guidelines.    See   United  States  Sentencing   Commission,                           ___            Guidelines Manual,  3B1.1(a) (Nov. 1991).   He also argues he            _________________            should have  been given a  downward adjustment of  two levels            for acceptance of responsibility under U.S.S.G.  3E1.1(a).                                           -38-                                          38            Absent a  mistake of law, the  district court's determination            of a  defendant's role may be set aside only for clear error.            United States v.  Tejada-Beltran, 50 F.3d 105,  111 (1st Cir.            ________________________________            1995).  There was no error.                      The  facts  outlined  earlier establish  Pagan-San-            Miguel's  leadership  and   organizational  role.    Fontalvo            testified  that  Pagan-San-Miguel  was "the  land  person  in            charge  of all the merchandise."   Indeed, his  code names in            the  operation were  "Gigante,"  "Padrino," and  "Godfather."            Pagan-San-Miguel's argument  that the court  made no specific            finding that at  least four others were under  his leadership            and control  does not help  him.   It was  obvious that  nine            others, at the least, were involved in addition to Pagan-San-            Miguel.  And "retention of  control over other participants .            .  . is  not  an essential  attribute  of organizer  status."            Tejada-Beltran, 50 F.3d at 113.            ______________                      As   to   acceptance   of    responsibility,   "the            determination of  the sentencing  judge is entitled  to great            deference on review."  U.S.S.G.  3E1.1,  comment. (n.5).  The            fact  that  Pagan-San-Miguel  in  pre-trial  plea  bargaining            unsuccessfully offered to plead guilty  to the drug counts if            certain  conditions were  met does  not provide  a sufficient            basis  to  reverse  the  district court's  decision.    "This            adjustment is not intended  to apply to a defendant  who puts            the government to its burden of proof at trial by denying the                                         -39-                                          39            essential factual  elements of guilt, is  convicted, and only            then admits  guilt and expresses remorse."   U.S.S.G.  3E1.1,            comment.  (n.2).  His argument  is not enough  to reverse the            district    court's   determination   that   he   failed   to            "demonstrate[]  a recognition  and affirmative  acceptance of            personal responsibility for his  criminal conduct."  U.S.S.G.             3E1.1(a);  see also United States  v. Curran, 967  F.2d 5, 7                        ________ ________________________            (1st Cir. 1992).                      B.  Gonzalez-Valentin                          _________________                      Gonzalez-Valentin argues he was a minor participant            and thus  entitled to  a two level  reduction under  U.S.S.G.             3B1.2(b).   The trial judge's determination  was not clearly            erroneous.  See  United States v.  Lopez-Gil, 965 F.2d  1124,                        ___  ___________________________            1131 (1st Cir.), cert. denied, 113 S. Ct. 484 (1992).                             ____________                      Gonzalez-Valentin was at the beach to assist in the            offloading; his  house was  used regularly  to plan the  drug            smuggling; weapons were shown and  discussed at his house;  a            communications  radio was  hidden and  used in  his backyard.            There  was  ample  evidence he  was  more  culpable than  the            average  participant.      See  U.S.S.G.    3B1.2,   comment.                                       ___            (backg'd.).                      C.  Lugo-Maya                          _________                      In addition  to the mandatory sentence  of 30 years            on  Count 4, Lugo-Maya was sentenced  under the Guidelines on            the drug counts,  Counts 1-3.  Lugo-Maya challenges on appeal                                         -40-                                          40            the district court's  calculation of his guidelines  sentence            on the  drug counts.  He argues the court erred in not giving            him two-level reductions each  for being a minor participant,            pursuant   to  U.S.S.G.   3B1.2(b),  and  for  acceptance  of            responsibility,  pursuant to  U.S.S.G.   3E1.1(a).    As  the            district  court properly  found,  Lugo-Maya was  not a  minor            participant -- he supplied  the yawls, sailed one out  to the            mothership, helped to unload the drugs from  the boat, sailed            the drugs to shore and helped unload them to the land.  As to            acceptance of responsibility, Lugo-Maya's claim is factbound,            and  the district  court's resolution  of  it is  not clearly            erroneous.  See United States v. Royer, 895 F.2d  28, 29 (1st                        ___ ______________________            Cir. 1990).  His sentence on the drug counts is affirmed.                            IV. SECTION 2255 MOTION ISSUES                      While  these  consolidated  appeals  were  pending,            Pagan-San-Miguel filed  in the district court  a motion under            28 U.S.C.    2255 to vacate and  set aside his  conviction on            the ground that the  court reporter's delay in providing  him            with a transcript  denied him  his right to  a timely  appeal            and, therefore, deprived  him of  due process of  law.8   The                                            ____________________            8.  Pagan-San-Miguel filed his notice of appeal on August 3,            1992.  Around that time, the court reporter agreed to furnish            the necessary transcripts to Pagan-San-Miguel.  The court            reporter, however, did not provide any transcripts to Pagan-            San-Miguel until mid-1994.  Largely due to the court            reporter's failure to prepare the transcripts, this court            extended the period for briefing the case sixteen times.  On            at least three occasions this court entered Orders to Show            Cause threatening the court reporter with contempt if she did                                         -41-                                          41            district  court denied  the motion.9   On  appeal, Pagan-San-            Miguel argues that this was error.                      Although  extreme delay  in  the processing  of  an            appeal may  amount  to a  due process  violation, and  delays            caused by court reporters  are attributable to the government            for  purposes of  determining  whether a  defendant has  been            deprived of  due process, see, e.g., United States v. Wilson,                                      ___  ____  _______________________            16 F.3d  1027, 1030 (9th  Cir. 1994), mere  delay, in and  of            itself will not give rise  to a due process infraction.   The            defendant must show prejudice.   See United States v. Tucker,                                             ___ _______________________            8 F.3d 673, 676-77  (9th Cir. 1993) (en banc),  cert. denied,                                                            ____________            114 S. Ct. 1230  (1994).  Whether an appellate  delay results            in  prejudice sufficient  to warrant  reversing  a conviction            rests, most  importantly, on a  showing that it  has impaired            the appeal or  the defense in the event of  retrial.  See id.                                                                  ___ ___            at 676.                                            ____________________            not produce the transcripts.            9.  We have held that absent extraordinary circumstances a            district court should not entertain a   2255 motion while a            direct appeal from the same conviction is still pending.             United States v. Gordon, 634 F.2d 638 (1st Cir. 1980).             _______________________            Nevertheless, instead of dismissing Pagan-San-Miguel's motion            as being premature, the district court denied the motion.  In            such a case, we may elect to reach the merits of the   2255            motion.  See United States v. Buckley, 847 F.2d 991, 993 n.1,                     ___ ________________________            1000 n.6 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989);                                      ____________            see also Rule 5, Rules Governing Proceedings in the United            ________            States District Courts Under Section 2255 of Title 28, United            States Code, advisory committee note (1976).                                         -42-                                          42                      There  was no  prejudice.   Although  there was  an            appalling  delay in  preparing the  transcripts, there  is no            argument  they are incomplete  or unreliable.  This  is not a            situation  in  which  the  court  reporter  has  prepared  an            unusable transcript.  Compare Wilson, 16 F.3d at 1031 (record                                  _______ ______            had portion missing or was unintelligible so  that record was            totally  unreliable).   Indeed, Pagan-San-Miguel  only argues            that the delay impaired his ability to present "the strongest            possible evidence  in support  of the appellant's  version of            the  facts"  surrounding  the  read-back  of  Castillo-Ramos'            testimony   to  the  jury.    As  Pagan-San-Miguel  concedes,            however,  no  objection  was  made to  the  district  court's            handling of  the read-back.   And since  Pagan-San-Miguel has            not  shown plain error in this regard, this argument does not            make a difference to his appeal.10                      The order  of the district court denying his   2255            motion is affirmed.                                      CONCLUSION                      The  convictions   and  sentences   of   appellants            Luciano-Mosquera, Pagan-San-Miguel, and Gonzalez-Valentin are            affirmed on  all counts.   The  convictions of  Lugo-Maya and            Pava-Buelba are reversed  on Count 4  and their sentences  on                                            ____________________            10.   Alternatively, Pagan-San-Miguel requests that we set            aside his conviction pursuant to our supervisory powers.             This is not an appropriate case for this court to exercise            its supervisory powers.  See Tucker, 8 F.3d at 676.                                       ___ ______                                         -43-                                          43            that  count  are  vacated.    Lugo-Maya's  and  Pava-Buelba's            convictions and sentences on the drug counts, Counts 1-3, are            affirmed.   The  district  court's order  denying  Pagan-San-            Miguel's   2255 motion is affirmed.  It is so ordered.                                                 ________________                                         -44-                                          44
